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Standing Committee on Law and Justice, NSW Legislative Council
30 March 2006
The Inquiry into community based sentencing options for rural and remote areas and disadvantaged populations was referred to the Committee by the Attorney General and commenced in January 2005. The Committee has undertaken a thorough examination of the terms of reference and is pleased to present this report.
In order to seek the views of a wide range of individuals, organisations and government agencies on this important issue the Committee undertook a comprehensive evidence gathering process. The Committee made a public call for submissions and published a discussion paper to assist submission makers. The Committee received a total of 60 submissions. Five days of public hearings were held at Parliament House at which 46 witnesses gave evidence. The Committee also visited the Holy Family Centre at Mt Druitt to meet with members of the local Aboriginal community and representatives of government and non-government agencies working with people serving community based sentences.
The Committee also visited several towns in rural and remote New South Wales to gather further information and to facilitate the participation of people from those areas in the Inquiry. The Committee visited Bourke, Brewarrina, Griffith, Inverell and Bega where it held further public hearings with 40 local witnesses and conducted public forums. The Committee also undertook a site visit to the Yetta Dhinnakkal Correctional Centre at Brewarrina. The Committee found the visits to these rural and remote areas particularly informative and the impressions received there were constructive in the outcome of this report.
The Committee also conducted a site visit to Victoria to meet representatives of Corrections Victoria. The opportunity to examine community based sentencing initiatives being undertaken in another jurisdiction was also a very useful exercise.
The terms of reference for this Inquiry are broad; encompassing the range of community based sentencing options, as well as focusing on two distinct but related issues – ‘rural and remote areas’ and ‘disadvantaged groups’. The written and oral evidence presented to the Committee revealed a large number of issues and concerns held by members of the legal profession, advocacy and community groups, government agencies and members of the public.
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The group most frequently identified as experiencing particular disadvantage in the criminal justice system is Aboriginal offenders. The next most commonly identified groups were offenders with intellectual disabilities or mental health issues and female offenders. The Committee therefore focused its discussion on these three groups.
In order to improve the outcomes for disadvantaged offenders effective measures need to be in place at all stages of the justice system, starting with crime prevention. The Committee’s work only examines a small section of this spectrum but acknowledges the context in which its discussion lies.
The lack of availability of the full range of community sentencing options in all parts of NSW impacts disproportionately on disadvantaged groups within the overall offender population. Particular concerns were raised in relation to Aboriginal offenders and female offenders. Where community based sentences are available, disadvantaged offenders face considerable barriers to accessing those options including, restrictive eligibility criteria and the lack of appropriate support services to assist them to complete community based sentences. Offenders with intellectual disabilities or mental health issues were most frequently raised in this regard.
The Committee has formed the view that where possible, community based sentencing options should be tailored to meet the needs of disadvantaged offenders, for whom these sentencing options would have the most significant benefits.
For disadvantaged people, the support required to undertake community based sentences is provided by numerous agencies and the improvement of support services requires a co-ordinated multi-agency approach. These supports include services for housing and health, and more intensive case management from PPS officers. The Committee has therefore recommended that the Government examine ways that a multi-agency approach could be taken to assist disadvantaged people to access community based sentencing options and to maximise the successful completion of such sentences.
The Committee has also recommended that the adequacy of knowledge within the Community Offender Service division of the Department of Corrective Services regarding the needs of disadvantaged offenders, particularly offenders with intellectual disabilities or mental health issues and Aboriginal offenders should be assessed. Consideration should be given to whether specialist officers should be employed, or special training delivered to its officers, to meet this area of need.
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In this Chapter several additional issues raised by Inquiry participants that relate to the terms of reference are examined. Circle Sentencing, the Magistrates Early Referral Into Treatment (MERIT) program and the Drug Court of New South Wales are examined because of their interconnectedness with community based sentencing options. The issue of fines and mandatory disqualification of driver’s licences is examined because of its particular impact in rural and remote areas and the potential to lead to a custodial sentence.
9.1 The Committee notes at the outset of this discussion that Circle Sentencing, MERIT and the Drug Court are not community based sentencing options. Rather, Circle Sentencing is a method of imposing a sentence on an offender, which involves members of the community, and MERIT and the Drug Court are diversion programs that can be utilised by the court at the pre-sentence stage to require offenders to undertake treatment programs in the community.
However, as Circle Sentencing and these diversion programs were raised by a number of submission makers and witnesses, the Committee has determined to canvass issues that relate to them. The Committee also notes that they all exist on the continuum of measures available to courts in NSW to enhance the sentencing process to promote better outcomes for offenders. In addition, a person sentenced through Circle Sentencing or referred to MERIT or the Drug Court may ultimately incur a custodial sentence or a community based sentence. In this respect they provide a useful context to other discussion in this report.
