TYPES OF COMMUNITY-BASED SENTENCES

9.1 Community-based alternatives to imprisonment, which have become widespread in many countries in recent years, represent one of the most important developments in sentencing in the last few decades. Their development reflects the prison system’s failure to rehabilitate offenders, the costs associated with building and maintaining prisons and changing community attitudes to sanctions. Community-based sentences are distinguishable according to:

• the degree of State intervention which they involve;¹ and
• the extent to which they envisage community participation.

9.2 State intervention is at its lowest where sentences involve the offender’s unconditional release into the community, with or without the recording of a conviction.² Because of the possibility of the offender’s non-compliance with the sentence, a threat of greater intervention is present where a fine is imposed,³ or where an offender is released into the community subject to his or her compliance with specified conditions. The conditions themselves may be more or less burdensome, both from the point of view of the State and of the offender. At one extreme, they may do no more than require the offender to be of good behaviour for a specified period; at the other, they may require the State to monitor the behaviour of the offender or provide facilities for the punishment and rehabilitation of the offender in the community. Intervention implies some restriction on the liberty of the offender for the period that he or she is undergoing punishment or rehabilitation in the community. Indeed, one form of community-based sanction, home detention,⁴ goes further than this and expressly restricts the liberty of the offender by confining him or her to the home (rather than to a gaol) for the duration of the sentence.

9.3 The sentences described in the last paragraph are traditional in the sense that they operate within the framework of established court structures. They serve the objectives of punishment and are subject to the general principles which apply to sentencing.⁵ More recently, attempts have been made at resolving conflicts which have their origin in criminal activity by involving the community in the criminal justice system, including sentencing. Commonly known as “conferencing”, such alternative methods of community-based sentencing have their origin in approaches to criminal justice found in indigenous communities. They involve the use of mediation, community aid panels and family conferencing as diversions from, or adjuncts to, the court-based sentencing process.⁶

A MORE SEVERE SENTENCING REGIME?

9.4 The greater availability of non-custodial sentencing options is often thought to carry the danger of an increasingly severe sentencing regime by reason of:

• “net-widening”;
• sanction stacking; and
• longer sentences of imprisonment.

Net-widening

9.5 A frequent criticism of the use of alternatives to custodial sentences is that they progressively intrude into civil life and widen the net of penal control.⁷ This is because the new sanction tends to draw more from those previously treated with less severity than from those previously treated with more severity. An example would be if community service orders came to be used in place of fines or probation, instead of in place of imprisonment. The danger of net-widening is increased by the ease with which non-custodial sentencing options can be combined with one another or with custodial sentences into a “cocktail sentence”.⁸ Evidence supporting the net-widening theory is said to be found in prison population statistics which have neither decreased with the rise of alternative penalties nor demonstrated a decline in the use of lesser penalties.⁹

9.6 The Commission does not regard the perceived dangers of net-widening as preventing the development and use of non-custodial options in appropriate cases, either on their own or in conjunction with other non-custodial sentencing options. First, it is important to note that net-widening is a theory which probably cannot be empirically established.¹⁰ Secondly, it would be ironic if the theory could be used to prevent the development of non-custodial sanctions and their application in clearly appropriate cases. To the extent that there is always a danger of net-widening, the Commission agrees with the Attorney General’s Sentencing Review that it should be met by judicial education.¹¹

Sanction stacking

9.7 It has been suggested that the possibility of combining non-custodial options with one another and with custodial sentences raises a real danger that sentences will in practice become more severe.¹² In the Commission’s view, the principle of proportionality - that is, that punishment must not exceed the gravity of the offence¹³ - avoids this result. The decisions of the High Court in Veen (No 1)¹⁴ and Veen (No 2)¹⁵ develop proportionality in the context of sentences of imprisonment. These decisions are not restricted in their terms to sentences of imprisonment and there is no reason to suspect that they do not apply to sentences generally. They therefore place limits on any sanction stacking which may occur, even if, in practice, there is not a great likelihood of appellate challenge to a cocktail of non-custodial sentences.

Longer sentences of imprisonment

9.8 An intended consequence of the development of non-custodial sentences is that imprisonment will come to be used less frequently than in the past. If it is, there is a danger that those offenders who will now come to be imprisoned will be treated more severely than before on the basis that they “really deserve it”.¹⁶ Again, the Commission’s view is that the principle of proportionality overcomes this danger.

THE COMMISSION'S GENERAL VIEW OF NON-CUSTODIAL SENTENCING OPTIONS

9.9 The Commission welcomes the broadening of sentencing options. We regard non-custodial sentencing options as sanctions in their own right, not as alternatives to imprisonment.¹⁷ Non-custodial sentences ought to be applied in appropriate cases to enhance the effectiveness of punishment. We hope our proposal that sentencing officers must expressly justify a custodial sentence of less than six months duration¹⁸ will lead to the greater use, where appropriate, of non-custodial sentencing options in cases which might otherwise attract a custodial sentence of six months duration or less.

9.10 The Commission’s tentative view is that we should not attempt to establish a legislative hierarchy of non-custodial sentences, such as exists in Victoria,¹⁹ to determine the cases in which particular non-custodial sentences constitute appropriate punishments. The Commission is of the view that sanction hierarchies constitute unacceptable fetters on judicial discretion in sentencing.²⁰ In addition, the ranking of non-custodial sentences in terms of their seriousness is extraordinarily difficult.²¹ Unlike custodial sentences (where length of sentence is the touchstone of seriousness), there are no obvious or agreed criteria of sentence severity.²² While it is possible to develop a ranking of seriousness within the boundaries of each non-custodial sanction,²³ it is impossible to determine equivalence between financial and non-financial non-custodial sentences. For example, is a substantial fine more punitive than community service? What if the offender is rich?²⁴

HOME DETENTION²⁵

9.11 A home detention order, also known as an intensive community supervision order or intensive supervision order, confines offenders to their homes during specified times for the duration of the sentence. Normally, persons on home detention will continue in employment. Confinement is combined with specified supervision to assist in the offender’s rehabilitation. Such supervision may involve counselling and assistance by a correctional officer. Particular problems suffered by the offender, for example drug or alcohol dependence, are also addressed and a specialised program may be attached to the order. The program may involve a number of hours per week at an attendance centre where group therapy can take place.

9.12 Persons on home detention are also subject to regular monitoring, both at home and in the workplace. This involves regular visits from correctional officers to enforce the detention, as well as random telephone surveillance to ensure that the offender is complying with the order.²⁶ In some home detention schemes electronic surveillance is also used, but in many cases it has not proved cost effective, and in some cases practical problems have arisen.²⁷ The Commission’s discussions with departments which run home detention schemes indicate that the supervision provided by correctional officers is the most valuable and effective aspect of the scheme.²⁸

9.13 The element of supervision and monitoring in home detention orders is intrusive and demanding. For example, the offender may be required to submit regularly to a urine analysis test. In the United States, some offenders have turned down the opportunity to take part in these types of programs, preferring prison instead. This is because offenders do as they are told in prison, whereas in intensive supervision programs they have to take responsibility for themselves.²⁹

9.14 The objectives of home detention include depriving the offender of liberty by confinement in the home within specified periods; providing a cheaper alternative to full time imprisonment;³⁰ and sparing the offender, particularly the minor offender, the ordeal and contamination of prison. In this way, home detention is a real alternative to imprisonment and has distinct advantages over it. Its disadvantages include turning the home into a prison, and the impact that home confinement has on family or those living in the home with the offender.³¹

9.15 Notwithstanding its advantages, home detention cannot apply in all cases. In particular, it is not an appropriate sentencing option where:

• by reason of the gravity of the offence, the offender poses an unacceptable threat to public safety; and
• the offender lives in accommodation not suitable for home detention - for example in a halfway house or caravan park or where the offender does not have access to a telephone.³²

Use of home detention in Australia

9.16 In Australia home imprisonment takes two forms:

• “front-end”, where an offender is specifically sentenced to an intensive supervision or correction order;³³ and
• “back-end”, where home detention follows a period of full time imprisonment.³⁴

Although both forms of home detention involve supervision and surveillance by correctional officers, surveillance tends to be the major focus of back-end programs, where supervision is, generally, less interventionist.³⁵

9.17 Both front-end and back-end detention have been authorised in a number of ways. Sometimes an order is based on a condition attached to existing mechanisms: for example, a probation order in the case of front-end schemes, or a parole order in the case of back-end schemes. In other cases, the home detention orders have an independent statutory footing.

The New South Wales scheme

9.18 In New South Wales a home detention scheme has been piloted by the Probation Service as an Intensive Community Supervision program.³⁶ The program has been operating since June 1992 and has allowed courts to impose a form of home detention as an alternative to custodial sentences of up to 18 months. There is no independent legislative base to the program. It was approved by Cabinet on 14 April 1992 and came into effect some months later. Offenders are placed on the program pursuant to a s 558 bond with specified conditions.³⁷

9.19 Offenders have to consent to participation in the program. It has been used in cases involving property and drunk driving. Some cases have involved repeat offenders. In 1994 there were 43 offenders in the Intensive Community Supervision scheme; currently there are 14. There are only four staff working on this program, which has given rise to obvious logistical problems.

