Recommendation 7–3 State and territory governments and agencies should work with relevant Aboriginal and Torres Strait Islander organisations to provide the necessary programs and support to facilitate the successful completion of community-based sentences by Aboriginal and Torres Strait Islander offenders.
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, and Aboriginal and Torres Strait Islander offenders constituted a larger proportion of the cohort imprisoned for breaching a condition of their community-based sentence. 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. 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.
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. 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.
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, 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.
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. 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.
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.
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.
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.
Productivity Commission, ‘Report on Government Services 2017’ (Volume C: Justice, Produced for the Steering Committee for the Review of Government Service Provision, 2017) table 8A.20.
See ch 3.
Fiona Allison and Chris Cunneen, ‘The Role of Indigenous Justice Agreements in Improving Legal and Social Outcomes for Indigenous People’ (2010) 32 Sydney Law Review 645.
Legal Aid NSW, Submission 101; Change the Record Coalition, Submission 84; Aboriginal Legal Service of Western Australia, Submission 74; Legal Aid WA, Submission 33; Commissioner for Children and Young People Western Australia, Submission 16; Australian Red Cross, Submission 15.
AH v Western Australia  WASCA 228 (10 December 2014).
Aboriginal Legal Service of Western Australia, Submission 74.
See, eg, Crimes (Sentencing Procedure) Act 1999 (NSW) ss 72, 83, 92, 96, 100B, 100P.
NSW Sentencing Council, Good Behaviour Bonds and Non-Conviction Orders (2011) [5.13]; Productivity Commission, above n 28, [5.24].
See,eg, Kelli Stevens-Martin, Olusegun Oyewole and Cynthia Hipolito, ‘Technical Revocations of Probation in One Jurisdiction: Uncovering the Hidden Realities’ (2014) 78(3) Federal Probation 1; Jeffrey Lin, Ryken Grattet and Joan Petersilia, ‘“Back-End Sentencing” and Reimprisonment: Individual, Organizational, and Community Predictors of Parole Sanctioning Decisions’ (2010) 48 Criminology 759.
Legal Aid WA, Submission 33.
Legal Aid ACT, Submission 107.
Standing Committee on Justice and Community Safety, ACT Legislative Assembly, Inquiry into Sentencing, Report Number 4 (2015) [4.120]–[4.121].