Expanding the toolbox: sentencing reform across Australia


Speakers

  • Prof Lorana Bartels, Head, School of Law and Justice, University of Canberra, talking about intensive correction orders and community correction orders as alternatives to imprisonment.
  • Kate Petrie, Director, Policy and Legislation, Strategy and Governance, Queensland Corrective Services, talking about the court-ordered parole experience in Queensland from a corrections perspective.
  • John Robertson, Chair, Queensland Sentencing Advisory Council, talking about the Council’s review of community based sentencing orders, imprisonment and parole options.

Resources

Transcript

Kathy McLeish:

Hi everyone.  Welcome to this beautiful building and this gorgeous view out here.  What you can see of it.  And to the latest Queensland Sentencing Advisory Council’s Sentencing seminar series.  Welcome and thank you for joining us.

Today's seminar topic is Expanding the Toolbox: Sentencing Reform Across Australia.  We'll look at the intermediate sentencing options open to Magistrates and Judges in Australian jurisdictions and the impact of court ordered parole in Queensland since its introduction in 2006.  My name's Kathy McLeish and I'm a journalist with the ABC.

Before we start I'd like to acknowledge the traditional owners of the land on which we are meeting and pay my respects to the Elders past, present and emerging, and welcome any Aboriginal and Torres Strait Islander people here today. [Phone in background] And if you've got your phone with you... [laughter] It's a timely reminder. I'll check mine as well.  Thank you.

The seminar series gives the Council a chance to engage with experts who can talk about specific sentencing related issues.  A few housekeeping issues, both men and women's restrooms are located back out...  head out to the reception desk and turn right.  Smoking is not permitted in any part of this venue.  And in the unlikely event of an emergency, please leave by the nearest safe exit, follow the green running man and the directions of the Fire Warden.

As a courtesy to everyone here, ensure your phone is switched off.  We've done that bit.  And I'll let you know that the seminar is being recorded and will be made available on the Council's website.  So if you need to come and go from the room today, if you could just do that quietly and carefully and avoid disruption on that recording.

We have three very well qualified experts here to present today.  Retired Judge John Robertson, Kate Petrie and Professor Lorana Bartels.  Before we hear from our speakers would you please join me in welcoming John Robertson, the council's newly appointed Chair.

[applause]

Judge Robertson was appointed chair of the Queensland Sentencing Advisor Council in June after retiring from the District Court.  He was the first solicitor to be appointed to that court in 1994.  He initially served as the first resident Judge in Ipswich, moving to Maroochydore in 2001.  He was a Judge at the Children's Court of Queensland and President of that court between 1999 and 2002.  He was Deputy President of the Queensland Community Corrections Board between 1991 and 1994 and he's here to join us today.  Thanks.

[applause]

John Robertson:

Yes, thank you very much Kathy, and I too pay my respects to the traditional owners of the land on which we are meeting and my respects to the Elders past, present and emerging.

Listening to that short introduction I feel quite tired.  It's a great opportunity to take over as Chair of the Advisory Council.  I've always had, not only a practical, but an intellectual interest in sentencing and the philosophy behind sentencing and the policy behind sentencing.  And the context in which we are holding this seminar today, is in relation to a very wide-ranging term of reference that we have received from the Attorney General in October last year.

Now, keep in mind, I'm a new boy.  It's been a very steep learning curve over the last couple of weeks.  So I've only just worked out what a TOR is and that's a Term of Reference.  But I want to say the Council has been working on a term of reference relating to sentencing for child homicide.  We're in the last stages of that and that's been a very, very big task.  But at the same time, the Council which, apart from me, is made up of people that actually have a job, has been working very hard on this wide-ranging reference that we've received from the Attorney General and in accordance with the reference we have to report by April next year.

I want to start by paying tribute to the project board.  Helen Watkins, John Allen QC, who are both here and Debbie, I haven't seen Debbie Kilroy.  Already a lot of work has been done and there's a lot more work to be done.  And I also want to publicly acknowledge the incredible work that Anne and her team do and have done.  I was truly overwhelmed by the amount of intellectual effort that has gone into the work at the Council since it was re-established in 2016.  Some of you might have known about the chequered history of the Queensland Sentencing Advisory Council, but that's in the past.

As I say, this seminar today is in the context of our second term of reference. As a Judge and as a practitioner I often felt very frustrated by constraints on the sentencing options and I've been around for so long, as you've heard, I've seen the policy changes in relation to sentencing discretion and sentencing options wax and wane.  Often, they wane in favour of that old, famous old maxim being Judges being soft on crime and I reference here the serious violent offence amendments that came in in 1997.  Not surprisingly as a result of those sort of reforms, the prison population in Queensland has been on the rise and it's been on the rise for quite some time.

The terms of reference derive much of their content from the Sofronoff report into parole and although the particular topic that we're focusing on was beyond His Honours terms of reference, he made a number of very astute observations and comments that referenced a number of research works and that has led to the Attorney, as a result of a recommendation made by him, referring this reference to the Council.

The Council recognises that judicial discretion is a very important part of the administration of criminal justice in a civil society.  If we do lay claim to being a fair and open society, truly governed by the rule of law, then we've got to have a toolbox, to use a quote from today's seminar, that provides for really an infinite variety of circumstances of offending and circumstances of an offender.  And the more the sentencing discretion is constrained, the more likely there will be individual injustice and that's one of the big issues and problems of mandatory sentencing.  And we have mandatory sentencing in Queensland in a number of respects and in the past, historically we have flirted with it.

I'm old enough to remember it in the 1970's when, as a response to the rising road toll, the Government of the day thought it would be a good idea to legislate for a mandatory minimum term of six months for driving whilst disqualified by order of a court.  And within a couple of months, I remember there was a theatre sister from the Gold Coast, and a 77-year-old pensioner from Cairns, and it's probably apocryphal, but someone said about six months in, a nephew of one of the members of the cabinet was imprisoned for six months and very quickly the legislation was amended to give the magistrates discretion again.

And then in 1986 we decided to introduce mandatory life imprisonment for drug trafficking and within a couple of months, the prisons were bursting with people who were trafficking drugs because they were addicts.  And, once again, that was all unravelled and, I think there were 88 people who had to be re-sentenced.  So, Queensland has toyed with mandatory sentencing and it's never really worked from a policy point of view or from a criminal justice point of view.

As part of our work towards ultimately a report and recommendations to the Attorney on this term of reference, we released the sentencing spotlights, which you're either sitting on or you have in your hands at the moment. This is where I'm at sea and I've been so grateful to the experts on Ann's staff that have assisted me in understanding criminal statistics and their significance.  It's very important, in relation to this particular term of reference, that we have stakeholders like the courts, fully committed and I feel certain that all the courts from, the Supreme Court to the Magistrate's Court, are very interested and will be involved in the Council's work in relation to this.

Some of the stats in those sentencing spotlights are quite interesting when you drill down.  The Chief Magistrate always likes to remind me that Magistrates do, depending on when he's speaking, it's either 96 per cent of the criminal sentencing work or 98 per cent.  It ranges between the two.  And the District Court does two per cent and the Supreme Court does the rest.