9.20 The scheme makes use of surveillance bracelets, in conjunction with supervision by correctional officers. The most common form of monitoring is the making of random telephone calls to the offender’s residence. Usually three calls a day are placed to verify that the offender is in the house at times that he or she is supposed to be there. The offender is not allowed to take any alcohol or drugs while on the program, so random urine samples are also taken.

Breach procedures

9.21 A breach of a home detention order is dealt with as a breach of a s 558 bond. The Probation Service writes a report and applies to a Magistrate to issue a call up notice to the offender who must then appear before the court and be dealt with as the circumstances warrant. No separate offence is constituted for breach of the order itself. If home detention were available in country areas breach proceedings might not be easily prosecuted given that court sittings do not take place regularly.

9.22 The Probation Service has suggested that, if the pilot scheme is expanded, breaches should be dealt with by the Offenders Review Board and follow a similar pattern to breach of parole proceedings. The Offenders Review Board is an accessible forum which meets twice weekly to consider applications for parole from prisoners state-wide.³⁸ The Offenders Review Board would be able to issue a warrant of apprehension if necessary. The Board’s existing caseload is, however, already high. Its ability to absorb this new jurisdiction is, necessarily, subject to existing commitments and resources.

“Front-end” or “back-end”?

9.23 The current program in New South Wales is a “front-end” option. The Department of Corrective Services has suggested that it should be extended to include a “back-end” program. This would allow an offender to serve a proportion (usually the latter part) of a custodial sentence in the home or another approved residence. For example, in Western Australia the first third of a sentence can be served in prison, the second third as home detention, while the remainder is remitted if the home detention period is completed successfully. The decision to allow home detention is an administrative one.³⁹

9.24 To preserve the concept of truth in sentencing, the Commission’s tentative view is that any order for back-end home detention should initially be determined by the sentencing court. When a minimum period of a custodial sentence is about to expire, application should then be made to a quasi-judicial body, such as the Offenders Review Board, to decide whether the offender should be permitted to serve the latter part of the sentence in home detention. The time served in home detention could, but need not necessarily, be quite separate from any time later served on parole. The Commission invites submissions on the desirability of the introduction of back-end detention and on the relationship between such detention and parole.

Proposal 26

Sentencing legislation should provide for home detention as a sentencing option.

COMMUNITY SERVICE

9.25 Where a person has committed an offence punishable by imprisonment (whether or not it is also punishable by fine) the court may, instead of sentencing the offender to imprisonment, make an order requiring the person to perform community service work.⁴⁰ Up to 500 hours of work can be ordered. The court can only make a community service order (“CSO”) subject to the following conditions:⁴¹

• the consent of the offender must be obtained;
• the court must be notified by a probation officer that suitable arrangements for community service work can be made in the person’s local area; and
• the person must be assessed as a suitable person to perform community service work.

9.26 The requirement for an offender suitability report is mandatory in all cases where a CSO is considered, regardless of the number of hours that may be involved. In terms of resources, these reports are expensive and time-consuming. The Probation Service has suggested that an assessment should not be mandatory where the CSO is for 50 hours or less and where the offender concerned is capable of undertaking some form of work and is available to do so on a regular basis.⁴² Another possible way to reduce the cost to the Probation Service of preparing reports is for the legislation to provide clearer guidelines as to who is eligible for a CSO. This may, however, unnecessarily limit the court’s discretion to award CSOs in circumstances where they would otherwise have been considered appropriate.

9.27 The type of work undertaken by an offender on a CSO can include garden and household maintenance for pensioners, maintaining school grounds, bush regeneration projects, and driving for Meals-on-Wheels, to name a few.⁴³ As part of the order the court can also require the offender to go to an attendance centre and participate in development programs. The court must be satisfied (on advice from a probation officer) that there is an attendance centre near the offender’s abode, and that the offender is suited to participation in a development program.⁴⁴ The programs operating at these attendance centres feature a structured group work approach designed to encourage offenders to accept responsibility for their actions. They also attempt to resolve educational or attitudinal deficits of offenders which may have contributed to offending.

An alternative to imprisonment?

9.28 Community service orders were introduced primarily as a substitute for imprisonment.⁴⁵ The government of the day saw distinct benefits in introducing this sanction specifically as an alternative to prison, rather than as a sentence in its own right. First, there was the possibility of a reduction in economic cost through the decreasing use of prisons.⁴⁶ Secondly the new options provided a more humane form of punishment while still maintaining a punitive element seen as essential for public approval. Thirdly, the offender would be better off because, by avoiding full time imprisonment, he or she could, to an extent, remain in employment and maintain a normal home life.⁴⁷ Finally, there is the opportunity to make some reparation to the community.

9.29 One danger in making CSOs sanctions in their own right (rather than only alternatives to imprisonment) is net widening.⁴⁸ Yet recent legislation treats CSOs as sanctions in their own right for fine default and offensive language.⁴⁹ Further, notwithstanding the wording of the Act, it is doubtful that CSOs have always been used solely as an alternative to imprisonment.⁵⁰ The Commission is of the tentative view that CSOs should be available as sentences in their own right, rather than simply as alternatives to imprisonment. This view was generally supported in submissions to the Attorney General’s Sentencing Review.⁵¹

Proposal 27

Community Service Orders should be available as a sentencing option for all offences.

9.30 The Attorney General’s Sentencing Review recommended that the risk of net-widening and over extension of resources, that may arise if CSOs were made a general sentencing option, could be adequately dealt with by the introduction of two distinct types of CSO - the first being a “community work order” which is a penalty in its own right and limited to a fairly short duration; the second being a CSO as traditionally understood and utilised only as an alternative to imprisonment. It was considered that this suggestion would provide courts with a useful additional sentencing option appropriate to cases where fines or other non custodial penalties are unsuitable, without placing the burden of lengthy CSOs on minor offenders and the Probation Service.⁵² The Commission invites submissions on these suggestions.

Breach procedure

9.31 A CSO is breached where the person in respect of whom the order is made, fails, without reasonable cause or excuse, to comply with the order.⁵³ Breach of the order constitutes an offence.⁵⁴ The court supervising the CSO is then asked by the Probation Service to issue a warrant for the arrest of the offender directing that he or she be brought before the supervising court as soon as possible.⁵⁵ There are a variety of penalties a court can impose for breach of the order. The offender can be fined for the actual breach of the order (up to $250), resentenced for the original offence, or the court may take no action at all.⁵⁶

9.32 The Probation Service, which is responsible for the prosecution of breaches of CSOs, has made a number of suggestions for changing the breach procedure. First, the Service suggests that it is not necessary for the supervising court to be the court where the breach proceedings are heard. Any court of equal jurisdiction should be able to hear these proceedings. The Commission agrees with this suggestion. Secondly, the Service believes that proving the breach to the criminal standard of proof is too onerous and should be reduced to the civil standard. The Commission cannot think of any pressing reason why, contrary to normal principle, the ingredients of this offence should be established on the civil standard.

9.33 Equally the Commission can think of no compelling reason why breach of a CSO, unlike breach of an intensive supervision order or a probation order, should itself be an offence. The Commission is of the view that breach of a CSO should, in appropriate cases, result in revocation of the order and a resentencing for the offence. The discretion of the court to take no action at all should, however, be preserved.

Proposal 28

A breach of a CSO should not itself constitute an offence.

PROBATION

9.34 In a general sense, probation is conditional release - that is, release of offenders conditional upon their being of good behaviour. In a more restrictive sense, the term is used for release conditional on an offender being placed under personal supervision by a probation officer, and undergoing some form of rehabilitation.⁵⁷ The usual mechanism for the release of offenders on probation is upon their entering a recognizance or “bond”, which will incorporate the conditions upon which the offender is set at liberty.⁵⁸

9.35 Probation is a commonly used non-custodial sentencing option, particularly in Local Courts.⁵⁹ However, it is not recognised in legislation,⁶⁰ and its administration does not have a statutory basis.⁶¹ Supervised probation is administered by the Probation and Parole Service.⁶² In 1994, out of a total 88,142 persons found guilty at trial,⁶³ 4,112 (4.7%) were released on a bond subject to supervised probation, and 8,293 (9.4%) subject to probation without supervision.⁶⁴ Of those released under s 556A of the Crimes Act 1900 (NSW),⁶⁵ that is, having the offence proved but no conviction recorded, 5,545 (6.3%) were subject to a bond (only 200 with supervision), and 5,016 (5.7%) were dismissed without further penalty. Approximately 9,200 persons are being supervised under probation orders, and approximately 6,900 persons became clients of the Service in 1994.⁶⁶

9.36 Supervised probation has the advantages of minimising the harmful effects of imprisonment both on offenders and their dependants, promoting rehabilitation by maintaining community contacts and allowing for remedial intervention in a cost-effective way. It is not a soft option. A person on probation must maintain his or her family and employment obligations, make any agreed restitution and accept the supervision of a probation officer, all with the threat of further sanction. A probation period is almost always longer than the period of imprisonment which may have been imposed for the same offence.⁶⁷

Bonds or recognizances

9.37 Sentencing courts may release offenders upon their entering a recognizance,⁶⁸ commonly known as a “bond” or a “good behaviour bond”. The offender voluntarily undertakes to be of good behaviour, and to appear when called upon for sentence. As a condition, the court may fix a sum of money as a surety, which indicates the amount the offender will be liable to pay in the event of the breach of any conditions of the recognizance.⁶⁹ In the event that conditions of the bond are breached, the offender can be required to appear before the court to be dealt with for the original offence,⁷⁰ and, if the breach constitutes an offence, that will be dealt with in accordance with the law.

