• General approach to sentencing
• Full-time custody
• Alternatives to full-time custody
• Non-custodial options

GENERAL APPROACH TO SENTENCING

5.2 Individual sentencing options are discussed below, with reference to their particular roles and characteristics. However, before proceeding to this discussion, the Commission notes the following general considerations as relevant to an evaluation of individual sentencing options:

• An understanding of the special needs of Aboriginal offenders, and an awareness of what is culturally appropriate in an individual case, are essential prerequisites for more effective programs, services and options directed to achieving rehabilitation.
• Aboriginal people do not comprise one, undifferentiated category. For programs and services to be effective, there must be an understanding of Aboriginal diversity and an appropriate range of non-custodial sentencing options should be made available.¹
• It is important that those preparing pre-sentence reports, and members of the judiciary deciding upon an appropriate sentence, be fully conversant with all the available options.²
• There is a need to address language and communication issues which may impact on the ability of Aboriginal offenders and their families to understand the sentencing process, the outcome of the hearing and any obligations to comply with conditions attached to a sentence.³
• The Aboriginal community should be involved in the sentencing process and in the design and delivery of sentencing options.⁴
• As alcohol and drugs are implicated, either directly or indirectly, in so much of Aboriginal crime, both custodial and non-custodial sentences need to include, as a priority for the majority of Aboriginal offenders, programs addressing alcohol and substance abuse, staffed by suitably trained workers, particularly Aboriginal workers.⁵
• In order to overcome the practical difficulties of delivering sentencing options to Aboriginal offenders in remote rural regions, creative alternatives to conventional options, which nonetheless achieve the same sentencing objectives, must be available.
• Statistical and other information must be recorded to enable an understanding of Aboriginal rates of recidivism and the effectiveness of sentencing options and parole, and for devising strategies for the rehabilitation of offenders.⁶

FULL-TIME CUSTODY

5.4 Chapter 2 stresses, and expounds, the fundamental principle at common law, given statutory recognition in New South Wales in the Justices Act 1902 (NSW),⁸ that imprisonment is the sanction of last resort.⁹ Chapter 2 also discusses whether the judiciary is at all times complying with this principle. It analyses whether imprisonment in fact has a deterrent or rehabilitative effect on Aboriginal offenders. Examination of those issues is not repeated here. Rather, this chapter concentrates on the prison experience for Aboriginal inmates where a custodial sentence is truly the only proper or available sentence for the crime committed.

5.5 The Royal Commission into Aboriginal Deaths in Custody (the “RCIADIC”) made 19 recommendations relating to the prison experience.¹⁰ In 1996, in response to these recommendations, Corrective Services formulated an action plan for the management of Aboriginal offenders (“the Action Plan”).¹¹ The Action Plan sets out the Department’s goals, objectives and achievements, as well as strategies for consolidation, for the period 1996-1998. The Action Plan was produced following consultation with key stakeholders, in particular, Aboriginal organisations and individuals, concerned in policies and programs affecting Aboriginal offenders. Corrective Services is preparing to report on the outcome of this plan in 2000.

5.6 The Action Plan addresses the following broad areas:

• involvement of Aboriginal people in the planning and implementation of Corrective Services policy, services and programs;
• the reduction of the rate of imprisonment of Aboriginal people, and, where possible, the diversion of Aboriginal offenders away from the criminal justice system;
• an increase in the representation of Aboriginal staff in Corrective Services;
• raising awareness among all staff concerning Aboriginal cultural matters which are necessary to effective interaction with Aboriginal people, and to eliminate discriminatory and racist behaviours;
• meeting the special needs of Aboriginal offenders with respect to health and safety, the Aboriginal experience in prison, welfare, education and vocational training, psychology services, drug and alcohol programs, HIV and health promotion, pre-release programs, inmate employment, and probation and parole services; and
• meeting the special needs of female Aboriginal offenders.

5.8 Corrective Services’ Alcohol and Other Drug Services Unit also developed a strategic plan in 1996 with improvements to be implemented over several years, with the aid of increased funding to that Unit. A dedicated Indigenous Drug and Alcohol Team, comprising a co-ordinator and five Aboriginal drug and alcohol workers, has been established within Corrective Services, and Aboriginal staff and inmates have designed special resources for use in drug and alcohol programs.

5.9 Providing Corrective Services remains as committed to these strategies as the Action Plan suggests, and subject to comments and discussion below, it appears that it has covered all reasonable and effective avenues relating to full-time custody which strive to minimise risks to the safety and well-being of Aboriginal inmates, increase the likelihood of rehabilitation, and reduce recidivism. The report of the progress which has been made under the Action Plan will need to be studied carefully to confirm that the planned reforms have been implemented and to evaluate, from a number of perspectives, how successful the strategies, including those already in place, have been. This needs to be done in conjunction with better statistical recording and analysis.

5.10 Priority also needs to be given to programs and services for offenders receiving short custodial sentences and who have a high rate of recidivism for these comparatively minor offences. Aboriginal offenders are proportionately sentenced more frequently to short terms of imprisonment than non-Aboriginal offenders.¹³ Although there are no statistics which give a break-down of the proportion of repeat offenders among Aboriginal inmates serving sentences less than six months, anecdotal material suggests that the numbers are high. Steps should be taken to reduce the incidence of short prison sentences.¹⁴ Where a short prison sentence is unavoidable, the focus should be on addressing the causes of recidivism and achieving rehabilitation. This group of offenders tends to be neglected in the criminal justice system. Their incarceration is often too short for them to benefit from mainstream programs, which seek to address the underlying causes of recidivism.

A segregated custodial facility?

5.11 From time to time it is suggested that a corrective establishment exclusively for Aboriginal offenders be built. However, in so far as this refers to an institution accommodating all categories of offenders, serving sentences of all lengths, the prevailing wisdom is that a segregated facility is neither feasible nor advisable. Nor is it supported by ISU, employees of whom expressed the view to the Commission that “what is important is not to have black jails but to have programs in jails as culturally appropriate as possible”.

5.12 The numbers, and geographical spread, of Aboriginal offenders cannot justify the costs of building new facilities in various regions of the State. Neither would it be desirable to bring all Aboriginal prisoners to one central institution. The ideal is for Aboriginal inmates to be accommodated close to their own communities, where they can receive visits from family and friends and where they may also already know other inmates. These factors may help an offender cope with the prison experience. As identified by the Action Plan, within predominantly non-Aboriginal institutions, there should be policies, services and programs which are directly targeted at Aboriginal inmates.

5.13 While we cannot recommend a segregated conventional custodial facility, Aboriginal offenders with a low security classification and offenders receiving non-custodial sentences may benefit greatly from involvement in residential programs designed and managed by and for Aboriginal people. Two of these kinds of options, both of them initiatives which the Commission applauds, are explored below.