[laughter]

I told him that when I was at Maroochydore, I did one per cent.  But it's interesting to note from the spotlight on the Magistrate's Court, that whereas for the first four or five years of the data period, the use of custodial penalties by Magistrates was fairly consistent and then there was a...  it's almost doubled since then.  We haven't attempted to explain that.  It's probably as a result of the Moynihan reforms.  Queenslanders' will know about that.  But it's interesting to see that the Intensive Correction Order, which has a different meaning to the Intensive Correction Order that Professor Bartels will speak about, but the Queensland Intensive Correction Order is underused, or significantly underused, by courts because of its limitations, I think. It can only be for 12 months. Once again, I used to use it quite a lot but I was only one drop in the bucket.

But the whole idea of today's seminar is to provide input from two eminent experts to inform the Council's preparation for its report, ultimately. And I'm very grateful for all of you coming today.  I said to Anne today, half in jest, that I've been busier as the Chair of the Queensland Sentencing Advisory Council than I ever was as a Judge.  But I won't mention that to the Chief Judge.

Thank you.  Thank you very much for the opportunity to speak to you.

[applause]

Kathy McLeish:

Thank you John.  Our next presenter is Kate Petrie.  Kate is the Director of Policy and Legislation Strategy and Governance in Queensland Corrective Services and brings a practical and data driven presentation on the court ordered parole experience in Queensland from a Corrections perspective.  A Queensland wide overview of the impact of court ordered parole on other sentencing options. The size of the probation and parole and prisoner populations and the churn between them.  Please welcome Kate.

[applause]

Kate Petrie:

Good afternoon.  I'd like to start by acknowledging the traditional owners of the land on which we meet today and Elders past, present and emerging.

I'm going to give a very brief overview of parole policy changes in 2006 and 2017.  The most interesting part of this presentation is the system wide trends associated with these policies, which my colleague Brenton Michael compiled. Brenton actually retired a few months ago, so I'll do my best to present his beautiful data and if you do have any very specific data question at the end, I'll ask my colleague Tatiana Dunilova, who I said I would single out here, who worked really closely with Brenton for many years, to assist me in answering.

So, the presentation as I just mentioned, is a state-wide overview.  It doesn't cover operational management of court ordered parolees in custody or community supervision.  The data breakdown is not performed for region, gender, ethnicity or age.  Most of the data is sourced from the Queensland Corrective Services Integrated Offender Management System database.  I've also added some information from the Australian Bureau of Statistics as well.

So, there are three main policy components to the reforms to parole in the mid 2000's.  They were truth in sentencing, the removal of early release decision making from Corrective Services, and stricter community corrections.

So, truth in sentencing.  The changes introduced in 2006 can be summarised as a form of truth in sentencing. That is, prisoners would serve 100 per cent of their prison sentence, either in prison or under supervision in the community.  Once released to parole the prisoner could be returned to prison by Corrective Services or the Parole Board if they were not compliant with their order, or were deemed to be a risk to the community.

So the changes in 2006 meant that the decision to release a prisoner early could only be made by court or a Parole Board.  Prior to 2006, corrective services could make some early release decisions.  Remission was available for certain prisoners serving more than two months for offences committed before July 2001.  Conditional release was available for prisoners serving less than two years for offences committed after July 2001.

So there had been a Corrective Services Act 2000, which had started to grandfather out some of those remission provisions.  So remission could be applied at two thirds of the prison sentence and was the end of the sentence.  There was no further supervision of the offender in the community after they were released.  Conditional release was also unsupervised, but if a further offence was committed the offender could be returned to serve the rest of their sentence.

So the legislature changes in 2006 wholly abolished the power of corrective services to release prisoners early and introduced parole as the only form of early release from prison.  Under court ordered parole, if a prisoner is sentenced to three years or less imprisonment and is not a sex offender or a serious violent offender, the court must fix a parole release date.  This date can commence from the date of sentencing, meaning prisoners can be paroled without having been in prison.  For all other prisoners, the court can choose to set a parole eligibility date and a parole board can make the decision to release.  Parole boards can also choose to release prisoners due to exceptional circumstances at any point in their sentence.

The legislative changes to parole introduced in 2006 were accompanied by the introduction of a new probational parole service.  In the 2006/7 budget the government invested $56.7 million over five years to change how community corrections in Queensland would operate.  The relaunch probational parole service included a new regime of case management, supervision, compliance, surveillance, and intervention services.

So jumping to 2017, the Queensland Parole System Review was publicly released in February 2017.  The review included 91 recommendations with 89 being accepted by government.  The recommendations made sweeping changes to the correctional system in Queensland and Government committed $265 million over six years to commence implementation of the reforms.

So while the 2006 reforms removed Corrective Services power to make early release decisions, the 2017 reforms removed Corrective Services power to make return to prison decisions.  So under the new regime Corrective Services can make a request to the parole board for a parole suspension, but the decision around any return to custody for a parole order now rests with the board.

So, on to Brenton's beautiful data.  So, court ordered parole is the most common release for sentenced prisoners. So you can see in 2016/17, over 4000 offenders were released on court ordered parole and 500 were released on board ordered parole.  And then some others as well which are...  the prior to 2006 remission and then...  I think it's...  it's usually the Commonwealth Orders is it, Tatiana?  The other?  Yeah. So it's just a minor amount.

So 90 per cent of sentenced admissions to custody in 2016/17 were for a period of three years or less.  So all the ones in blue and red there are...  except for sex offenders or serious violent offenders, would be subject to court ordered parole.

So sentence discharges by type of discharge for a sentence of three years. So for admissions for three years or less, 70 per cent were discharged at court ordered parole.  The next most common discharge was partially suspended sentences.  So that's just the three years or less cohort.  Which demonstrates that court ordered parole is the most common form of release.

So court ordered parole had a direct impact on the sentence types handed down by courts.  Sorry, I'm reading the wrong ones, I think...

So over 20,000 offenders were being supervised by probation parole in December 2017.  The most common order types are probation, which you can see is the yellow line up there and court ordered parole.  So court ordered parole quickly gained popularity after being introduced in 2006. You can sort of see it taking off there and quickly becoming the second most popular order.

Court ordered parole (COP) had a direct impact on sentence types handed down by the courts.  This is the number of partially suspended sentences being issued, which dropped significantly for all offences except for sexual offences, which obviously can't be... are not subject to court ordered parole. So you can really see a very dramatic... as soon as it was introduced, partially suspended sentences dropped right off there and it was also a decrease in other order types.  So intensive correction orders, prison probation and intensive drug rehabilitation orders.  So it's just very dramatic in terms of the intensive...  the Prison Probation and the Intensive Correction Orders.  And then the intensive drug rehabilitation orders (IDROs) were sort of fairly flat and then they were abolished around 2013/14. They have recently been reintroduced but they're not included in this graph.

So percentage growth.  From 2004 to December 2017, in both prisoners and probation and parole offenders. Along with the legislation changes there was a significant investment by government in the new probation parole model. So before the Corrective Services Act 2006 commenced, QCS provided information to courts to raise awareness about court ordered parole and increase the capacity of probation and parole to supervise offenders.  So, combined with the legislation this resulted in a dramatic increase in the number of community-based offenders and a reduction in prison numbers.