9.3 Circle Sentencing is an alternative sentencing court for adult Aboriginal offenders, which takes the sentencing process out of its traditional court setting and into the community. The Circle involves a Magistrate, the offender and the victim and their support people, and community members. The group sits in a circle to discuss the offence and its effects and to identify a sentence that is tailored for the offender and the circumstances of the offence.[1]
9.4 The Circle has the full sentencing powers of the Local Court and the penalties imposed must be consistent with the principles and practice of the court. The key aims of Circle Sentencing are to make sentencing a more meaningful experience for the offender and to improve the Aboriginal community’s confidence in the criminal justice system.[2]
9.5 Circle Sentencing was introduced on a trial basis in Nowra in 2002 and now also operates in Dubbo, Walgett and Brewarrina. The Committee was advised that Circle Sentencing is expanding to Bourke, Lismore, Armidale, Kempsey and Western Sydney and Mt Druitt.[3] The Committee is aware that a comprehensive evaluation of the program will be conducted to measure its outcomes and consideration given to expanding Circle Sentencing to other areas.[4]
9.6 It has been reported that Circle Sentencing has a high success rate in terms of recidivism. The Judicial Commission of NSW reviewed the first twelve months of the Nowra trial and reported that only one of the 25 offenders were subsequently re-arrested.[5] In Dubbo, 80% of offenders who participated were not charged with further offences.[6]
9.7 General support for Circle Sentencing and for its expansion to other parts of NSW was expressed during the Inquiry. For example, Legal Aid advised that Circle Sentencing ‘has been generally well received by communities where it operates.’[7]
9.8 Circle Sentencing shares some of the aims of community based sentencing in terms of the involvement of the community in the administration of justice. Ms Gail Wallace, the Project Officer for Circle Sentencing with the Attorney General’s Department, stated:
… While still operating in a setting of a court, circle courts allow for greater community participation and are able to incorporate the values and culture of the local Aboriginal community. Circle Sentencing allows communities to reclaim some control over their own social problems; establish mechanisms to solve those problems; the community is directly involved in administration of the justice system and has found a way in which that system can be modified or reformed to meet cultural needs.[8]
9.9 The Committee notes that there may be some carry over from community based sentences to the sentence imposed by the Circle. For example, Ms Wallace noted that:
For instance, if someone is placed on a good behaviour bond by Probation and Parole, there are conditions that the elders will place in the sentencing outcome. For example, that they abstain from alcohol and drug use, and Probation and Parole meets with the offenders and also is involved in the testing as to whether they are indulging in drug and alcohol abuse.[9]
9.10 The Committee also observes that the sentences that can be handed down by the Circle include all those under consideration in this report, with good behaviour bonds, suspended sentences and community service orders being prevalent.[10] It has been suggested that sentences handed down through Circle Sentencing have an increased likelihood of success. For example, Mr William Flanagan, District Manager, Glen Innes Probation and Parole Office stated:
… I think as a priority issue it would be quite useful for us practitioners to have that process occurring because it allows offenders to engage with their community more substantially, as well as the victim, of course. I suspect that if they came to us on a supervised bond at the end of Circle Sentencing, what we could do would be more substantive if the client had been through that Circle Sentencing journey.[11]
In addition, Ms Wallace stated:
if the offender was from Jerrinja I would choose four elders from Jerrinja reserve because it has more impact on the offender when it comes to sitting around in a circle with people they know who they look up to, who they respect, who they trust. It operates in another way as well. When it comes to community sanctions, you can just imagine living down the road from one of the elders who sentenced you. I do not know about you but I would be more likely to behave myself, and that is the type of rippling effect Circle Sentencing has on offenders.[12]
The availability of community based sentencing options has an impact on the success of Circle Sentencing, as noted by Mr Gerald Moore, Chief Executive Officer and Mr Gary Pudney, Principal Solicitor, South Eastern Aboriginal Legal Service:
The options in Nowra are far greater than in the rest of our region. Periodic detention is only an hour away to Unanderra, so that is available. That has been converted to a male and female facility, so women can go there as well. When Circle Sentencing started, home detention finished at the Shoalhaven River — which cut out half of Nowra, including the Aboriginal communities at South Nowra. As a result of pressure from the magistrate and other people, the boundary for home detention was moved about 15 kilometres south so that it would provide the option for Circle Sentencing. In a way Nowra is lucky in that it does have access to periodic detention, home detention and participation in Circle Sentencing; it also has access to community service because there are a lot of strong local organisations around. That is one of the reasons it has been successful because there are those strong alternatives to gaol and community members have been looking at those as an option. Unfortunately, that is not available south of Nowra, basically.[13]
