Summary

7.1        ALRC recommendations in this chapter focus on reform to community-based sentence regimes to make them more accessible and flexible to provide greater support and to mitigate against breach.

7.2        The sentencing of offenders has been described as being at the core of the criminal justice system.^[1] Each state and territory, and the Commonwealth, have legislation that guides the sentencing process^[2] and all have sentencing regimes that enable courts to order that certain offenders serve their sentences in the community.^[3]

7.3        Community-based sentences have some significant advantages over full-time imprisonment where the offender does not pose a demonstrated risk to the community.^[4] A community-based sentence offers a sentencing court ‘the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender.’^[5]

7.4        Despite the advantages of community-based sentences, Aboriginal and Torres Strait Islander peoples are less likely to receive a community-based sentence than non-Indigenous offenders and, as a result, may be more likely to end up in prison for the same offence.^[6] In addition, even when Aboriginal and Torres Strait Islander people are given a community-based sentence, they may be more likely to breach the conditions of the community-based sentence and may end up in prison as a result.

7.5        This chapter also examines short and suspended sentences of imprisonment,^[7] both of which can be problematic as such sentences do not always address the purposes of sentencing and can have significant negative consequences for the offender. Nevertheless, unless access to community-based sentences is improved, the removal of short and suspended sentences of imprisonment as sentencing options may lead to an even greater number of Aboriginal and Torres Strait Islander offenders going to jail. Improving access to community-based sentences is necessary to reduce the incarceration rates of Aboriginal and Torres Strait Islander offenders. Once community-based sentences are uniformly available, consideration could be given to abolishing short terms of imprisonment and suspended sentences.

Legislative regimes

7.6        While all states and territories have sentencing regimes that enable some offenders to serve their sentence in the community, each regime is different. Table 7.1 sets out in broad terms the categories of sentencing options that do not involve full-time imprisonment in a corrections facility. For simplicity, orders relating to fines and compensation have not been included. Release without conviction orders (and equivalent) have also been excluded.

Table 7.1: Community-based sentencing options in each state and territory (December 2017).

7.7        A brief description of the general features of each order is as follows:

• Bond or probation order: An order of the court that requires an offender to be of good behaviour and not reoffend for a specified period of time. The court can impose conditions that an offender must comply with during the term of the bond.

• Community service order: A sentencing option where the court orders an offender to perform a number of hours of unpaid work for the benefit of the public (or in some jurisdictions complete program hours). An offender may be required to complete unpaid work directly through a community service order or as a condition of a bond or probation order.

• Non-association and place restriction order: Non-association orders canprohibit personal contact and communication between specified people by any means—including post, telephone, facsimile, email or social media. Place restriction orders prohibit the subject from entering specific places or districts for a specified term.

• Intensive order: An emerging rehabilitative-focused sentencing option that generally allows an offender to serve a sentence of imprisonment in the community^[17]—provided they comply with conditions of intensive rehabilitation, supervision, and sometimes unpaid work.

• Drug treatment order: Offenders subject to a drug treatment order have restrictions placed on their freedom of movement and association. Generally, offenders must undergo drug treatment, attend regular meetings, and may have to submit to drug testing, among other conditions.

• Home detention order: Home detention is an alternative to full-time imprisonment whereby an offender is confined to an approved residence for specified periods of time for the duration of the sentence of imprisonment.

• Suspended sentence: A suspended sentence is considered a significant penalty.^[18] Before suspending a sentence of imprisonment a court must be satisfied that a sentence of imprisonment is justified. Once a sentence of imprisonment is imposed, the court may suspend the sentence on condition the offender enters into a bond and complies with all conditions of the bond. In this chapter, suspended sentences are discussed separately to other community-based sentences because of their link to incarceration, particularly for Aboriginal and Torres Strait Islander offenders (see Recommendation 7–4).

7.8        Parole is discussed in Chapter 9. Parole is substantively different to a community-based order, because it typically follows a period of imprisonment and is designed to facilitate a transition from prison back to the community. Nevertheless, as parole requires an offender to submit to supervision by corrective services and to follow conditions, there are some broad similarities with a community-based sentence. Accordingly, where appropriate—for example in the context of the setting of appropriate conditions and provision of appropriate supports to reduce breach—examples that involve parole are used even though they are not a community-based sentence.

Effectiveness of community-based sentences

7.9        Community-based sentences are important in reducing the over-representation of Aboriginal and Torres Strait Islander peoples in prison because they enable an offender to serve their sentence in the community. They are designed to be punitive while fulfilling other sentencing purposes, such as rehabilitation and deterrence (see Chapter 6).

7.10     In addition, research suggests that community-based sentences are more effective in reducing reoffending than a short term of imprisonment. For example, NSW BOCSAR found that offenders receiving an intensive correction order (ICO) had:

significantly lower rates of re-offending than offenders who received a short prison sentence. Using IPTW [inverse probability of treatment weighting] to weigh offenders we found a 31 per cent reduction in the odds of re-offending for those who received an ICO as their principal penalty compared with the short prison group … [W]hen the prison group was restricted to offenders serving a fixed prison term of 6 months or less; that is, those who received no supervision or treatment post release … we found reductions in the odds of re-offending, in favour of the ICO group, of … between 33 and 35 per cent for offenders in the medium to high LSI-R risk categories.^[19]

7.11     This is particularly important for Aboriginal and Torres Strait Islander offenders for whom reducing recidivism is integral to reducing overall contact with the criminal justice system. For example, a 10% reduction in recidivism would reduce the number of Aboriginal and Torres Strait Islander court appearances by more than 30%, with a 20% reduction decreasing the number Aboriginal and Torres Strait Islander people appearing in court by 50%.^[20]

7.12     Studies have shown that intensive community supervision coupled with targeted treatment is one of the most effective ways of addressing the underlying causes of criminal behaviour. Conservative estimates suggest a 10–20% reduction in recidivism is realistic if treatment is carefully and appropriately targeted.^[21]

7.13     Notwithstanding the advantages of community-based sentences, evidence suggests that Aboriginal and Torres Strait Islander offenders are less likely to receive a community-based sentence than non-Indigenous offenders.

7.14     At June 2017, Aboriginal and Torres Strait Islander prisoners represented 27% of the total full-time adult prisoner population, while making up only 2% of the total Australian population aged 18 years and over.^[22] While comprising 27% of the prison population, Aboriginal and Torres Strait Islander persons made up only one-fifth (20%) of the total community-based corrections population.^[23]

7.15     ALRC recommendations in this chapter focus on reform to community-based sentencing regimes to make them more accessible and flexible for Aboriginal and Torres Strait Islander offenders.

7.16     Issues of accessibility and flexibility are interrelated, particularly in relation to offenders with complex needs.^[24] This is because inflexible community-based sentencing regimes are likely to either exclude offenders with complex needs or result in high rates of breach and revocation.^[25] Inflexible community-based sentencing regimes may also have the effect of preventing the imposition of treatment conditions that address the underlying causes of reoffending.^[26]

Remoteness

7.17     One of the reasons that Aboriginal and Torres Strait Islander offenders are less likely to receive a community-based sentence is that those sentences are often not available in many locations and, in particular, in areas outside of metropolitan and inner regional areas.^[27]

7.18     A significant number of Aboriginal and Torres Strait Islander people live in regional and remote communities. The Productivity Commission estimated in 2011, the proportion of Aboriginal and Torres Strait Islander people living outside a regional area or major city was four times that of non-Indigenous people (44% and 11%), with less than half the proportion of Aboriginal and Torres Strait Islander people living in a major city compared to non-Indigenous people (35% and 71%).^[28]

7.19     Remoteness has been tied to higher rates of imprisonment and disadvantage for Aboriginal and Torres Strait Islander people. Up to 80% of the Aboriginal and Torres Strait Islander prisoner population in the NT originate from regional or remote communities.^[29] In 2014–15 the Council of Australian Governments reported that, of all Aboriginal and Torres Strait Islander males aged 35 and above, more than one-in-five (22%) described being incarcerated at some time in their life. The proportion was 16% in metropolitan areas, doubling to 31% in remote areas.^[30]

7.20     Further, in NSW in 2015, ICOs were used much less frequently in remote and very remote regions compared with major cities (out of 1,337 people sentenced to ICOs, the split was 74% sentenced in major cities, 19% in inner regional areas, and 0.6% in remote and very remote areas).^[31]

7.21     In their submission, National Aboriginal and Torres Strait Islander Legal Services (NATSILS) emphasised that:

A lack of alternative community based sentencing options in regional and remote areas has resulted in Aboriginal and Torres Strait Islander people being sentenced to a term of imprisonment which would not have been imposed had they lived in a metropolitan area.^[32]

7.22     According to NATSILS, ‘this is largely because alternatives to incarceration are more readily available in metropolitan areas.’^[33]

7.23     Even in areas where community-based sentences are technically available, significant barriers have been experienced due to limited local opportunities for community service work and appropriate rehabilitation programs (discussed below).^[34] A 2011 review noted that in NSW, ICOs were not being used outside of major cities and regional centres because of:

operational issues in relation to offenders, who would otherwise appear suitable for an ICO, being assessed as unsuitable for reasons such as the unavailability of work in a particular region that the offender could complete; and a lack of availability of rehabilitation programs for an offender with an unresolved drug or alcohol problem, notwithstanding that ICOs were specifically designed to address these issues.^[35]

7.24     The submission from the NSW Government noted in relation to ICOs:

the new ICO^[36] will remove barriers to offenders, including Aboriginal offenders, accessing intensive supervision under the current ICO… For example, the mandatory 32 hour per month work requirement is very difficult for people in parts of rural and regional NSW to comply with, because there is not enough work in those areas to comply with it. In addition, people with mental health and cognitive impairments, substance abuse issues, or who are otherwise unfit, are assessed as unsuitable for the ICO because it is unrealistic to expect them to be able to do this much work per month … The amended ICO will be available throughout NSW, including regional and remote areas where a lack of community service work can lead to short prison sentences rather than community corrections orders being imposed.^[37]

7.25     Where issues related to remoteness limit the usage of community-based sentences, the consequences can be severe, and may result in net widening and penalty escalation.^[38] In submissions to an earlier Inquiry, a solicitor from Far North West NSW noted:

In recent months our firm has represented clients placed on s.12 ‘suspended sentences’ because they lived too far from ‘town’ and were unlicensed, not because they were unsuitable [for a CSO]. The issue here is if a client re-offends at a later time and faces sentence, the court may in its discretion assume the s.12 bond was imposed due to the ‘objective criminality’ of the previous offence as opposed to the lack of an available option. This may have the effect of distorting a person’s criminal history.^[39]

7.26     Previous reviews of home detention have each recommended that the geographical availability of home detention be expanded to cover all of NSW.^[40] Despite these recommendations, submissions to the 2013 NSW Law Reform Commission (NSWLRC) review on sentencing raised the lack of sufficient geographical coverage of home detention as an ongoing issue.^[41] Practical barriers identified in regional and remote areas preventing access to home detention include lack of supervision, and issues around telephone monitoring for offenders without a landline.^[42]

7.27     In relation to home detention and ICOs, Mission Australia submitted to this Inquiry:

Recent research demonstrates that alternatives to detention are not used as effectively as they could be, particularly for Aboriginal and Torres Strait Islander people … [NSW BOCSAR] identified that the most common offences committed by Aboriginal and Torres Strait Islander people were Assault ABH, Intimidation/Stalking, Common Assault, Breaching a s.12 Bond, Breaching an AVO and Breaching a s.9 Bond. They note that despite the benefits of home detention and Intensive Correction Orders (ICOs) in reducing recidivism, these methods are not often used for these offences. In 2015 no Aboriginal or Torres Strait Islander person convicted of one of these offences received home detention. … If just half of the Indigenous offenders given a prison sentence in 2015 for one of the [above] offences … had instead been given an ICO or home detention, 689 fewer Indigenous offenders would have received a prison sentence.^[43]

Working with regional and remote communities

7.28     In order to expand the availability of community-based sentencing options in rural and remote areas additional resources will be required. When considering the principle of equality before the law—a founding principle of the rule of law—those funds should be provided expeditiously.^[44] The type of sentence a person receives should not be determined by where they live.