Ivanhoe Warakirri Centre

5.14 Although the building of the Ivanhoe Warakirri Centre¹⁵ may seem at odds with our comments above, the purpose the Centre serves differs from a mainstream correctional centre in several respects. To be eligible for admission, an inmate must have a C2 classification, not be a violent offender, and be serving the last 18 months of a sentence. It is more akin to a transitional centre, where offenders are working up to release into the community. Although the inmate population will be predominantly Aboriginal, and Aboriginal cultural awareness will be an important component of in-house programs, it is not exclusively an Aboriginal facility. It is a Work Centre employing inmates in ground- and building- maintenance and in community projects. Inmates will also be taken out on mobile camps within a 400 kilometre radius to carry out community projects.¹⁶ The centre’s aim is for inmates to acquire vocational training, numeracy and literacy skills and community understanding.¹⁷

Yetta Dhinnakkal

5.15 Although Yetta Dhinnakkal is exclusively for Aboriginal inmates, once again it is only for low-security Aboriginal offenders and is a correctional farm, without security walls or fences. It has been created on a station 75 kilometres south of Brewarrina, in north western New South Wales, can accommodate 50 inmates and is managed by members of the local Aboriginal community and staffed by both Aboriginal and non-Aboriginal wardens. Aboriginal elders from the local community will have contact with the inmates and programs will focus on Aboriginal cultural awareness and acquiring vocational skills.

Release from custody on parole

5.16 The RCIADIC found that:

the Aboriginal use of parole in New South Wales is extremely limited. Since the introduction of the Sentencing Act 1989 – the so called “truth in sentencing” legislation – the number of offenders who served parole has dropped from 56% of the prison population to 31.8% …

5.17 Promoting access to parole for Aboriginal offenders may involve other issues besides those related to support staff and infrastructure. An Aboriginal worker with Probation and Parole expressed the view to the Commission that the number of Aboriginal offenders being granted parole had fallen either because these offenders were not asking for parole, based on an expectation that it would not be granted, or they were not offered it because of prior breaches.¹⁹ Probation and Parole has recently implemented a policy of investigating the reasons behind previous breaches of orders.²⁰ Understanding why an offender has breached parole, and the circumstances surrounding the breach, may result in an assessment that the offender remains a suitable person to be on parole and is deserving of another chance. For example, the offender’s behaviour may have been determined by Aboriginal cultural obligations, such as the imperative to attend a funeral, observing a grieving period after the death of family members, or other important family obligations.

5.18 There is also evidence to suggest that Aboriginal offenders do not always understand the conditions applying to parole and the consequences of a breach.²¹ In Queensland, a lack of knowledge of parole processes and difficulties understanding correspondence from the Parole Board were identified as deterrents to applying for parole and obstacles to successful completion. This issue, and its applicability to New South Wales, is discussed in Chapter 7.

5.19 Alternatively, there may have been financial and practical obstacles to reporting, such as lack of transportation, particularly for rural offenders. Recognition that an offender does not have the resources, whether physical, emotional or mental, to find a way around obstacles, may be far more productive than the automatic response of placing the offender back into custody.²²

5.20 Providing appropriate support to an offender who has a real commitment to serving parole, and ensuring an understanding of parole obligations, may result in his or her successful reintegration within the community. This illustrates the benefits of a flexible approach to sentencing Aboriginal offenders, which takes into account cultural factors adversely affecting the offender. The Commission endorses Probation and Parole’s strategy of investigating the reasons behind previous breaches of orders.

5.21 Perhaps the likelihood of breaches occurring can be minimised from the outset if especial consideration is given to the offender’s ability to comply with conditions, in particular: abstinence from alcohol;²³ not being in premises where alcohol is consumed; not associating with individuals who are in fact part of the offender’s extended family; and reporting to the parole officer. This Report has warned elsewhere against setting up an offender (or a community) for failure. Understanding the operative cultural determinants, providing appropriate support and programs, and not setting unrealistic conditions, may forestall breaches of parole.

5.22 Practical measures to improve success rates for completion of parole, recommended in a report of the Western Australian Joint Select Committee on Parole (the “Halden Report”), have relevance for New South Wales. The Halden Report recommended that the implications and operation of parole, and the consequences of not complying, be explained not only to the person sentenced, but also to the community in which he or she is to be detained. In remote areas where communication with Probation and Parole officers is difficult to maintain on a regular basis, supervision of parolees for reporting purposes could be by a nominee of a community.²⁴ Special provision should also be made to accommodate the cultural importance of attendance at funerals.

5.23 Aboriginal prisoners interviewed by Cunneen and McDonald in relation to their experiences and perceptions of parole felt that there was a lack of support on their release from prison, particularly taking into account the double discrimination they face: discrimination on the basis of being both black and ex-prisoners.²⁵ Insufficient external support services also impact on the offender’s ability to abide by conditions. Family and Prisoners Support Incorporated in Queensland has argued that there is a greater need for a staged return for Aboriginal people after imprisonment, particularly those returning to communities.²⁶

5.24 A further concern expressed to Cunneen and McDonald was that eligibility for parole was often measured through the inmates’ participation in prison programs, yet those programs were seen as “superficial, lacking in Aboriginal control and unable to communicate with Aboriginal people effectively”. The observation was also made that “there are generally no Aboriginal people on parole boards and there is a lack of experience in assessing Aboriginal people who come up for parole”.²⁷

5.25 Other obstacles faced by Aboriginal offenders in being granted parole are mirrored in the experiences of Canadian Indigenous offenders:

There was a feeling among some inmates and correctional personnel that because of the lack of community support in urban areas for Native offenders it was difficult to develop a convincing parole application. Other factors which contributed to the problem included: lack of adequate skills and assistance in drawing up an application, a past record of alcohol abuse, lack of clearly stated goals, a rural background and lack of treatment facilities.²⁸

5.26 The Department of Corrective Services established and funds Aboriginal Pre- and Post- Release Programs throughout the State, which provide post-release services specifically for Aboriginal offenders, as well as educational and advisory links to Aboriginal communities. These programs include educational curricula, vocational training, drug and alcohol counselling and/or individual counselling by way of referral to appropriate individuals or agencies.

5.27 This initiative is well-intentioned, appropriate and necessary, but criticisms have been made of the way it is working in practice. The Aboriginal Justice Advisory Council (“AJAC”) has expressed the opinion that there is a lack of consistency with the services offered by the various regional programs.²⁹ More importantly, AJAC believes that there needs to be greater community involvement in the development and administration of the programs in order for them to be truly effective.

5.28 Within the prison, the offender is provided with services preparing him or her for release but reportedly there is a falling-off in the level of support and services following release. Harnessing community resources may advance the effective re-integration of the offender into the community, especially in the three to six month period following release when the offender is particularly vulnerable to re-offending. The offender’s community can provide informal support and help in adjusting to life outside an institution and becoming familiar with changes which have occurred during his or her incarceration. By establishing formal links with community organisations and individuals, Corrective Services can ensure that this vital community support is not left to chance.

5.29 AJAC also makes the point that there needs to be a greater connection between the pre-release services offered in the prison in which the offender has been accommodated and the community to which he or she will return. The particular circumstances of the offender, the features and dynamics of the community, the offender’s place in that community, his or her domestic situation, community peer groups, and operative peer pressures, need to be addressed specifically. Post-release services and support should then be given in the context of these factors.

ALTERNATIVES TO FULL-TIME CUSTODY

Home Detention

5.30 The Home Detention Act 1996 (NSW) (“Home Detention Act”) makes provision for offenders who are sentenced to terms of imprisonment of 18 months or less, and who meet other preconditions, to serve their sentences by way of home detention.³⁰ An offender subject to a home detention sentence is required to remain within his or her residence unless undertaking approved activities. Compliance with conditions is monitored electronically, as well as by visits from supervising officers, and by drug and alcohol testing. Participants may be required to perform community service, enter treatment programs, and seek and maintain employment. Breaches of conditions attract further penalties, and may result in full-time imprisonment in a correctional facility.

5.31 The Commission’s Report 79, Sentencing, analyses the advantages and disadvantages of Home Detention generally.³¹ This Report is concerned only with the suitability of this option for Aboriginal offenders.

