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Submission to J ustice Reform Strategy, Justice and Community Safety on F irst Stage Report

Justice Reform Strategy - First Stage Report Legislation, Policy and Programs Branch Justice and Community Safety Directorate GPO Box 158Canberra ACT 2601

I welcome the opportunity to provide a submission to the Justice Reform Strategy in response to the First Stage Report into a new community based sentencing option for the ACT. For the purposes of this response I will be referring to the new sentencing option as 'intensive corrections orders' {ICOs) and 'new sentencing options' interchangeably.

Initial Considerations

Community corrections orders, under various names and in various forms, currently exist in New South Wales, Victoria and Queensland. They have also been utilised in various countries around the world, including the United States, New Zealand, Sweden, Canada, England, Wales and South Africa.

The United States have conducted more extensive evaluations of these types of orders and their effectiveness than any other country. Whilst program design and effectiveness vary dramatically within the United States, research suggests that any community basedsentencing option should combine a surveillance component with a treatment component to affect recidivism.1 Reductions in recidivism rates were not identified for sentences that did not include a rehabilitation component. 2

The success of a community based sentencing option in the ACT is dependent on the allocation of sufficient resources for treatment through rehabilitation programs and supervision.

Offender programs and outcomes

The community needs greater certainty and evidence about the effectiveness of current programs before it is asked to expend more resources on similar, albeit more intensive, interventions. The lack of evidence on the effectiveness of current programs and the absence of data on current program activity creates doubt about offender accountability and effectiveness of non-custodial sentences.

1 Lorana Bartels, 'Literature Review on Intensive Supervision Orders: A Report Prepared for the ACT Justice and Community Safety Directorate' {2014) 17

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2 Ibid, 17 Citing C Lowenkamp et al, 'Intensive Supervision Programs: Does Program Philosophy and the

Principles of Effective Intervention Matter?' (2010) 38 Journal of Criminal Justice 368, 369.

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Measuring the effectiveness of offender programs is notoriously difficult.3 Despite this difficulty, comprehensive evaluation and publication of evaluation outputs is necessary for developing an evidence base from which to make improvements to programs or to measure whether or not they are effective.

The success of intensive corrections orders will be highly dependent on the availability of relevant, evidence-based therapeutic programs for offenders. Currently, there is limited publicly available information on the rehabilitative programs available to offenders serving community based sentences in the ACT. It is essential to the community's acceptance of the new sentencing option that the public be provided with specific information on the programs that will be available under its conditions, with public reporting on program outcomes, the frequency of programs, numbers of participants, and levels of attendance and completion. Completion rates are important to measure because outcome studiesgenerally identify a reduction of re-offending of between 10 per cent and 30 per cent among offenders who complete programs.4

Programs need to include evidence based and regularly evaluated domestic violence perpetrator programs, sexual assault offender programs, other violence/anger management programs and drug and alcohol programs. In addition, the consequences associated with offender non-attendance at programs must be clearly spelt out in advance and consistently upheld through timely breach action. The Courts must also be supported to send the clear message to perpetrators that there are limited 1second chances' given to those who are non compliant with expectations and reasonable directions.

Sentencing advisory council and Review of the new sentencing option

The ACT Sentencing database has been established to assist in gathering information about sentencing practices in the ACT. However unlike NSW and the Commonwealth, no advisory board or counsel exists in the ACT to review and assess the information made available by the database. Dr Lorana Bartels, from University of Canberra stated that

sentencing councils have a critical role to play as a bridge between the criminal justice system and the general public. Victims and the ACT public in general deserve both accessible data and a council which can effectively disseminate this information.5

It is extremely difficult to meaningfully assess and evaluate the outcomes of sentencing options in the ACT without an expert authority of this type.

In the absence of a sentencing advisory council it is critical that a substantive review of the effectiveness of the new sentencing option is conducted five years after its implementation. This review needs to measure total numbers of orders being made by the court, whether they are used in the manner in which they are intended to be used, whether the new order

3 F Losel, What Works in Reducing Re-Offending: A Global Perspective, 27 April 2010.

4 Victorian Ombudsman, Investigation into the rehabilitation and reintegration of prisoners in Victoria -

Discussion Paper, December 2014 9.5 Databank not enough for Justice', Canberra Times, 6 December 2012


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has resulted in net-widening and impacts on recidivism compared to other sentence options. It will also be important to analyse the type of offences it is used for, the type of conditions being imposed within those orders, and the way in which breaches of the orders are dealt with.

