Alternative Forms of Sentencing

539. Encouraging Alternative Forms of Sentencing. Reassessment of the value of imprisonment is leading to a wider range of sentencing options being available in many Australian jurisdictions.[275] These include:

  • discharge with or without conviction.

  • supervised or unsupervised bonds.

  • community work orders.

More detailed discussion of alternative sentencing options will occur in the Commission’s Final Report on Sentencing. For present purposes it is sufficient to refer to some of the difficulties that have arisen in more remote Aboriginal communities, and to some developments which need to be taken into account in any general sentencing regime.

540. Probation and Conditional Release. A common sentence for an offender is release on a bond to which may be attached conditions, such as supervision for a specified period by a probation and parole officer. Supervision can be a condition attached by the court, or can follow the grant of parole by a Parole Board after a period of imprisonment. Supervision of Aborigines placed on bonds creates special difficulties in remote communities. Apart from the practical problems remoteness creates for probation and parole officers in making regular visits and compiling reports on the progress of parolees, there may be difficulties for the officer in achieving a sufficient understanding of the community where the client lives. This may involve the officer spending a considerable period of time in the community to gain the level of understanding required. But this may not be possible, with the result that the supervision involved may be nominal. As well, Aboriginal communities tend not to fit within the accepted model for the operation of a probation and parole service. In a town or city a probation or parole service may be able to exercise some influence or control over where a person lives and works and over his or her associates. This may have little or no application to a small and remote Aboriginal community, where people may travel frequently, there may be no stable employment and no likelihood of it, and kinship and other family obligations may make it impossible to regulate who the offender associates with. The importance of kinship obligations must not be underestimated. The fact that a person is on a bond which if breached may result in a term of imprisonment may have no significance if kinship obligations require participation in, for example, a fight to help persons the offender is obligated to help. This problem was noted by the Northern Territory Department of Correctional Services:

[F]ormal directions in accordance with bonds or parole orders to individuals not to associate with specific others or warnings not to become involved in specific activities are likely to be either ineffectual (as an individual’s obligations towards others are well established) or detrimental to traditional structures.[276]

541. Other Alternatives. In addition to the established sentencing alternatives, attempts have been and are being made to develop new alternatives responsive to local needs.

  • Community Service Orders. It is often suggested that community service orders should be given more prominence when dealing with Aboriginal offenders. Such orders require some form of local supervision, including a person within the community prepared to take on a supervisory role. Even if the leaders of an Aboriginal community are prepared to accept an Aboriginal offender back, the direct supervision regarded as a prerequisite in an urban context may not be appropriate.

  • Local Gaols and Lock-ups. Most police stations in Australia have a lock-up in which accused persons may be held for short periods pending an appearance in court, or where a convicted person may be held for short periods of time. Aboriginal reserves in Queensland have also had lock-ups used for this purpose, (until recently head Aboriginal justices had the power to imprison offenders for up to 14 days). These lock-ups were changed in 1984 to police lock-ups.[277] There is no doubt that local police lock-ups are required, and custodial sentences of up to 28 days may appropriately be served locally. However there are serious problems with suggestions that local gaols be built to house longer-term offenders.[278]

  • Locally-Developed Alternatives. Some Aboriginal communities have developed their own sentencing alternatives. One example is the banishment of offenders to outstations. At Aurukun, the Local Court run by Aboriginal Justices of the Peace regularly sentences offenders to spend a period of time on one of the outstations. Offenders are usually given a choice, so that they may choose a place where they have kin or relations.[279] Judges and magistrates may take into account in sentencing a request that an offender not be permitted to return to the community for a period of time.[280] Conditions may be imposed on a bond so as to restrict residence or movement. A number of these local alternatives have been developed in conjunction with local justice mechanisms, and it is essential to their effective operation that the magistrate should hold court in the local community[281] (rather than in a near or distant town centre), and with adequate preparation through presentence consultation and reporting. These questions are referred to again in the discussion of local justice mechanisms in Part VI of this Report.