Availability and flexibility of community-based sentencing options

Recommendation 7–1               State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to improve access to community-based sentencing options for Aboriginal and Torres Strait Islander offenders, by:

  • expanding the geographic reach of community-based sentencing options, particularly in regional and remote areas;
  • providing community-based sentencing options that are culturally appropriate; and
  • making community-based sentencing options accessible to offenders with complex needs, to reduce reoffending.

Recommendation 7–2               Using the Victorian Community Correction Order regime as an example, state and territory governments should implement community-based sentencing options that allow for the greatest flexibility in sentencing structure and the imposition of conditions to reduce reoffending.

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]


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]


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.


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]