7.29     Resourcing alone will not be sufficient. The NSW Public Defenders have previously argued that:

What works in metropolitan centres will often be unviable or inappropriate in remote settings. It is in this context that local representatives should be consulted to a greater extent to determine what is feasible and appropriate for their areas, thereby putting the community element back into community sentences not merely at the execution stage, but also in the planning process, although this may require greater flexibility in approach than has previously been the case.^[45]

7.30     Accordingly, one way of expanding the availability of community-based sentencing options in non-metropolitan areas involves working with regional and remote communities to expand the range of programs and services that support offenders serving community-based sentences.

7.31     This would mean that, where community services or work placements are provided to Aboriginal and Torres Strait Islander offenders serving a community-based sentence, then ideally the local Aboriginal and Torres Strait Islander community should administer them and, where this is not possible, they ‘should have some input into the cultural aspects that need to be included in a program’.^[46] Such an approach was integral to a number of recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC),^[47] and in particular, Recommendation 113:

Recommendation 113

That where non-custodial sentencing orders provide for a community work or development program as a condition of the order the authorities responsible for the program should ensure that the local Aboriginal community participates, if its members so choose, in the planning and implementation of the program. Further, that Aboriginal community organisations be encouraged to become participating agencies in such programs.^[48]

7.32     This approach is also consistent with the recommendations of the NSW Legislative Council Standing Committee on Law and Justice’s 2006 review of community-based sentences.^[49] The ALRC notes a ‘place-based’ approach was again advocated for in 2017, through the recommendations of the Royal Commission into the Protection and Detention of Children in the Northern Territory, which emphasised the need for implementing ‘local solutions for local problems’.^[50]

7.33     Submissions to this Inquiry were highly supportive of Aboriginal and Torres Strait Islander communities taking a greater role in the design, implementation and staffing of services and programs that could form part of a community-based sentence.^[51] NATSILS argued that:

Consultation in developing alternative community based sentencing options must focus on the expertise and knowledge that Aboriginal and Torres Strait Islander communities and organisations have in relation to unmet need for community based sentences. It is essential that community based sentences are designed and driven by community and supported if necessary by community correction officers and other appropriate support structures. It is essential that resources are provided to communities and their representative organisations to obtain their free, prior and informed consent before adopting [or] developing alternatives … so … engagement is able to be facilitated.^[52]

7.34     The submission by the NSW Bar Association drew attention to the NT Department of Attorney-General and Justice’s 2016 Hamburger Report on the need for a community-level approach to justice by states and territories which empowers Aboriginal and Torres Strait Islander people to be ‘part of the solution to their gross over-representation’:

Working with communities means empowering communities to help themselves. It means bringing everyone to the table—not just the policy makers or service providers but representatives of all sections of the community. It means working within an appropriate framework, recognising that there is something or things that work well in every community, helping the community to identify and build on those strengths. It also means working with the community and providers of services and programs to achieve a joined-up-approach to service delivery in, and with, the community.^[53]

7.35     The submission from the Criminal Lawyers Association of the Northern Territory (CLANT) noted that:

It is imperative that any funding for infrastructure or programs must be guaranteed for 3 to 5 year periods, to allow for better staff retention, development of expertise by those running the program, and to enable those programs to earn the trust of the ATSI community.^[54]

Implementation

7.36     The ALRC recognises that there are a number of practical matters that need to be overcome to effectively implement community-based sentences across the country including:

• occupational health and safety (OH&S) and public liability concerns;
• reluctance in some communities to participate in community-based sentencing schemes;^[55]
• the difficulty of attracting qualified staff in some regional and remote communities,^[56] particularly in relation to support services;
• supporting greater integration and information sharing between Aboriginal and Torres Strait Islander communities and community corrections staff;^[57] and
• provision of accessible, available and legal transport in regional and remote areas. ^[58]

7.37     Electronic supervision may assist in the practical implementation of community-based sentences.^[59] In particular, it may aid offenders to meet reporting obligations, particularly in rural and remote communities where distance and lack of transport makes in-person reporting impossible or overly arduous. One example of electronic supervision is ‘supervision kiosks’, which are ‘automated machines … to which supervisees can report in lieu of in-person reporting to a probation, parole or pretrial supervision officer’.^[60]

Suitability requirements

7.38     Expanding the availability of community-based sentences to individuals with complex needs would reduce the imprisonment of Aboriginal and Torres Strait Islander offenders in two ways: directly as an alternative sentence to imprisonment, and in the longer term by reducing recidivism.^[61]

7.39     Aboriginal and Torres Strait Islander offenders are more likely than their non-Indigenous counterparts to have complex needs and experience multiple forms of disadvantage such as childhood and ongoing trauma, homelessness or unstable housing, marginal histories of employment, illiteracy, innumeracy, mental health issues, alcohol or drug dependency and cognitive impairment.^[62] However, such individuals are often found ineligible for a community-based sentence. As a result they are likely to be given a sentence of imprisonment or a sentence that increases the risk of imprisonment in the longer term.^[63]

7.40     This is despite the fact that community-based sentences are likely to be particularly beneficial for offenders with complex needs—if tailored appropriately—due to the success of treatment combined with supervision in responding to the factors contributing to, and supporting, offending behaviours.^[64] Shopfront Youth Legal Centre have previously recognised this as a key benefit of community-based sentences:

The flexibility of community based sentences and their ability to address the root causes of the offending makes them ideally suited to disadvantaged offenders. The only disadvantage of community based sentencing is that some options are not widely available to disadvantaged offenders.^[65]

7.41     Unstable housing, homelessness and substance abuse issues have tended to exclude offenders from accessing home detention.^[66] In NSW, community service work has been identified as the ‘key barrier’ preventing access to community-based sentences which have a mandatory work component—such as ICOs and CSOs—in relation to offenders who have a cognitive impairment, mental illness, substance dependency, homelessness or unstable housing.^[67] This is because, as the NSWLRC stated:

substance dependency or [a] significant mental health issue … might give rise to work safety issues (both for the offender and for co-workers). Additionally any instability—in terms of housing, substance dependency, cognitive impairment or mental health—can mean that the offender will be considered unlikely to comply with the work component.^[68]

7.42     Submissions to this Inquiry noted the importance of availability of non-custodial options that do not exclude female Aboriginal and Torres Strait Islander offenders with childcare and parenting responsibilities.^[69] Female Aboriginal and Torres Strait Islander prisoners are a group known to experience high rates of trauma and have complex needs—with up to 80% being mothers.^[70]

7.43     On this issue, the Women’s Legal Service NSW submitted that:

There should be an increased focus on rehabilitation and alternatives to custody for women offenders …

Rule 64 of the Bangkok Rules stipulates that “Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger …”

Women tell us they want to be able to access safe, stable long-term housing and long-term drug and alcohol rehabilitation programs. We submit such support would in some cases prevent offending as well as reduce recidivism.^[71]

7.44     Legislation may exclude offenders who commit certain types of offences from receiving a community-based sentence. Where offences are excluded by legislation, the types of offences excluded under some community-based sentencing regimes may be contributing to Aboriginal and Torres Strait Islander offenders being under-represented as recipients of community-based sentences compared to imprisonment.^[72] The NT and SA, for example, have restrictions on the types of offences that attract a suspended sentence, including violent offences.^[73] The effect of these eligibility criteria is that Aboriginal and Torres Strait Islander people may be sentenced to short terms of imprisonment when they commit low-to-mid range violent offences—a criminal justice response which is unlikely to aid in terms of rehabilitation or reducing reoffending.^[74]

7.45     Public Defenders NSW have previously noted:

There are … differences in indigenous patterns of offending which may account for some of the disproportion in the range of offending (for example, indigenous offenders are more likely to commit personal violence offences, which are less likely to be considered suitable for community based sentencing), but we would suggest that significant developments could nevertheless be made in this area, especially by using community sentences instead of short prison terms of imprisonment … We would therefore exhort that increasing the availability and use of community sentences for indigenous offenders be considered a matter of the highest priority.^[75]

7.46     Evidence previously provided by a member of the Probation and Parole Officers’ Association highlighted the cyclical nature of offending committed by people excluded from community-based orders:

Because [prisoners serving short terms] are in gaol for less than six months they cannot access the programs that are available in custody because—I suppose it is quite ironic—they are not in gaol for long enough. So they go in, they are temporarily contained, they come out, nothing has changed so they reoffend. They just keep clicking through the turnstiles. This is the population that we most need to target. Many of them are Aboriginal. We have in NSW an embarrassingly large proportion of Aboriginal offenders, in particular Aboriginal women, in custody.^[76]

7.47     Similarly, Shopfront Youth Legal Centre have stated that the exclusion of violent offenders from community-based sentences operates unfairly against Aboriginal and Torres Strait Islander offenders and ignores the broader social context in which the offending takes place:

While we do not suggest that violent offences are a trivial matter, we believe that such exclusions operate unfairly against particular groups in the community, such as indigenous offenders. It is an unfortunate fact that many indigenous communities are beset by violence, which is often alcohol related … In order to break the cycle of violence which is often linked with poverty and disadvantage, the eligibility criteria must be broadened.^[77]

Combining treatment and work requirements

7.48     The Victorian experience of community correction orders (CCOs), introduced in 2012, suggests that the imposition of unpaid community work in combination with rehabilitation and treatment services can work.

7.49     In 2015, unpaid community work and community rehabilitation and treatment were imposed by the Magistrates’ Court in about 75% of CCOs, with community assessment and treatment, unpaid work, and supervision being the most commonly imposed combination of conditions.^[78] In the intermediate and superior courts, between May and December 2015, assessment and treatment were imposed in 87.9% of CCOs and unpaid work in 85.6% of CCOs.^[79] This suggests that the existence of drug or alcohol dependency or other complex needs does not automatically exclude offenders from accessing community-based sentences with a work component, so long as appropriate support is identified and provided where needed.

