Recommendation 115

This recommendation is assigned to CSNSW.

Recommendation

That for the purpose of assessing the efficacy of sentencing options and for devising strategies for the rehabilitation of offenders it is important that governments ensure that statistical and other information is recorded to enable an understanding of Aboriginal rates of recidivism and the effectiveness of various non-custodial sentencing orders and parole.

Context

The Royal Commission acknowledged a growing awareness in the value of community based correctional options though considered that the limited reduction in the numbers of Aboriginal people imprisoned as a result of those options may suggest that community based sentencing options were being used as alternatives to fines or discharges rather than alternatives to imprisonment. Recommendation 115 is directed at ensuring that relevant statistical information is available to assist understanding of efficacy of non-custodial sentencing options and parole.

Detail of implementation

BOCSAR regularly evaluates non-custodial sentencing options and parole, recent examples are linked in the below section ‘evidence’ including:

• 2022 Report on the effectiveness of Parole on Recidivism
• 2022 Report on The impact of the NSW Youth Koori Court on sentencing and re-offending  outcomes
• 2020 Circle Sentencing, incarceration of recidivism

Premier’s Priority to Reduce Recidivism

CSNSW is lead agency for Premier’s Priority to Reduce Recidivism.

CSNSW's Crimes Research and Evaluations Statistics (CRES) provides information on both Custodial and Community Corrections to BOCSAR for recidivism data and BOCSAR reports recidivism data quarterly.

BOCSAR also reports quarterly on Aboriginal Overrepresentation in the Criminal Justice system.

Closing the Gap

The National Agreement on Closing the Gap has a raft of targets designed to enhance outcomes for Aboriginal and Torres Strait Islander people. These include the reduction of the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15 per cent by 2031.

Corrective Services is working on a number of initiatives as part of the DCJ Closing the Gap Working Group across a range of priority areas. These include:

• Enhancing opportunities for non-custodial sentences for Aboriginal men and women
• Increasing the role of Aboriginal communities and organisations in decision-making around corrections programs and policies
• Improving the successful completion of supervised orders
• Increasing opportunities for Aboriginal men and women in custody to participate in traineeships, other vocational educational activities and employment
• Designing and implementing a Throughcare model to reduce the number of Aboriginal people returning to prison

Australian Law Reform Commission (ALRC)

ALRC 2018 Report – Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133)

Scope of the reference

1.  In developing its law reform recommendations, the Australian Law Reform Commission (ALRC) should have regard to:

2.  Laws and legal frameworks including legal institutions and law enforcement (police, courts, legal assistance services and prisons), that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody, specifically in relation to:

     i.  the nature of offences resulting in incarceration,

     ii.  cautioning,

     iii.  protective custody,

     iv.  arrest,

     v.  remand and bail,

     vi.  diversion,

     vii.  sentencing, including mandatory sentencing, and

     viii.  parole, parole conditions and community reintegration.

3.  Factors that decision-makers take into account when considering (1)(a)(i-viii), including:

     i.  community safety,

     ii.  availability of alternatives to incarceration,

     iii.  the degree of discretion available to decision-makers,

     iv.  incarceration as a last resort, and

     v.  incarceration as a deterrent and as a punishment.

4.  Laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples offending and including, for example, laws that regulate the availability of alcohol, driving offences and unpaid fines.

5.  Aboriginal and Torres Strait Islander women and their rate of incarceration.

6.  Differences in the application of laws across states and territories.

7.  Other access to justice issues including the remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander language and sign interpreters.

8.   In conducting its Inquiry, the ALRC should have regard to existing data and research1 in relation to:

     1.  best practice laws, legal frameworks that reduce the rate of Aboriginal and Torres Strait Islander incarceration,

     2.  pathways of Aboriginal and Torres Strait Islander peoples through the criminal justice system, including most frequent offences, relative rates of bail and diversion and progression from juvenile to adult offending,

     3.  alternatives to custody in reducing Aboriginal and Torres Strait Islander incarceration and/or offending, including rehabilitation, therapeutic alternatives and culturally appropriate community led solutions,

     4.  the impacts of incarceration on Aboriginal and Torres Strait Islander peoples, including in relation to employment, housing, health, education and families, and

     5.  the broader contextual factors contributing to Aboriginal and Torres Strait Islander incarceration including:

      i.  the characteristics of the Aboriginal and Torres Strait Islander prison population,

      ii.  the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter-generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment, and

      iii.  the availability and effectiveness of culturally appropriate programs that intend to reduce Aboriginal; and Torres Strait Islander offending and incarceration.

Report on Government Services (ROGS)

National Productivity Commission Report on Government Services (ROGS) Data – published yearly

Table 8A.21 Completion of Community Corrections Orders – includes reporting on Aboriginal and Torres Strait Islander (ATSI) rates

Evidence

• ALRC 2018 Report – Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133)
• 2022 Report on the effectiveness of Parole on Recidivism
• 2022 Report on The impact of the NSW Youth Koori Court on sentencing and re-offending outcomes
• 2020 Circle Sentencing, incarceration of recidivism