A form of imprisonment

I agree with the advice and rationale provided by the Advisory Group in relation to the new sentencing option being expressed as a term of imprisonment.

Net-widening

Agenda item 3 from the Advisory Group meeting on 13 May 2015 related to the risk of 'net widening'. One of the views expressed was that in order to prevent net-widening down the scale of sentencing, an intensive corrections order should only be imposed after the judicial officer has determined that a term of imprisonment would be appropriate and has indicated the term of imprisonment to be imposed.

It was proposed that an adjournment would be made to allow assessment of offenders' suitability for an intensive corrections order. One of the concerns raised during the Advisory Group discussion on this issue was that an assessment for this type of order may be complex and distinct from the type of assessment used to prepare a pre-sentence report. It is not clear what the assessment process for an ICO would involve, but details of what this assessment involves should be articulated to determine whether this assessment could be incorporated into a pre-sentence report.

Currently, once a court determines that a pre-sentence report is required, the matter is adjourned for approximately 4 weeks for offenders who are in custody, and 6 weeks for offenders on bail to allow the report to be prepared. Presumably, a second assessment for an ICO would require a comparable timeframe. It is also probable that further submissions would need to be made once the assessment is put before the court, by both prosecution and defence, essentially resulting in two separate sentencing exercises. This lengthy adjournment and additional sentencing proceeding will be costly and will cause significant delays in finalising matters.

Length of new sentence order

The new sentencing option should be limited to a maximum of two years. This would provide an appropriate and sufficient opportunity for therapeutic intervention. It shouldalso be noted that the new sentencing option replaces periodic detention which, prior to the most recent amendments, was limited to 2 years. 6

Some cap on the length of orders is necessary. The therapeutic and/or rehabilitative opportunities inherent in the new sentencing option may have limited utility if imposed for more than two years as criminogenic factors are best addressed through early, intensive therapeutic interventions and close supervision in the early stages of an order. It would also


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6 Crimes (Sentencing) Act 2005 (ACT) 11.3(b)- effective 28/02/2014- 04/12/2014

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COMMISSIONER IACTbe unsustainable to subject offenders to intensive interventions for periods longer than two years.

Deciding that a term of imprisonment will be imposed before deciding that it will be served by way of ICO may help prevent net widening. If a term of imprisonment is to be determined prior to assessment for an intensive corrections order, the two year cap will help reduce potential net-widening up the sentencing scale by negating the need for assessment for ICO. Judicial officers imposing a term of imprisonment exceeding 2 years would not be required to have an offender assessed for an ICO.

Excluding offenders who are sentenced to a period of imprisonment for longer than two years would bolster community confidence in the order by reassuring the public that extremely serious offenders would not be eligible for the new option. A Canadian study investigated community confidence in community based sentencing options and looked at community confidence in sentences. It found that 64% of people surveyed supported the orders when conditions were very clear, it also found that 1doubling the length of sentence only increased support by 8%, suggesting that people are after appropriate conditions, notsimply longer sentences.' 7

Consideration should also be given to legislating a minimum term of six months for ICOs. A primary objective of this sentencing option should be to achieve sustained and meaningful change in the offender's behaviours and situation. This is unlikely to be achieved if an order is only in place for a few months, especially given that 1rehabilitation of such short periods [less than six months] is considered unrealistic' in prison.8 The resources required to assess and implement an intensive corrections order would only be a worthwhile investment if sufficient time is available to achieve change. New Zealand requires that their intensive supervision orders are imposed for a minimum of 6 months9 which appears to be a logical and practical restriction on the application of a sentence of this type.

Eligibility for new sentence

If an ICO replaces periodic detention, it should follow that that only those offences which would have previously attracted a term of imprisonment are targeted.

In Victoria a Community Corrections Order (CCO} can be imposed for any offence punishable by more than 5 penalty units10

- this is a very low threshold. Given where this new sentencing option is designed to sit in relation to other sentencing options, and theunanimous view of the Advisory Group that it should be expressed as a term of imprisonment, the ACT should place more limits on the range of offences the ICO is available for.