Pre-work programs for offenders with complex needs

7.50     Another approach to addressing the issue of suitability assessments excluding access to community-based sentencing options is that ‘pre-work’ or ‘work-ready’ programs be made available to offenders with complex needs who are sentenced to some form of community service work. These programs would allow corrective services to address—prior to commencement of community service requirements—an offender’s drug or alcohol dependency, illiteracy, lack of work training, or other issues which currently prevent access to community service.^[80]

7.51     Such an approach has been endorsed by the NSWLRC, Corrective Services NSW and the NSW Sentencing Council, with the NSWLRC noting:

The high level of illiteracy and innumeracy and consequent marginal histories of employment within the prison population is of serious concern. The provision of basic vocational and pre-vocational training can have a significant rehabilitative effect, not only in improving self-esteem but also in opening the way for employment. Counting participation in intervention programs, educational and literacy/numeracy programs, counselling or drug treatment towards the work hours requirement would, in our view, be an effective and appropriate method of expanding access [to community-based sentences] … Work and Development Orders, which are used as a fine enforcement option under the Fines Act 1996 (NSW), already provide one example of this in practice.^[81]

7.52     Allowing an offender to meet the condition of their community-based sentencing by participating in mental health treatment, drug or alcohol counselling, vocational or pre-vocational training, and other life skills courses aligns with a number of recommendations of the RCIADIC,^[82] in particular Recommendation 94:

Recommendation 94

(a) Sentencing and correctional authorities should accept that community service may be performed in many ways by an offender placed on a community service order; and

(b) Consistent with the object of ensuring that offenders do not re-offend, approval should be given, where appropriate, for offenders to perform Community Service work by pursuing personal development courses which might provide the offender with skills, knowledge, interests, treatment or counselling likely to reduce the risk of re-offending.^[83]

7.53     Submissions to this Inquiry were supportive of an approach that would allow offenders with substance dependency issues, cognitive impairment, poor mental health or physical disability greater access to community-based sentencing options.^[84]

7.54     JustReinvest NSW stated:

Rather than exclude these offenders, the mandatory conditions could be tailored to address the underlying causes of offending and expanded to include orders to attend rehabilitative programs or violent offender programs, as an alternative to the work component.^[85]

7.55     Similarly, Dr Thalia Anthony noted:

There should be greater availability of programs in regional and remote communities and more appropriate programs for Indigenous people, including the distinct needs of Indigenous women, Indigenous youths or elderly and Indigenous people with disabilities. Work should be oriented towards developing the individual’s skills or education that can build the capacity.^[86]

7.56     The NSW Attorney General Mark Speakman has noted, in relation to sentencing reforms due to commence in NSW 2018:

home detention orders and intensive correction orders [are both sentencing options that] give offenders intensive supervision that tackles their offending behaviour. However, at the moment these orders have structural issues that stop many offenders with complex needs from accessing these orders and, instead, they are given short prison terms or suspended sentences. These sentencing reforms will help offenders receive the supervision and programs that address their offending behaviour, resulting in less crime and fewer victims.^[87]

Fulfilment of sentence requirements through treatment and programs

7.57     Adopting some aspects of the NSW Work and Development Order (WDO) scheme has been suggested by the NSWLRC as an option to improve the availability of community-based sentences. Under such a proposal offenders could satisfy community-based sentence requirements through participation in community service work, medical or mental health treatment, education, vocational or life skills courses, financial or other counselling, drug or alcohol treatment, or any combination of these activities.^[88]

7.58     A 2015 independent evaluation of the WDO program, found that 95% of work sponsors said the scheme had helped reduce the level of stress and anxiety their clients felt about their fines debt—with 87% saying the scheme had enabled clients to address the factors that made it hard for them to pay or manage their debts in the first place. Most clients received no further fines during their participation in the scheme.^[89] Key client outcomes noted in the WDO evaluation included:

• engagement with counselling and treatment services that otherwise would not have occurred;
• incentive to commit to drug and alcohol recovery;
• benefits derived from a case management approach; and
• modelling of better relationships with government agencies.^[90]

Flexibility to tailor

7.59     Research has consistently shown that the level of intervention under a sentence served in the community should be proportionate to the risk level of the offender.^[91] To achieve this, the sentencing regime for sentences served in the community needs to be as flexible as possible so that an individual sentence can be tailored by the judicial officer.^[92]

Existing challenges

7.60     The inflexibility of existing community-based sentencing regimes may be increasing the use of sentences of imprisonment over other alternatives to full-time custody.

7.61     For example, in Queensland, there are restrictions on placing conditions on suspended sentences—including attendance at rehabilitation or treatment programs. This is because courts are unable to impose conditions on a suspended sentence, other than a condition that the offender not commit another offence punishable by imprisonment during the term of the order.^[93]

7.62     In Queensland, sentences of imprisonment served entirely on parole have increased as a result of both restrictions on, and the lack of flexibility of, existing community-based sentencing options.^[94]

7.63     The perceived lack of flexibility of community-based orders in Queensland has potentially adverse consequences, including increasing the size of the prison population,^[95] as well as increasing the usage of parole in situations where an offender has spent no time in prison and thus has no need for prison-to-community reintegration.^[96]

7.64     WA has the additional option of a conditional suspended imprisonment (CSI) order, which must contain at least one program, supervision or curfew requirement.^[97] The submission by Legal Aid WA raised concerns in relation to the perceived inflexibility of CSI orders—which under current legislation can only be made in Perth-based specialist courts^[98]—and submitted that they be available statewide.^[99]

7.65     As noted above, submissions to this Inquiry have pointed to the importance of flexible and accessible non-custodial options for Aboriginal and Torres Strait Islander women with childcare and parenting responsibilities.^[100]

7.66     The Women’s Legal Service NSW submitted that:

Imprisonment of women and particularly pregnant women and women caring for children should be as a last resort. Flexible and accessible, non-custodial alternatives to prison should be available throughout all states and territories, including in rural, regional and remote areas.^[101]

7.67     The NSW Legislative Council Standing Committee on Law and Justice has also noted that Aboriginal and Torres Strait Islander women face ‘particular difficulties’ within the criminal justice system generally; that ‘non-custodial sentencing alternatives are not being utilised for Aboriginal women’;^[102] and that:

community-based sentencing options may be effectively denied to women because of an absence of suitable work, alternative child care arrangements are not available, or public transport is inaccessible.^[103]

Improving flexibility

7.68     Stakeholders to this Inquiry supported granting judicial officers greater flexibility to tailor community-based sentences, particularly in order to promote greater use of alternatives to full-time imprisonment, and to allow for the imposition of treatment and programs which aim to address underlying criminogenic factors.^[104]

7.69     Judge Stephen Norrish submitted that:

Greater flexibility [is required] for making sentencing orders and more alternatives to ‘full’ time imprisonment—such as:

(a)           where terms of imprisonment are imposed diversion of offenders from remote and semi remote communities from ‘gaol’ custody to ‘custodial settings’ within or near communities, such as group residences under Corrective Services supervision i.e. gaols without bars for suitable inmates.

(b)          community service/community employment orders as conditions of other community based supervision— such as good behaviour bonds.

(c)           power to order particular types of community work.

(d)          periods of residential rehabilitation in lieu of periods of imprisonment.^[105]

7.70     Similarly, NSWLRC noted suggestions to increase flexibility from stakeholders in their 2013 Sentencing report. ^[106]

7.71     In contrast, Australian Lawyers for Human Rights (ALHR) stressed the importance of ensuring the availability of community-based sentencing options, but did not see a need for greater flexibility to tailor:

Other than the abolition of mandatory and presumptive sentencing, and an increase in the availability of community based sentencing options, ALHR is of the view that the wide scope of the sentencing judge’s discretion provides sufficient flexibility to tailor sentences appropriate for Aboriginal and Torres Strait Islander people.^[107]

The Victorian approach

7.72     The ALRC suggests that the Victorian CCO regime represents an example of a sentencing model that allows for flexibility in both the sentencing structure and the imposition of conditions.^[108]

7.73     There is evidence that the CCO regime is potentially contributing to reductions in recidivism in Victoria. Recent crime statistics show a general decrease in crime in Victoria.^[109] In particular, crime decreased for those offences that Aboriginal and Torres Strait Islander offenders have been most likely to be imprisoned for.^[110]

7.74     The maximum length of a CCO imposed in the County or Supreme Court of Victoria for one or more offences is five years. In the Magistrates’ Court, a single CCO can be imposed for a maximum of two years (in relation to one offence), four years (in relation to two offences) and five years (in relation to three or more offences).^[111] An offender who breaches a condition of a CCOs may be resentenced for the original offence and may face up to three months additional imprisonment for the breach.^[112]

7.75     As part of a CCO, the court must impose at least one additional condition of either unpaid work, treatment, supervision, non-association, residence restriction, place exclusion, curfew, alcohol abstinence, a bond condition, or a judicial monitoring condition.^[113] This encourages the judicial officer determining the sentence to consider which condition(s) are likely to best achieve sentencing purposes, such as community safety, punishment and rehabilitation of the offender, in a manner which is proportionate to the level of offending.^[114]

7.76     The Victorian Court of Appeal in Boulton noted that the flexibility of the CCO as a sentencing option was a key factor in a CCO meeting multiple sentencing purposes and responding to a wide range of offending.^[115]

7.77     The Court of Appeal further stated:

the Attorney-General submitted [that] the CCO is intended to be available in serious cases where an offender may be at risk of receiving an immediate custodial sentence, but the Court considers that immediate custody is not necessary to fulfil the statutory purposes of sentencing given the range of options provided by a CCO. In this sense, the Attorney submitted, the CCO has ‘the robustness and flexibility to be imposed in a wide variety of circumstances’. We agree.^[116]

7.78     Section 5(4C) of the Sentencing Act 1991 (Vic) further reinforces the ability of the CCO to respond to a wide range of offending:

Section 5—Sentencing Guidelines

(4C)     A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order … to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.^[117]

7.79     Conditions referred to in subsections 48F–48J of the Sentencing Act 1991 (Vic) are non-association, residence restriction or exclusion, place or area exclusion, curfew, and alcohol exclusion. The purpose of s 5(4C) has been described as ‘intend[ing] to ‘highlight’ the punitive potential of a CCO’.^[118]

7.80     The Victorian Court of Appeal described the effects of s 5(4C) on the sentencing regime in that jurisdiction:

What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to: (a) the purposes for which sentence is to be imposed on the offender; and (b) whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached. … The sentencing court should ask itself a question along the following lines: Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?^[119]

7.81     Victoria’s CCO regime is not unique. There are many features of the Victorian regime in other states and territories which each have sentences that may be served in the community under conditions that include supervision, community work and other therapeutic and punitive conditions as a court may consider appropriate.^[120] NSW amended its sentencing legislation in October 2017, incorporating many of the features of the Victorian regime.^[121] On 25 October 2017, the Queensland Government released Terms of Reference directing the Queensland Sentencing Advisory Council to conduct an inquiry with regard to

the observations made in the [2016 Queensland Parole System Review] regarding the lack of flexibility of community based sentencing options available to a court and the likely adverse impact this has upon the prison population and the need to improve Queensland’s sentencing laws.^[122]

7.82     Unlike in Victoria, other states and territories generally have two tiers of community-based orders: the first tier applies in cases where a court considers a sentence of imprisonment would normally be required in the circumstances; the second tier applies in circumstances where the court considers a penalty lesser than imprisonment would normally be imposed.^[123] This process of deciding whether or not offending is such that it would normally require a sentence of imprisonment, can limit the flexibility that a court may have in setting the scope and conditions of the order—reflecting that the two orders are designed to serve different purposes. In Victoria, the characterisation of the CCO as a ‘non-custodial’ order that applies to offending that would require a sentence of imprisonment in other states and territories, adds flexibility in the design and scope of the conditions that attach to the order.^[124] It is not a substitution for imprisonment as it is in states that have custodial community-based orders such as NSW, Queensland and WA where the correction order is served in lieu of a sentence of imprisonment that has otherwise been determined to be appropriate.^[125]

7.83     The Victorian model enables a community-based sentence to be applied over a longer period. In Queensland a court may only order an intensive correction order where it has sentenced an offender to a term of imprisonment for one year or less.^[126] In WA, an intensive service order may only be made for a period between 6 months and two years.^[127] The nature of the conditions and the ability to mix therapeutic and punitive conditions give the greatest flexibility in Victoria.^[128] For example, Queensland’s intensive correction order has a presumption that offender requirements be split into one-third treatment or programs and two-thirds unpaid community work,^[129] whereas the Victorian CCO regime has no such presumption, providing greatest flexibility to judicial officers in emphasising punishment, deterrence, rehabilitation or denunciation according to the specific circumstances of the case.