9.38 Legislation generally uses the archaic term “recognizance” for this form of conditional release. The Commission considers that understanding of the nature of this sentencing option would be improved if the term “bond” were used instead.

Proposal 29

The term “bond” should replace “recognizance” in legislation.

9.39 The usual conditions which may attach to a bond are:⁷¹

• Supervision by the NSW Probation and Parole Service, for the period of the bond, a fixed term, or “as long as it is deemed necessary by the supervision officer”. In the last case, the Probation officer has the discretion to dispense with reporting conditions and supervision.
• Attending drug or alcohol abuse counselling.
• Residence at a nominated rehabilitation centre.
• Payment of compensation to the victim.
• Directions as to employment and place of residence.
• Restrictions on associates, contact with nominated persons and movement.

9.40 Additional penalties may be imposed, depending on the power under which the bond is made. The Court may direct the offender to pay compensation to the victim, and order restitution.⁷² An order for costs can be imposed.⁷³ A fine may be imposed under s 558(4), but not with a s 556A recognizance.⁷⁴ It is not possible to combine a Community Service Order with a recognizance under s 558.⁷⁵ A recognizance under the Crimes Act 1900 (NSW) s 554 may, and under s 432(2) must, follow a sentence of imprisonment.

Sources of conditional release

Section 556A

9.41 Where it thinks that a charge brought against a person has been proved, the court may, “having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider”, either dismiss the charge,⁷⁶ or conditionally discharge the offender who enters a bond for a maximum of three years to be of good behaviour and to appear for conviction and sentence when called upon.⁷⁷ The latter course is taken when the sentencer considers that, even though no conviction will be recorded, it is desirable to address a specific social problem which led to the commission of the offence. Approximately 200 offenders are released on this basis every year.⁷⁸

Section 558

9.42 Under s 558 of the Crimes Act 1900 (NSW), a court may convict a person, but defer imposing a sentence, and order the offender’s release on a bond. This provision may be used for any offence. There is no maximum limit on the time the bond may be in force, although courts will always nominate a time period. The offender accepts conditions set by the court, and must appear before the court for sentence if called upon.

Crimes Act s 432(2) and 554(2)

9.43 Two other sections of the Crimes Act 1900 provide for an offender to be released on a bond. Section 554(2) allows a court of summary jurisdiction to order an offender to enter a bond (for between one and three years), in addition to, or instead of, a fine or imprisonment of up to 12 months. Section 432(2) enables a court, when imposing a sentence of imprisonment for a misdemeanour, to require the offender to enter a bond for a maximum of three years. Neither of these provisions is commonly used.

Common law

9.44 The courts have long had the power to bind over a person to keep the peace and be of good behaviour, with or without conviction for an offence.⁷⁹ This includes the power to release an offender pending sentence.⁸⁰ Whether or not a conviction is recorded, an offender may be remanded for sentence for a lengthy period and released on conditions, known, in this context, as a “Griffiths Bond” or “Griffiths Remand”,⁸¹ which may include any of the usual probation conditions. A court will take this action to allow an assessment of the offender’s behaviour and capacity to be rehabilitated over a period of time before the appropriate sentence is passed.⁸²

Restructuring probation orders

9.45 It is apparent from paragraphs 9.41-9.44 that courts have very wide discretionary powers in relation to the orders available for placing an offender on probation. A range of flexible options can be tailored to suit the circumstances of the offender and the offence. The Commission has considered whether there is a need to rationalise and put into a consolidated form the range of statutory provisions for imposing bonds and probation. Such an approach has been adopted recently in other jurisdictions. In Victoria, a community-based order was created in 1986, amalgamating the formerly discrete orders of probation, community service orders and attendance centre orders.⁸³ The Sentencing Act 1995 (WA) contains a structure which provides for release without sentence, a “conditional release order” (replacing the good behaviour bond, with no supervision necessary), and a “community based order” which has components requiring supervision, participation in rehabilitation programs and performance of community service.

9.46 The Department of Corrective Services has proposed that sentencing legislation should abolish all the existing orders bringing offenders under the Probation and Parole Service’s supervision,⁸⁴ and replace them with a new structure of orders which reflects the activities of the Service.⁸⁵ The legislation envisaged would also incorporate consistent procedures for offender assessment, variation of an order and action upon breach.

9.47 The Department proposes that a “Supervised Probation Order” should be the sole means by which an offender is placed on probation.⁸⁶ It would replace all those sentencing orders in the nature of probation and would impose, with the offender’s consent, an order for conditional liberty, requiring the offender to be of good behaviour and to submit to the supervision of the Probation and Parole Service for a period of up to three years. A breach of the order would not constitute a fresh offence, but would result in the sentencing court having power to revoke the order and re-sentence for the original offence, having regard to anything done in compliance with the order.

9.48 The order would have three types of conditions: core, additional and program. Core conditions would relate to accepting supervision and guidance, reporting to the Service and being of good behaviour. Additional conditions would include those commonly attached to bonds to address particular aspects of offender behaviour or rehabilitation, such as accepting directions as to residence, associates and treatment. Their purpose is to address factors causally related to commission of the offence. Program conditions would relate to specific Probation and Parole Service offender programs, which include the existing Attendance Centre Program, the piloted Drug and Alcohol Intervention Program and the planned specialised program for sex offenders.⁸⁷

9.49 In addition to the Supervised Probation Order, the Department proposes that there be an “Order for Supervision without Conviction” to replace supervised probation attached to bonds now given under s 556A.⁸⁸ It would follow that other orders, to cover conditional release without supervision, with or without a conviction would be necessary to complete an order structure complying with this proposal.

9.50 The proposal for restructuring probationary orders by the Department of Corrective Services has the advantages of simplifying sentence options and highlighting the element of probation which is incorporated in bonds currently given in a variety of orders. It would seem, however, that the Department’s proposal is directly related to the administration of probation and the overall legislative structure for non-custodial sentences it proposes.⁸⁹ Further, it is possible that the supervised probation order is attempting to cover a very wide a variety of sentencing options. It is intended to include release on bail,⁹⁰ which could be for relatively serious offences, release to Attendance Centre Programs, and release without any other form of penalty being applied. When Victoria introduced the community-based order the move was criticised because of its wide span and ambiguity, and its capacity to exacerbate sentencing disparities.⁹¹ The Department itself is aware of the potential net-widening dangers of having a range of possible conditions specified in legislation. Retaining the flexibility for sentencers in the present situation may be preferable.

9.51 At this stage the Commission is not persuaded that undertaking a restructuring of non-custodial sentencing options, such as has occurred in other jurisdictions, is desirable. It is not our intention to create, as other States have, a sentence hierarchy, into which the orders fit. In our view, the current scheme provides a flexible range of orders, which sentencing courts have the discretion to impose in view of the needs of the individual offender and the circumstances of the offence. It is one with which courts are familiar and which, with the exception of the matters raised below, appears to provide a satisfactorily range of options.

9.52 The Commission’s preliminary view is that three aspects of probation are in need of clarification or review:

• the source of the power to order bonds;
• certain conditions which may be attached to bonds; and
• the desirability of reintroducing the suspended sentence.

The power to order bonds

9.53 We have seen that the power to order conditional release on bond derives both from the common law and from statute.⁹² In the Commission’s view, the circumstances in which the common law remains relevant, as well as the relationship between common law and statutory power, create unnecessary complexity and uncertainty in the law.⁹³ In the context of sentencing, we propose, tentatively, that the power to release conditionally on bond should be solely a statutory one. A bond would, therefore, be a conditional release granted under the statutory provisions discussed above, or a bond attached to the suspended sentence which we propose in paragraphs 9.61-9.64.

Proposal 30

In the context of sentencing an offender, a bond for conditional release should be issued only pursuant to a statutory power.

Amendments to conditions in bonds

Time limits on bonds

9.54 Bonds ordered pursuant to s 556A are confined to a maximum of three years, whereas common law bonds and those ordered under s 558 do not have any limit. The Commission considers that there should be a consistent maximum period during which a bond may operate. There are circumstances in which three years will be insufficient, and it is unlikely that putting a person on probation for more than five years will be effective. Therefore, the Commission proposes that the Crimes Act 1900 (NSW) should be amended to provide that bonds under s 556A and 558, and other statutory provisions, should be issued for a maximum period of five years. We do not suggest that the power of magistrates to issue bonds should be confined to some lesser period.

Proposal 31

The maximum period of a bond should be five years.

Restitution and compensation

9.55 Currently it is possible for the court to include as a condition of a bond, the payment of compensation to the victim.⁹⁴ The Attorney General’s Sentencing Review suggested that compensation payments be treated exclusively, and not made conditions of release on a bond.⁹⁵ The principal reason for this is that offenders who fail to comply with such a condition would be liable to return to a court, which would have no realistic sanction at its disposal. Failure to pay compensation ordered under the Act is treated as a minor offence,⁹⁶ with consequences different from those which the offender could be liable to for breach of the condition of a bond.