5.32 The RCIADIC recommended that where not presently available, home detention should be provided as a sentencing option available to courts, as well as a means of early release of prisoners.³² Cunneen and McDonald feel that this recommendation “could have been somewhat stronger in referring not only to having available this option but also urging that it be used in practice and be evaluated to ensure that Aboriginal people receive the full benefits of the option”.³³

5.33 In the 1998-1999 financial year, 350 offenders were admitted to the home detention program and 258 offenders completed home detention in New South Wales, of whom 17 identified as Aboriginal.³⁴ From the commencement of the Home Detention Act on 21 February 1997, until 27 August 1998, 20 Aboriginal offenders participated in home detention.³⁵ As at July 1999, there were 140 detainees (115 male and 25 female) of whom six identified as Aboriginal (five males and one female). Corrective Services has told the Commission that it had hoped that Aboriginal offenders would be diverted from prison into home detention at a greater rate. It considers that home detention is an option which is particularly appropriate for Aboriginal offenders and is therefore looking at ways to increase its use for Aboriginal people. Corrective Services suggests that a number of factors are contributing to the low Aboriginal participation rate:

• lack of availability of the program in those areas where Aboriginal populations are substantial;
• the restricted number of offences eligible for Home Detention court ordered assessment; and
• cultural and “kinship” issues may be in conflict with the logistics of Home Detention supervision.³⁶

5.35 Corrective Services is presently investigating an extension to the geographical range of the Home Detention Program. Some of the key factors to evaluate are clearly related to low population density of eligible offenders in rural areas, and balancing costs and program effectiveness. The way in which Corrective Services operates the Home Detention Program is to maintain a high degree of personal contact between Probation and Parole officers and the offender, not simply to monitor electronically prisoners isolated in their homes. Each officer has a caseload, on average, of ten offenders, with whom the officer becomes intensely involved, gaining insight into the dynamics of the offender’s environment. Probation and Parole officers on the Home Detention Program bring enormous flexibility to their jobs, making themselves available seven days a week, 24 hours a day. It is not unusual for a home detainee to see an officer three days in a row, or to be visited early in the morning or late in the evening. In rural areas, the number of eligible detainees to constitute a reasonable caseload may be spread over an enormous geographical area. Accordingly, distances and travel times present practical obstacles to maintaining the desired level, and flexibility, of contact and involvement.

5.36 Corrective Services acknowledges that, in rural areas, a different organisational structure will be necessary. It envisages the negotiation of partnership agreements with other government or community agencies. It may also be feasible for officers involved in probation and parole cases to absorb any home detainees in their area. The disadvantage with this is that, to some extent at least, the roles require different skills and approaches. While the primary aim of home detention is to divert offenders from gaol, with all the benefits which flow from this, including keeping families intact and reducing the costs of incarceration, a secondary aim is to rehabilitate offenders. Officers trained to work with home detainees are skilled in identifying issues contributing to offending behaviour, finding resources and referrals to deal with these, and in supporting offenders. This is done in the home environment, involving interaction with the offender’s family. On the other hand, the officer responsible for offenders on probation or parole, although bringing similar skills to bear, works from an office base, during office hours, seeing individual offenders less frequently and less intensely. The need, in one role, to be available at a fixed place during business hours would be difficult to reconcile with the need, in the other role, to be mobile, flexible and frequently available.

5.37 The way around the practical obstacles does not lie in recruiting community sponsors, as is done, for example, in Corrective Services’ Mothers and Children’s Program. The important and effective feature of the Home Detention Program is the proactive contact between offender and skilled officer. If the emphasis was merely on surveillance of home detainees, this could largely be done electronically.

5.38 The Commission is of the opinion that the practical obstacles are not insurmountable and accord with the view held by Corrective Services, namely that the benefits of home detention for Aboriginal offenders warrant pursuing development of the program to other areas, such as the mid- and upper-North Coast. These areas are now being targeted by Corrective Services. Further training of Probation and Parole Officers, or of other department or agency personnel, may be necessary to increase the range of their skills, but this is not an unrealistic objective. Another approach may be to recruit more part-time officers to be responsible for only one or two home detainees residing within a manageable geographical area. Corrective Services is also considering the possibility of home detainees being supervised by a community organisation, such as a drug and alcohol treatment service. The pool of eligible Aboriginal offenders could not justify an Aboriginal Home Detention Program, nor an inflexible requirement that Aboriginal home detainees only be seen by Aboriginal workers.

5.39 A concern with home detention as it affects Aboriginal peoples is that they are more culturally vulnerable to suffer from isolation than are non-Aboriginal people. In consultations with Aboriginal people, it has been emphasised to the Commission that Aboriginal people primarily conduct their lives with extended family, in clan groups and with a great deal of community contact. To be confined to his or her home, without any contact with his or her community, can be almost intolerable for some Aboriginal people.

5.40 A study of home detention in Queensland identified a number of factors pertaining to Aboriginal culture which may act to the detriment of Aboriginal offenders serving sentences at home.³⁸ One of these was the stress of isolation referred to above. Another was based on the argument that Aboriginal people suffer special disadvantages in relation to the definition of “home”, a concept which can differ from that of non-Aboriginal society. A further factor relates to the heavy alcohol consumption in some Aboriginal communities which can place enormous pressure on the home detainee, who is prohibited from drinking alcohol while on the program. The question arises, therefore, as to whether “home detention” can be redefined on a more culturally appropriate basis, so as to reduce the likelihood of breaches, while maintaining this option as suitable for Aboriginal offenders.

5.41 In the Northern Territory, for example, home detention is available in remote Aboriginal communities as “community detention”, being detention within the boundaries of a particular community.³⁹ Because New South Wales does not have the same incidence of discrete Aboriginal communities as does the Northern Territory, it is unlikely that there would be many cases where an offender could be sentenced to community detention. However, as has already been emphasised, sentencing Aboriginal offenders needs to be approached with flexibility. If community detention is feasible and appropriate in a particular case it should not be dismissed as an option. Alternatively, the shift in approach from detention strictly within the offender’s home need not be this radical. Detention within a rehabilitative or group residence are creative alternatives which may serve all the purposes of home detention but be more appropriate for Aboriginal offenders.

5.42 This approach has worked in Queensland where that State’s Corrective Services has interpreted “home” widely and placed offenders, as appropriate, in rehabilitation centres catering to Aboriginal offenders. There is also an instance where Aboriginal offenders given a home detention sentence have been placed on a cattle station, about 40 kilometres from the main Aboriginal community.⁴⁰ The intention is to expand this approach to appropriate regions, where offenders can be housed in facilities proximate to their communities.

5.43 Taking a flexible approach to what qualifies as “home” for home detention has other advantages. For example, accommodating a small group of offenders in a community house overcomes some of the difficulties of operating the home detention program in large geographical areas with sparse populations. In addition, it would be feasible to conduct in-house programs to meet the offenders’ needs, programs which might otherwise be unavailable in remote areas. It would also be cost-effective to install a telephone in a group house, being a precondition for home detention eligibility: the lack of a telephone in many Aboriginal homes has been cited as a barrier to such eligibility.⁴¹ An offender found guilty of a domestic violence offence is unable to serve a home detention sentence if it would mean living with the victim.⁴² However, that offender could be eligible for home detention in another residence. Again, this is a situation where the availability of a community house could be of particular advantage to Aboriginal offenders. Corrective Services has indicated that it is open to exploring community based group housing, or other options, to address the problems associated with running home detention programs in rural areas. The Commission encourages this approach.