7.84     The Victorian CCO regime also allows for judicial officers to ‘mix-and-match’ an initial short term of imprisonment with the imposition of a lengthier CCO—a feature which the Court of Appeal considered:

adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending.^[130]

7.85     Notwithstanding this flexibility, the Victorian CCO regime excludes a limited number of offences, including ‘causing serious injury in circumstances of gross violence’, aggravated home invasion or carjacking, and certain offences against emergency workers and custodial officers on duty.^[131] The NSWLRC has recommended that, in relation to ICOs, no offences be excluded other than murder, domestic violence offences committed against a likely co-resident,^[132] and offences carrying a penalty of more than five years under Part 3 Divisions 10 and 10A^[133] of the Crimes (Sentencing Procedure) Act 1999 (NSW), stating:

Broad-based generic exclusions do not seem to be necessary for retaining public confidence in sentencing. … Rigid exclusions that pay no regard to the objective circumstances of the case, or to the subjective circumstances of the offender, can operate to inappropriately limit the sentencing discretion that is important for a viable sentencing system. We also recognise that crimes in the most serious category of offending are most unlikely to attract sentences that would be sufficiently short to qualify for an ICO or home detention. As a consequence their generic exclusion is unnecessary.^[134]

7.86     The ALRC notes that the incoming NSW sentencing reforms due to commence in 2018—which will abolish home detention and suspended sentences, combine bonds and CSOs into a single order known as a community correction order, and retain a modified version of the ICO—retain previous offence exclusions in relation to ICOs, but appear to have no offence exclusions in relation to the community correction order (which is to replace good behaviour bonds and community service orders).^[135]

Resourcing flexibility

7.87     The Victorian Department of Justice’s Annual Report 2016–17 and the Victorian Auditor-General’s report Managing Community Correction Orders illustrate the resourcing difficulties that are likely to arise if demand for community services under community-based sentencing options significantly expands. The Annual Report 2016–17 noted that in relation to the completion rate of CCOs:

Performance in 2016–17 has decreased due to a combination of factors, including growth in offender numbers and a more complex cohort of offenders following the abolition of suspended sentences. Additional investment in CCS [Community Corrective Services] from 2016–17 is expected to result in improved outcomes in future years, including an improved successful completion rate.^[136]

7.88     The Auditor-General’s report found that demand for services in 2015–16—with up to 85% of CCOs imposed having an alcohol or drug program condition attached to their sentence—had led to delays and an average of 20 business days’ wait for offenders to access community alcohol and drug services.

7.89     The Auditor-General stated:

The number of CCOs with rehabilitation conditions is increasing due to there being more offenders in the system and more CCOs with multiple conditions. This has led to increasing demand for support programs and services which, in turn, has led to offenders facing significant wait times when trying to access programs. … Almost 40 per cent of serious risk offenders on the OBP [offending behaviour program] screening priority list waited more than three months for a pre-assessment screening. For mental health conditions, some offenders on CCOs may have to make a gap payment for their treatment, which can prevent or discourage them from participating.^[137]

7.90     The Victorian experience demonstrates the importance of ensuring community services are sufficiently well-resourced to be able to quickly address newly sentenced offenders who have drug and alcohol issues, mental health issues, or other treatment needs. As was noted by the Sentencing Advisory Council (Vic) in their 2017 report:

The period immediately after a CCO commences proved to be critical in terms of managing an offender’s risk of reoffending. Nearly half (44%) of offenders who contravened their CCO by further offending did so within the first three months of their CCO commencing. Four per cent reoffended in the first week and 18% reoffended in the first month. Over nine out of 10 contraventions by further offending (92%) occurred within the first 12 months of commencement. These findings highlight how crucial it is to actively engage offenders early during their CCO.^[138]

7.91     There are no remote communities in Victoria,^[139] and consequently other states and territories that move towards a Victorian CCO approach are likely to have additional resourcing issues that are amplified by remoteness.

Resourcing

7.92     Recommendation 112 of the RCIADIC stated:

Recommendation 112

That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population.^[140]

7.93     This remains a problem today. Even where intermediate sentencing options are technically available, research from NSW demonstrates that a significant number of offenders on supervised bonds do not receive the services, support and supervision required for rehabilitation due to cost, long waiting lists and unavailability of services.^[141] This suggests that improvement to provision of community-based sentences will require changes in community corrections practice and state and territory government resourcing of community infrastructure.^[142]

7.94     Stakeholders to this Inquiry supported greater resourcing of community supports and programs—particularly in regional and remote communities where a lack of these supports and programs presents a barrier to Aboriginal and Torres Strait Islander people accessing community-based sentences.^[143] For example NATSILS submitted that:

Many Aboriginal and Torres Strait Islander peoples subject to community based orders are “not able to access services designed to address the core reasons for their offending behaviour” such as counselling or mental health services which may not be available in remote communities.^[144]

7.95     Improving compliance with the conditions attached to a community-based sentence is integral to reducing the incarceration of Aboriginal and Torres Strait Islander peoples.

7.96     In 2015–16, Aboriginal and Torres Strait Islander offenders sentenced to a community correction order were 12.5% less likely than non-Indigenous offenders to complete their order,^[145] and Aboriginal and Torres Strait Islander offenders constituted a larger proportion of the cohort imprisoned for breaching a condition of their community-based sentence.^[146] This has been attributed, in part, to a lack of culturally appropriate non-custodial sentencing options and supports to facilitate completion of such sentences.

7.97     Research suggests that compliance with community-based orders would increase if programs and conditions were relevant to Aboriginal and Torres Strait Islander offenders and if offenders were given greater support.^[147] In addition, stakeholders to this Inquiry suggested that Aboriginal and Torres Strait Islander offenders were breaching their order because of inappropriate conditions and programs while under sentence, combined with a lack of support.^[148]

Circumstances related to breach of community-based sentences

7.98     In the Discussion Paper, the ALRC outlined the circumstances of a woman known as AH who was the subject of a judgment in AH v Western Australia.^[149] In this case, a young illiterate and innumerate adult Aboriginal woman with complex needs, including cognitive impairment and serious mental health issues, was sentenced to a community-based order following a short history of stealing cars. Under the order, the woman (AH) was to receive support from services and undergo treatment. AH had been suffering physical and mental abuse, had never been employed, was itinerant—living between two regional towns—and was unable to name all the months in a year, tell the time, and could not name the seasons. Services were not provided by corrective services as directed by the court under the order. AH was, however, subjected to requirements to report at particular times. AH did not comply, and subsequently stole another car. AH was sentenced to a further community-based order, under which services were again not provided, and AH again reoffended.

7.99     In relation to this case, the Aboriginal Legal Service WA (ALSWA) noted that:

This young Aboriginal woman with extremely complex needs was not provided with any services or support yet [AH] was expected to report to her community corrections officer at regular times. … ALSWA highlights that after AH was placed on her second community-based order by the District Court, for the subsequent six weeks she ‘was spoken to only once’ by her community corrections officer and this was immediately after the order was imposed. The Court of Appeal observed that while ‘the various agencies involved communicated with each other during that period, none of them actually did anything to provide any form of support or assistance to AH, who then reoffended’. ALSWA has experienced this in other cases; where government and non-government agencies communicate and ‘collaborate’ about a particular ‘client’ but little is done with them or for them.^[150]

7.100  The circumstances of AH’s case highlight some of the factors that may affect compliance by Aboriginal and Torres Strait Islander offenders with the conditions of community-based sentences, including:

• cultural and intergenerational factors that may result in transience and homelessness;
• the lack of a coordinated service response in regional areas, and a lack of available services, particularly culturally appropriate services for Aboriginal and Torres Strait Islander women;
• corrective services or other decision makers not setting relevant conditions and reporting requirements that are underpinned by the provision of services; and
• the impact of offenders’ mental health or cognitive impairment in understanding and meeting reporting requirements and other conditions.

7.101  Despite legislative requirements that obligations attached to a community-based sentence be explained to offenders in a manner that they can understand,^[151] compounding factors resulting in Aboriginal and Torres Strait Islander offenders having difficulty in understanding the obligations of their community-based sentence may include:

• poor literacy;
• the use of legal terminology by solicitors and court staff when explaining bond conditions;
• lack of plain language and translated material for non-English and Aboriginal and Torres Strait Islander first language speakers;
• the stress of being in court; and
• offenders experiencing high levels of emotion after receiving a non-custodial sentence.^[152]

7.102  Even where conditions are understood, cultural and intergenerational factors may have contributed to high breach rates for Aboriginal and Torres Strait Islander people subject to community-based orders. Research from the United States has noted the interaction between socioeconomic disadvantage and the burden of complying with the conditions of a community-based sentence.^[153] Legal Aid WA noted that:

Laws requiring offender reporting can be particularly onerous for Aboriginal people who are more likely to be transient, live in communities without a police station to easily report to, and are less likely to have access to working mobile phones (with credit) and less likely to keep track of dates in the same way as non-Aboriginal people.^[154]

7.103  In relation to standard parole conditions, Legal Aid ACT noted:

In our experience, ATSI offenders are likely to breach orders that require they remain confined to a particular place, particularly when (for their cultural and spiritual health) they feel compelled to visit a sacred community site and reorient themselves after a traumatic period of incarceration.^[155]

7.104  In an earlier Inquiry, the President of the ACT Law Society’s Criminal Law Committee gave evidence that:

The circumstances are that often you will have people who live quite a long way away from where they are expected to report, so there is always difficulty around getting transport to, in fact, meet their obligations of reporting to their parole officer. Whether it is the case that they simply do not have a motor vehicle or whether it is the case that they cannot afford the bus fare at the time.

… [I]f you are in a lower socioeconomic group and you are confronted with a choice of meeting a reporting obligation, meeting with a parole officer or someone from Corrective Services, versus a day’s employment, that decision is much harder than it is for someone who is employed in stable employment.^[156]

7.105  The issue of unequal impact of conditions has been raised as elevating the importance of providing judicial officers with wide discretion in response to minor breaches.^[157]

7.106  Reductions in breach may be accomplished through engagement and collaboration with relevant Aboriginal and Torres Strait Islander organisations to provide sentencing options and assistance in meeting conditions, partnering with agencies and service providers to provide co-location of services.^[158] Breach rates may also be reduced by the use of graduated sanctions in order to provide an alternative to imprisonment for breach (discussed below).