QCS anticipated this result based on the assumption that the courts would fix a court ordered parole date earlier than the length of time offenders, on conditional release or remission, would have otherwise served.  So it sort of went from a two thirds being served in custody to a one third of the sentence being served in custody and the rest under supervision in the community.

So I think this actually shows a really interesting effect for court ordered parole as a good demonstration of the Iron Law of prison population.  So, if you're not familiar with that, that's the work of Todd Clear and colleagues from Rutgers University.  So Clear has demonstrated that prison populations go up and down due to two very straightforward mathematical factors being, how many come into prison and how long they stay.

So we can see court ordered parole had a fairly immediate impact on imprisonment rate which decreased from 2006 until 2012 when they began to rise again. So if you look at the trend line there for 2006 it was fairly stable and then started to drop.  In fact, within the last two decades the only reforms which have had a similar impact in driving down prison numbers, driving down the rate I should say, was the introduction of the State Penalties Enforcement Act around 2000 which you can see is that dip right there.  So that removed about 500 prisoners from the system.

So that removed fine defaulters.  So in terms of the Iron Law that's less people coming through the door.  So that effectively stopped that.  So if you can see that compared with other jurisdictions. At the time COP appears to have reduced imprisonment rate at the time when most other Australian jurisdictions were experiencing increases.  So basically, the point there, we can see if we drop down below, the red line is New South Wales.  So we're dropping down below New South Wales.  They sort of started to have a dip in the late 2010s and then we sort started to all rise together around 2012.  South Australia, Queensland and New South Wales are sort of tangled together up towards the end there.

So within the Iron Law equation, the main effect of court ordered parole on the system was length of stay with some reductions in admissions.  The largest cohort of offenders, subject to court ordered parole don't serve any time in custody under sentence.  At least for the first release.  They're released immediately to parole.  Offenders who do serve time in custody most commonly serve around one third of their total sentence.  Prior to COP, again, most prisoners served around two thirds.

So most offenders discharged on COP in 2016/17 didn't spend any time in custody under sentence.  Again, they were released after serving time on Remand.  The average length of stay in custody on sentence was 1.9 months.  So around, I think it's around 50 per cent of court ordered parolees are released at point of sentence.

So linking back to the Iron Law of prison populations, again, the main effect being a reduction in the average length of stay.  So across the whole system, not just court ordered parole, the average length of stay across the system reduced from around 11 months to around six months after the introduction of court ordered parole. And so what this slide actually shows is the actual number of people in custody for less than 12 months really dropped quite dramatically after the introduction.  The number of people in the one to two year and two to three year sentence cohorts increased but, but as the previous graph shows, the actual portion of their sentence spent in custody decreased.  And again, these individuals then contributed to the large sort of increase over that period of time and the number of people supervised in the community.

So the power to suspend parole now lies with the Parole Board Queensland. So this data's only from the first six months of operation.  They've been in operation for just over a year now.  So probation and parole applies to the parole board to have a parole order suspended if they believe the parolee has failed to comply with their order or poses a serious risk of harm to another person, an unacceptable risk of committing an offence, or is preparing to leave the state.

So this is parole suspension.  A successful court challenge of mandatory parole suspensions for positive drug test in 2015 and the announcement of the Queensland Parole System Review led to a decrease in the number of parole suspensions.  So you can see both kind of dropping around that first part around… so there was a policy in place for a number of years prior to that where, if someone had a positive drug test, they had to be returned to custody.  That was thrown over so then we saw a decrease there and then it was sort of going...  there was a bit of a bounce just prior to the announcement of the Queensland Parole System Review, and then over the course of the review it decreased again.  There was a slight upward trend at the end there, so I'm not sure whether that's continued or not at this point.

So I should say, since its establishment in 2017 until December 2017, the Parole Board Queensland endorsed about 98 per cent of Probation and Parole’s requests for parole suspension.

So parole cancellations.  So court ordered parole can be cancelled either through automatic cancellation, the parolee is sentenced to another period of imprisonment for an offence committed or by the parole board if they believe, as with those previous suspension ones, that they failed to comply, posed a serious risk either or harm or committing a further offence or are preparing to leave.

So if court ordered parole is cancelled, the prisoner is not eligible for another court ordered parole order but can apply to the board to be released on board parole.  Of the court ordered parole cancellations in 16/17, 58 per cent were for breaches where there was no new offence and 42 per cent were for new sentenced offences. And I should add, so in terms of a successful rate; so a parolee can be deemed to have a successful completion where they've been returned to custody for the period of the parole.  So if they're suspended, but then they're re-released on that same order, that's still counted as a successful completion. And again, so successful completion is counted when the order has not been cancelled and the rate has been relatively steady, about 70% over the seven years or so shown there and we'll see whether that continues under the new board.

So offenders, so we have a risk of re-offending assessment which is an assessment tool developed by Griffith University and it was developed in 2006 and re-validated in 2016.  So it uses a statistical method to calculate risk of re-offending score from data such as age, offence type, number of current and previous convictions.  It's automatically calculated at admission and for every sentenced prisoner and most probation parole offenders as well other than people on community service and a few others.  So we use the raw score when assessing prisoners for rehabilitation programs and in determining levels of service and also risk just generally.  So what we can see is that offenders with a low risk of re-offending score had successful completion rates, as we can see, while offenders with a high raw score had a completion rate of below 60. So this just demonstrates quite well how good our risk of re-offending tool is.

So there were approximately 1100 admissions to custody in December 2017. Of those, 200 were court ordered parolees.  The number of court ordered parolees being admitted to custody declined in line with a reduced number of suspensions.  So you can see that dropping down there.  So of the 8,500 prisoners in custody in December 2017, 2,000 had returned from court ordered parole, either on suspension or cancellation.  So that's, yeah, all prisoners over that period of time. Last one.  So this again, another predictor versus actual re-offending.  So this just demonstrates how wonderfully predictive our raw assessment is.  So 10% of offenders with a low raw score re-offend within 18 months, whereas 60% of offenders with a high score re-offend – that's court ordered parole.  Thank you.

Kathy McLeish:

Thank you Kate.  It's quite an extraordinary list of numbers and extensive data which will obviously illuminate a lot of decisions and discussions in the review.  Our next speaker is Professor Lorana Bartels from the School of Law and Justice, University of Canberra.  She undertakes research in Criminal Law and Criminology with a particular focus on sentencing and corrections and the treatment of women and Aboriginal and Torres Strait Islander people in the criminal justice system. She's a member of the editorial boards of The Alternative Law Journal, Criminal Law Journal, where she's the Sentencing Editor and ACT Editor, and International Journal of Offender Therapy and Comparative Criminology.  In 2014, when the ACT government was planning to abolish periodic detention and replace it with some form of community correction order, she was commissioned to undertake research on different forms of such orders around the world.