5.44 Secondly, although the families of all home detainees suffer restrictions and pressures themselves, Moyle argues that this is exacerbated for Aboriginal families, whose society is based on communal rather than individual responsibilities. This signals a need for Corrective Services officers to be aware of differing, culture-based, stresses and pressures on Aboriginal home detainees and their families.

5.45 Moyle also draws attention to the possibility that some Aboriginal people will have difficulty reading and understanding the forms which set out onerous and detailed home detention conditions, leaving offenders open to inadvertent breaches. This issue, which arises in relation to all sentencing documentation containing conditions, is discussed in Chapter 7.

5.46 In consultations with the Commission, Aboriginal community and organisation representatives have emphasised the differing cultural concepts of, and attitudes to, time. Moyle argues that such differences may disadvantage the Aboriginal offender as the system of passes for absences from the home “assumes a type of organisation based on Anglo-Saxon work and society”.⁴³ The Commission is of the opinion that this should not give rise to special concessions, in a formal sense, for Aboriginal home detainees. Rather, Corrective Services should ensure an understanding on its part of such differences and, on the part of the offender, of the importance of adhering to specified time limits. There may also be room to exercise some discretion in favour of the Aboriginal offender where minor infringements occur.

Periodic detention

5.47 Custodial sentences of terms not exceeding three years can be served by way of periodic detention.⁴⁴ Although it is still a sentence involving imprisonment, it enables offenders to maintain their ties with their communities, live with their families and continue in employment for the greater part of the week. In the 1998-1999 year, 1,335 offenders served their sentences by way of periodic detention, of whom 7.8% were Aboriginal (6.8% male and 1.0% female).⁴⁵

5.48 There are currently 10 periodic detention centres in New South Wales.⁴⁶ A further centre will be built at Parklea, to replace the centre at Wollongong which is closing to make way for the building of a female gaol on the site. There are no plans to build other centres in the foreseeable future.

5.49 An issue has been raised in relation to the accessibility of periodic detention for Aboriginal offenders in remote areas, and the transport difficulties and financial burden on offenders travelling long distances to get to a periodic detention centre.⁴⁷ In the Commission’s survey of judicial officers, more than 70% of District Court judges and more than 53% of Local Court magistrates said that, when sentencing Aboriginal offenders, the lack of facilities prevented them from exercising the option of periodic detention.⁴⁸

5.50 In the north-west region of New South Wales,⁴⁹ covering approximately one quarter of the total land area of the State and taking in the major centres of Bourke, Brewarrina, Walgett, Coonamble and Dubbo, there are no correctional facilities at all. This is an area that has a significant Aboriginal population (14.6% of the area’s total population) and significant Aboriginal contact with the criminal justice system. In fact, in 1998, Aboriginal and Torres Strait Islander people comprised 44.57% of all appearances in courts in that area.⁵⁰ A periodic detention centre has now been built at Broken Hill, accommodating 18 males and two females. Otherwise, the next closest periodic detention centre is in Tamworth, which has facilities for male offenders only. As was pointed out in one submission to the Commission:

The unavailability of periodic detention as a sentencing option places Aboriginal people in peril of receiving full time custodial sentences purely as a result of their geographical isolation. Such limitations impact particularly on Aboriginal people who form the most significant group of people coming before the court in these regional towns [of Broken Hill, Walgett, Wilcannia, Bourke, Brewarrina, Lightning Ridge and Coonamble].⁵¹

5.52 A submission to the Commission by a magistrate with extensive experience sentencing Aboriginal offenders expresses doubts that periodic detention will be appropriate for many Aboriginal offenders because of the prevalence of alcohol problems. In his view, the majority would be unable to manage their consumption of alcohol to enable them to attend a periodic detention centre on a regular basis.⁵⁴ While this is a valid observation, in the Commission’s view this should not constitute reason for denying Aboriginal offenders access to the option of periodic detention. Rather, if alcohol abuse is a problem for a particular offender, it is highly desirable that the periodic detention incorporate counselling and other programs relevant to substance abuse.

5.53 The South Eastern Aboriginal Legal Service argues that amendments to the Periodic Detention of Prisoners Act 1981 (NSW) have adverse implications for Aboriginal offenders. If an offender fails to report for periodic detention for three weekends, the case goes before the Parole Board which must order that the offender serve the remaining sentence, plus penalties, in full-time custody. Previously, the matter was heard by a court which had a discretion to take the circumstances surrounding the breach into account and give the offender a further opportunity to complete the periodic detention.⁵⁵ As recommended by the Law Society, if the support offered to periodic detainees by Probation and Parole is enhanced, this may reduce unauthorised absences.⁵⁶

NON-CUSTODIAL OPTIONS

5.54 In focusing on the over-representation of Aboriginal and Torres Strait Islander people in the prison population, the RCIADIC emphasised that initiatives at many levels, most importantly, measures to improve the social and economic situation of Aboriginal people, were required to remedy their plight.⁵⁷ However, it went on to observe that, for those who were already caught up in the criminal justice system, what is of immediate concern is that policies and programs are applied which might direct them away from that system wherever possible; or, if not, might provide alternatives to imprisonment.

5.55 The RCIADIC expressed concern that, in New South Wales, non-custodial sentences appeared to be under-utilised as an alternative punishment for Aboriginal offenders.⁵⁸ It recommended that adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice.⁵⁹ It emphasised that it is particularly important that such support be provided in rural and remote areas of significant Aboriginal population.⁶⁰

5.56 The RCIADIC recommended that experiences in, and the results of, community corrections, rather than institutional custodial corrections, should be closely studied by Corrective Services. The RCIADIC also recommended that, in reviewing options for non-custodial sentences, governments should consult with Aboriginal communities and groups, especially with representatives of Aboriginal Legal Services and with Aboriginal employees with relevant experience in government departments,⁶¹ and that the greater involvement of communities and Aboriginal organisations in correctional processes be supported.⁶²

5.57 Community involvement should not stop at consultation: Aboriginal people should participate in the planning and implementation of community-based programs; be employed and trained to take responsibility for the implementation of non-custodial programs; and should assist in educating and informing the community as to the available range of options.⁶³ Involvement of Aboriginal people in sentencing specifically, and the criminal justice system generally, is examined in Chapter 4.