7.107  The RCIADIC recommended that non-custodial sentences be available, accessible and culturally appropriate, and that authorities work with Aboriginal and Torres Strait Islander groups in implementing programs.^[159] The goal of increasing alternatives to prison has also been a key feature of the Victorian Aboriginal Justice Agreements.^[160] Stakeholders to this Inquiry agreed with an approach to community-based sentencing options which maximised collaboration with Aboriginal and Torres Strait Islander organisations and allowed for flexibility in responding to breach.^[161]

7.108  In relation to the need for culturally appropriate community-based orders, ALSWA submitted:

ALSWA supports Proposal 7–1 [of the Discussion Paper]^[162] not only because a reduction in imprisonment for justice procedure offences will reduce the number of Aboriginal and Torres Strait Islander people in prison but also because more culturally appropriate and effective community-based orders is vital to ensure that Aboriginal and Torres Strait Islander people are provided with the right support to prevent reoffending.^[163]

7.109  The Aboriginal Legal Service NSW/ACT (ALS NSW/ACT) undertook a consultative process for this Inquiry, engaging Aboriginal and Torres Strait Islander community members from across the ACT and NSW. ALS NSW/ACT noted:

Participants consistently emphasised the need for greater use of community-based sentencing options over custodial sentences. Participants noted, in particular, that community-based sentencing options are more appropriate and effective for young people and those with mental health, alcohol and/or other drug issues. There was strong support for expansion of the MERIT (Magistrates Early Referral In to Treatment) program across regional and remote NSW, and to individuals suffering from alcohol abuse. Other examples of effective community-based sentencing options cited by participants included rehabilitation farms, health facilities and alcohol or drug programs centred on identity development and Aboriginal culture.^[164]

Engaging relevant Aboriginal and Torres Strait Islander organisations

7.110  In Victoria, support services and programs have been developed in collaboration with peak Aboriginal and Torres Strait Islander organisations, and include the Local Justice Worker Program and the Wulgunggo Ngalu Learning Place, which were developed under the Victorian Aboriginal Justice Agreement.^[165]

7.111  The Local Justice Worker Program (LJWP) aims to increase the completion rate of Aboriginal and Torres Strait Islander offenders sentenced to community-based sentences in Victoria. The LJWP was independently evaluated in 2013.^[166] The evaluation observed a narrowing of the gap between the proportions of Aboriginal and Torres Strait Islander offenders compared to non-Indigenous offenders who had successfully completed their orders since the program was first piloted. The evaluation further found that ‘statewide data on improved completion rates of orders by Aboriginal offenders suggest that the programs may be making a contribution to these improved rates’.^[167] The program was noted to have high Aboriginal and Torres Strait Islander female participation.^[168]

7.112  The evaluation suggested that the LJWP may operate to decrease Aboriginal and Torres Strait Islander incarceration through:

• decreasing the number of Aboriginal and Torres Strait Islander offenders who breach the conditions of their community-based sentence orders/parole orders resulting in imprisonment;
• decreasing the number of Aboriginal and Torres Strait Islander offenders who lose their driver licences as a result of defaulting on fine repayments and then being charged with driving offences;
• increasing access via connections to necessary services, such as alcohol programs, housing, parenting workshops, and financial counselling; and
• increasing skill based work experience, in combination with mentoring, leading to better employment opportunities.^[169]

7.113  CLANT’s submission highlighted the role of Aboriginal Liaison Officers (ALOs) in reducing breach in the NT:

It is regularly the case that those participating in community based programs will cease to engage for short periods of time. This may be due to a lack of motivation, but it can also be due to a conflict between participants’ legal and cultural obligations, such as a requirement to attend a funeral or ceremony. Frequently breakdowns in communication occur at this point between the participant and the supervising agency. Engagement of an Aboriginal Liaison Officer who takes the time to go to the participant’s house or speak with the participant’s family and to discuss with them their options would be highly desirable and would, in our submission, result in fewer breaches of orders..^[170]

7.114  Given the value of ALOs in terms of communication, they could explain any difficulties an offender was having in complying with the conditions of a sentence to the supervising agency. ALS NSW/ACT also noted the importance of corrections and other government bodies engaging with local Aboriginal and Torres Strait Islander community members:

Participants noted that many external lawyers and psychologists have difficulty communicating with Aboriginal clients due to their lack of connection with the local community. Accordingly, many participants noted the importance of the ALS Field Officer to facilitating the development of relationships with community members. The ALS Field Officer is crucial to assist Aboriginal clients to go to court and provide them with an understanding of the court process.

…Participants also demonstrated strong support for community justice groups. These groups provide members of Aboriginal and Torres Strait Islander communities and organisations with authority and funding to work cooperatively with justice agencies and staff to develop strategies within their communities for dealing with justice-related issues. Participants suggested that these groups would further promote the leadership of Aboriginal and Torres Strait Islander people and organisations within the community.^[171]

7.115  ALS NSW/ACT highlighted the problem of inappropriate conditions:

participants suggested that CSOs could more frequently use Aboriginal organisations, and that CSOs should always be served in the community of the offender. Some ALS staff also noted that a significant number of clients who get a CSO do not complete it, resulting in custody. This is often due to the fact that clients do not understand their responsibilities under a CSO or the consequences of non-completion, or because probation and parole staff do not comprehend cultural differences that may affect a client’s ability to complete a CSO. To address this issue, ALS staff suggested: better education for clients as to their responsibilities under a CSO and consequences for non-completion; cultural competence training for Magistrates to ensure they set achievable conditions under a CSO; cultural competence training for Probation and Parole staff to assist them to understand the history and experience of clients’ lives and give clients the best chance of completing the CSO.^[172]

Co-location of services

7.116  The Victorian Neighbourhood Justice Centre (NJC) is one example of a mainstream community-based sentencing support and assistance model that has been evaluated positively.

7.117  The NJC operates as an official Magistrates’ Court of Victoria, with ‘drug and alcohol assessment and counselling, dispute mediation, mental health assessments and counselling, employment and training support, housing support and financial counselling services’ all co-located within the same building. The NJC utilises a problem-solving approach to offending, with the use of judicial monitoring allowing for personalised responses to issues around offender compliance, and is partnered with a range of government bodies and service providers including Victoria Police, Community Correction Services, Victoria Legal Aid, and Fitzroy Legal Service.^[173]

7.118  The NJC was independently reviewed and it was found that the NJC improved completion of community work orders, reduced imprisonment, reduced reoffending and improved community safety while reducing costs.^[174]

Graduated sanctions

7.119  An approach to breach of community-based orders and parole which has had some success is a form known as ‘graduated’, ‘escalating’ or ‘swift, certain and fair’ (SCF) sanctions. Graduated sanctions have been adopted in relation to parole in NT and Queensland, and announced or trialled in relation to community-based orders in NSW and Victoria.^[175] The NSWLRC has previously recommended an approach to breach of parole modelled on the Queensland graduated system be adopted in NSW in order to promote responses to breaches that are ‘proportionate, swift and certain’.^[176]

7.120  Graduated sanctions may provide a more flexible and receptive range of responses than an ‘all or nothing’ approach to breach—and include measures such as:

additional reporting burdens, participating in programming, attending “day reporting” centers, short-term confinement in violation centers, and extending probation terms. In many cases, these reforms are designed to intervene earlier in a supervisee’s history of violations, providing a mild sanction immediately following the violation rather than the pattern of ignoring a series of violations and then filing for revocation. Research suggests that such alternative sanctions can be just as effective in reducing future violations as jail terms, while ameliorating jail “churning” and easing local budgets …^[177]

7.121  A United States based community-based sentence that received positive attention and evaluation is the Hawaiian Opportunity Probation Enforcement (HOPE) Program—a specialist court program that specifically focuses on offending related to drug and alcohol dependency.^[178]

7.122  HOPE relies on ‘swift and certain, but modest, sanctions to improve compliance’ with participants warned at the outset that each time they violate HOPE rules they will be immediately met with an escalating custodial sanction. ^[179] Sanctions range from a few hours in a cell-block to up to 30 days of imprisonment—with U.S. research finding that swiftness and certainty of punishment has a larger deterrent effect than increased severity.^[180]

7.123  A randomised control trial evaluation of HOPE found that participants spent 48% fewer days in prison, were less likely to be arrested for a new crime, less likely to test positive for drugs, and less likely to have their probation revoked.^[181]

7.124  In relation to Australian implementation of a HOPE-style program in Australia, Association Professor Bartels considered that:

The implications for Indigenous offenders would also need to be considered carefully, although the program may have the potential to reduce their over-representation in custody … Any pilot program that includes a significant number of Indigenous offenders should be developed in consultation with relevant community representatives.^[182]

7.125  The Victorian Sentencing Advisory Council’s report, Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders, was released in October 2017. In that report, the Sentencing Council recommended against the introduction of a HOPE-style scheme of ‘swift, certain and fair’ sanctions specifically in the context of family violence offending.^[183] Nevertheless, the Sentencing Advisory Council did note broad stakeholder support for greater use of—and flexibility in relation to—judicial monitoring as a condition of a CCO for family violence offenders, and made several recommendations to that effect.^[184]

7.126  The ALRC notes that research has found that ‘[r]ecent efforts to replicate the HOPE program in other jurisdictions have not been successful’.^[185] Judge Alm, the key judicial officer in the original HOPE program, suggested that efforts to expand the program have failed because ‘replicators did not include the efforts to materially support probationers and instead took a punitive “sanctions only” approach’.^[186]

7.127  Associate Professor Bartels also noted that:

the court’s swift, certain and proportionate sanctions model, told only part of the story. The program also featured many aspects of drug courts and adopted the principles of therapeutic jurisprudence. Significantly, the judge provided extensive encouragement, praise and support to participants … In light of this, the program model may hold significant promise for Aboriginal and Torres Strait Islander populations if it is implemented as intended, that is, as a therapeutic program that supports and encourages participants.^[187]

Culturally appropriate community-based sentencing options

7.128  There are a number of examples of culturally appropriate community-based sentencing options that have been developed with or by Aboriginal and Torres Strait Islander organisations.

Breach diversion

7.129  Under the Victorian Aboriginal Justice Agreement, a sustainable work program based in the grounds of Weeroona Cemetery has reportedly contributed to an increase in the rate of successful order completion by Aboriginal and Torres Strait Islander offenders in Victoria.^[188]

7.130  Victoria has also introduced the Wulgunggo Ngalu Learning Place, which provides a voluntary residential program for Aboriginal and Torres Strait Islander men serving community-based orders. The Victorian Aboriginal Legal Service (VALS) submitted a case study in relation to the Wulgunggo Ngalu Learning Place:

Adam is a 43 year old Aboriginal male who has a long history with substance abuse whom VALS assisted through our ReConnect program. …

Adam advised [his VALS] caseworker that he had long standing issues with drugs and alcohol and wanted to attend Wulgunggo Ngalu Learning Place. The caseworker assisted Adam to submit an application and supported him through the assessment process. Adam was able to secure a place at Wulgunggo Ngalu where he received assistance with drugs & alcohol, mental health, life skills and cultural strengthening. Adam was also assisted with his art and was supported and guided by the caseworker in how to advertise and sell his artwork to earn income. Adam was also supported to undertake cultural strengthening activities which he reported as never having done before but being needed in order to address the disconnect from family and culture he felt. After being discharged from Wulgunggo Adam reported, over the proceeding months, as being committed to staying out of jail and indicated an intention to support his family and undertake a TAFE course on art.^[189]

7.131  In NSW, the Balunda-a (Tabulam)—‘be good now you have a second chance down by the river’—program was developed in 2008 for male offenders aged over 18 years. The program is primarily a diversion program under which offenders in NSW are referred while under a bond prior to sentencing.^[190] The program also operates as a place of referral by community corrections staff. It has been described as a ‘last-chance opportunity before [people] enter into custody’.^[191]

7.132  The ALRC recognises that each state and territory faces different challenges. The NT and WA, for example, have numerous remote communities, and implementing community-based sentencing options in some areas would be challenging. To overcome this, a 2016 independent review of NT Corrective Services recommended the appointment of probation and parole officers to remote communities who are from that community to provide local supervision and support to offenders.^[192] The recommendation makes clear that this should only be implemented with community agreement.