She co-wrote the Tasmanian Sentencing Advisory Council's Final Report and Consultation and background papers on phasing out suspended sentences in 2015 and 2016.  That Council's report led to Tasmania's sentencing amendment, phasing out of Suspended Sentences Act 2017, which awaits proclamation and will introduce home detention and community correction orders in Tasmania's Sentencing Act 1997.  Thanks very much.  Welcome Lorana Bartels.

[Applause]

Lorana Bartels:

Thank you, let me just get the technology sorted.  Okay that seems to be me.  Thank you very much.  Firstly, I'd like to say thank you to Anne of the Queensland Sentencing Advisory Council for inviting me to speak today and thank you to John for the very warm welcome to the Council this morning.  I have to confess to a little bit of envy because the ACT still doesn't have a Sentencing Advisory Council, which I'm rather troubled by.

I would also like to acknowledge the traditional owners of the land on which we're meeting here today and pay my respects to the Elders past, present and emerging.  And I think especially in the context of criminal justice, it is vital that we recognise that the land we stand on always has been and always will be under their custodianship.

Today I'll be talking about intensive correction orders (ICOs) and community correction orders (CCOs), and their role as alternatives to imprisonment. ICOs, as I'll call them and CCOs, the terms are sometimes used interchangeably, but ICOs are currently in place in New South Wales, Queensland, South Australia and the ACT, and CCOs are in place in Victoria.  As we'll see, Queensland isn't alone in under-utilising these sorts of orders.

Okay.  First to the legislative framework.  So as you can see, these are the six jurisdictions that have these sorts of orders and they're called ICOs, they're called community correction orders and in the Northern Territory it's called community custody.  And the main thing I would like to talk about is the differences in the maximum lengths.  So here in Queensland, the maximum sentence permissible for an ICO is a year, that's the same as the NT model.  But as you can see, in New South Wales it can go up to two years, likewise South Australia and Victoria's got a bit of a complex arrangement where you can go up to five years for multiple offences in the Magistrate's Courts and up to five years now in the higher courts.  And obviously where legislatures choose to set that upper ceiling really dictates the extent to which these sorts of orders can ultimately take people out of the prison system.  And then in the ACT we've got an upper ceiling of four years, and I know of at least one case where a four-year sentence has been imposed.

In the time I have available I can't go into the other legislative framework specifics, but bear in mind that there are also legislative differences in the kinds of offences for which these sorts of orders can be imposed.  And so in different jurisdictions for example, certain offences such as murder and serious sexual offences are either not available at all for these sorts of orders, or rather these orders are not available for those offences or in some instances those serious offences are such that these sentences can only be imposed in exceptional circumstances.  So that's again a point of difference and a point for a jurisdiction thinking about how these sorts of orders may be used to think about, "Well what are we trying to achieve here?  Do we want to promote the use of these sorts of orders or do we really want to limit it?" And I'll talk a little bit about why I believe that these sorts of orders are important and we should be giving serious consideration to extending their use.

Now, these orders variously described are not probation.  They're not suspended sentence.  They are a form of imprisonment in the community.  And they are often very intensive in their nature. So this is the set of conditions that you'll see for the New South Wales order.  These are the mandatory conditions. So some of them are not terribly surprising; be of good behaviour, not leave New South Wales, receive supervision, don't submit to or rather, submit to searches of the place, not use drugs, drug test, surveillance, minimum of 32 hours per week of community service.  That actually takes up quite a lot of your day and a lot of your week.  So anyone who is thinking, "Oh well, they're just home twiddling their thumbs.  This is nothing like prison." I think they need to be fully conscious of the fact that intensive really can mean very intensive indeed.  In addition, they have to participate in programs as directed to address they're offending behaviour, they're subjected to surveillance monitoring, so that will often be an electronic monitoring bracelet and I could talk at great length of the pros and cons of using that sort of technology, but this is intensive.  Okay?

In addition, there could be optional conditions imposed to these sorts of orders.  So they might have to participate in certain kinds of employment, have communication between their community corrections officer and their employer.  They might be precluded from associating with certain people, there might be a limitation that they not consume alcohol and they may be restricted as to where they can go.  So that would be then tailored to the individual needs of them and the risks associated with that offender.

I feel like I'm in a lecture and I normally ask for questions, but of course I'm not.  I'll stop and assume there are none at this stage.  Okay.  My data really pales in comparison with Kate's nice fancy graphs, so this is going to be fairly simple for you.  But what I decided to look at for today is how these orders, these types of orders are used and I looked at the data published by the Australian Bureau of Statistics.  But what I want to say by way of context for the use of these orders is that we do need to remember that as a nation, and there are variations across the nation, we're currently using prison at unsustainable rates.  Our prison population now exceeds 42,000 people and the imprisonment rate was 222 per 100,000 in March of this year.  That is significantly higher than anything in Europe, for example, and we're starting to become one of the high imprisoning nations.

We're not up there with the US, but we're imprisoning at very high rates. And to give you an indication of how fast that's increased, that population per 100,000, so not as a total but as relative to the rate of population growth in Australia, that rate of imprisonment per 100,000 has increased by 29% in the last five years. So I’d argue that what we're doing is unsustainable and that the use of community correction orders can be part of the solution to that, but these sorts of orders are not widely used in Australia.

So according to the ABS data, there were just shy of 4,000 such...  4,000 defendants receiving an order of custody in the community in 2016/17.  This is less than 1% of all sentences imposed, 0.7% of all the defendants sentenced in this country.  By way of comparison, 8% of defendants received a prison sentence.  Now just a little technicality is that the ABS data actually include home detention and something called "Other Custody in the Community", NEC, but since CCOs and those sorts of orders account for 90% of what the ABS is talking about, we'll kind of conflate them for the purposes of this, because the ABS data don't break it down further.

As you can see from the bottom, we have in the column on the left the number of these sorts of orders that were imposed by court level.  So in the higher courts there were 733 orders of this nature imposed, including no doubt sort of John’s own orders I extrapolate.  In the Magistrate's Court there were nearly 2,500 and that accounted in numerical terms, for two thirds of all of the community correction orders imposed in the country, and then there were 500 in the Children's Court.  So in terms of where are these orders actually being imposed, they're basically being imposed in numerical terms, in the Magistrate's Court.  But if we look at the right hand column as a percentage of all orders imposed in that court, they're highest in the higher courts because they are obviously a form of imprisonment in the community, and they're used there in 1 in 20 cases, where they're very rare in fact in numerical terms in the Magistrate's Court where the main sentence imposed is, in fact, a fine and that they're used in 2% of cases in the Children's Court.

Looking at...  I hope can see that.  Looking at the kinds of offences for which these sorts of orders are imposed, as a proportion of all the community correction orders imposed, by far the most common offence category is assaults.  So they accounted for over a quarter of all of these sorts of sentences followed by...  I can't see it...  drug offences, accounting for 14% and traffic offences for 15%.  But as a proportion of all of the sentences imposed for each of those kinds of offences, nothing was terribly high, quite frankly, but the one that stands out is robbery.  So these sorts of orders were imposed in 5% of robbery sentences and then the others hover around 3%, 2% and you can see that they weren't imposed in those generally more trivial sorts of offences at the bottom.  Well, I shouldn't say offences against justice are trivial. They're not trivial, but they're less serious, obviously, than the offences one sees up above.