9.56 The Commission considers that any order for compensation or restitution to which the offender is subject should be freely accepted. It is possible that consent to such a condition, as one of several conditions attached to a bond will not necessarily be freely given. The Commission proposes that compensation not be permitted to be a condition of a bond, but that it must be made as a separate order, distinct from the bond. The purpose of this proposal is to prevent failure to comply with the order for compensation constituting a breach of a condition of a bond, thereby placing the offender in the position of being brought before the court and sentenced on the original offence. The proposal will also avoid any stay of the call up proceedings in the event of the offender’s bankruptcy.⁹⁷ The Commission considers the current arrangement is both unworkable and unfair.

Proposal 32

Compensation and restitution should not be conditions attaching to a bond.

Suspended sentences

9.57 As commonly understood, a suspended sentence is one where a specific sentence of imprisonment is imposed, but not put into immediate effect. The offender is released on specified conditions and is liable to serve the term of imprisonment in the event of breach of those conditions.⁹⁸ The preconditions for, and operation of, suspended sentences vary according to the applicable legislation.⁹⁹

Suspended sentences before 1974

9.58 Prior to 1974 in New South Wales, courts had the power under s 558-562 of the Crimes Act 1900 to suspend punishment on first conviction. Section 558 (as it then read) applied to a person not previously convicted of an indictable offence (in any jurisdiction), convicted of a minor offence and sentenced to a term of imprisonment. The court would pass sentence in the usual manner, but could suspend execution of the sentence if the offender entered a recognizance to be of good behaviour for a period of not less than 12 months. The bond could contain other conditions relating to matters such as probation supervision, associates, abstinence from intoxicating liquors, and generally “for securing that the offender shall lead an honest and industrious life”.

9.59 An offender who, during the period of the recognizance, failed to comply with a condition, or was convicted of an indictable offence or any offence for which a term of imprisonment of more than one month could be imposed, would forfeit the bond and could be committed to prison to perform the sentence (s 561).¹⁰⁰ If no breach occurred during the period, the offender was discharged from the sentence and the conviction could not be relied upon where a penalty depended on previous convictions (s 562).

Abolition of suspended sentences

9.60 In 1973, a Report of the Criminal Law Committee¹⁰¹ recommended, amongst other matters, repeal of the section of the Crimes Act dealing with suspended sentences. An amended s 558 was to give effect to their conclusion that the “common law bond” system was superior to the “suspended sentence” in dealing with convicted first offenders. Apparently the provisions had proved far too restricted as to circumstances in which they could be applied and the action that could be taken on breach. Section 558, which is still current, was intended to be a statutory form of the common law bond.¹⁰²

Reintroduction of suspended sentences

9.61 Currently without restriction as to court or offence, the sentencing officer may, having found the offence proved, release the offender without recording a conviction,¹⁰³ or record a conviction but defer imposition of a sentence.¹⁰⁴ In each case the offender is released on a recognizance, with a wide discretion as to the conditions attached, including supervised probation. There is currently no power for the officer to determine and impose what he or she considers to be the appropriate sentence, including a custodial sentence, and then defer or suspend its operation for a period of time. To have such an option would add to the range of dispositions available to the courts.

9.62 There are situations, conceivably limited in number and scope, where a suspended sentence of imprisonment would be the preferred sentencing option. A precondition of its use would be that the offence is so serious that it requires a custodial sentence to be imposed, particularly for reasons of denunciation. It would also have to be clear that the threat of imprisonment would be a sufficient specific deterrent for the individual offender, and that considerations of general deterrence are not paramount. Further, a suspended sentence would be appropriate when rehabilitation would thereby be promoted and there was no question of need to incapacitate the offender.

9.63 As with the introduction of any alternative sentencing option, there is a potential for unintended consequences. Introduction of the suspended sentence in Victoria and England has been criticised for causing penalty escalation (offenders received suspended sentences when they might otherwise have received fines) and sentence inflation (suspended sentences tend to be longer than a sentence to be served immediately). It appears that some reduction in the prison population was achieved, although the entry of some offenders was delayed rather than diverted.¹⁰⁵ The rate at which the custodial sentence is activated depends on the length of the period of suspension, and the discretion with which breaches can be dealt. The British government, despite admitting it was perceived as a “let-off”, recently retained the suspended sentence, on the basis that the courts clearly found it useful, and that it seemed to be effective.¹⁰⁶

9.64 Legislation in several jurisdictions, including Victoria, Queensland, and the Northern Territory, provides for suspended sentences, but the Commission considers that each of these models is very elaborate and dependent on the total range of options. If suspended sentences were to be reintroduced in New South Wales, the Commission would propose to use the model in s 558 of the Crimes Act 1900. This is a model with which courts are familiar, which is consistent with other forms of conditional release, and which gives maximum flexibility as to conditions which can be imposed, and the action to be taken on breach. Conditions relating to supervision and treatment would, in the Commission’s view, be integral to the desired rehabilitation of the offender.

Proposal 33

Suspended sentences should be reintroduced as a sentencing option in New South Wales.

CONFERENCING

9.65 “Conferencing” describes schemes whereby members of the community become involved in dealing with offenders beyond the normal confines of the criminal justice system. Groups formed from the community can take part in conferencing at three stages of the processing of an offender:

• Before trial, often as part of a diversion scheme or alternative to prosecution.
• Before sentencing, as an assistance to the court in determining an appropriate sentence.
• After sentencing, on occasions when victims and offenders desire reconciliation, compensation or some form of future contact.

9.66 Participation can involve any number of community members ranging from a handful of selected individuals to a large number of experts, community members, and families and friends of both offenders and victims. At different points the emphasis may vary, focusing on the community’s interest in restitution, reparation and restoration as well as the role and importance of both the offender and the victim. It is important to distinguish between the aim of diverting offenders from the criminal justice system and reintegrating them into the community and the aim of involving victims in the resolution of cases as a means of empowering them and acknowledging their need for recognition. The most successful of these schemes rely on maintaining a balance between these two aims, and research in both the United Kingdom and New Zealand has shown that where reparation and diversion are sought within one forum, care must be taken to guard against promoting the needs of offenders at the expense of the victims.¹⁰⁷ Local experience shows that the aim of re-connecting offenders with their offences and their community can be reconciled with raising the participation of victims in the criminal justice system.

9.67 Increasingly, conferencing schemes have been used not only as a means of reintegrating the victim and the community into the criminal justice system, but also as a legitimate and efficient alternative to the criminal justice system, for example, in cases involving disputes between persons in on-going relationships.

9.68 Two general variants of conferencing models are family group conferences and schemes involving mediation between victims and offenders. These variants, however, are by no means mutually exclusive.

Mediation between victims and offenders

9.69 Schemes involving mediation between victims and offenders ensure wider victim participation in the justice system by allowing victims to take part in the resolution of a case. This is in addition to their traditional pre-conviction role of reporting offences and providing evidence.

9.70 Mediation may be organised without face to face contact between the parties and one of its main aims is to address the concerns of the victim. Mediation is considered appropriate when the offender and the victim wish to come to an agreement about the offender’s future contact with the victim or where the parties desire some form of compensation or reconciliation. It has received some support in Australia because of its potential to address victim needs and to promote the restoration of victim losses.

Family group conferences

9.71 A family group conference is a meeting of the offender, the victim (if the victim agrees), the supporters of each and a mediator where a plan for dealing with the offender is formulated. Such conferences are most often used to deal with juvenile offenders. They may operate instead of prosecution or prior to sentence. They are not simply a matter of private mediation between two individuals, but are also a means of establishing a greater degree of community control.

9.72 Family group conferences or community accountability conferences¹⁰⁸ aim for reparation rather than retribution and operate to reconnect the community with crime control at a practical level. However, there is a danger that without this community input, such “top-down” schemes may represent “an extension of state power into civil society”.¹⁰⁹

Specific schemes

Family group conferencing in New Zealand

9.73 The system of family group conferencing set up under the Children, Young Persons, and Their Families Act 1989 (NZ) is seen as a pioneering effort and is often taken as the touchstone for comparison with other such schemes. It has its origins in features of traditional Maori dispute resolution.

