11.01.2018
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]
-
[158]
Also known as a ‘wrap around’ model.
-
[159]
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 5 recs 111, 116.
-
[160]
See ch 16.
-
[161]
Dr T Anthony, Submission 115; North Australian Aboriginal Justice Agency, Submission 113; Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Law Council of Australia, Submission 108; Legal Aid ACT, Submission 107; Judicial College of Victoria, Submission 102; Legal Aid NSW, Submission 101; Jesuit Social Services, Submission 100; Law Society of New South Wales’ Young Lawyers Criminal Law Committee, Submission 98; Judge Stephen Norrish QC, Submission 96; NSW Bar Association, Submission 88; Queensland Law Society, Submission 86; Change the Record Coalition, Submission 84; Just Reinvest NSW, Submission 82; Criminal Lawyers Association of the Northern Territory, Submission 75; Aboriginal Legal Service of Western Australia, Submission 74; National Congress of Australia’s First Peoples, Submission 73; Office of the Director of Public Prosecutions NSW, Submission 71; Human Rights Law Centre, Submission 68; Aboriginal Legal Service (NSW/ACT), Submission 63; Community Restorative Centre, Submission 61; Victoria Legal Aid, Submission 56; Victorian Aboriginal Legal Service, Submission 39; Legal Aid WA, Submission 33; Public Health Association of Australia, Submission 31; Associate Professor L Bartels, Submission 21; Commissioner for Children and Young People Western Australia, Submission 16; Australian Red Cross, Submission 15.
-
[162]
Proposal 7–1 of the Discussion Paper was ‘To reduce breaches of community-based sentences by Aboriginal and Torres Strait Islander peoples, state and territory governments should engage with peak Aboriginal and Torres Strait Islander organisations to identify gaps and build the infrastructure required for culturally appropriate community-based sentencing options and support services’.
-
[163]
Aboriginal Legal Service of Western Australia, Submission 74.
-
[164]
Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112.
-
[165]
See ch 16.
-
[166]
Attorney-General’s Department (Vic), Evaluation of Indigenous Justice Programs Project B: Offender Support and Reintegration—Final Report (2013).
-
[167]
Ibid 86.
-
[168]
Ibid 98.
-
[169]
Ibid 89.
-
[170]
Criminal Lawyers Association of the Northern Territory, Submission 75.
-
[171]
Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112.
-
[172]
Ibid.
-
[173]
Auditor-General (Vic), Managing Community Correction Orders (2017) 33.
-
[174]
Ibid.
-
[175]
New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017, 1–14 (Mark Speakman); Sentencing Advisory Council (Vic), Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (2017); Lorana Bartels, ‘Looking at Hawaii’s Opportunity Probation with Enforcement (HOPE) Program Through a Therapeutic Jurisprudence Lens’ (2016) 16(3) Queensland University of Technology Law Review 30; NSW Law Reform Commission, Parole, Report No 142 (2015) [10.29–32].
-
[176]
NSW Law Reform Commission, Parole, Report No 142 (2015) rec 10.1.
-
[177]
Michelle Phelps and Caitlin Curry, ‘Supervision in the Community: Probation and Parole’ [2016] Oxford Research Encyclopedia of Criminology and Criminal Justice 18. The HOPE program is discussed below.
-
[178]
Bartels, above n 175, 31.
-
[179]
Ibid 34.
-
[180]
Eric Helland and Alexander Tabarrok, ‘Does Three Strikes Deter?: A Nonparametric Estimation’ (2007) 42(2) Journal of Human Resources 309; Elizabeth Drake, ‘Chemical Dependency Treatment for Offenders: A Review of the Evidence and Benefit-Cost Findings’ (Report, Washington State Institute for Public Policy, December 2012) 1, 5; Steven Durlauf and Daniel Nagin, ‘Imprisonment and Crime: Can Both Be Reduced?’ 10(1) Criminology & Public Policy 13, 16–18; Steven Durlauf and Daniel Nagin, ‘The Deterrent Effect of Imprisonment’ (Paper, George Mason University, 2010) 43.
-
[181]
Bartels, above n 175, 38.
-
[182]
Associate Professor L Bartels, Submission 21.
-
[183]
Sentencing Advisory Council (Vic), Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (2017) rec 1.
-
[184]
Sentencing Advisory Council (Vic), Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (2017) xii, rec 3–7.
-
[185]
Phelps and Curry, above n 177, 19.
-
[186]
Ibid.
-
[187]
Associate Professor L Bartels, Submission 21.
-
[188]
Victorian Government, Victorian Aboriginal Justice Agreement Phase 3 (AJA3): A Partnership between the Victorian Government and the Koori Community (2013) 47.
-
[189]
Victorian Aboriginal Legal Service, Submission 39.
-
[190]
Crimes (Sentencing Procedure) Act 1999 (NSW) s 11.
-
[191]
Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) [7.26].
-
[192]
Northern Territory Government, A Safer Northern Territory through Correctional Interventions: Report of the Review of the Northern Territory Department of Correctional Services, 31 July 2016—Statement of Response (2016) rec 133.
-
[193]
R v Yakayaka and Djambuy (Unreported, Supreme Court of Northern Territory, 17 December 2012); Thalia Anthony and Will Crawford, ‘Northern Territory Indigenous Community Sentencing Mechanisms: An Order for Substantive Equality’ (2013) 17(2) Australian Indigenous Law Review 79.
-
[194]
Victorian Aboriginal Legal Service, Submission 39.
-
[195]
Legal Aid WA, Submission 33.
-
[196]
Dr T Anthony, Submission 115; Jesuit Social Services, Submission 100; Criminal Lawyers Association of the Northern Territory, Submission 75; Aboriginal Legal Service of Western Australia, Submission 74; Victorian Aboriginal Legal Service, Submission 39.
-
[197]
Criminal Lawyers Association of the Northern Territory, Submission 75.