5.58 A report of the South Australian Department of State Aboriginal Affairs found that the majority of non-custodial sentencing options do not address recidivism:

The problem remains that Fines and [Community Service Orders], which have increasingly become the most dominant outcome of the judicial system and other agencies ... are alternatives which, for Aboriginal participants, do little more than recycle offenders.⁶⁴

Community Service Order

5.60 One view expressed to the Commission, which differs from that expressed by the South Australian Department of State Aboriginal Affairs, is that a Community Service Order (“CSO”) “is easily the most productive of the sentencing options in reducing the commission of further crime” and that this option “has a real impact on the social problems [being experienced by Aboriginal people] … particularly frustration, lack of esteem and lack of employment opportunities and boredom”:

It has been indicated to me by some of the Aboriginal leaders in Wilcannia that defendants who are given a [CSO] equate such order with obtaining regular work. I am informed that such defendants often appear pleased and proud to have such work available to them and certainly in Wilcannia where most of the work is carried out with Aboriginal agencies there does not appear to be any stigma attached to such work at all. There have been numerous examples in Wilcannia of people continuing to do the work when the hours have been completed … and the number of defendants brought back before the Court for breach of a [CSO] is very low indeed. …

I believe strongly that one of the most effective ways of assisting Aboriginal communities would be to increase the availability of Parole and Probation Officers.⁶⁶

5.62 Probation and Parole’s (unwritten) policy is to place Aboriginal offenders with Aboriginal organisations, providing the offender so wishes. Corrective Services reports that Community Service Organisers ensure the policy is implemented where practical and in accordance with the offender’s wishes. Corrective Services has also said, in response to Recommendation 94 of the RCIADIC, that it is seeking to develop closer links with Aboriginal communities for the creation of more culturally appropriate work placements. Unfortunately, as was noted above, no statistical information is presently kept by Probation and Parole in relation to Aboriginal community service placements. Determining the incidence of Aboriginal offenders placed with Aboriginal organisations, and the nature of the work performed, would entail a piecemeal survey of each individual Probation and Parole Office. Clearly, the sooner PIMS is installed the better, in order to properly assess the effectiveness of various work placements for Aboriginal offenders on CSOs. Until there is comprehensive reporting of Aboriginal participation in the CSO program, it is futile to attempt to make recommendations in relation to this area.

5.63 Probation and Parole has conveyed to the Commission that some Aboriginal organisations have been reluctant to become, or continue to be, involved in CSOs because of difficulties organisations may have experienced with the process in the past. Enlisting a sufficient number of appropriate organisations to provide work could be delegated to an Aboriginal community leader in a particular region, who would undertake the convening and setting up of a program. When Probation and Parole officers are already stretched with their caseloads, it is not easy for them to devote the necessary time to this task. It has also been suggested to the Commission that an Aboriginal community leader could fulfil the very valuable role of giving support to an offender on a CSO.

5.64 In Western Australia, for example, the Ministry of Justice contracts with councils of Aboriginal communities to undertake supervision of Aboriginal people on CSOs, the Ministry training the councils’ nominees to be supervisors.⁷⁰ This approach has the potential to lessen the likelihood of a breach and improve the organisation’s and community’s perception of the success of the program, encouraging continuing participation. However, the Western Australian experience has demonstrated that it is most successful in more remote areas. In less remote areas, a parallel strategy which the Commission endorses is mentoring.

5.65 The Young Offenders’ Mentoring Program was an initiative established in 1996 by the Crime Prevention Division of the Attorney General’s Department in conjunction with the Department of Juvenile Justice, specifically to rehabilitate Aboriginal juvenile offenders on remand or under community supervision. The aim of the program was to provide intensive assistance and support to these offenders, helping them to undertake vocational training and obtain employment, and encouraging them to adopt positive lifestyles and maintain links with their Aboriginal communities. After 12 months, the success of the program justified extending it to all juvenile offenders. A review of the program is currently being carried out by external consultants. In particular, the review will evaluate the advantages and disadvantages of paying mentors for their duties.

5.66 The Commission is of the view that the Young Offenders’ Mentoring Program would translate well to the management of young adult offenders, having the potential to reduce breaches of orders and recidivism. A family member, or member of the offender’s Aboriginal community, in particular an Aboriginal elder, to whose authority the offender would respond, could have day-to-day contact with, and responsibility for, supervision of the offender. It is envisaged that, as for juvenile offenders, a case management plan would be developed by Corrective Services in consultation with the offender, the offender’s family and the chosen mentor. Mentors could undertake a variety of duties, such as assisting the offender to understand and comply with the obligations of the community service order, obtain employment, deal with substance abuse, engage in constructive recreational activities and, in the case of Aboriginal offenders, foster closer ties with his or her Aboriginal community.

Recommendation 3

The Department of Corrective Services should establish a mentoring program for young adult offenders based on the Young Offenders’ Mentoring Program conducted for juvenile offenders by the Department of Juvenile Justice and the Crime Prevention Division of the Attorney General’s Department.

5.67 Care needs to be taken in giving Aboriginal offenders CSOs which will be difficult for them to perform due to ill health, substance abuse or other reasons, thus making them vulnerable to breaching the order. In such cases, an Attendance Order, requiring attendance at rehabilitative courses, would make far more sense. Attendance Orders are discussed below.

5.68 In Western Australia, CSOs are more frequently breached by Aboriginal than by non-Aboriginal offenders. It has been suggested that:

[t]his could, at least in part, be because the nature of the order is inappropriate, the mode of supervision is ill-adapted to Aboriginal needs, or the response of the supervisors is unduly formalistic.⁷¹

5.70 In the Pitjantjatjara Lands in South Australia, a program for community service (the “Pitjantjatjara community service program”) has been trialled successfully, having a 95% completion rate.⁷² To a large extent, the success of the program depends on there being discrete communities, with established community councils. It therefore may not translate well for much of New South Wales. Nonetheless, it is worth examining for its applicability to those communities in New South Wales which are discrete, and for the potential of adapting the principles to less structured communities.

5.71 The program has been established along the lines suggested by a consensus of people living within the area and each community’s ideas incorporated into a program best suited for that particular community. The features of the program are:

• each community has appointed its own supervisor;
• the Community Council decides where offenders are to work;
• offenders are incorporated into existing work programs;
• female offenders work in areas separate from the men;
• community service programs operate for one week each month; and
• funerals and other culturally significant functions and meeting are acknowledged as valid reasons for absence.

Recommendation 4

A pilot program based on the Pitjantjatjara community service program in South Australia should be established in New South Wales in consultation and collaboration with the Aboriginal Justice Advisory Council.

Experience has shown that if a project involving Aborigines is to be successful, then the Aborigines need to be involved in the planning, structuring, implementation and machinations of such programs.⁷³

Attendance Centre Order

5.74 The RCIADIC recommended that sentencing and correctional authorities should accept that community service may be performed in many ways by an offender placed on a CSO and that attendance at a personal development course likely to reduce the risk of re-offending should qualify for community service.⁷⁶

5.75 Sentencing courts can make a community service order and/or an attendance centre order but are limited in their power to order attendance at courses and programs outside those run within Attendance Centres. The court may make a recommendation but this does not have the status of a court order. Corrective Services implements the second limb of the RCIADIC’s recommendation to the extent that it allows offenders to pursue personal development courses at its Attendance Centres. However, the policy of Corrective Services to date has been that Attendance Centres serve as the sole avenue for developmental courses to be credited against CSO requirements.⁷⁷ Attendance Centres are situated at Albury, Annandale, Chatswood, Emu Plains, Gosford, Goulburn, Liverpool, Newcastle, Orange, Pendle Hill, Wagga Wagga and Wollongong.

5.76 Establishment of Attendance Centres in rural areas with significant Aboriginal populations is a conspicuous omission from the above list, and one which needs to be investigated. Clearly, many offenders in remote and rural areas would have difficulties travelling to the nearest centre. For Aboriginal offenders, Probation and Parole’s policy regarding accrediting hours only for those courses undertaken at its Attendance Centres is relaxed in special circumstances. Probation and Parole has said that it recognises that if an Aboriginal offender needs to participate in, for example, an Anger Management or Drug and Alcohol program, it would be proper for this to be done through a culturally appropriate agency.⁷⁸

5.77 Probation and Parole has also, in response to the RCIADIC, developed and implemented a number of programs designed to meet the localised needs of Aboriginal offenders, one of which is the Aboriginal Cultural Heritage Program at Albury. This is a nine-week program, delivered by Aboriginal elders, which has been held on two occasions to date. Another is the Casino Alcohol and Other Drug Intervention program. This is a 12 week program which provides intensive intervention sessions to Aboriginal people in their community setting. The program has been funded for another year and will offer individual counselling and group sessions. In Bourke, an Alcohol and Other Drug program is being developed in co-operation with the local community. As well, in 1997-1998, $1 million was provided to Probation and Parole’s 70 district offices, 45 of which are in country areas, for the provision of Offender Training And Development programs which will target Aboriginal offenders, while addressing local social issues.