7 Lorana Bartels, above nl, 11citing T Sanders and J Roberts, 'Public Attitudes toward Conditional Sentencing: Results of A National Survey' (2000) 32 Canadian Journal of Behavioural Science 199.8 Justice and Community Safety Directorate (2015) Justice Reform Strategy - First Stage Report, ACT

Government, 13

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9 Sentencing Amendment Act 2007 (NZ) 54B{2).10 Sentencing Act 1991(VIC), s37.

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COMMISSIONER I ACTAn equivalent intensive order in Queensland does not exclude any offences specifically; however it is limited to circumstances where the court sentences an offender to a term of imprisonment for one year or less.11 New South Wales legislation precludes an order of this type being made for child sexual offences.12

The new sentencing option should exclude child sex offences. There are no specific programs available for adults who commit sexual offences against children in the ACT. If targeted, evidence-based ·treatment is not available for this type of offender, there can be no utility in applying a sentencing option that has a focus on rehabilitation. The NSW Law Reform Commission opined that sexual offences committed upon children are sufficiently serious to warrant specific exclusion from community based intensive orders.13 Community confidence in the new sentencing option could be seriously eroded by the inclusion of these types of offences, given the absence of targeted treatment programs.

Victim advocates may feel strongly that a community corrections sentencing option should not be available for other offences, including sexual offences or domestic/family violence offences. However, removing a sentencing option designed to sit between full time imprisonment and a suspended sentence may have the unintended consequence of reducing the severity of the sentencing option imposed for these offences rather than increasing it. Unlike child sexual offences, there are specific programs for sexual assault and domestic violence offenders. Removing the application of an ICO for certain offences may mean that the judicial officer feels restricted to imposing a suspended sentence with an associated good behaviour order. Significantly lower supervision and/or therapeutic requirements would result and the offender receives a more lenient sentence than they would if an ICO were available. Attempting to prevent net widening by excluding specific offences risks driving the severity of the sentence actually imposed down the sentencing scale.

We need to be balanced in prescribing eligibility. We want to include offences where there would be a benefit in requiring the perpetrator to undergo treatment and intensive therapeutic interventions. However, the community also needs some surety that people who commit very serious sexual and/or domestic violence offences are not given the option to serve a sentence of imprisonment by way of a community based order. There is an element of justice that must be delivered for these types of serious offences.

Sexual offences generally are not excluded from these sentencing options in other Australian jurisdictions. This is because sexual offences capture a very broad range of offending behaviour, ranging from an act of indecency, such as the touching of a breast, through to extremely serious counts of prolonged sexual intercourse without consent involving significant injury. For some of these less serious categories of offences there may be utility in having ICOs available, particularly if the community has some confidence in the effectiveness of the therapeutic element of the new sentencing option. However, there is evidence to suggest that offenders who are convicted of more serious sexual offences are

11 Penalties and Sentences Act 1992 (QLD), sl 2.12 Crimes {Sentencing Procedure) Act 1999 (NSW), s66.13

NSW Law Reform Commission, Sentencing Report 139 {2013), 206.

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COMMISSIONER IACTgiven terms of full-time imprisonment, rather than the option to serve those terms of imprisonment in the community. 14

The ACT sentence database indicates that of the offenders charged with sexual intercourse without consent 15 between July 2012 and 31 January 2015, 78% received sentences of full time imprisonment;16 11% received partially suspended sentences and 11% received a fully suspended sentence.17 No offenders received a sentence of periodic detention, community service or a good behaviour order.18 In NSW, intensive corrections orders were not widely used for sexual offences - with only 0.6% of intensive corrections orders imposed between October 2010 and September 2011 being for sexual offences. 19 Sexual assault offenders who had a prior sexual offence were more likely to be sentenced to full time imprisonment.20 Thus it would appear that the majority of matters of this type would not be considered appropriate for a community based order.

It is an unfortunate reality of domestic violence that many victims remain in, or return to, the abusive relationship, after charges have been laid. It is worth noting therefore, that a blanket exclusion in applying the new community sentencing option to domestic violence offences may mean that perpetrators will not be required to participate in the more intensive and holistic rehabilitation inherent in an ICO. Excluding domestic violence offenders from being required to participate in perpetrator programs, and programs focused on addressing their other risk factors, will not assist in rehabilitating the offender or minimising the risk of further violence to the victim.