9.74 The scheme can operate either as a diversionary or a pre-sentence scheme. It operates as a diversionary scheme at two stages of criminal procedure. The first is at the point of detection, before charges are laid. In such cases no information with respect to an offence shall be laid unless the informant believes the institution of criminal proceedings is in the public interest, the informant has consulted a Youth Justice Co-ordinator and the matter has been considered by a family group conference.¹¹⁰ The second point is where the offender has been arrested in relation to an offence (other than murder, manslaughter or a traffic offence not punishable by imprisonment), and having appeared before the Youth Court, has not denied the offence. In such a case the Court does not enter a plea but refers the matter to a Youth Justice Co-ordinator to convene a family conference and adjourns the proceedings pending the outcome of the conference.¹¹¹ There are certain instances where a family group conference will not be required.¹¹² The scheme is used as a pre-sentence measure in that when a charge is proved in the Youth Court, the Court cannot make any orders “unless a family group conference has had an opportunity to consider ways in which the Court might deal with the young person.”¹¹³

9.75 The Act provides that a family group conference may, on ascertaining (or at least assuming) that the offender committed the offence, “make such decisions and recommendations and formulate such plans as it considers necessary or desirable in relation to the child.”¹¹⁴ Such recommendations could include: to proceed with or discontinue proceedings; to issue a formal police caution; to declare that the child is in need of care or protection; to impose appropriate penalties; and to make reparation to any victim.¹¹⁵

9.76 Persons entitled to attend a family group conference include the young offender, the family group, the Youth Justice Co-ordinator, the informant, any victim of the offence or a representative of that victim, a legal representative or lay advocate of the offender, and various representatives of agencies depending on the social welfare requirements of the offender.¹¹⁶ The “family group” is widely defined in the New Zealand provisions and can include at the very least an adult with whom a young offender has a “significant psychological attachment.” The Act also extends recognition to culturally appropriate family groups, including those associated with Maori culture.¹¹⁷

9.77 No provision is, however, made for support persons to attend with the victim. This failure may have a negative effect. Evaluations have shown that only around half of the family group conferences had victims or their representatives present. Only about half of the victims who participated were reported as being satisfied with the results of the process.¹¹⁸ It has been suggested that the aim of diversion has been given prominence over the interests of victims.¹¹⁹

The Wagga Wagga juvenile cautioning program

9.78 Family conferencing was introduced in Wagga Wagga in August 1991 as an Australian variation of the New Zealand family group conference model. It has no legislative base but is operated by the police as part of their discretionary power to caution or prosecute within the guidelines of the Police Commissioner’s Instructions.¹²⁰ The Wagga Scheme is directed to juvenile offenders, but, in comparison with its New Zealand counterpart, it places more emphasis on the role of the victim.¹²¹ Like most family conferencing models, the Wagga model is a community process, not simply a matter of mediation between two individuals. It operates primarily as a diversion from court proceedings and, unlike its New Zealand counterpart, there is a tendency to use it as a means of first resort.¹²² The scheme also differs from New Zealand in granting key roles to police officers and traditional criminal justice agencies, as opposed to social welfare agencies.¹²³ The Wagga scheme has had an enormous influence on the development of conferencing in many parts of Australia.

9.79 When a young offender is apprehended for an offence and is not warned or formally cautioned, the case is referred to the Juvenile Review Panel.¹²⁴ This panel determines whether the matter will be dealt with by way of warning, family group conference or by a court appearance. If the offence is admitted, the young offender is not automatically charged unless either the offence is a serious indictable offence that requires the offender be kept in custody, or bail has been refused or onerous conditions attached to it. Instead a family group conference is organised.

9.80 The conference is held at the police station with the offender, the offender’s family, any other person who is significant to the offender, the victim and the victim’s supporters. A police officer acts as co-ordinator. The cautioning process is finalised when some agreement is reached between the victim and the offender after input from all present. The role of the police co-ordinator is limited to resolving any difficulties that might arise during the conference and witnessing any arrangements for material restitution. At the completion of the cautioning conference, juvenile offenders are handed an activity booklet dealing with the crime and its consequences and the offenders are asked to work through this with their families prior to the follow-up session.

9.81 All offenders and their families are required to be involved in a review within four to six weeks. This review involves a group of young offenders and their families being invited to attend a basic two hour session conducted by community members. This session places strong emphasis on offering remedial skills for offenders and their parents or other relatives. Further sessions are available on request.

9.82 One evaluation of the Wagga Scheme has shown that since its introduction there has been a significant decrease in the number of formal police interventions as well as the number of juveniles charged and placed before the court. There was also strong evidence of a reduction in reported juvenile crime in Wagga Wagga. High levels of victim participation and satisfaction were also reported, with 93% of all compensation sought being paid.¹²⁵

South Australia

9.83 In South Australia, where conferencing was introduced under the Young Offenders Act 1993 (SA), the system operates more like the New Zealand model. Greater provision is made for informal treatment of young offenders by police officers with respect to what the police officers believe to be “minor offences.”¹²⁶ Options available to an officer, when an offence is admitted, include informally cautioning the offender,¹²⁷ laying a charge before the court, referring the matter to a Youth Justice Co-ordinator for a family conference, or choosing from a range of further sanctions.¹²⁸ Further options include the issue of a formal caution together with a requirement that the youth undertake to pay compensation, carry out up to 75 hours of community service or undertake to apologise and do anything else appropriate in the circumstances.¹²⁹ The only fetters on the police officer’s discretion are that the officer must have regard to sentences imposed by the courts for similar offences and guidelines issued by the police commissioner.¹³⁰ Failure to comply with an undertaking can lead to a formal charge or to a reference to a Youth Justice Co-ordinator for a family conference.¹³¹ A family conference may consist of the Youth Justice Co-ordinator, the offender, such relatives, guardians, and close associates of the offender as are invited, the victim and a supporter, and a representative of the Commissioner of Police,¹³² and may impose the same further sanctions which a police officer may impose except that community service of up to 300 hours can be ordered.¹³³ If a family conference cannot reach a decision the Court may exercise the conference’s powers. In addition the Youth Court may refer to a Youth Justice Co-ordinator for a family conference prior to sentence. In the latter case the conference formulates a plan or makes a recommendation which is referred to the court. It could be argued that this South Australian model, despite some procedural safeguards, places too much discretion in the hands of individual police officers.¹³⁴

Community Youth Conferences

9.84 Another type of family conferencing, Community Youth Conferences (“CYC”), was introduced as a pilot scheme in six areas of New South Wales following recommendations in a government white paper on juvenile justice in August 1994.¹³⁵ These were to be run in conjunction with a Cautioning Conference Scheme piloted by the Police Service as part of the formal cautioning process.¹³⁶ A government appointed CYC Council issues guidelines and monitors the scheme. Community Justice Centres train co-ordinators who organise and run the conferences. Matters may be referred to CYCs by the police or the Children’s Court. Victims may participate and outcomes can involve apology, reparation to the victim or reparation to the community in the form of community work.¹³⁷

Community Aid Panels

9.85 Community Aid Panels (CAPs) are an example, currently operational in New South Wales, of a mediation program for adult offenders, although they are also an option for dealing with juvenile offenders. The first CAP was introduced in the Wyong Local Court in 1987 and a unit to co-ordinate the development of the CAP program was set up in 1991. As at July 1992, 56 panels were operating at various centres throughout New South Wales.¹³⁸ The panels are used after a plea of guilty has been entered but before sentencing by the Court and are not used as a means of trial diversion. The Court will normally adjourn for a period of three months to allow the offence and related matters to be discussed before a panel. A panel consists of a police officer, a lawyer and two members of the community who will discuss with the offender (and the offender’s family where the offender is a juvenile) the circumstances of the offence and any underlying problems. The panel will then recommend a course of action which may involve voluntary community work, skills training or counselling.¹³⁹ The matter is then returned to the Court for final determination.¹⁴⁰ It has been suggested that it would be desirable if offenders who have complied with recommendations of a panel were not required to return to Court.

9.86 While CAPs focus primarily on the offender and victims are not required to participate, the outcomes can have a restorative orientation and offenders may agree to compensate the victim or to perform community service. Occasionally the offender may be required to apologise to the victim.

9.87 Criticisms can be made of the approach of community aid panels. It has been said that the panels “remain within the traditional paradigm of criminal justice” and in some respects are more likely to promote than reduce crime.¹⁴¹ It is argued that the focus of “officialdom” on the offender can have a negative effect:

Officials are stepping in to offer some form of state control in cases where community control is seen to have failed. However, this new, more visible form of control is unable to deal with two problems that encouraged or made possible the initial offence. The system of state control cannot successfully acknowledge the offender’s emotions of shame and anger. Secondly, it cannot successfully encourage the offender to feel empathy for the victim of the offence and for potential future victims.¹⁴²

This approach can be contrasted with the Wagga Scheme of juvenile cautioning which deals with the concerns above by involving victims and their supporters in addition to offenders and their supporters.¹⁴³

Aboriginal communities

9.88 A number of approaches which involve the community in the sentencing process have been in operation in Aboriginal communities in Australia. Some of these are described in detail in the Australian Law Reform Commission’s report on the recognition of Aboriginal customary laws.¹⁴⁴ The Commission regards these matters as important but has deferred consideration of them to the second phase of the sentencing reference.¹⁴⁵

Circle sentencing in Canada

9.89 By way of contrast, the judges of the Territorial Court of Yukon in Canada have devised a community conferencing scheme which operates as a pre-sentence option for more serious adult offenders. The “Circle Sentencing” scheme was first conducted in Canada in 1992 and has been applied particularly in the case of Aboriginal offenders. The term “circle sentencing” derives from the fact that the conferences are conducted with all participants arranged in a circle, as opposed to more traditional seating arrangements. Circle sentencing sessions are conducted within the context of the court proceedings and have no independent legislative base.

9.90 Matters are referred to a sentencing circle at the request of an offender or the offender’s legal representative. Eligibility was originally determined by the Judges, but such decisions are increasingly made by Community Justice Committees which consist mostly of lay members of the community. An offender must normally plead guilty and accept responsibility for the offence to be able to take part in a sentencing circle.