Supervision by community

7.133  Stakeholders in this Inquiry raised the possibility of supervision by community.^[193] For example, VALS submitted that:

VALS advocates not only for community based sentences, but for community adjudicated sentences via a community council of elders, in particular for low level offences and in cases of children and young people. For example, Aboriginal Legal Services in Toronto have developed a community council, whereby the sentencing is decided by a council of Indigenous elders. Essentially, the offender is referred by the judge and will not return to court, unless the community sentence as directed by the elders is not completed. As such, it is up to the community council to ensure the right sentence is undertaken, with appropriate supports.

This option is only open to low-level offences, and if the offender does not comply with the Community Council’s sentencing regime, they do not get another chance with this process. The aim of this is to take Indigenous offenders out of the colonial justice system and to provide a level of autonomy within the community to make their own justice decisions, in a manner that is culturally appropriate.^[194]

7.134  Legal Aid WA highlighted the benefits of a co-design approach:

Co-design is about engaging consumers and users of products and services in the design process with the idea that it will lead to improvement and innovation. In harnessing the expertise of citizens towards these certain programs in this instance, people of the community as well as the creators of these programs can benefit as active members in the change process. Here the people involved will be much more valued as a co-designer of innovation and this will essentially allow for the effectiveness of such programs. … Critical to the success of co-design, is for local Aboriginal Corporations to be actively and consistently involved in a community’s approach to reducing crime and enhancing community safety.^[195]

7.135  Stakeholders were generally supportive of this approach.^[196] However CLANT noted that the success or failure of supervising offenders in this way is likely to hinge on the level of pre-existing organisation, leadership and health of the community—factors which are unlikely to be uniformly present in all Aboriginal and Torres Strait Islander communities.^[197]

Suspended sentences

7.136  Aboriginal and Torres Strait Islander offenders may be disproportionately represented as recipients of suspended sentences compared to non-Indigenous offenders.^[198]

7.137  Victoria began phasing out suspended sentences in 2011.^[199] The NSW Parliament passed a Bill on 18 October 2017 to phase out suspended sentences from 2018.^[200] Tasmania has also released a draft exposure Bill titled the Sentencing Amendment (Phasing Out Of Suspended Sentences) Bill 2017 which, if implemented, would also abolish suspended sentences.^[201] On 19 November 2017, the Bill passed with amendments from the Tasmanian Legislative Council. The amendments prevent imposition of suspended sentences for certain offences,^[202] with the Tasmanian Parliament to consider fully removing suspended sentences within two years.^[203]

7.138  In the second reading of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017, NSW Attorney General Mark Speakman noted:

there are significant problems with suspended prison sentences—44 per cent of them are unsupervised and only require offenders to be of good behaviour. … Many offenders are not receiving the supervision and programs under a suspended sentence that would compel them to address their offending behaviour in the community.

… Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this.^[204]

7.139  Stakeholders drew attention to the need to ensure that intermediate sentencing options are uniformly available before suspended sentences are phased out—with particular attention to ensuring that Aboriginal and Torres Strait Islander people living in regional and remote communities are not disproportionately affected by the removal of a uniformly available sentencing option that is able to be served in the community.^[205]

7.140  Queensland and WA have restrictions in relation to placing conditions on suspended sentences, including conditions requiring attendance at rehabilitation or treatment programs.^[206] There are also states and territories with restrictions on the types of offences that potentially attract a suspended sentence, including SA and the NT.^[207]

Issues with suspended sentences

7.141  Issues that have been identified in relation to suspended sentence regimes include their potential for net widening, their conceptually flawed nature,^[208] and the potentially harsh consequences for offenders who breach them due to their ‘all or nothing’ nature.

Net widening

7.142  Research suggests that the reintroduction of suspended sentences in NSW in 1999 resulted in ‘net widening’—whereby offenders who would previously have been dealt with by way of a good behaviour bond or CSO were instead given a suspended sentence.^[209] According to NSW BOCSAR, it is:

clear that suspended sentences have been used where non-custodial sanctions would otherwise have been employed. This is particularly true for CSOs in both court jurisdictions, but also for good behaviour bonds in the Higher Criminal Courts.^[210]

7.143  Homeless Legal Persons’ Service (HPLS) submitted to an earlier Inquiry that net widening is particularly acute in relation to:

offences that may not warrant a term of actual imprisonment; namely, where an offender is not suitable for a community based order due to their homelessness, drug or alcohol dependence, disability, mental illness, or other chronic illness … in such circumstances, suspended sentences are the only appropriate and available option, despite the fact that the offending in question does not warrant a term of imprisonment.^[211]

7.144  Despite the potential for net widening, stakeholders in this Inquiry stated that suspended sentences provide a useful sentencing option as a ‘last chance’ for Aboriginal and Torres Strait Islander offenders to avoid full-time custody. There is research to support this view.^[212]

7.145  In consultations and submissions, suspended sentences were emphasised by stakeholders to be particularly useful in relation to Aboriginal and Torres Strait Islander women because they are a type of sentence that is able to be structured such that there are few reporting obligations or onerous conditions—making them more suitable for offenders with kinship and cultural obligations than other types of community-based orders. For example, Sisters Inside submitted that:

Aboriginal and Torres Strait Islander women are at high risk of breaching community-based sentences, due to sentence obligations which are incompatible with their parenting/caring responsibilities and statutory obligations. … We support a process to identify the gaps and failures of supervised community-based sentences (including court-ordered parole). Sentencing Advisory Councils may be well-placed to undertake this review in relevant jurisdictions. Any further review must take into account the unique needs of Aboriginal and Torres Strait Islander women.^[213]

Breach and revocation

7.146  A breach of a suspended sentence will generally require the court to reinstate the entirety of the sentence of imprisonment that was initially suspended.^[214] This means that time spent in the community under a suspended sentence is generally not counted as ‘time served’ in the event of revocation, even if a considerable amount of time has passed.^[215] For example, revocation occurring at 11 months of a 12 month suspended sentence would result in a total of 23 months under sentence.^[216]

7.147  This quirk of suspended sentences means that the longer an offender complies fully with the conditions of his or her order, the harsher the consequences of a breach resulting in revocation of the suspended sentence. Revocation of a suspended sentence, resulting in the offender being required to serve the term in prison, may also undo any rehabilitative progress made and increase the risk of future reoffending.^[217]

7.148  As noted above, academics in the US have described policy movement towards graduated sanctions as providing a more flexible and receptive range of responses than an ‘all or nothing’ approach to breaches of community-based orders.^[218]

Conclusion

7.149  Suspended sentences are problematic. In particular, research has demonstrated that they have resulted in net widening while being perceived as too lenient by the public. While offering some offenders a last chance, suspended sentences can and do ‘set people up to fail’, particularly people with complex needs.^[219]

7.150  Nevertheless, the removal of suspended sentences without improving access to community-based sentences is likely to lead to even greater number of Aboriginal and Torres Strait Islander offenders going to jail. Improving access to community-based sentences is necessary to reduce the incarceration rates of Aboriginal and Torres Strait Islander offenders. Once this is addressed, consideration could safely be given to abolishing suspended sentences.

Short sentences

7.151  The ALRC adopts a similar approach to short sentences of imprisonment. That is, short sentences of imprisonment are highly problematic. However, in the absence of implementing the preceding recommendations, the abolition of short sentences is likely to be detrimental.

7.152  Aboriginal and Torres Strait Islander offenders are more likely to be sentenced to short terms of imprisonment than their non-Indigenous counterparts.^[220] It has been suggested that short sentences of imprisonment are not only ineffective in reducing offending but are particularly damaging to Aboriginal and Torres Strait Islander offenders. Short terms of imprisonment:

• expose minor offenders to more serious offenders in prison;
• do not serve to deter offenders;^[221]
• have significant negative impacts on the offender’s family, employment, housing and income;^[222] and
• potentially increase the likelihood of recidivism through stigmatisation and the flow on effects of having served time in prison.^[223]

7.153  Two case studies identified by Just Reinvestment (NSW) highlight some of the issues with short sentences for Aboriginal and Torres Strait Islander defendants:

We recently had a matter where a woman received a two month sentence for stealing $5 worth of chicken from the IGA, another where a man with an intellectual disability was given 3 weeks for breaching an AVO by making contact with his ex-partner. These are clients with drug and alcohol and mental health problems—none of which get addressed in custody in those short stints. Then there is no supervision or support on release. It doesn’t make sense.^[224]

7.154  The imposition of a short term of imprisonment would appear to be inconsistent with the principle of ‘imprisonment as a last resort’ which ought to be reserved only for those offenders who represent a serious risk to the community, and for whom no other penalty is appropriate. Most Aboriginal and Torres Strait Islander offenders who receive a short sentence of imprisonment do so when convicted of minor or low-level offending.

7.155  Prisoners serving short sentences are less likely to be able to access programs or training, and in that regard, the time in prison does little to address offending behaviour or to develop skills that might later promote desistence from offending.^[225] Offenders on short sentences are generally released into the community without supervision or supports to assist reintegration into the community on release.^[226]

7.156  Short terms of imprisonment are costly. For example, 2002 research found that if all offenders in NSW prisons serving six months or less instead received a non-custodial penalty, the prison population would drop by about 10%, resulting in savings (at that time) of between $33m–47m per year.^[227]

7.157  Aboriginal and Torres Strait Islander offenders also have higher recidivism rates than non-Indigenous offenders.^[228] This experience of ‘cycling’ through the system also has significant health impacts:

the high rates of repeated short-term incarceration experienced by Aboriginal people in Australia have a multitude of negative health effects for Aboriginal communities and the wider society, while achieving little in terms of increased community safety.^[229]

7.158  Short terms of incarceration for female Aboriginal and Torres Strait Islander offenders are particularly damaging.^[230] Several stakeholders commented that a short period in prison for many women frequently triggered other significant life events that often spiralled the women back into prison. The common scenario was described as a prison term resulting in a woman losing her rental property, and subsequently having her children removed because she no longer had a residence. This then resulted in the woman turning to drugs and/or alcohol, which in turn led to further offending.