5.78 The local Aboriginal community at Armidale has been funded to present an Aboriginal Cultural Development Program, similar to the Aboriginal Cultural Heritage Program at Albury. The program’s focus is on Aboriginal culture and the raising of course participants’ self esteem. It also examines contemporary issues, such as substance abuse and anger management.⁷⁹

5.79 This is commendable progress towards full implementation of both the letter and spirit of Recommendation 94 of the RCIADIC, but more is needed. There need to be more personal development courses and programs in more regional centres which qualify for a CSO/Attendance Centre order. As well, making exceptions for Aboriginal offenders to credit attendance at culturally appropriate courses occurs as a matter of Corrective Services practice only and does not form written or formal policy. Nor is it specifically ordered by the sentencing court. It is also ambiguous whether the implementation of the initiatives referred to above is directed specifically at, or at the least can accommodate, those who may otherwise be on a CSO or who must otherwise participate in an Attendance Centre program.

5.80 The Commission is of the view that this is an issue which should not be left to such ill-defined discretion. It is important, because of potential significant benefits, that Aboriginal offenders be allowed to credit towards their CSO attendance at courses, preferably within Aboriginal organisations, better suited to their needs and culture. Most Aboriginal programs are run on a holistic basis, not only because this is a culturally-based approach to life issues generally, but because the causes of Aboriginal offending are so multi-layered and integrated, this is a logical and necessary response. Participation in community-based personal development programs should be formally endorsed as an alternative to a CSO or an Attendance Centre order. However, there is no justification for limiting this option to Aboriginal offenders. It is an option which may be appropriate in many cases and should be available to all offenders.

Recommendation 5

The Department of Corrective Services should establish more Attendance Centres in rural areas.

Recommendation 6

Courts should have the power to order that participation in approved community-based, personal development programs may be credited towards Community Service Orders.

5.81 It has been submitted to the Commission that, other than through CSOs, the most effective way for courts to impact at all on the underlying social causes of crime is for Aboriginal offenders, in suitable cases, to be placed under the supervision and guidance of the Probation and Parole Service:

I admire greatly the skill, competence and dedication of officers of the Parole and Probation generally, and particularly in the case of officers at Broken Hill. It is very rare indeed that a positive result is achieved from a sentencing exercise without the intervention of the Parole and Probation Service. The supervision provided by these officers mainly in relation to practical social problems such as budgeting, financial management, personal relationships, anger management and drug and alcohol rehabilitation through the use of Community Health Officers are the most positive factors in obtaining a beneficial result from a sentence. This is particularly so if it is combined with a community service order…⁸⁰

5.83 ISU sees great benefit in establishing a farm for young, low risk offenders in Western New South Wales, not with a prison classification, but to accommodate offenders on probation. Probation into a live-in program could be particularly successful for Aboriginal offenders. Given the right infrastructure and supervision, the prospects of rehabilitation may be increased. Offenders could have access to drug and alcohol rehabilitation, counselling services, and education which addresses the offender’s financial circumstances. This could include TAFE and vocational courses, teaching literacy and numeracy, and programs directed towards obtaining employment. A live-in program gives staff, together with the offender, a better opportunity to look at the patterns in, and direction of, the offender’s life and ways of breaking destructive patterns.

5.84 The concept of live-in programs of course extends beyond ISU’s objective of a farm for young offenders. In whatever geographical region there is an identified need, and wherever suitable accommodation can be found, the concept can be put into effect. The Legal Aid Commission of New South Wales points out that:

[t]here are already a number of organisations controlled by Aboriginal people which provide accommodation and rehabilitation schemes for offenders. These organisations could perhaps serve as models to be used as options to full time custody. Some of these organisations are: Orana Haven, Brewarrina; Gu-Dgodah, Rothbury; Doonooch, Nowra; Weigelli Centre Aboriginal Corporation, Cowra; Nardoolla, Moree. These organisations are set up to deal specifically with Aboriginal offenders. They are controlled by Aboriginal people and encourage activities which are relevant to the cultural needs of Aboriginal people. It is imperative that such organisations, if they are to exist as alternative sentencing options, be located locally.⁸²

5.86 The use of live-in programs does not have to be confined to probation. Offenders could be paroled to live-in programs and post-release services could be offered. Similarly, it has been suggested that offenders could be released on probation to outstations established by the Aboriginal Lands Councils.⁸⁴ This may act more as a diversionary scheme than probation in the conventional sense. There would, of course, need to be programs and services available at these outstations to have real prospects of achieving rehabilitation.

5.87 In paragraphs 5.14 and 5.15, two initiatives are described which mirror the concept of utilising live-in programs for probation and parole, but in the context of custodial sentences. These correctional centres could serve as models for live-in programs for offenders on probation or parole. They also demonstrate that the concept of accommodating offenders in centres, such as farms or stations, run by Aboriginal people, with Aboriginal community involvement and a focus on addressing specific issues relating to Aboriginal offending, can be applied to a number of different situations. If the Ivanhoe Warakirri Centre and the Yetta Dhinnakkal correctional farm are successful, the Commission urges the Government to establish similar centres in other areas with significant Aboriginal populations.

Fines

5.88 The imposition of fines on Aboriginal offenders has been a factor in the over-representation of Aboriginal people in the prison population. This has largely been due to the socio-economic disadvantages of many Aboriginal people, resulting in a significant level of fine default with subsequent imprisonment. In January 1998, the Fines Act 1996 (NSW) (“the Fines Act”), came into force, introducing a new system of fine enforcement. Whether this will result in a lower incidence of fine default, and of imprisonment for fine default, remains to be seen. The Commission’s Report 79, Sentencing,⁸⁵ sets out in detail the provisions of the Fines Act and analyses its effectiveness and fairness. In Report 79, while the Commission generally endorsed the Fines Act, it expressed concerns about several aspects.

5.89 In brief, the Fines Act retains imprisonment for fine default but only as a sanction of last resort. If a fine defaulter fails to comply with a CSO, a warrant of commitment can be issued for the imprisonment of the offender. Imprisonment can be served by way of periodic detention.⁸⁶ However, before a person reaches the stage of receiving a CSO, there are many steps taken to enforce the fine, including issue of various notices,⁸⁷ followed by driver’s licence or vehicle registration cancellation and other civil enforcement action.⁸⁸ It is only if civil enforcement action has not been possible, or has been unsuccessful, that a CSO is given.⁸⁹

5.90 In Report 79, the Commission expressed its concern that court-imposed fines have a potentially discriminatory effect on offenders of different financial standing who are required to pay the same amount of money following conviction for offences of similar gravity. This may result in a much more severe punishment for one offender than for another. Of particular relevance to Aboriginal offenders, it may also make imposition of a further penalty for fine default more likely for an offender who does not have the financial means to pay than for an offender who does. Further, although the Fines Act requires that an offender’s financial means be considered when imposing a fine,⁹⁰ it provides that a fine must be paid within 28 days of its imposition.⁹¹ The court cannot extend the 28 day time limit.⁹² An offender who seeks further time to pay must apply to the court’s registrar.