Question:

Lorana, can I just ask a question.

Lorana Bartels:

Yes, that’s okay, I’m running it like a lecture.

Question:

Were those standalone sentences or were they hybrid sentences, where they're partially imprisoned –

Lorana Bartels:

The way the Australian Bureau of Statistics does its data, they do it on the basis of what size MSO, most serious offence and then most serious... I don't know what the acronym is actually, most serious sentence, so in fact, if it's recorded as a community correction order, it could have a fine or something else sitting under it, but it couldn't be coupled with an actual prison sentence or it would be classified as a prison sentence.  Does that answer your question?

Question:

Yeah.

Lorana Bartels:

Yep.

Question:

I was interested in homicide…

Lorana Bartels:

Yeah, that's probably manslaughter.  I imagine there wouldn't be any murder cases but it's probably manslaughter.

Okay.  This table shows the breakdown for the most common offences by court level.  And as you can see, assaults were amongst the most common offences in all court levels for which community corrections orders were imposed.  But interestingly in the higher courts, over half of all the community correction orders imposed were in fact for drug offences and I think we can...  We'd have to check that this is a trend and not just this particular year, but I think we can infer something from that as to how courts see the role of this sort of order, especially about potential to impose conditions around drug use and drug treatment.

In the Magistrate's Court the traffic offences obviously are a big source of significant use of these sorts of orders, and then as a proportion of all the sentences imposed for that offence, you'll see that the greatest chance in the higher courts of getting this sort of order is for traffic offences, in the Magistrate's Court it's for sex offences and then Children's Court it's for robbery offences.  So one would need to do a little bit more pulling out of the data to work out quite what this means, but I'm not aware of anyone who's really looking at these sorts of orders in much detail, thinking about, "Okay, well what kinds of cases are these suitable for and what does that mean for our sentencing practise?"

Now as I said, these sorts of orders are not, in fact, available across the country.  And as you can see, they don't have these sorts of orders yet in WA and Tasmania and they're available in all of the jurisdictions, but there's significant disparity in the extent to which they're used.  So New South Wales accounts for nearly half of all of the...  In their instance ICOs, the orders of this type that are imposed, followed by South Australia and as you can see, that Queensland, in spite of being a relatively large jurisdiction, having ,perhaps not in spite of having a relatively high imprisonment rate, concomitantly with having a relatively high imprisonment rate, doesn't use these CCOs and ICOs very widely.

But as a proportion of all sentences imposed, no one's really using them very much at all.  If you look at that right hand column, except for South Australia.  So I think any jurisdiction that wants to think about how to use these orders might want to talk to the South Australians to see what it is there that has made them comparatively palatable.  4%'s not exactly a groundswell, but if no one else is using them above the 1% mark, it would be interesting to unpack why they've taken off in South Australia to the extent that they haven't in any other jurisdiction.

When we think of the length of the sentence imposed we see that the average or mean length and the median or typical length in the higher courts is just a little bit short of the two year mark.  And there, I think, we have again some of the answer I guess, to John's rhetorical question or comment more that they're not used much in Queensland. Well if you're setting the legislative maximum at 12 months, obviously that's not meeting the needs of the higher court judiciary who might be wanting to impose them in more serious cases and then in the Magistrate's Court and Children's Court, they're obviously for shorter sentences as one would expect.

In those slides you could actually also see longer sentences. Interestingly, 9% nationally... 9% of all community corrections orders were, in fact, for 2-5 years and there were a teeny, teeny handful of orders imposed for 5-10 years.  One might question how meaningful a community correction order might be at the 6, 8, 10 year mark, but certainly for the 2-5 year mark, one could readily imagine that there were quite serious offences but in circumstances where it would still be appropriate to have the offender managed intensively in the community for that period of time.

Okay.  Now I'd like to turn to the research on these sorts of orders and how effective they are. And much of what we know here is from New South Wales, from the Bureau of Crime Statistics and Research, also known as BOCSAR, which has been monitoring these sorts of orders since ICOs were introduced in New South Wales in 2010.  So this is what we can learn from that.  And again, that would be specific to that legislative form of ICO but nevertheless, BOCSAR's dataset is unparalleled in this country so we would do well to learn from their experience.

So the first paper they published was looking at whether ICOs, which were introduced concurrently with the abolition of periodic detention, were the offenders who were getting ICOs really comparable to the kinds of offenders who would have previously received periodic detention.  So checking really whether there was net widening.  Was this really being used now instead of probation, community service, some other non-custodial order, or were they being used as they were intended, as a replacement for periodic detention?  And somewhat gratifyingly, I guess, they found that if they compared the profile of offenders who received periodic dentation prior to its abolition, and offenders who received a suspended sentence and those who received a community service order and served a term of imprisonment, with those who received this then new order, the ICO offenders were in fact most similar to those who had previously received periodic detention.  In other words, the new order was filling the gap left by periodic detention, being used by judicial officers as it was intended.

The next paper they published looked at sentencing outcomes where community corrections or New South Wales Corrective Services had assessed someone as suitable or not suitable for an intensive corrections order.  And I should note that the legislation has been changed, so ICOs are no longer available for some of the offences they were available for at the time.  Of those who were assessed by New South Wales Corrective Services, 55 assessments ultimately resulted in an ICO.  Of those that did not, the most common penalties that were subsequently imposed were either prison in 58% of cases, or a suspended sentence in 24% of cases.  So again, this confirms that the ICO was being used as it had been intended, as an alternative to prison and it was not being used as an elevation, as a more serious sentencing option where previously something like probation would have been used.

Now we get perhaps to the more exciting stuff.  So, in this paper what Clare Ringland and Don Weatherburn were trying to look at is, "Well okay.  We get these offenders on these ICOs.  What does this mean in terms of their re-offending?" So here they were with their various sophisticated statistical tests, comparing offenders on ICOs with those who had received periodic detention or suspended sentences with supervision.  And they found that an offender on an ICO had a 33% less risk of re-offending than someone on a periodic detention order.  A periodic detention order, of course, had been abolished but nevertheless it demonstrates that it was not only being used for the same cohort, it was quite a lot more effective in terms of reduction in re-offending.  However, between those on ICOs and those on supervised suspended sentences, after taking into account the risk assessment score of the offender, there was actually no difference in re-offending.

And most recently last year they published another paper which was comparing the re-offending rates for offenders on ICOs with those who received a short prison sentence of up to two years.  And here the authors found that there was between an 11% and a 31% reduction in the odds of re-offending for an offender who received an ICO.  Pretty important findings, I would think because we're talking prison sentences up to two years and if we think of, I can't quite remember, Kate, what proportion of your offenders would fall within that category, but a very large proportion indeed.  The author said that these results further strengthen the evidence base suggesting that supervision combined with rehabilitation programs can have a significant impact on re-offending rates.