7.159  Just Reinvest NSW argue, that in NSW alone, a 90% reduction in the number of sentences of less than six months would:

• cut the number of prison sentences handed down in NSW courts and the number of people coming through the prison system by almost 40%;

• result in a 5% reduction in the overall prison population; and

• free up approximately $30 million the government currently spends on locking up people for less than 6 months each year–not including potential savings in capital expenditure.^[231]

The problem with abolishing short sentences of imprisonment

7.160  A key concern regarding the potential abolition of short sentences is the risk of sentence creep, that is, the risk that judicial officers will ultimately sentence offenders for longer periods because of a lack of alternative sentencing options, particularly in the absence of community-based sentencing alternatives.

Sentence creep

7.161  There is evidence that abolishing short sentences has the unintended consequence of increasing the length of incarceration. In 1995, WA abolished terms of imprisonment of three months or less.^[232] In 2003, the WA legislature increased the threshold to six months.^[233] These reforms were not accompanied by any changes to the practical availability of community-based sentencing options or diversion programs.

7.162  In 2007, the Department of Correction Services (WA) reviewed the impact of increasing the threshold for a sentence of imprisonment to six months. That report indicates that sentence creep did occur.^[234] Stakeholders similarly identified sentence creep as a particular problem arising out of the abolition of sentences of less than six months in WA. A key reason for the sentence creep in WA appears to be the absence of alternative sentencing options such as appropriate community-based options.^[235]

7.163  Accordingly, Sisters Inside were ‘concerned about the real possibility of ‘sentence creep’, and the likelihood that this would ‘have a disproportionate and negative effect on women.’ NAAJA submitted that:

what occurred in Western Australia was the factor of ‘sentence creep’ where sentences which ordinarily would be in terms of days, weeks and months increased to sentences of 6 months and 1 day imprisonment. In order to protect against such incursions of inflated sentences there must be clear provisions for alternatives to prison to be resourced and supported appropriately and clear provisions for imprisonment as a last result.^[236]

7.164  Similarly, NATSILS submitted that:

short sentences of imprisonment should only be abolished if supported by an increase in the availability of culturally responsive diversion and rehabilitative programs. The abolition of short sentences of imprisonment cannot assist the position of Aboriginal and Torres Strait Islander people who are in contact with the criminal justice system if the courts are not provided alternative sentencing options. It is vital that we increase the number of culturally responsive diversion and rehabilitation programs available.^[237]

7.165  Jesuit Social Services suggested that:

If short sentences of imprisonment were to be abolished, there should be pre‐conditions as to the availability of a comprehensive range of community sanctions as non‐custodial alternatives to prison, with a requirement that these be uniformly available in regional and remote areas and all states and territories.^[238]

7.166  A similar view was expressed by the Law Council of Australia who were ‘concerned that if short prison sentences were abolished without the introduction of uniformly available diversionary sentencing options, offenders may be sentenced to longer periods of imprisonment or forced into inappropriate alternatives’.^[239] This view was shared by other stakeholders such as the Human Rights Law Centre, and ALS NSW/ACT.^[240]

Judicial discretion and family violence

7.167  Another reason for opposing the abolition of short sentences put forward in submissions was that it restricted judicial discretion. NATSILS stressed that:

It is essential that judicial discretion is retained in all sentencing practices. … [J]udicial discretion is critical to ensuring that the individual circumstances of a person are taken into account, and accords with the principle of proportionality.^[241]

7.168  Change the Record Coalition highlighted another potential benefit of short sentences of imprisonment:

In certain circumstances, short term sentences can serve an important community safety purpose; for example, a short prison sentence may provide sufficient time for a victim/survivor of domestic violence to extricate themselves from the circumstances surrounding the trauma, for example, by moving homes or seeking counselling or other support.^[242]

7.169  A similar view was expressed by the Law Council of Australia.^[243] National Family Violence Prevention Legal Services supported the retention of short sentences but noted that:

While short prison sentences might in some situations provide a brief period of safety for the victim/survivor of family violence, there needs to be increased access to programs that address the violent behaviour of perpetrators, and are delivered in community.^[244]

6.1        The Terms of Reference to this Inquiry direct the ALRC to consider sentencing in examining the incarceration rates of Aboriginal and Torres Strait Islander peoples. Sentencing decisions are crucial in determining whether a person goes to prison and for how long. The sentencing decision may be affected by the seriousness of the offence and any subjective characteristics of the offender, including criminal history.

6.2        Aboriginal and Torres Strait Islander offenders are more likely to have prior convictions and to have served a term of imprisonment than non-Indigenous offenders.^[1] Aboriginal and Torres Strait Islander offenders may have also experienced trauma that is unique to their Aboriginality. This could include, for instance, direct or indirect experience of the Stolen Generation, loss of culture, and displacement. Aboriginal and Torres Strait Islander peoples who have experienced this type of trauma may distrust police and government agencies.^[2]

6.3        Sentencing courts are able to consider the relevance and impact of systemic and background factors affecting an Aboriginal or Torres Strait Islander offender when taking into account subjective characteristics at sentencing, but are not required to do so. The High Court determined that, in the absence of legislative authority,^[3] to take ‘judicial notice’ of the ‘systemic background of deprivation of Aboriginal offenders’ more generally would be ‘antithetical to individualised justice’.^[4]

6.4        For reasons of fairness, certainty, and continuity in sentencing Aboriginal and Torres Strait Islander offenders, the majority of stakeholders to this Inquiry supported the introduction of provisions requiring sentencing courts to take a two-stepped approach. First, to take into account the unique systemic and background factors affecting Aboriginal or Torres Strait Islander peoples, then to proceed to review evidence as to the effect on that particular individual offender.

6.5        The ALRC recommends the introduction of such provisions. The ALRC further recommends that in the courts of superior jurisdiction (District/County and Supreme Courts), taking account of unique systemic and background factors should be done through the submission of ‘Indigenous Experience Reports’ (IERs), ideally prepared by independent Aboriginal and Torres Strait Islander organisations. In courts of summary jurisdiction (Local or Magistrates Courts) where offenders are sentenced for lower level offending—and time and resources are limited—the ALRC recommends that courts accept evidence in support of the provisions through less formal methods.

6.6        The recommendations of this chapter aim to ensure sentencing courts are provided with all the information relevant to the unique experiences and systemic factors affecting Aboriginal or Torres Strait Islander peoples, and their impact on the offender. This would enable courts to impose the most appropriate sentence on Aboriginal and Torres Strait Islander offenders, taking into account all of the circumstances, including any available and appropriate community-based options.

6.7        Sentencing or a sentencing hearing follows a conviction, regardless of whether an offender entered a plea of guilty or was found guilty at trial. Sentencing in serious or complex matters is undertaken by judges and magistrates who apply the principles and purposes of sentencing to the characteristics of the offence and the subjective characteristics of the offender to come to a sentencing decision.^[5]

6.8        Each state and territory, and the Commonwealth, has legislation that guides the sentencing process.^[6] The relevant sentencing statutes often provide the principles and purposes of sentencing, as well as listing the factors that the court may take into account when considering the subjective characteristics of the offender.

Purposes and principles of sentencing

6.9        The purposes of sentencing are well established in common law,^[7] and are outlined in the sentencing statutes of the majority of states and territories except South Australia (SA),^[8] Tasmania^[9] and Western Australia (WA). Generally, the purposes of sentencing are:

• punishment: to punish the offender for the offence in a way that is just and appropriate in all the circumstances;
• deterrence: to deter the offender (specific deterrence) or other people (general deterrence) from committing the same or similar offences;
• protection: to protect the community from the offender;
• rehabilitation: to promote the rehabilitation of the offender; and
• denunciation: to denounce the conduct of the offender.^[10]

6.10     The purposes of sentencing can overlap, and even conflict.^[11] For example, protection of the community may not align with the rehabilitation of the offender. As noted by the High Court of Australia, the purposes of sentencing cannot be ‘considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence, but sometimes they point in different directions’.^[12]

6.11     Sentencing principles have also been developed by the common law, and incorporated into some sentencing statutes.^[13]The main principles related to sentencing and the sentencing decision are:

• proportionality: the sentence needs to be appropriate or proportionate to the gravity of the crime;^[14]
• parity: treat like cases alike and different cases differently;^[15]
• totality: the total sentence, where there are multiple terms, needs to be just and appropriate to the whole of offending; ^[16]
• imprisonment as a last resort;^[17] and
• parsimony:impose the least severe sentencing option that is open to achieve the purpose or purposes of punishment.^[18]

Sentencing factors in Australia

6.12     Some sentencing statutes provide the factors that sentencing courts can take into account in sentencing an offender. These vary in form. For example, New South Wales (NSW) legislation provides a non-exhaustive list of the mitigating and aggravating factors that the sentencing court is to take into account.^[19] Aggravating factors in NSW include the ‘seriousness of the offence; the criminality of the offender; and the identity and vulnerability of the victim’.^[20] If the offender was a person of good character; was acting under duress; did not plan the offence; or had shown remorse, the severity of the sentence may be mitigated.

6.13     Some states and territories list a number of factors that a court must have regard to in sentencing, which are not expressed to be ‘aggravating’ or ‘mitigating’. For example, in Victoria the sentencing court must have regard to, among other things, the nature and gravity of the offence; the offender’s culpability and previous character; the impact of the offence on any victim; and any injury loss or damage resulting directly from the offence.^[21]Other jurisdictions simply provide that the court must take into account any aggravating or mitigating factors.^[22]

6.14     Aboriginal and Torres Strait Islander peoples hold a unique position as Australia’s first peoples. The experiences of Aboriginal and Torres Strait Islander peoples are canvassed in Chapter 2 of this report.

6.15     Sentencing courts in all jurisdictions have the ability to take account of an offender’s background of disadvantage, relying on submissions on the relevant issues being made or as provided in court-ordered pre-sentence reports. Courts can consider a range of subjective factors arising from the offender’s history. This may include, for example, where the offender experienced deprivation, poverty, trauma or abuse and those factors may affect a person’s moral culpability.^[23] These can be taken into account irrespective of an offender’s cultural or racial background.

6.16     Among the many experiences unique to Aboriginal and Torres Strait Islander peoples, Aboriginal and Torres Strait Islander offenders may have experienced detrimental and intergenerational effects of past government policies and criminal justice practices.^[24] As observed by ACT Legal Aid in their submission to this Inquiry:

Numerous reports have recognised the ongoing ‘complex effects of dispossession, colonisation and institutional racism on Aboriginal peoples’, including ‘poverty, unemployment, [poor] education, alcohol abuse, isolation, racism and loss of connection to family culture, land or Indigenous laws’… ATSI offenders must be considered in the context of the historical subjugation and dispossession that has shaped, engendered, and perpetuated ATSI disadvantage.^[25]

6.17     There are existing provisions that enable some sentencing courts to consider factors related to Aboriginality when sentencing, and the common law has also provided some guidance. These are briefly discussed below.