5.91 The Commission concluded that it is unnecessarily arbitrary and bureaucratic to fix a general 28 day time limit for the payment of fines, and that this will lead to an increase in fine default. It is also improper to remove the discretion to order time to pay from the sentencing court and vest it instead in the court registrar, with no opportunity to appeal from the registrar’s decision.⁹³ The Commission recommended in Report 79 that these provisions be removed from the Fines Act and that sentencing courts retain the discretion to order time to pay. The Commission also recommended that the inequities of court-imposed fines be reduced by making fine option orders available.⁹⁴ The Commission reaffirms those recommendations in this Report.

1. Australia, Royal Commission into Aboriginal Deaths in Custody, National Report (Five Volumes) (E Johnston, Royal Commissioner, 1991-1992) (the “RCIADIC Report”) Recommendation 109, vol 3 at 96.

2. See Chapter 7 for a full discussion of this point. The RCIADIC recommended that the judiciary be advised on the scope and effectiveness of non-custodial options: RCIADIC Report, Recommendation 101, vol 3 at 80.

3. See Chapter 7.

4. See Chapter 4.

5. RCIADIC Report, Recommendation 287: “These programmes should operate in a manner such that they result in greater empowerment of Aboriginal people, not higher levels of dependence on external funding bodies”.

6. RCIADIC Report, Recommendation 115.

7. NSW, Department of Aboriginal Affairs, Report on the New South Wales Government’s Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody 1996-97 (“Department of Aboriginal Affairs Report”) at 238. Corrective Services is also working with the National Corrections Advisory Group to define standard indicators for recidivism.

8. Section 80AB.

9. RCIADIC Report, Recommendation 92.

10. RCIADIC Report, Recommendations 168-186.

11. NSW, Department of Corrective Services, Action Plan for the Management of Indigenous Offenders 1996-98 (November 1996).

12. The most recent Annual Report of Corrective Services details a number of initiatives which have been put in place in the 1998-1999 year in response to the Action Plan for the Management of Indigenous Offenders, including the opening of the Girrawaa Creative Work Centre at Bathurst, the Second Chance Program at Brewarrina, the Ivanhoe Project and the Broken Hill Cultural Link Program: NSW, Department of Corrective Services, Annual Report 1998-1999 at 15.

13. In 1997-1998 in Local Courts, 16.5% of Aboriginal and Torres Strait Islander people convicted of an offence were given a sentence of imprisonment, with the average length of sentence being 5.5 months. In comparison, 7% of all persons overall convicted of an offence were sentenced to imprisonment, the average term being 4.4 months: NSW, Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1998 (1999) (“BOCSAR Statistical Report 1998”) at Table 1.10 and 1.12 and Table 1.9 and 1.11. There are no comparable figures given for sentences in the Higher Courts in this publication. As at 30 June 1994, 25% of women and 20% of men serving aggregate sentences of three to six months were Aboriginal and Torres Strait Islander: NSW, Department of Corrective Services, New South Wales Inmate Census 1994: Summary of Characteristics (Internal Publication, September 1994). The most recent Corrective Services census does not give a similar analysis of inmate population.

14. This is discussed in Chapter 2 at para 2.7-2.8.

15. This centre is a rural property, completed in September 1999 and situated at Ivanhoe, approximately 300 kilometres from Broken Hill. It can accommodate 50 male inmates. “Warakirri” means “to stand and grow” in the local Aboriginal language: NSW, Department of Corrective Services, Annual Report 1998-1999 at 15.

16. There are presently two mobile camps, one which works on various community projects and the other which works in Mutawintji National Park. This park has been handed back to the traditional Aboriginal owners. Hence, employing Aboriginal inmates to work in the park is an important means of raising their cultural awareness and strengthening cultural ties.

17. NSW, Department of Corrective Services, Annual Report 1998-1999 at 15.

18. RCIADIC Report, Recommendation 119, vol 3 at 117.

19. NSW, Probation and Parole Service, Consultation (26 February 1998).

20. NSW, Probation and Parole Service, Aboriginal Offender Management Strategies Information Package (1999) at 16-17.

21. Parliament of Western Australia, Report of the Joint Select Committee on Parole (August 1991) (the “Halden Report”) at 109.

22. Probation and Parole has identified that another factor which may give rise to breaching orders involves an Aboriginal offender’s anxiety and inability to remain in a non-Aboriginal setting: New South Wales, Probation and Parole Service, Aboriginal Offender Management Strategies Information Package at 17.

23. In South Australia, a condition on a bond requiring abstinence from drinking alcohol for three years was declared invalid on the basis that it was an unreasonable and unrealistic condition: Baddock v Steel (1973) 5 SASR 71. It has been recognised elsewhere that caution is necessary when imposing a condition on a bond to refrain from consuming intoxicating liquor. Such a condition may be far too onerous and unreasonable for some alcoholic offenders. Yet if offered the alternative of prison, offenders are likely to agree to terms which they may be unable to live up to, so they are set up to fail: I Potas, “Alcohol and Sentencing of Violent Offenders” in Alcohol Misuse and Violence – Legal Approaches to Alcohol-related Violence: The Reports (Report 6B, National Symposium on Alcohol Misuse and Violence, 1994) 225 at 256.

24. Halden Report at 112.

25. C Cunneen and D McDonald, Keeping Aboriginal and Torres Strait Islander People Out of Custody: An Evaluation of the Implementation of the recommendations of the Royal Commission in Aboriginal Deaths in Custody (Office of Public Affairs, ATSIC, Canberra, 1997) (“Cunneen and McDonald”) at 145.

26. Cunneen and McDonald at 146.

27. Cunneen and McDonald at 145.

28. D McCaskill “Parole and After Care” in R A Silverman and M O Nielsen (eds), Aboriginal Peoples and Canadian Criminal Justice (Harcourt Brace, 1993) at 213.

29. AJAC, Consultation (11 January 1999).

30. Home Detention Act 1996 (NSW) s 5.

31. New South Wales Law Reform Commission, Sentencing (Report 79, 1996) (“NSWLRC Report 79”) at para 7.2-7.31.

32. RCIADIC Report, Recommendation 118, vol 3 at 114.

33. Cunneen and McDonald at 143.

34. NSW, Department of Corrective Services, Annual Report 1998-1999 at 13.

35. K Heggie, Review of the New South Wales Home Detention Scheme (Department of Corrective Services, Research Publication No 41, 1999) at 14.

36. Heggie at 15.

37. NSW, Department of Corrective Services, Home Detention Unit, Consultation (28 May 1998).

38. P Moyle, “Home Detention in Northern Queensland and Aboriginal Inmates: Equality or Discrimination?” (1993) Socio-Legal Bulletin 28.

39. Although some magistrates have expressed concern about community detention, Community Corrections are targeting non-violent offences as suitable for this option: Cunneen and McDonald at 144. According to some Aboriginal organisations, even where home detention had been redefined as community detention, obstacles to its use arose because of a shortage of surveillance officers: Cunneen and McDonald at 144.

40. This is at Arakun, north of Cairns: Moyle at 34.

41. Although, when compared with the cost of keeping an offender in gaol, it may even be cost effective for Corrective Services to pay for telephone installation in an individual offender’s home.