The Victorian Sentencing Advisory Council, your counterparts down south, have also done a lot of work in this context in relation to their community correction order and in particular have done several monitoring reports and they have statistics in there, although they haven't done the kind of modelling that BOCSAR has done.

And in the context of the report that was alluded to earlier that I did for the ACT government, I was tasked at the time that they were planning to abolish periodic detention and introduce some kind of intensive...  The report's actually intensive supervisional because that was the terminology we were using at the time, I was tasked with looking at different models around the world to see what does the best practise evidence say. So I looked at New Zealand, Canada, the US, England and Wales, Sweden and South Africa just for completeness. It's not that I didn't care about the Australian context, but they'd already done that one in house, so they wanted me to look at what was happening overseas and that was an interesting exercise.

This was part of my key findings from that.  That there's fairly high rates of compliance with these sorts of orders. Obviously very different criminal justice systems from our own.  Quite frankly the Sweden stuff was the most interesting.  So that's a little section of the report that you might be interested in looking at.  There was some cost benefit analyses that showed that these sorts of orders are more economical than prison, but in some instances there was evidence of net widening and it was clear that that had occurred.  So I commented that caution must be taken to ensure that intensive supervision orders, or like orders which are intended to be a substitute for prison are not imposed on offenders who would otherwise receive a more lenient disposition.

I found that the research suggested mixed findings in terms of the impact on re-offending patterns, but in particular there was a clear difference between the models that were predicated on surveillance and that took a punitive approach, which were less likely to result in behavioural change than those that adopt a therapeutic philosophy, emphasise support for offenders and seek to address their underlying risks and needs.  In other words, the focus of the intensive component should be intensive support, not intensive surveillance.  And given what we know more generally about offenders and that they often have multiple needs, multi-modal holistic interventions that address a range of risks and needs are more likely to be effective, and that there's nothing to suggest in any significant ways that the offenders in the ACT or the offenders in Sweden or the US or Canada are all that different from the offenders here in that regard.

So, it's important not just to get the legislative framework right, and of course to get the judiciary on board, but also to get the administration of these sorts of orders right and there's an abundance of research on therapeutic versus punitive corrections models.  Obviously, it's very difficult to change the culture of a correctional agency, but it certainly is possible to do.  And so the focus should be on working with the offender to address those underlying risks and needs rather than just whacking them, quite frankly, with a big stick and not looking at circumstances in which they're offending and breach in conduct occurs.

So, are these sorts of orders really an appropriate alternative to imprisonment?  Obviously, the answer is more complex and nuanced than I can really do justice to here, but the short answer is yes, in appropriate cases.

To give a specific example, Don Weatherburn, the Director of BOCSAR has noted that between 300 and 400 people in New South Wales each year go to prison for common assault.  Common assault is the most minor form of assault and generally would constitute something like brushing someone's arm or spitting on them.  It doesn't result in serious harm.  So if we're looking at 3 or 400 people a year going to prison for this sort of offence I think we need to be considering very seriously, as Don Weatherburn has suggested, whether these sorts of offenders should instead be staying in the community and receiving an ICO or other order.  This is particularly so when we consider that 90 per cent of those offenders receive a non-parole period of six months or less.

The research that I've pointed out from BOCSAR demonstrates that offenders who receive orders of this nature are significantly less likely, than those on short prison sentences, to re-offend.  So there is in fact an advantage in crime prevention terms.  Not only are we not putting people at risk but people are actually safer with offenders in the community on these sorts of orders than they are if we send them to prison instead.

These orders also, obviously, cost a lot less to the community in monetary terms. The Australian Institute of Criminology recently undertook research that found that the costs of prison are more than nine times the cost of community corrections.  Think about what else we can do with our money.  We could actually pay more nurses and teachers, and do a whole lot of things that are also important for crime prevention purposes.

That doesn't mean that these sorts of orders are without their challenges. As we saw from the ICOs example in New South Wales, this sort of order includes frequent supervision by community corrections, drug testing and significant community work requirements. These are onerous expectations to place on offenders, especially those who are mentally ill, have cognitive impairment and/or substance abuse issues.  And we can't set these people up to fail.  That benefits no one at all.  So we need to remember the research that shows the importance of intensive support rather than intensive surveillance in this context.

One issue that is particularly important for Queensland and not so much an issue in the ACT where I live, is the complexities of managing these sorts of orders and managing offenders on these orders in a large state with many people living rurally and remotely, and I freely acknowledge I do not understand those issues in as much detail as those of you who work in this context. But I think the rejoinder must surely be, that if at times we build prisons that are far away from people's families, we should also look at having Community Corrections Officers that are in remote areas so that the people who live in remote areas are not disadvantaged and do have the same options available to them that their counterparts in the city do.

I haven't gone into much detail here about the issues relating to indigenous offenders, but I'm conscious that ensuring that these sorts of orders are appropriate for such offenders is vital.  In this context, it's relevant to look at the recent recommendations of the Australian Law Reform Commission in their Pathways to Justice Report.  They suggest that the governments work with Aboriginal and Torres Strait Islander organisations to improve access to these sorts of orders.  Expanding the geographic reach, providing community-based options that are culturally appropriate, and making these sorts of options available to offenders with complex needs. All of which I've alluded to more generally for the whole offending population.

The ALRC also recommended looking at the Victorian regime as an example as a way of implementing community-based sentencing options that allow the greatest flexibility in sentencing structure and the imposition of conditions to reduce re-offending.  So, this report which is 530 or something pages long and has 35 recommendations is a comprehensive blueprint for reducing the over-representation of indigenous people in our criminal justice system.  This must surely be one of the most important objectives of our justice system at the moment, and it's time to start working in earnest to ensure that a large proportion of the traditional custodians of our land get to remain on that land rather than locked up behind bars.

More generally, I think it is clear that with orders of this kind making up less than one per cent of all orders imposed by the courts, while prison is used in eight percent of cases, there is clearly scope to use these sorts of orders much more extensively as an alternative to prison.

I would like to close by showing you some extracts, you don't need to read all of it, from the Victorian Court of Appeals Guideline Judgment in Bolton, which set the stage for a much more extensive use of the Victorian Community Correction Order.  I regret to say that that has since been wound back legislatively. But the court was very clear on the scope and the potential of this sort of order and I'd just like to pick out some elements or what the court had to say.

They have talked about prison seeming to be the only option.  Sentencing courts didn't reflect on the severity on the sanction or its effectiveness as a means of rehabilitation, and I think that more Judicial officers and more widely those of us who are involved in research and policy making have through the work of BOCSAR and Sentencing Advisory Councils, a much better understanding in fact, of how these sorts of orders, all sentencing orders, work, than perhaps was the case 10, 20 years ago.

The court talked about the loss of autonomy, privacy, and the violence, bullying and intimidation that takes place in prisons.  They regarded this as not only detrimental for the prisoner but also as a result for the community.  They noted that the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity.  The so-called university of crime.  Self-evidently, such consequences are greatly to the community's disadvantage.

They talked about the fact that the courts know that time spent in prison is often unproductive or even counterproductive for both the offender and the community.  They said that the CCOs availability changes the sentencing landscape.  They talked about it as an option which does something prisons simply cannot.  Namely, provide the ability to impose a sentence which demands of the offender that he or she take personal responsibility for self-management and self-control.  And that he or she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places.