The 2003 review of Circle Sentencing indicated that the process provides an opportunity for community involvement in the sentence handed down:
The sentences that are developed are clearly developed as a collaboration between the court and the local Aboriginal community, and are increasingly involving the local community resources and elements of local Aboriginal culture. Local Aboriginal people are involved in supervising the sentences that circles have developed and the sentences are being crafted in ways to directly benefit local Aboriginal communities.[14]
Community involvement in the Circle Sentencing process means that appropriate sentences can be identified because the community has an understanding of the offender:
The participation of Aboriginal representative in the sentencing process also enables creative sentencing options to be implemented. This is because members of the community have a unique understanding of the offender’s problems and are best placed to assist with a solution after they leave court. Local community members also have a greater understanding of the availability and suitability of local Aboriginal community resources when developing sentences, and in utilising services and resources for sentencing that would otherwise be overlooked, such as local community farms, fishing co-operatives and cultural education programs.[15]
9.15 The Committee notes that the links between Circle Sentencing and community based sentencing options are many. Not only are community based sentences the most frequent sentence handed down by a Circle, but the purpose of the Circle process and the goals of community based sentencing are similar. Importantly, the community is involved in the administration of justice, which promotes the effective punishment and rehabilitation of offenders.
9.16 The Committee endorses Circle Sentencing and notes that the Government has a program of expansion underway. The Committee encourages the Government to continue expanding Circle Sentencing to areas of the State where there are viable Aboriginal communities and offenders with ties to those communities. The Committee notes, however, that Circle Sentencing can only be successful where there is a functional group of elders to represent a local community and where there are suitable community sentencing options available.
9.17 The Committee was advised that the Probation and Parole Service (PPS) is only involved in Circle Sentencing if the outcome is a community based sentence. In this regard, Mr Christopher Costas, the Area Manager of Community Offender Services in Queanbeyan advised that ‘… if a final outcome is going to be a community service order, there is a considerable degree of consultation with our office at Nowra and the magistrate and others in the circle.’[16]
9.18 The Committee heard a great deal of evidence about the PPS during this Inquiry and considers that there may be some benefit to including the PPS earlier in the Circle Sentencing process. The Committee recommends that the feasibility of including the Probation and Parole Service in the Circle Sentencing process should be examined.
That the Attorney General examine the feasibility of including the Probation and Parole Service in the Circle Sentencing process.
[1] Attorney General’s Department of NSW, Crime Prevention – Circle Sentencing, 2005 Fact Sheet.
[2] Attorney General’s Department of NSW, Crime Prevention – Circle Sentencing, 2005 Fact Sheet.
[3] Attorney General’s Department of NSW, Crime Prevention – Circle Sentencing, 2005 Fact Sheet and Hon Bob Debus MP, Attorney General, ‘Nowra Aboriginal Sentencing Program Wins award’, Media Release, 9 November 2005.
[4] Attorney General’s Department of NSW, Crime Prevention – Circle Sentencing, 2005 Fact Sheet.
[5] I Potas, J Smart, G Brignall, B Thomas & R Lawrie, Circle Sentencing in New South Wales, A Review and Evaluation, Monograph 22, 2003, Judicial Commission of NSW and NSW Aboriginal Justice Advisory Council.
[6] Submission 31, 2.
[7] Attorney General’s Department of NSW, Crime Prevention – Circle Sentencing, 2005 Fact Sheet
[8] Ms Gail Wallace, Project Officer, Circle Sentencing, Attorney General’s Department, Evidence, 31 August 2005, 25.
[9] Ms Wallace, Evidence, 31 August 2005, 26.
[10] See, for example, Potas et al, Circle Sentencing in NSW, A Review and Evaluation, 60–62.
[11] Mr Flanagan, Evidence, 14 June 2005, 23–24.
[12] Ms Wallace, Evidence, 31 August 2005, 27.
[13] Mr Pudney, Evidence, 28 June 2005, 23.
[14] Potas et al, Circle Sentencing in NSW, A Review and Evaluation, 51.
[15] Potas et al, Circle Sentencing in New South Wales, A Review and Evaluation, 52.
[16] Mr Costas, Evidence, 28 June 2005, 16.
The full text of the Report is available online at <http://www.parliament.nsw.gov.au> .
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