The counter argument to this is that there have not been any specific programs for domestic violence or family violence perpetrators, either juveniles or adults, serving community based sentences in recent years.

ACT Corrective Services will begin a NSW Domestic Abuse Program (DAP) for people serving community based orders on 22 June 2015. This program was designed in NSW as a confrontational and therapeutic response to domestic violence for medium to high risk offenders. The program runs for 10 weeks and has a total of 40 contact hours, with a zero tolerance policy on non attendance.

Whilst the NSW DAP program has been evaluated, no findings have been published, therefore its effectiveness is unknown. The program that preceded the DAP within the AMC

14 ACT Sentencing Database [Online at https://actsd.judcom.nsw.gov.au/senstats/viewer/senstats.php?

offvec=97044&comp=acthc as at 17 March 2015]15 Crimes Act 1900 (ACT) s54(1).16

ACT Sentencing Database [Online athttps://actsd.iudcom.nsw.gov. a u/senstats/viewer/senstats.php?offvec=97044&comp=acthcas at 17 March 2015]17

Ibid, as at 17 March 2015.18

ACT Sentencing Database, above n15, as at 17 March 2015.19

Clare Ringland, 'Intensive correction orders vs other penalties: offender profiles. ' (2012) Crime and Justice Bulletin: Contemporary Issues in Crime and Justice. No 163. NSW Bureau of Crime Statistics and Research, p 12

2° Clare Ringland and Don Weatherburn, 'The impace of intensive correction orders on re-offending.' {2013)Crime and Justice Bulletin: Contemporary Issues in Crime and Justice. No 176. NSW Bureau of Crime Statistics and Research, p 8.


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was the Family Violence Self-Change Program. When evaluated this program was found to be only 26% compliant with the NSW minimum standards for Men's Domestic Violence Behaviour Change programs.21

Domestic violence perpetrators can be notoriously difficult to rehabilitate.22 Their controlling and manipulative behaviours are often deeply entrenched. They frequently lack any insight into their offending behaviour and resist taking responsibility for their violence. Domestic violence perpetrator programs therefore must, as a minimum, be intensive, evidence based, adequately resourced and regularly evaluated if we are going to ask the community to accept an alternative to imprisonment for these types of offences.

Combination Sentences

An ICO should not be combined with a sentence of full time imprisonment. The new sentencing option would be undermined by allowing this combination. Other jurisdictions, such as QLD, do not permit their equivalent of an ICO to be combined with a sentence of full time imprisonment. 23 An ICO is intended to be a direct alternative to imprisonment for offenders who would benefit from significant rehabilitation and therapeutic intervention. A combination sentence would undermine the rehabilitative focus of the ICO and delay the commencement of that intervention, thereby negating its effectiveness.

The parole system is already in place to manage offenders who have served a period of imprisonment and are being transitioned into the community. Parole can be imposed with a wide range of conditions, including requirements for participation in rehabilitation and therapeutic intervention. ACT Corrective Services Throughcare program is also in place to assist offenders with the transition from full time custody into the community.

Community confidence in ICO's could be eroded if the option is not able to be clearly explained. The purpose and application of the ICO must be sufficiently clear and easily distinguishable from existing sentencing options.

Other sentencing options should also be precluded from being combined with an ICO. There would be no utility in allowing an ICO to be combined with a good behaviour order. The supervision element of a good behaviour order would be subsumed by the conditions inherent in an ICO. Similarly a suspended sentence as a combination sentence with an ICO would be of little practical value. The remaining period of an ICO would act in much the same way as a suspended sentence. In the event of a breach, the remaining period of the ICO would be able to be imposed as full time imprisonment.

It would be incongruous to allow an ICO to be combined with a fine. A fine is the lowest available sentencing option so it is not logical that it be combined with an ICO which is intended to be a direct alternative to full time imprisonment.

21 ACT Auditor-General's Report 'Rehabilitation of male detainees at the AM C' (2015) Report 2/2015. 46.

22 Michael Salter. 'Managing Recidivism among high risk violent men' (2012) Australian Domestic and Family

Violence Clearing House. 3.23 Penalties and Sentences Act 1992 (QLD), s113(1).


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It may be of benefit to victims to allow an ICO to be combined with a reparation order, requiring the offender to pay for damage caused or costs incurred. However, it would be essential that consideration to be given to the offender's income and capacity to pay whilst subject to the ICO prior to combining it with a reparation order.