In the conclusion of this segment they said the CCO offers the sentencing court the best opportunity to promote simultaneously the best interests of the community and the best interests of the offender and of those who are dependent on him or her.

I think that we should take these words very much to heart.  Thank you.

Kathy McLeish:

Thank you Dr Bartels.  So, we have about 15 minutes left.  We are keen to take some questions from the audience, if anybody has some.  We are recording this for viewing later and also for those watching.  So if I can get you to speak up and tell us who you are and where you're from and ask your question clearly, that would be wonderful.  Do we have anybody who would like to start out?

Question:

Lorana, I was struck by one of your slides, where I think you reproduced the New South Wales legislation.

Lorana Bartels:

It's the conditions, it's actually the regulations, but yes.

Question:

So the mandatory conditions seem to me to be incredibly punitive.

Lorana Bartels:

Yeah.

Question:

And the only other jurisdiction I have any vague familiarity with is the Victorian and they seem to have taken a different approach where they leave judicial discretion as to the conditions to be imposed, it's a bit wider.

Lorana Bartels:

Yeah.  I have to confess, I'm not quite across...  I haven't done a side by side comparison for each jurisdiction.  I'm actually planning on doing it for the sentencing review for this year for the Criminal Law Journal.

Yeah, so New South Wales' list of conditions is extensive, it's lengthy, and those are mandatory.  Victoria does have mandatory conditions too, but it's...  I think it is a shorter list.

Question:

A slight demotion.

Lorana Bartels:

Yeah, I think it's a shorter list and leaves more of those more onerous conditions in the hands of the judicial officer to determine whether they're appropriate in the circumstances.  I guess we're at an interesting moment if we know quite a lot about the operation of the New South Wales model through BOCSAR's research, and then, on the other hand, I guess have the exhortation from the Australian Law Reform Commission that governments should be looking more widely at the CCO.

I suppose the time is right for some research on how those two models in particular compare and, of course, South Australia's and New South Wales and Queensland as well.  To see, I guess, the minutia, because we have lumped these sorts of orders in together and because they do make up such a small proportion of all sentences imposed, but it's probably timely to look at how do these variously named but similar kinds of orders in fact compare against each other.

Question:

I think, if I remember, one of the mandatory, or a couple of the mandatory conditions related to bracelets and surveillance.

Lorana Bartels:

Yes.

Question:

And then I was struck by your work, with the ACT legislation, where your research showed that those surveillance type conditions were far less likely to...

Lorana Bartels:

So, yes and no. So, that's where actually the section on Sweden was really interesting.  So Sweden uses electronic monitoring...  Well, extensively.  They use it for their form of this order.  I can't remember what the English translation is, and I never knew what the Swedish word for it was.  But they did so within a therapeutic context.  So, for example, the offender would be subject to electronic monitoring, but it would be the obligation of the state to help them find a job, and they would work with the offender to find a job.

So even something like electronic monitoring, which on the face of it is, quite frankly straight up and down, punitive, can be implemented in a way that is more therapeutic and rehabilitative in nature.

Is this a question for me or...

Question:

Yeah, it is.

Lorana Bartels:

Okay.

Question:

Sorry, just in relation to that, I'm Brett Thompson from the Queensland Homicide Victims Support Group.  In relation to the monitoring the discussion you had around, so let's say we're talking about obviously people who have been sentenced for manslaughter or murder versus parole.  The bracelets are obviously a way to give some comfort to the victim’s family. In terms of location and knowing where they are but what's your thoughts or research on the concept of...  Almost like a...  Like a tag that the victim’s family would have, so that...  Almost a warning system, so if the parole board says that as one of your conditions, you can't go to X, Y and Z, which would obviously be where the victim’s family would reside [unclear] which I understand does occur sometimes.

Lorana Bartels:

I believe some of that's used in domestic violence context.  It can be...  So there'll be an apprehended violence order of some kind and both parties would have them.  For that to work you need to use GPS monitoring devices as opposed to radio frequency ones and GPS are much more expensive, but also some of the technology is not as sophisticated and there's still, as we speak, there's instances of that dropping out, so...

Question:

Is there any research around the mental health of the victim’s families [unclear]?

Lorana Bartels:

I believe, also in Sweden...  We should all go on a study tour to Sweden.  I believe in Sweden, as part of the report which is...  So if you want to look at that link for the report I wrote, that includes the references for the Swedish research, and, from memory, I believe that they did include...  It's a few years since I wrote the report, but interviews with people who are subject to the monitoring, their family members, probation and parole and the victims, and the general public on it.

So I believe that was research involving victim's perceptions.  I can't, off the top of my head, think of anything else that looks at victims.  I'm certainly aware of research with family members of people subject to that and some jurisdictions, if not most, won't use electronic monitoring in the house where... Well, that sort of...  That sort of response is not an option where it's a domestic violence situation and the victim of that violence still lives in the home, but I understand that's not your concern, so in a homicide situation, probably the best I could refer you to off the top of my head is the Swedish research, although obviously I can't say that there were homicide victims in that, or the family thereof.

I think it's the lady there.

Question:

Yes, sorry, just a quick question, you might have covered this already, what's the reason [unclear]?

Lorana Bartels:

I don't know the answer to that.  I really don't know.  So in some instances, and this is just me hypothesising, it might be because the legislative limits do not...  You know, they don't encourage judicial officers to use them so that Victorian Court of Appeal decision in Bolton, after that decision was handed down, there was an increase in the use of those sorts of orders, and that was documented in the Victorian Sentencing Advisory Council's research.

But the Victorian government subsequently passed legislation, I think multiple cases of the legislation, that said, "Well, actually, we're going to...  We're going to restrict the sorts of offences in which you can impose this sort of order. We're going to restrict the length of these sorts of orders."

So sometimes the legislative framework does not encourage it, or perhaps doesn't encourage their use as widely as possible.  I hypothesise, again, that some judicial officers just may not feel it meets the purposes of sentencing appropriately.  Certainly, in the ACT I know that the use of our ICOs has... The uptake has not been quite what the government was expecting and what some defence lawyers and even prosecutors were expecting, so that it doesn't resonate with some judicial officers.

Again, that's probably...  It's trite for an academic to say there needs to be more research but it probably is one that's calling out for more research with the judiciary to say, well, when do you use this sort of order?  If you wouldn't, why wouldn't you and to try and understand that a little bit more, because it does seem perplexing, and, above all, it's...  It would be really useful to talk to the South Australian judiciary and see why they are using them to a much greater extent.

Question:

I am surprised they're not...  I'm Leigh, by the way.

Lorana Bartels:

Hi, Leigh.

Question:

I am surprised they're not using it more since there appears to be, from your research, a monetary value, that monetarily this costs way less than putting them in jail and if you have to increase the number of these people who would watch and be there to supervise across Queensland, say, with, as you said, all the rural places and everything taken in, does that still mean the cost of this is lower than putting them into jail?  Has that all been taken into...  How many people are needed throughout Queensland?