9.91 Sentencing circles are open to the public and steps are generally taken by the Community Justice Committee to involve persons affected by the crime as well as those who can contribute resources to resolving the issues raised. The creation of support groups for both victims and offenders, usually consisting of a number of relatives, neighbours, and friends, is encouraged from an early stage. A sentencing plan is devised, often involving traditional sentencing outcomes. The offender’s support group becomes responsible for the monitoring, implementation and review of the plan.¹⁴⁶ Obviously, the success of the scheme depends on an identifiable and interested community which has some relevance to the offender.

Advantages of conferencing

9.92 The advantages of conferencing schemes - in particular, but not exclusively, those involving victim offender mediation - can be grouped into four broad categories, that is, advantages for victims, for offenders, for the community and for the criminal justice system:

• Victims are empowered by enhanced possibilities of compensation and by having the opportunity to confront the offender with their account of the impact of the crime and to have an input into the outcome. Restitution, reparation and reconciliation for victims are promoted, expanding upon the criminal justice system’s former single focus on punishment and the offender. Victim anger and trauma may also be reduced.
• Offenders take an active role in a process which is non-stigmatising and re-integrative. Rehabilitation may, therefore, be facilitated. Reconciliation between victim and offender may also result.
• The community is involved in the resolution of its own conflicts rather than abdicating responsibility to the State. Crime is taken seriously as community-based and localised solutions are found. The net of community control is widened and that of the State is narrowed.¹⁴⁷
• The most important benefit is that conferencing schemes may be used to divert offenders from the court system. Procedures are flexible and may take different forms depending on the wishes of participants. This is especially important where an imbalance of power exists between the offender and victim, where the victim and offender know each other, or where the victim is young. The parties control the content and outcome of the conference and compliance is more likely than where court ordered outcomes are imposed.

Disadvantages of conferencing

9.93 Conferencing schemes can operate effectively only where there is a “community”. They will then depend for their success upon the motivation of participants, including members of the community, and consequently aspects of their operation including compliance with, and enforcement of, agreements may prove difficult. The flexibility of mediation schemes may threaten the predictability, equity and procedural justice attributed to the formal justice system. Further, the rights of the offenders may be threatened by disproportionate and inconsistent outcomes. In particular:

• Conference strategies may be limited to individual cases and fail to tackle underlying social injustices.
• There may be a net-widening effect. Conferencing, while diverting offenders from the courts, nevertheless draws more offenders into the criminal justice system than would otherwise have been the case.¹⁴⁸ It may be that some offenders are charged, rather than cautioned, to make them eligible for some schemes.
• There is a danger that “agreements” can be coerced rather than negotiated.
• Conformity with principles of proportionality and consistency is more difficult to achieve where conference outcomes depend on agreement between diverse groups of families, offenders and victims.
• Conferencing may result in the imposition of more restrictive sanctions on offenders than the public interest may allow.
• Discrimination on the basis of race or gender may be more difficult to avoid, as a conference may not be able to deal appropriately with such issues.
• Due process and accountability may be threatened as conferences are conducted behind closed doors.
• Police may not always be the most appropriate personnel to run such schemes as they may not be able to distinguish between their policing and welfare roles.¹⁴⁹ They do not always enjoy the respect of the community they serve.¹⁵⁰
• The community, as opposed to victims, may not be satisfied with conference outcomes to the extent emphasis shifts from retribution to reparation.
• Problems can be caused by low referral rates, and inadequate feedback to interested parties.

9.94 The advantages and disadvantages of family group conferences are similar to those of conferencing schemes generally. Some additional considerations do apply in that families may benefit and be strengthened by a family centred approach which encourages their involvement and sharpens family responsibilities. However, the family may not always be the most appropriate institution to deal with offenders, either because they have lost their place as the most important socialising influence on offenders or because they may have a malign influence upon them. ¹⁵¹

9.95 The Commission encourages the consideration of conferencing programs as an alternative to more traditional procedures within the criminal justice system. We invite submissions on how various conferencing schemes ought to be utilised and improved.

QUESTIONS ARISING IN CHAPTER 9

1. Should non-custodial sentences be recognised as penalties in their own right rather than as alternatives to imprisonment?

2. To what extent do net-widening, sanction stacking and the dangers of longer sentences of imprisonment stand in the way of the further development of non-custodial sentencing options?

3. Would it assist a sentencing court if non-custodial penalties were arranged in a guideline sanction hierarchy?

4. Should home detention orders be provided for in legislation?

5. When should home detention be a sentencing option?

6. How should breach of a home detention order be dealt with? In particular, ought it to be considered by the Local or District Court; or by the Offenders Review Board?

7. Should “back-end” home detention be introduced in New South Wales? If yes, should the home detention component be included in the original sentence? Or should the prisoner have to make application to serve the remainder of the sentence in home detention? Should this permission be granted by the original sentencing court or some other quasi judicial body, for example the Offenders Review Board?

8. Should the threshold requirement of imprisonment be removed from the Community Service Orders Act 1979, to enable community service orders to be imposed as a sentence in their own right?

9. Should offender suitability assessments be mandatory for CSOs of less than 50 hours duration?

10. Is it necessary for breach proceedings to be heard in the supervising court?

11. Should breach of a CSO itself constitute an offence?

12. Should breach of a CSO be provable on the civil standard?

13. Should the various probation orders be consolidated in a statutory order? If so, in what form?

14. What time limit (if any) should be placed on the life of bonds?

15. Should conditions of restitution or compensation ever be attached to bonds?

16. What should the aims of conferencing be? Should it be victim or offender centred, or both?

17. At what stages of criminal procedure should conferencing be made available?

18. What type of offenders and what type of offences should be eligible for a conferencing scheme?

19. On what other criteria are cases to be referred? Must an offender admit guilt before conferencing can proceed?

20. Who should be able to take part in conferences? How are participants to be selected?

21. What sentencing options should be available to conferences?

22. How should outcomes be monitored?

23. Should conferencing schemes have a legislative base, or should they be part of the police cautioning power or the courts’ sentencing power?

24. Which agencies should administer conferencing schemes?

1. See, for example, R v MacDonald (NSW CCA, No 60700/95, 12 December 1995, unreported) at 8 per Gleeson CJ, Kirby P and Hunt CJ at CL (significant difference between serving a part of a sentence in the community on parole and being at liberty on a recognizance).

2. There is also little State intervention where an offender is convicted and sentenced to the rising of the court (“ROC”) - that is to remain in the court until its adjournment. Technically, ROC is a form of imprisonment, even though the restraint on liberty may only operate for a few seconds. ROC is most commonly used in local courts for dealing with secondary offences: see I MacKinnell, “Sentenced to the Rising of the Court” (Sentencing Trends No 11, Judicial Commission of New South Wales, January 1996).

3. Fines are considered in Chapter 10.

4. See paras 9.11-9.24.

5. See Chapter 3.

6. See paras 9.65-9.95.

7. See, for example, N Morris and M Tonry, Between Prison and Probation (Oxford University Press, New York, 1990) at 225.

8. See, eg Community Service Orders Act 1979 (NSW) s 4(1) (CSO can be combined with a fine).

9. See, for example, J Chan and G Zdenkowski, “Just Alternatives, Part 1” (1986) 19 ANZ Journal of Criminology at 67-90.

10. See R Bray, The Use of Custodial Sentences as Alternatives to Custody by NSW Magistrates (Judicial Commission of New South Wales, Monograph Series No 1, 1990) at 7. This study suggested that net-widening was occurring across sentence types both in respect of periodic detention (which was drawing on offences previously punished by community service orders) and community service orders (which were drawing on offences previously punished by fines): Bray at 7, 13-14. However, a later study challenges this conclusion, in the light of a statistical trend showing, in years subsequent to the 1990 study, an increased use in periodic detention and community service orders and a decrease in the level of imprisonment: I Potas, S Cumines and R Takach, A Critical Review of the Periodic Detention in New South Wales (Judicial Commission of New South Wales, 1992) at 1, 11-14.

11. Attorney General’s Sentencing Review at 30.

12. See A Ashworth, A von Hirsch, A Bottoms and M Wasik, “Bespoke Tailoring Won’t Suit Community Sentences” (1995) 145 New Law Journal 970.

13. See para 3.35.

14. (1979) 143 CLR 458.

15. (1988) 164 CLR 465.

16. See G Zdenkowski, “Contemporary Sentencing Issues” in D Chappell and P Wilson, The Australian Criminal Justice System - the Mid 1990s (Butterworths, Sydney, 1994) 171 at 189.

17. See paras 9.28-9.30 where we address the status of Community Service Orders. Viewed as sentences in their own right, it is obviously important that criteria used to measure the success of non-custodial options should not be oriented around imprisonment - such as the degree to which prison costs or offender populations are reduced. The Canadian Sentencing Commission argued that evaluation of non-custodial options should encompass criteria such as the degree to which penalties address the needs and interests of victims of crime or the extent to which they assist the offender in maintaining social and economic ties with the community: see Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, Ottawa, 1986) at 367.