Statutory provisions

6.18     Provisions related to considerations of Aboriginality when sentencing are found in the sentencing statutes of the ACT, Queensland, and SA. In the ACT, the Crimes (Sentencing) Act 2005 (ACT) directs the sentencing court to consider, among other things, the ‘cultural background’ of the offender.^[26] The ‘cultural background’ of the offender is also a matter for inclusion in pre-sentence reports (see below).^[27]

6.19     In Queensland, s 9 of the Penalties and Sentencing Act 1992 (Qld) determines that a sentencing court must, among other things, have regard to submissions made by a Community Justice Group about particular matters relating to an Aboriginal and Torres Strait Islander offender’s community, any cultural considerations, or available services or programs:

(2) In sentencing an offender, a court must have regard to—

…

(p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example—

         (i)     the offender’s relationship to the offender’s community; or

         (ii)    any cultural considerations; or

         (iii)   any considerations relating to programs and services established for offenders in which the community justice group participates;… ^[28]

6.20     The explanatory notes to s 9(2)(p) described community justice groups as entities comprised of Elders and respected persons who volunteer their time to develop and implement local strategies for addressing crime and justice issues in Aboriginal and Torres Strait Islander communities.^[29] At the time of the provision’s introduction, there were more than 30 groups established in communities across Queensland, including remote, regional and metropolitan areas.^[30] In 2017, there were close to 50 community justice groups in Queensland.^[31]

6.21     Submissions to the sentencing court by community justice groups may be made on request by the prosecution, defence or the court, or at the volition of a Community Justice Group.^[32]

6.22     The key factors that led to the current form of s 9(2)(p) was the over-representation of Aboriginal and Torres Strait Islander peoples in custody, and the need for greater community-based culturally appropriate options.^[33] It was intended that submissions from community justice groups would give the sentencing court insight into the ‘reasons for the offending behaviour and relevant cultural and historical issues’.^[34] Community justice groups could make the court aware of local sentencing options, particularly those in which the group participated. Submissions to this effect were to be of particular benefit to circuit courts in remote areas, with the responsible Minister noting in the second reading speech that it would be ‘expected that the advice of the community justice groups will lead to more appropriate sentencing options for offenders’ allowing for the ‘community to take a greater role in addressing offending behaviour in a culturally appropriate way’.^[35]

6.23     There is a similar provision in Queensland relating to submissions by community justice groups regarding applications for release on bail.^[36]

6.24     In their submission to this Inquiry, Caxton Legal Centre identified some limitations of the Queensland provision regarding submissions on sentencing. First, it observed that there was still no explicit requirement for sentencing courts in Queensland to take into account the ongoing and unique systemic and background factors affecting Aboriginal and Torres Strait Islander offenders.^[37] Second, the provision did not require that submissions be sought from community justice groups, and, third, when obtained, there was no legislative requirement for sentencing judges to accept recommendations submitted by the Community Justice Group. For these reasons, Caxton Legal Centre supported ‘legislative redress’ of the Queensland provision.^[38]

6.25     In SA, the sentencing statute provides for the convening of sentencing conferences when sentencing Aboriginal and Torres Strait Islander offenders.^[39] These are designed to promote in the defendant ‘understanding of the consequences of criminal behaviour, and in the court, understanding of Aboriginal cultural and societal influences, and thereby make the punishment more effective’.^[40]

6.26     A sentencing conference potentially involves the defendant (whose consent is required), members of their family, their legal representative, the prosecutor, an Aboriginal Justice Officer, and the victim, if they choose to participate.^[41] A court may take the views expressed in the conference into consideration when determining a sentence, although it is discretionary.^[42] In R v Wanganeen the South Australian Supreme Court commented that the provision was

a formal recognition of the cultural differences that should be accommodated when sentencing Aboriginal offenders … It is relevant for the purposes of this decision to again record the over-representation of Aboriginal people in the criminal justice system, and the relevance of Aboriginality in sentencing generally, in order to provide further context to the enactment of section 9C.^[43]

6.27     The provisions in the ACT, Queensland and SA apply in all sentencing courts in those jurisdictions, not only to Aboriginal and Torres Strait Islander specific sentencing courts (such as Murri and Nunga courts).^[44] The SA sentencing conference model received support from some stakeholders to this Inquiry.^[45]

Common law

6.28     There is a considerable body of case law that provides guidance for sentencing courts when sentencing Aboriginal and Torres Strait Islander offenders in Australian jurisdictions.^[46] The key decisions are outlined below.

Neal

6.29     In 1982, in reviewing the sentence of an Aboriginal offender in Neal v R, the High Court of Australia considered that the sentencing court ‘should have taken into account the special problems experienced by Aboriginals living in reserves’.^[47] Brennan J went on to state:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.^[48]

Fernando

6.30     A decade later, and a year after the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) delivered its report, Wood J delivered a decision in the Supreme Court of NSW of R v Fernando.^[49] Fernando, a 48-year-old Aboriginal man, entered a plea of guilty to a charge of malicious wounding after stabbing his de facto partner a number of times. Fernando lived in an Aboriginal community in Walgett, in the far west of NSW. He had low levels of education, had been forcibly removed from his family as a child, and had an extensive criminal record, including a number of offences involving alcohol. Fernando had been consuming alcohol before the stabbing.

6.31     In the decision, Wood J enunciated the following principles in relation to the sentencing of Aboriginal offenders:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or his membership of an ethnic or other group but that does not mean the sentencing court should ignore those facts which exist only by reason of the offender’s membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand with Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.^[50]

6.32     This judgment does not bind sentencing courts of other states and territories, nonetheless, the ‘Fernando principles’ have been described as a ‘convenient collection of circumstances that courts can take into account in an appropriate case’.^[51] They have been influential across Australian jurisdictions, but do not automatically apply to all cases involving an Aboriginal or Torres Strait Islander offender, nor do they provide that a person’s ‘Aboriginality of itself is a mitigating factor’.^[52] Rather, the principles provide a ‘framework for consideration of the issues of disadvantage often attending the subjective circumstances of individual Indigenous offenders’.^[53] As Wood CJ later set out in R v Pitt:

What Fernando sought to do was to give recognition to the fact that disadvantages which arise out of membership of a particular group, which is economically, socially or otherwise deprived to a significant and systemic extent, may help to explain or throw light upon the particular offence and upon the individual circumstances of the offender. In that way an understanding of them may assist in the framing of an appropriate sentencing order that serves each of the punitive, rehabilitative and deterrent objects of sentencing.^[54]

6.33     Some courts have ‘narrowed the application’ of the Fernando principles, particularly in the Northern Territory (NT) and WA—principally in cases involving serious offending.^[55] Commentary on the application of the principles indicates they have been applied ‘unevenly’.^[56] This may not be a bad outcome. The NSW Sentencing Council has suggested that this uneven application ‘may simply be a reflection of the protean nature of the objective and subjective circumstances of each case and/or the availability (or otherwise) of evidence as to the subjective circumstances of particular Indigenous offenders on sentence’.^[57]

6.34     The Fernando principles continue to be utilised by the courts in sentencing offenders who have a background of disadvantage. Citing the decision of Simpson J in R v Kennedy,^[58] the majority of the High Court of Australia affirmed this as the basis of the Fernando principles:

Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.^[59]

Bugmy

6.35     In October 2013, the High Court delivered its decision in the case of William David Bugmy.^[60] Bugmy was being held on remand for other offences when he assaulted a prison officer with a pool ball. The officer sustained a serious injury, resulting in partial blindness. Bugmy’s personal history was marked by disadvantage, violence, substance abuse, suicide attempts, mental illness and repeated incarceration as a juvenile and as an adult. Bugmy had entered a plea of guilty and was sentenced in the NSW Court of Criminal Appeal (NSWCCA) for various assault offences. He appealed to the High Court of Australia against the severity of the sentence on several grounds, two of which are particularly relevant to this Inquiry.

6.36     First, the appellant submitted that the NSWCCA had erred in accepting the prosecution’s submission that ‘the difficult circumstances of the respondent’s youth, in particular the prevalence of alcohol abuse and the lack of parental guidance … lost much of its force when it was raised against a background of numerous previous offences’.^[61] The High Court agreed, noting that because the effects of ‘profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision’.^[62]

6.37     The second ground of appeal was that the Court ought to have regard to two decisions of the Supreme Court of Canada: R v Gladue^[63] and R v Ipeelee^[64](discussed below). The appellant relied on these decisions as authority for two propositions: that sentencing courts should take into account the ‘unique circumstances of all Aboriginal offenders as relevant to the moral culpability of an individual Aboriginal offender’ and it should take into account the high rate of incarceration of Aboriginal Australians, which reflects a ‘history of dispossession and associated social and economic disadvantage’.^[65]

6.38     The Canadian decisions related to s 718.2(e) of the Canadian Criminal Code, which prescribes imprisonment to be a last resort, with ‘particular attention to the circumstances of [A]boriginal offenders’. In Gladue, it was found that this statutory direction amounted to legislative recognition that the circumstances of Aboriginal peoples are unique and of the disproportionate rate of incarceration of Aboriginal peoples.^[66] The Canadian experience is further discussed below.

6.39     In Bugmy, the appellant likened the existence of s 718.2(e) of the Canadian Criminal Code to provisions in NSW sentencing legislation which provide for imprisonment as a last resort, and which outline the factors to be considered in sentencing.^[67] Noting the application of Neal and Fernando, the appellant furthersubmitted that, subsequent to both those decisions, there had been in Australia a myriad of court decisions, national reports, and commissions of inquiry and reviews that not only elevated public understanding and awareness of, but confirmed the ‘ongoing grave socio-economic difficulties in many Aboriginal communities and the link of these “background factors” to subsequent offending behaviour’.^[68] The appellant quoted Gladue and Ipeelee to show that, when considering the context of offending, Canadian courts must take

judicial notice of the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal offenders.^[69]

6.40     The appellant submitted that the High Court should require NSW courts to take into account these known systemic and background factors, rather than requiring the Aboriginal legal services to present authorities and publications relating to this same context in each case.^[70]

6.41     The High Court rejected this ground of appeal, finding that the Canadian decisions on which the appellant relied were founded upon the legislative provision
s 718.2(e), which could be distinguished from the NSW provision because it did not direct the courts to give particular attention to the circumstances of Aboriginal people, further stating:

There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.^[71]

6.42     The High Court referred to Australian case law and principles that provide for consideration of disadvantage generally, which also applies within Aboriginal communities.^[72] Ultimately, however, it rejected the argument that ‘courts ought to take judicial notice of the systemic background of deprivation of Aboriginal offenders’,^[73] on the basis that it would be ‘antithetical to individualised justice’.^[74]

Munda

6.43     Munda v Western Australia,^[75] a case where an Aboriginal man had killed his de facto partner during a violent attack while intoxicated, was heard by the High Court together with Bugmy. Though primarily focused on issues related to appeal on sentence by the prosecution, the appellant argued that the Court of Appeal of the Supreme Court of Western Australia had failed to have proper regard to the appellant’s personal circumstances as an Aboriginal man, and to his systemic deprivation and disadvantage, including an environment in which the abuse of alcohol was endemic in Aboriginal communities.^[76]

6.44     In relation to the abuse of alcohol, the High Court observed that the

circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but the consideration must be balanced with the seriousness of the appellant’s offending. It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.^[77]

6.45     The High Court determined that, in the ‘absence of specific legislative direction of the kind discussed in the Canadian decisions of R v Gladue and R v Ipeelee, the starting point for discussion of this ground of appeal is the statement of Brennan J in Neal v The Queen’.^[78]The appeal was dismissed. Among other things, the High Court found it to be ‘contrary to principle to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities’.^[79] The High Court observed further:

To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.^[80]