Mandatory/core conditions

Most existing models for intensive community based sentencing options in Australia include mandatory and optional conditions.24 Any mandatory conditions imposed in the ACT model must be sufficient to create a meaningful distinction between the existing good behaviourorder sentencing option and the new sentencing option. The mandatory conditions imposed must be real, significant and sufficiently clear if victims and the community in general are to have any confidence in it.

In consideration of mandatory versus optional conditions, NSW Intensive Corrections Orders(NSW ICO) require the offender to perform a minimum of 32 hours of community service per month as a mandatory condition.25 Queensland provides as a mandatory condition that an offender complete community service as directed. 26 Victoria provides communityservice as an optional condition which can be imposed at the time of sentence. A judicial officer determines the number of hours of community service to be performed by anoffender, and in some circumstances treatment and rehabilitation hours can be counted tawards this requirement. 27

The NSW mandatory community service requirement has proved problematic in that it has significantly limited its application. Offenders with substance abuse issues, mental health concerns and housing instability were often deemed unsuitable for a NSW ICO because of their inability to complete the community service element.28 The NSW Law Reform Commission stated that 'offenders who are most likely to benefit from an alternative to full time imprisonment with a strong rehabilitation element are those who are least likely to be assessed as suitable for an (NSW) IC0.'29 Community service should be included as an optional condition, to be ordered in appropriate circumstances.

Consideration should also be given to imposing a minimum number of contact hours as a mandatory condition. If this was included, some discretion for the period to be reduced in exceptional circumstances would be necessary to avoid rigidity. It may be appropriate that

24 Penalties and Sentences Act 1992 (QLD), s114(1) and Crimes {Administration of Sentences) Regulation 2014

(NSW), Reg 186.25

Crimes {Administration of Sentences) Regulation 2014 (NSW), Reg 186(0).26

Penalties and Sentences Act 1992 (QLD), s114.27

Sentencing Act 1991(VIC), s48CA.28

NSW Law reform Commission, above n13, 214 Citing Law Society of NSW, Submission SE16, 8; The Shopfront Youth Legal Centre, Submission SE28, 3; Public Interest Advocacy Centre, Submission SE29, 8; the Public Defenders, Submission SE24, 11;Legal Aid NSW, Submission SE31, 11;Corrective Services NSW, Submission SE52, 12; NSW Bar Association, Submission SE27, 6; Aboriginal Community Justice Group, Mt Druitt and Aboriginal Legal Service, Consultation SEC19.29

NSW Law Reform Commission, above n13, 245 citing The Shopfront Youth Legal Centre, Submission SE28, 3;Public Interest Advocacy Centre, Submission SE29, 8; Law Society of NSW, Submission SE16, 8; NSW


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Sentencing Council,Sentencing Trends and Practices, Annual Report 2011(2012), 31.


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this discretion rest with the Court to ensure it is used sparingly. Contact hours could include participation in treatment programs, contact with corrective services staff and/or completion of community service. As this sentencing option is designed to sit between a suspended sentence and full time imprisonment, there would be a reasonable expectation that this sentencing option should impose significant obligations on the offender. A minimum number of contact hours would promote certainty and the perception that it is a real penalty rather than a 1soft' sentencing option.

A public attitudes survey conducted in Canada found that 1providing detailed information about the conditions attaching to offenders' sentences resulted in a significant increase in support for such sentences.ao Support for the order when the respondent was aware thatthe offender would be subject to conditions was 27%, however this increased considerably to 64% when respondents were provided with explicit conditions.31

Clear, real and standardised mandatory conditions would assist both ACT Corrective Services and ACT Policing in enforcing the orders. Such conditions must also send a clear message to the offender from the outset about what their obligations are and what conditions they are required to meet.

Optional conditions

The range of optional conditions available should be wide and varied to allow orders to be tailored to address the risk factors posed by a wide variety of offenders. The Court should also be able to prohibit offenders from certain behaviours or actions, such as prohibiting certain offenders from residing with specified individuals and preventing contact between offenders and victims. Optional conditions like home detention and electronic monitoring may be useful for certain types of offenders, but should only be included if sufficient technology and resources are available to ensure that they can be effectively monitored.

Who should optional conditions?