18. See paras 3.33-3.34.

19. Sentencing Act 1991 (Vic) s 5(4)-(7).

20. See South Australia, Criminal Law and Penal Methods Reform Committee, First Report, Sentencing and Corrections (South Australian Government Printer, Adelaide, 1973) (“Mitchell Committee Report”) at 17. Compare Chapter 6 where grid systems for determining sentences are, tentatively, rejected: paras 6.51-6.66.

21. See Australian Law Reform Commission, Sentencing: Penalties (DP 30, 1987) at paras 131-177.

22. See M Wasik and A von Hirsch, “Non-custodial Penalties and the Principles of Desert” [1988] Criminal Law Review 555 at 563-565.

23. For example, the degree of restraint or intervention in the case of probation or amount in the case of fines.

24. See paras 10.4-10.5.

25. See generally Australian Law Reform Commission, Sentencing: Penalties (DP 30, 1987) at paras 74-78. See also R Fox, “Dr Schwitzgebel’s Machine Revisited: Electronic Monitoring of Offenders” (1987) ANZ Journal of Criminology 131.

26. Technical problems, such as the availability of call diversion, need to be addressed to ensure the integrity of any scheme.

27. For example, the Northern Territory abandoned electronic surveillance bracelets as they were frequently not placed in the receiver correctly, or were inadvertently knocked off offenders’ wrists: oral advice from Department of Corrective Services (NT) 17 November 1995. In Queensland, where tin roofs interfered with the signals emitted by bracelets and receivers, electronic surveillance is no longer used.

28. Discussion with the Probation Service, August 1995. Oral advice from Northern Territory Department of Corrective Services, 17 November 1995.

29. J Petersilia and S Turner, “Comparing Intensive and Regular Supervision for High-Risk Probationers: Early Results From an Experiment in California” (1990) 36 Crime and Delinquency No 1.

30. The cost of the New South Wales program is estimated at $25 per day with one third of that being spent on surveillance equipment. This figure is provided by the Probation Service.

31. Consider A Aungles, The Prison and the Home: A Study of the Relationship Between Domesticity and Penality (Institute of Criminology, Monograph Series No 5, Sydney, 1994).

32. The Australian Law Reform Commission suggested that this has limited the usefulness of home detention orders: Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 131. Similar criticism has come from the United States where suggestions of class bias have been made: Tonry at 217.

33. For example, Sentencing Act 1991 (Vic) s 19; Sentencing Act (NT) s 44; Sentencing Act 1995 (WA) s 68-75. This type of sentence also exists in New South Wales (see paras 9.18-9.24) and has been available in Queensland since September 1994.

34. This type of scheme operates in Queensland.

35. There is no intervention in the Queensland home detention scheme. However, oral advice from the Queensland Community Services Commission indicates that this is changing as the supervision visits are now interspersed with intervention visits by trained community corrections officers.

36. There is provision under s 29(1) of the Prisons Act 1952 (NSW) for the governor of a prison to release an offender to serve his or her term in the home in certain cases. This type of home detention is not conducted as a specific program, but is motivated by the facts of particular cases such as the terminal illness of a family member.

37. See para 9.42.

38. See paras 7.32-7.40.

39. In Western Australia the Director of Community Corrections decides who is eligible for the home detention program. In Queensland the Community Corrections Board decides who should be released to home detention: Corrective Services Act 1988 (Qld) s 86. See also Berry v The Queen (1992) 2 NTLR 68, where the court held that the power to vary the residential provisions of a home detention order prescribed by the Criminal Law (Conditional Release of Offenders) (Home Detention Orders) Regulations 1988 (NT) reg 3, rests with the Director of Correctional Services and not the Court.

40. Community Service Orders Act 1979 (NSW) s 4. Figures recently released by the Bureau of Crime Research and Statistics for criminal cases finalised in Local Courts in 1994 show that 5076 community service orders were made as the principal penalty. They were given for offences against the person, justice procedures and good order, theft, property damage, and for drug related and driving offences. Orders for 51 to 100 hours made up the majority of orders given. In August 1995 the Probation Service advised they were administering 4829 community service orders.

41. Community Service Orders Act 1979 (NSW) s 6.

42. Department of Corrective Services, Submission, 4 September 1995, at 10.

43. Community Service Orders-Views of Organisers in NSW (Judicial Commission of New South Wales, Monograph Series No 2, March 1991) Appendix 2 at 40.

44 Community Service Orders Act 1979 s 6(3).

45. Community Service Orders Act 1979 s 4(1); New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 29 November 1979 at 4258.

46. A community service order is estimated to cost $4 per offender per day, compared with minimum security imprisonment which costs $50 per day: advice from NSW Probation Service, August 1995.

47. Bray (1990) at 1-2.

48. See paras 9.5-9.6.

49. See Summary Offences and Other Legislation (Graffiti) Amendment Act 1994 (NSW).

50. See Bray (1990).

51. Bar Association; Deputy DPP; Department of Courts Administration; Ministry for the Status and Advancement of Women; Professor Tony Vinson; Mr Ivan Potas. The proposal is opposed on net-widening grounds by the Legal Aid Commission and the Uniting Church.

52. Attorney General’s Sentencing Review at 30.

53. Community Service Orders Act 1979 s 23(1).

54. Community Service Orders Act 1979 s 23(1).

55. Community Service Orders Act 1979 s 24.

56. Community Service Orders Act 1979 s 25.

57. United Nations, Probation and Related Measures (United Nations Department of Social Affairs, New York, 1951) at 4.

58. See paras 9.37-9.44.

59. See NSW Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1991, 1992, 1993, 1994.

60. Section 556A (1) refers to “releas[ing] the offender on probation”: cf the short-lived First Offenders Probation Act 1894 (NSW) which introduced probation to sentencing in New South Wales.

61. NSW Department of Corrective Services, Submission, 4 September 1995, at 4: Probation and Parole Officers’ Association of New South Wales, Submission to Attorney General’s Sentencing Review, 23 June 1994 at 24.

62. In May 1995, the NSW Probation Service was removed from the Department of Courts Administration and amalgamated with the Parole Service to become a division of the Department of Corrective Services. It was formerly known as the Community Corrections Service, and had been part of the Department of Corrective Services prior to 1 November 1991.

63. NSW Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1994 (Sydney, 1995).

64. Crimes Act 1900 (NSW) s 558.

65. See para 9.41.

66. Advice to the Commission from the Probation and Parole Service, figures as at July 1995. These are “snapshot figures” of caseload numbers and include offenders whose orders are in suspense, that is, not presently under active supervision for some reason.

67. Probation and Parole Officers’ Association of New South Wales, Submission to Attorney General’s Sentencing Review, 23 June 1994 at 24.

68. A recognizance is a solemn undertaking to a court by a person, generally a defendant in a criminal case, with or without securities, to perform an obligation, for example, to be of good behaviour.

69. The money may, in some circumstances, need to be deposited with the court prior to the offender’s release.

70. See Crimes Act 1900 (NSW) s 556B, 558(6).

71. There are, no doubt, limits to conditions which ought properly to attach to bonds: see K Warner, “The Dam Blockade: Some Issues Relating to Organized Protest and Bail” in M Sornarajah (ed), The South West Dam Dispute: The Legal and Political Issues (University of Tasmania, 1983) at 132-144.

72. Victims Compensation Act 1987 (NSW), Part 6; including where no conviction has been recorded: Crimes Act 1900 (NSW) s 556A(2).

73. Justices Act 1902 (NSW) s 81(1), (3).

74. The court cannot impose a fine, as there is no conviction, nor require a financial payment in lieu such as a donation to charity: see Griffiths v Hutchinson (NSW SC, No 14323/90, 1 February 1991, McInerney J, unreported) (see Criminal Practice and Procedure NSW (Butterworths) CN88).

75. Community Service Orders Act 1979 (NSW) s 5(b).

76. Crimes Act 1900 (NSW) s 556A(1)(a).

77. Crimes Act 1900 (NSW) s 556A(1)(b). Section 556A is available for all offenders and all offences (except those specified under s 10(5) of the Motor Traffic Act 1901 (NSW)).

78. NSW Department of Corrective Services, Submission 4 September 1995 at 15. Statistics are not sufficiently specific to allow differentiation between absolute dismissal and dismissal on condition under s 556A and other statutory sources: see NSW Bureau of Crime Statistics and Research, NSW Criminal Courts Statistics 1994 at 4, 10, 14-15.

79. The historical development of the power is extremely complex. At common law, the power was, probably, originally restricted to cases where there was a conviction for a misdemeanour, but statute extended the power to felonies and to situations where there was no conviction: see Griffiths v The Queen (1977) 137 CLR 293 at 319-324 per Jacobs J.

80. Griffiths v The Queen (1977) 137 CLR 293 at 321-324 per Jacobs J. Section 558 of the Crimes Act 1900 (NSW), as amended by s 13(b) of the Crimes and Other Acts Amendment Act 1974 (NSW), was probably intended to codify this aspect of the common law, although the section does not specifically abolish the common law bond: I L Potas, The Legal Basis of Probation (Australian Institute of Criminology, Canberra, 1976) at 13.