Lorana Bartels:

Basically, jails are more expensive than just about anything else, because once you've built those walls, it's not like you can say, "Oh, we're a little bit under capacity, we can hive off a chunk." Or, "We're near over-capacity", obviously there's double bunking and the like and...  Yeah, discussion for another day what the consequences and risk of that are, but if community corrections is a ninth of the cost of prison, you could still significantly increase the number of Community Corrections Officers, you could reduce the load, the case load, of Community Corrections Officers.  Obviously Kate can speak much more knowledgeably about the specifics of this than I can.  It's still going to come in at a lot cheaper than prison.

Question:

It still will?

Lorana Bartels:

Yeah.  Kate, do you want to...

Kate Petrie:

Well, look, I don't know about if we had to expand community based...  I'm thinking probation and parole officers throughout rural and regional areas, I'm not sure what the cost of that would be. I will say in relation to...  And this is just...  Yeah, sure.  So in relation to Intensive Corrections Orders in Queensland, and I guess this is somewhat anecdotal, but my understanding is that's where it sort of, the court ordered parole regime kind of replaced it, so half of court ordered parole people are released direct at sentencing.  So they're still being released to a community based order.  It's a custodial order, and there is greater ease with which they can be returned to custody if they present a risk, but my understanding is, certainly at the time that court ordered parole was introduced, that defence attorneys were leaning towards court ordered parole as a preferred option because it was far less regimented than Intensive Corrections Orders.

So the legislation very clearly sets out how Corrective Services has to monitor ICOs, whereas parole permits Corrective Services to sort of monitor people based on their risk.  If we assess them and we think they need less supervision gradually over time, they'll still be supervised but we can reduce that, whereas an ICO for that 12-month period, it's quite intensive, so, yeah, I think, for us, whether or not... Whether an increase in ICOs would reduce prisoner population, I think that's an interesting question, but I'm not sure, because the Queensland context, with court ordered parole, is very unique, compared to other jurisdictions where parole tends to be for people who are sentenced to more than 12 months, whereas court ordered parole in Queensland is from sentencing, so...  Yeah.

John Robertson:

I think I've got an answer for you.  It's not my work, it's the Council's work but as at 30 June 2018, this was by reference to over-crowding in prisons, now, we don't...  We have the ICO which is limited to 12 months, so we're talking much more...  Much lengthier in other states, but the real net operating expenditure per prisoner per day, this is as at this year, was $183 and in contrast, the real net operating expenditure per offender per day, to supervise an offender in the community, this is in 2016/2017 was $12.35.  So...

Question:

That's a lot cheaper.

John Robertson:

It is a lot.  I don't know if it’s nine times…

Question:

That's an amazing amount.  That's a huge difference.

John Robertson:

Yeah, and that's from [unclear]…

Lorana Bartels:

And I think that's something people in the community don't understand, and the Victorian Sentencing Advisory Council did some research on this in, I think, 2011 that showed when people were made aware of the cost of prison, their support for community-based alternatives went up.  You know, we can't act like building prisons and staffing prisons comes from this bottomless bucket of wealth.

To give you an example of that, in 2016, the New South Wales government announced that it would spend $3.8 billion building new prisons, and at that stage, the annual correction's budget for the whole country was $3.2 billion, so we're talking really, really large numbers, and the Correction's Minister said, you know, "I don't want to have to do this.  I would rather spend the money on nurses and hospitals but I have no choice."  Well, that's not, with all due respect to the minister, an accurate statement.

Governments do have a choice about where they spend their money and we can get much, much better bang for crime prevention buck outside the prison context.

Question:

If you’re talking under the 12 months, I thoroughly agree.  Where, with my own case and my own interest, it’s much higher than [unclear].

Lorana Bartels:

Oh, there will always be some people who should be in prison.  Don't get me wrong, I would not suggest otherwise.

Question:

… [unclear] the judicial system doing a job for me of punishment, for starters, and hopefully rehabilitation, and hopefully in that way…

Lorana Bartels:

It's very hard to rehabilitate in an over-crowded prison.

Question:

So where else are you going to do it?

Lorana Bartels:

In the community.

Question:

Can I ask you a question in relation to your research? Do you think you’ll look at whether there was a relationship or a requirement, a legislative requirement for pre-sentencing risk assessments to be conducted as a means of giving some baseline to judges to improve their confidence [unclear] an ICO to be successful for offenders?

Lorana Bartels:

I didn't look universally at this, but certainly in the ACT with our new ICOs, and this has caused some difficulties within ACT Corrective Services, the assessment process for an ICO takes eight weeks.  It includes multiple visits to the offender's home, it includes standardised risk assessment tools.  It's quite an intensive process, certainly.

Question:

So there's no stats available yet to determine whether the uptake based upon that additional information… I imagine most judicial officers would place greater confidence when they’ve got a tool that says this particular offender under these circumstances has this level of risk of reoffending, rather than have none of that information…

Lorana Bartels:

I imagine so, and, I mean, the reliability of the tools that are obviously being used here in Queensland should be taken very seriously by judicial officers, and I believe you said 98% of the time they go with the corrections recommendations, is that correct?

Speaker:

The parole board, yes.  The parole board.

Lorana Bartels:

Oh, parole, sorry I beg your pardon, parole board.

Speaker:

Yes, parole board [unclear]

Lorana Bartels:

Yeah.  I don't know if you've got data on the courts.  I certainly can't comment on that.

Speaker:

But I think in Victoria it's...  They can't make a CCO unless there’s a [unclear]...

Lorana Bartels:

Yeah.

Speaker:

Which includes that sort of intense…

Lorana Bartels:

Yes, there would be.

Speaker:

And they have assessment tools.

Lorana Bartels:

And, again, that would also include, you know, where it's proposed that the person would be subject to the order, living with other family members, it will include the views of the other family members, because...  And, again, there's a whole body of international research on this, so the impact of Community Corrections Orders on other people in the home, children and adults, on the gendered impacts of these sorts of orders and how that impacts on men versus women, there's a whole body of research on that.

Kathy McLeish:

Fantastic.  Thank you. Oops.  Thanks, Lorana.  Thanks so much.  We just... That winds us up for time.  Thank you so much to all of you for your expertise and knowledge and the discussion and enlightening and inquiring discussion and questions, and there will be so much more to understand as the review rolls on and it will be with great interest that the outcomes are watched, I'm sure.

Thank you all for joining us today.  Thank you to everybody involved in this successful event.  As with most events, we're interested to hear your feedback. Tomorrow you will receive an email asking you to complete a short survey, and that survey will help us to continue to improve our public information events and help determine speakers for our future presentations.

Details of the next seminars in our series will be on the website in a few weeks’ time and a recording of tonight's seminar will be available on the website also. The address is sentencingcouncil.qld.gov.au.

I'd like to thank our guest speakers tonight for supporting the Queensland Sentencing Advisory Council, and also thanks very much to our Secretariat, who do such hard work in organising these events and bringing them to people right across the state.

So thank you all and please join me in thanking the speakers and our Secretariat.