All conditions should be imposed by the Court at the time of sentence. Corrective Services assessments could provide judicial officers with up to date and relevant information about an offender's rehabilitative needs and risk factors. This would provide certainty from the outset, sending a clear message to the offender about their obligations and what they are required of them if they wish to avoid full time imprisonment. Providing the community with certainty about the obligations imposed at the time of sentence would promote confidence in the new community based order.

Consent of the offender

Consent should be required for the new type of order to be available to the offender. If an offender indicates from the outset that they do not intend to comply with the order it

30 Lorana Bartels, above nl,11 citing T Sanders and J Roberts, 'PublicAttitudes toward Conditional Sentencing:

Results of A National Survey' (2000) 32 Canadian Journal of Behavioural Science 199.


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31 Ibid.

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would be a waste of time and resources to pursue an option that the Court is aware from the outset is very likely to fail.

Timeliness and predictability of the response to a breach will be essential to ensuring the proposed orders are a viable and effective replacement for periodic detention.

The ACT is the only Australian jurisdiction which does not have a statutory presumption that the term of a suspended sentence be imposed upon a breach.32 Offenders who breach an ICO by committing a further offence should be subject to a statutory presumption that theoffender is required to serve the remaining period of the sentence in full time imprisonment. This would impose a clear, consistent and significant response for offenders failing to comply with an order, bolstering the deterrent effect of the order and promoting victim and community confidence in the sentencing option.

A 'swift and sure' consequence should occur for any other type of breach. Consequences of a breach could range from the imposition of all or part of the remaining sentence in full time custody to increased or more restrictive conditions. The type of consequence would be dependent on the breach; however it should be clear that there will be significant consequences for all breaches.

Research has been under taken in the United States into the effectiveness of probation enforcement programs.33 The Hawaii Opportunity with Probation Enforcement (HOPE) program was created in 2004 and has subsequently been replicated in a number of other states. The focus of these programs is on a swift and sharp response to the breaches of orders with offenders automatically receiving a short term of imprisonment for all breaches.

34 Evaluation of the HOPE program suggested significant benefits and reductions

in breaches when a swift and sharp response was implemented. 35

Consistent with the above approach, the Court is the most appropriate forum for dealing with breaches as offenders in breach of their conditions could immediately be brought before the Co1,1rt. The Supreme, Magistrates and Childrens Courts all deal with bail matters on an almost daily basis. The duty judge in the Supreme Court, the A2 list Magistrate and the Childrens Court Magistrate are already positioned to deal with those matters at short notice and offenders breaching the new sentencing option could be dealt with in those lists. If this is agreed, the Court would be in a position to deal with matters very quickly ensuring a timely response, promoting perpetrator accountability and public confidence in the sentencing option. If the breach did not activate a full time term of imprisonment, the judicial officer would be able to alter the order by adding conditions or additional requirements to the order.

32 ACT Law Reform Advisory Council,A report on suspended sentences in the ACT, ACT Law Reform

Advisory Council, Canberra 2010.33

Lorana Bartels, above nl, 18-28.34

Lorana Bartels, above nl, 18- 28.


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35 Lorana Bartels, above nl, 26.

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The approach in NSW36 refers breaches to their equivalent of the Sentence Administration Board {SAB}, however it is worth noting that in NSW that board sits daily, which is not the practice in the ACT.

The First Stage report highlighted a proposal for dealing with breaches based on a two tier system divided between the Sentence Administration Board {SAB} and the Courts, with breaches initially going before the SAB and more serious breaches being referred to the Court. I do not support this approach. I am concerned that it would imply that minor breaches will be tolerated and incur no real consequences, undermining the validity of the new sentencing option. It may also cause unnecessary delays and may result in inconsistencies in the way sentences are dealt with in the two forums. A clear, quick and consistent approach to the enforcement of breaches is vital.

Variation/cancellation

I would support an option for ACT Corrective Services to apply to a Court for an early discharge as this is an accountable and transparent process.

The new sentencing option should also be sufficiently flexible to allow a reduction in the intensity of conditions to provide positive reinforcement for offenders who have demonstrated progress.

There should also be a capacity for an offender to apply for an extension of an ICO, where circumstances outside an offender 1s control (such as illness or injury} prevent completion of the order within the relevant time period.

John Hinchey

22 June 2015

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36 NSW Law Reform Commission, above n13, 247.

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