81. Griffiths v The Queen (1977) 137 CLR 293. In practice, the conditions attaching to a Griffiths Remand generally form part of bail conditions. A Griffiths Remand is subject to appeal by the Crown: Criminal Appeal Act 1912 (NSW) s 2(2)(c), inserted by the Criminal Appeal (Crimes) Amendment Act 1979 (NSW).

82. It should only be granted when there is a real expectation that rehabilitation and reform are likely to be achieved: R v Tindall (1994) 74 A Crim R 275.

83. Penalties and Sentences Act 1985 (Vic) s 29, now see Sentencing Act 1991 (Vic) s 36-48.

84. That is, release on bail conditional upon supervision by the Service; recognizance under s 556A Crimes Act 1900 (NSW); recognizance under s 558 Crimes Act 1900 (NSW); intensive community supervision (at present a variety of the recognizance under s 558); recognizance under the common law requiring supervision; community service order; court-based parole orders; and parole orders made by the Offenders Review Board.

85. NSW Department of Corrective Services, Submission, 4 September 1995, at 5. A similar proposal was made by NSW Department of Courts Administration, Submission to Attorney General’s Sentencing Review, 31 March 1994, at 3. The current form reflects the amalgamation of the Probation and Parole Services.

86. NSW Department of Corrective Services, Submission, 4 September 1995, at 5-9.

87. NSW Department of Corrective Services, Submission, 4 September 1995, at 7.

88. NSW Department of Corrective Services, Submission, 4 September 1995, at 15.

89. NSW Department of Courts Administration, Submission to the Attorney General’s Sentencing Review, 29 July 1994, at 2.

90. The Attorney General’s Sentencing Review asserted that conditional release on adjournment, whether before or after conviction, is a matter that should properly fall within the terms of the Bail Act 1987: see Attorney General’s Sentencing Review 1994 at 36.

91. Sentencing Act 1991 (Vic) s 36-48. See A Freiberg, “Sentencing Reform in Victoria” in C Clarkson and R Morgan, The Politics of Sentencing Reform (Clarendon Press, xford, 1995) 51 at 68.

92. See paras 9.41-9.44.

93. See especially Griffiths v The Queen (1977) 137 CLR 293.

94. See Victims Compensation Act 1987 (NSW), Part 6, applicable also to a bond under Crimes Act 1900 (NSW) s 556A(2).

95. Attorney General’s Sentencing Review 1994 at 39.

96. Victims Compensation Act 1987 (NSW) s 65.

97. See Re Lattouf (1994) 52 FCR 147 (FC); Keogh v DPP (1995) 133 ALR 681.

98. Australian Law Reform Commission, Sentencing: Penalties (DP 30, 1987) at para 36.

99. See Penalties and Sentences Act 1992 (Qld) s 144(1); Criminal Law (Sentencing) Act 1988 (SA) s 38; Criminal Code 1924 (Tas) s 386(1)(d); Sentencing Act 1995 (NT) s 40-43; Crimes Act 1900 (ACT) s 556B(1)(b): Sentencing Act 1991 (Vic) s 27-31; Crimes Act 1914 (Cth) s 20(1). See also Criminal Justice Act 1991 (Eng) s 5, 21A.

100. The limitation of the court’s power to the imposition of the full penalty on call up operated as a restriction on the operation of this section. Compare the Commission’s proposal in para 9.64.

101. New South Wales, Criminal Law Committee, Report of the Criminal Law Committee on Proposed Amendments to the Criminal Law and Procedure, (September 1973) at 15.

102. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 13 March 1974 at 1363. See para 9.42.

103. Crimes Act 1900 (NSW) s 556A.

104. Crimes Act 1900 (NSW) s 558.

105. See D Tait, “The Invisible Sanction: Suspended Sentences in Victoria 1985-1991” (1995) 28 ANZ Journal of Criminology 143; A E Bottoms, “The Suspended Sentence in England 1967-1978” (1981) 21 British Journal of Criminology 1.

106. Home Office, Crime, Justice and Protecting the Public (Cm 965, HMSO, 1990) (White Paper) at para 3.21.

107. These evaluations were of systems designed for juveniles: see J Braithwaite, “Juvenile Offending: New Theory and Practice” in L Atkinson & S Gerull (eds), National Conference on Juvenile Justice (Australian Institute of Criminology, Conference Proceedings 22, 1993) 35-42; G Maxwell and A Morris, “Juvenile Justice in New Zealand: A New Paradigm” (1993) 26 ANZ Journal of Criminology 72. See also T Marshall and S Merry, Crime and Accountability: Victim/Offender Mediation in Practice (London, 1990).

108. John Braithwaite’s preferred term: “Thinking Harder about Democratising Social Control” in C Alder and J Wundersitz (eds), Family Conferencing and Juvenile Justice (Australian Institute of Criminology, Canberra, 1994) at 199.

109. R White, “Shame and Reintegration Strategies: Individuals, State Power and Social Interests” in Alder & Wundersitz (eds), Family Conferencing and Juvenile Justice (Australian Institute of Criminology, Canberra, 1994) 180 at 188.

110. Children, Young Persons, and Their Families Act 1989 (NZ) s 245.

111. Children, Young Persons, and Their Families Act 1989 (NZ) s 246.

112. Children, Young Persons, and Their Families Act 1989 (NZ) s 248(1).

113. Children, Young Persons, and Their Families Act 1989 (NZ) s 281.

114. Children, Young Persons, and Their Families Act 1989 (NZ) s 260.

115. Children, Young Persons, and Their Families Act 1989 (NZ) s 260(3).

116. Children, Young Persons, and Their Families Act 1989 (NZ) s 251.

117. Children, Young Persons, and Their Families Act 1989 (NZ) s 2(1).

118. G M Maxwell, “Family Decision-Making in Youth Justice: The New Zealand Model” in L Atkinson and S Gerull (eds), National Conference on Juvenile Justice (Australian Institute of Criminology, Conference Proceedings 22, 1993) 113 at 121.

119. G M Maxwell at 123.

120. Cunneen and White discuss the operation of the Wagga Scheme under the heading of “police cautions” and not “family group conferences”: C Cunneen and R White, Juvenile Justice: An Australian Perspective (Oxford University Press, Melbourne, 1995) at 247-250.

121. J Braithwaite, “Juvenile Offending: New Theory and Practice” in L Atkinson and S Gerull (eds), National Conference on Juvenile Justice (Australian Institute of Criminology, Conference Proceedings 22, 1993) 35 at 38-39.

122. Cunneen and White at 252.

123. Cunneen and White at 252. These tendencies can also be seen to a greater extent in the Young Offenders Act 1993 (SA), see para 9.83.

124. A panel of sergeants which reviews every alleged juvenile offence.

125. T O’Connell, “Wagga Wagga Juvenile Cautioning Program: ‘It may be the way to go!’” in L Atkinson and S Gerull (eds), National Conference on Juvenile Justice (Australian Institute of Criminology Conference Proceedings 22) at 221-232. It should be noted, however, that other community policing initiatives within the same period ay also have had an effect.

126. Considerable latitude is given to the officer in charge: Young Offenders Act 1993 (SA) s 4.

127. Young Offenders Act 1993 (SA) s 6.

128. Young Offenders Act 1993 (SA) s 7.

129. Young Offenders Act 1993 (SA) s 8.

130. Young Offenders Act 1993 (SA) s 8(4).

131. Young Offenders Act 1993 (SA) s 8(7).

132. Young Offenders Act 1993 (SA) s 11.

133. Young Offenders Act 1993 (SA) s 12.

134. See Cunneen and White, at 249.

135. New South Wales, Breaking the Crime Cycle: New Directions for Juvenile Justice in New South Wales (White Paper, 1994) at 13.

136. This scheme involves victims, offenders and their families: T Goulding (ed), The Law Handbook (5th ed, Redfern Legal Centre Publishing, Sydney, 1995) at 234.

137. This description of CYC was obtained from Rights Now! (newsletter of the national children’s and youth law centre) vol 3 no 4, November 1995 at 3.

138. About 50 were operational at the end of 1994: T Goulding (ed), The Law Handbook (5th ed, Redfern Legal Centre Publishing, Sydney, 1995) at 242.

139. Cunneen and White at 250.

140. With one of the options being not to record a conviction under s 556A Crimes Act 1900 (NSW).

141. D Moore, “Facing the Consequences” in L Atkinson and S Gerull (eds), National Conference on Juvenile Justice (Australian Institute of Criminology Conference Proceedings 22, 1993) 203 at 207.

142. Moore at 207.

143. Moore at 206-207.

144. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) ch 28. See also paras 833-834 where the ALRC discusses proposals for non-judicial dispute resolution.

145. See para 1.13.

146. This description is derived from a paper by H Lilles, Circle Sentencing: A Canadian Approach to Community Justice (Institute of Values Research, New College, UNSW, 15 June 1995).

147. J Braithwaite “Juvenile Offending: New Theory and Practice” in L Atkinson & S Gerull. (eds), National Conference on Juvenile Justice (Australian Institute of Criminology, Conference Proceedings 22, 1993) 35 at 39.

148. Moore at 208-210 who also provides counter arguments to this view.

149. Moore at 211-212

150. Moore at 215-216.

151. Moore at 212-214.