42. Home Detention Act 1996 (NSW) s 6(g).

43. Moyle at 33.

44. Periodic Detention of Prisoners Act 1981 (NSW) s 5, as amended by Periodic Detention of Prisoners Amendment Act 1998 (NSW) Schedule 1.

45. NSW, Department of Corrective Services, New South Wales Inmate Census 1998: Summary of Characteristics (Statistical Publication No 17, January 1999) Table 3.1 at 38.

46. As at February 2000. The centre at Broken Hill opened in February 2000 but no offenders have as yet been sentenced to attend. It will accommodate 18 males and two females. Construction has started on a periodic detention centre at Parklea that will hold up to 78 detainees: NSW, Department of Corrective Services, Annual Report 1998-1999 at 15.

47. See NSWLRC Report 79 at para 6.4. In fact, s 5(1)(b)(ii) of the Periodic Detention of Prisoners Act 1981 (NSW) provides that, before imposing a sentence of periodic detention, the court must be satisfied that “travel by the person to and from that prison … could not reasonably be expected to have the effect of imposing undue inconvenience, strain or hardship on the person”.

48. Magistrate Dive described to the Commission specific cases heard before him in Moree in which “the tyranny of distance” led to the defendant being assessed as ineligible for periodic detention. Magistrate Dive urges that there is a need for resources to be devoted to developing the availability of sentencing alternatives in the far west of the State. He also points out that “there may be no need for those alternatives to be modelled on white Anglo ‘weekends outside normal working hours’ ideas” as “in towns such as Brewarrina there is effectively no work to be had”: Submission.

49. The local government areas which fall within the North-West region are: Bogan; Bourke; Brewarrina; Broken Hill; Cobar; Coolah; Coonamble; Dubbo; Gilgandra; Narromine; Walgett; Warren; and Wellington.

50. NSW, Bureau of Crime Statistics and Research, New South Wales Local Court Statistics 1998 (provided to the New South Wales Law Reform Commission by special request). In fact, the percentage could be higher, as 26.15% of those in the group not identifying as Aboriginal and Torres Strait Islander are of unknown status. Appearances by Aboriginal and Torres Strait Islander people in Local Courts in the North-West region accounted for 17.2% of all appearances by persons identifying as Aboriginal or Torres Strait Islander in Local Courts in New South Wales and 1.58% of all appearances of all persons in Local Courts in NSW; 3.54% of all appearances in Local Courts in NSW were in the north-west region.

51. NSW, Legal Aid Commission, Submission at 3.

52. There is also arguably a need for a periodic detention facility serving Forster, Kempsey, Port Macquarie and Taree Courts. (In 1998, 5,919 persons were charged in the Local Courts in the mid-north coast region: BOCSAR Statistical Report 1999, Table 1.16 at 35.) A corrections centre is currently being built at Kempsey which may be able to incorporate periodic detention, although this has not yet been determined. As well, there is arguably a need for a periodic detention facility serving Bega, Batemans Bay, Moruya and Narooma Courts. At present, periodic detainees are transported by train to Wollongong to serve their sentences. (In 1998, 3,793 persons were charged in the Local Courts in the south eastern region of New South Wales: BOCSAR Statistical Report 1999, Table 1.16 at 35.)

53. In relation to sentencing of offenders generally, in NSWLRC Report 79 the Commission stated that it considers that it is important that periodic detention should be more widely available and that it encourages its continuing expansion to ensure that it may be used effectively as a sentencing option for all offenders throughout New South Wales: para 6.4.

54. B Lulham SM, Submission at 28.

55. South Eastern Aboriginal Legal Service, Submission to the New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women (Interim Report, July 2000) at para 6.87.

56. Law Society of New South Wales, Submission to the New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 6.88.

57. RCIADIC Report, vol 3 at 67-68.

58. RCIADIC Report, vol 3 at 95.

59. This has been urged by Magistrate Dive, who presided over Moree Local Court for some time and witnessed the inability of Juvenile Justice to be fully effective by reason of its caseworkers being overwhelmed by their workload: Submission.

60. RCIADIC Report, Recommendation 112, vol 3 at 96.

61. RCIADIC Report, Recommendation 111, vol 3 at 96.

62. RCIADIC Report, Recommendation 187, vol 3 at 358

63. RCIADIC Report, Recommendations 113 and 114, vol 3 at 97.

64. C Larkin, “Barriers to Alternatives to Custody” Report to Department of State Aboriginal Affairs (South Australia, Planning Advisory Services, March 1995) at 10.

65. Larkin at 19.

66. B Lulham SM, Submission at 24.

67. RCIADIC Report, Recommendation 116, vol 3 at 109. This was also submitted to the Commission by J Nicholson SC, Deputy Senior Public Defender, Submission at 11.

68. Halden Report at 116.

69. M Sides QC (as he then was), Submission at 3.

70. Cunneen and McDonald at 131.

71. R W Harding, R G Broadhurst, A M Ferrante and N S N Loh, Aboriginal Contact with the Criminal Justice System and the Impact of the Royal Commission into Aboriginal Deaths in Custody (Hawkins Press, 1995) at 129.

72. See Halden Report, Appendix A at 117.

73. South Australia, Department of Correctional Services, Report on the Establishment of Community Service Programs in the Anangu Pitjantjatjara Lands, quoted in the Halden Report at 118.

74. RCIADIC Report, Recommendation 117.

75. NSWLRC Report 79, Recommendation 22.

76. RCIADIC Report, Recommendation 94.

77. Programs offered include Personal Development, Drug and Alcohol Counselling, Money Management, Drink Driver Education, Self-Esteem/Assertiveness Training, Stress Management, Anger Management, Literacy and Personal Relationships Management. Some centres also offer Living Skills Management.

78. AJAC seeks to have attendance centre programs expanded “after consultation and negotiation has taken place with local Aboriginal and Torres Strait Islander communities and organisations and such programs are acceptable to the relevant communities”: AJAC, Submission.

79. M Dowd SM describes an initiative aimed at juvenile offenders, which could be adapted for adult offenders, equally beneficially:

In Wilcannia, for a period of about 12 months, the Department of Health appointed 2 young graduates as Drug and Alcohol Counsellors. One of them was involved almost full time with a group of about 10-12 young (12-16 yrs old) petrol sniffing Aborigines, who were coming into constant contact with the law. Over a period of time he exercised close supervision, and arranged weekend or week long camping trips, associated with Aboriginal Art and Craft activities and informal drug counselling. Once the court was aware he was prepared to undertake these activities, it did give some worthwhile options, both pre-sentencing or as conditions of bonds or community service orders. Submission.

81. RCIADIC Report, Recommendation 119, vol 3 at 117.

82. NSW, Legal Aid Commission, Submission.

83. T Vinson and E Baldry, Submission to the New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 6.68-6.69.

84. The use of extended periods of probation on, or even banishment to, outstations instead of custodial sentences has been proposed by Tharpuntoo ALS in Queensland. The difficulty which Queensland Community Corrections finds with this is that it does not have the resources to adequately supervise and enforce such orders: Cunneen and McDonald at 139.

85. NSWLRC Report 79, Chapter 3.

86. Fines Act 1996 (NSW) s 58(e).

87. Fines Act 1996 (NSW) Part 3.

88. Fines Act 1996 (NSW) Part 4.

89. Fines Act 1996 (NSW) s 58(d).

90. Fines Act 1996 (NSW) s 6.

91. Fines Act 1996 (NSW) s 7(1).

92. Fines Act 1996 (NSW) s 7(3).

93. NSWLRC Report 79 at para 3.8.