Background

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]