Transcript — Community correction orders: are they a smarter sentence?

John Robertson:

Hello and welcome to this edition of Sentencing Matters, a podcast from the Queensland Sentencing Advisory Council. I’m John Robertson, the chair of the Queensland Sentencing Advisory Council and in this 12th edition of Sentencing Matters I’m speaking with Professor Lorana Bartels about community corrections orders and reforms in other states in relation to judicial discretion. Welcome Professor Bartels.

Lorana Bartels:

Thank you very much.

John Robertson:

Firstly can you tell us a little bit about your background and your work in this area?

Lorana Bartels:

So I trained as a lawyer and I worked at the Director of Public Prosecutions and Public Defender’s Office in New South Wales but realised early on court work was not for me. I did research work and I was lucky enough to complete a PhD with one of the gurus of Australian sentencing research, Kate Warner, now the Governor of Tasmania, at the University of Tasmania.

In fact I noticed my PhD was awarded 10 years ago and have done a lot of work with Professor Warner and also Professor Arie Freiberg. So I’ve been very much fortunate to be mentored by two wonderful sentencing researchers and I do a lot of work about sentencing policy, the implementation of different sentencing orders and increasingly research on prison administration.

John Robertson:

Interestingly enough we have that close connection that I didn’t know about because Kate Warner is a long term friend of mine. I used to lecture for her down in the University of Tasmania.

So a lot of your research has been around this new form of order called a community correction order. Can you tell us a little bit about what a community correction order is?

Lorana Bartels:

They go by different names. Community correction order or intensive correction order. What it is, is a sentence of imprisonment in the community and it’s different from a suspended sentence where the judge or magistrate may simply say this is a sentence of imprisonment but I suspend the operation of that sentence and basically sends the offender forth to behave themselves.

With an intensive correction order as part of the order there are conditions attached to it and they’re often quite onerous conditions. They’re generally going to be around frequent supervision, frequent participation in some kind of employment or studying or undertaking some kind of treatment program and they can often be really onerous and we’re talking many hours in the week and there can be a community service component as well.

So this is no light option for an offender. In fact some offenders quite frankly find it easier to go to prison and have their three square meals a day and a bed to sleep in and the walls around them. This is the person in the community and the benefits and challenges that brings but they’re very much under the intensive monitoring, if you will, of community corrections agencies.

John Robertson:

In Queensland we have intensive correction orders but they’re very limited.

Lorana Bartels:

So how are they used and how would they be different from a community correction order?

John Robertson:

Well, the research that we’ve undertaken so far reveals that they’re used very infrequently by sentencing magistrates and judges. They can be for a maximum of 12 months but contain conditions that are similar to what you were talking about but the real issue is it’s limited to 12 months.

Lorana Bartels:

That would be shorter than in most other jurisdictions. In New South Wales it’s up to two years. In Victoria I believe it’s up to two years for a single one. It can go up to five years if they have multiple sentences and in the ACT it can be for sentences of up to four years.

John Robertson:

I understood in Victoria from my own reading that when you’re being sentenced to a community corrections order in the higher court, so the county court or the supreme court, the judge has got a discretion to impose a community correction order up to the maximum penalty.

Lorana Bartels:

I believe the government there has now passed legislation to limit that and they’ve also passed legislation to limit the types of offences for which these orders can impose. So since the Victorian Court of Appeal handed down its decision in Bolton at the end of 2014 that was obviously a guideline judgement very much in favour of these sorts of orders and very much designed to encourage their use, the government there has moved away from that and has obviously wanted to make some strong pronouncements about law and order and sentencing policy and so they, to my knowledge, have very much restricted the sorts of circumstances in which a CCO as it’s called, community correct order, can be imposed.

John Robertson:

Has that happened in the ACT or New South Wales?

Lorana Bartels:

I can’t speak for New South Wales. I think they’re in the midst of some reforms which have not yet taken effect I believe. Certainly in the ACT when the ICO as we call it was introduced now a bit over two years ago there was significant enthusiasm for it from the government.

It was introduced concurrently with the abolition of periodic detention. So the ACT was the last place in the country that had periodic detention and the ICO was introduced to replace that. The uptake of the order has not been huge and that’s generally true of these sorts of orders and I’m at a loss to really know why the numbers aren’t what the government had hoped they would.

I don’t know whether it’s a case of judicial officers not thinking that they’re appropriate for the circumstances they see. I do know there have been some long orders imposed. I know of one in the Supreme Court that was for four years but there hasn’t been any analysis or any detailed analysis of how these orders are used in the ACT and why they haven’t fulfilled their promise and I think that’s the challenge and perhaps the same as here in Queensland.

They’re simply not used to a large extent and that’s something of, I guess, a conundrum as we deal with rising prison populations and rising prison costs, is how to make these sorts of orders attractive to the populous but also to sentencing officers.

John Robertson:

The guideline judgement in Bolton –

Lorana Bartels:

Has been watered down. Absolutely…

John Robertson

Has been watered down. From your perspective as a researcher and with a great deal of experience and knowledge of these orders, how do you think they compare and interact with present sentencing options in Queensland?

Lorana Bartels:

Suspended sentences are a sentencing option which by and large judicial officers really like and quite frankly so do offenders quite a lot of the time but the community generally doesn’t understand, doesn’t like. There are a number of ways that suspended sentences have been cast in a pretty negative light in the media and obviously a probation order is not a sentence of imprisonment. That is overtly a non-custodial order.

What a community correction order can achieve I think if done properly is to communicate to the community generally that this is a prison sentence. This is not someone just sitting at home twiddling their thumbs. Expectations are made of them.

Now that is very difficult as a sell to the community but I think it’s an important one. It’s also difficult for the offender of course to then be on that order and one has to be careful that one’s not setting them up to fail on that order. But if we’re trying to get the mix right between the people who really should be in jail and making sure that they are in jail and that it’s to the benefit of the community to keep us safe and keeping in the community, the people who should be in the community, I think that these sorts of orders have a really critical role to play and I don’t think that potential has been met.

So to give you an example from New South Wales, Dr Don Weatherburn, who is the director of the New South Wales Bureau of Crime, Statistics and Research recently noted in a paper that 300 to 400 people in New South Wales a year are sent to prison for common assault.

Now common assault is the most minor form of assault. It’s an unwanted touching. It’s a spitting in the face. It is not a serious offence and 90% of those offenders have a non-parole period of under 6 months. So really I think we need to question what we’re trying to achieve as a society in sending people to jail for something like that.

That means they’re away from their homes. They’re away from their families. Their children might go into care and protection. They lose whatever job they might have. They become disconnected from their community and quite frankly more likely to reoffend when they return to the community. They’re the sorts of people that Dr Weatherburn suggests, and I agree, should really be kept in the community under appropriate conditions rather than sending them off to prison.

John Robertson:

So our research that we’ve done here at the Council surprised me that over a period of about 10 years the incidents of imprisonment imposed in the Magistrates Court has in effect doubled. Magistrates are sending people to jail a lot more.

There’s probably a number of reasons for that. We don’t really know yet but there were reforms in that period that placed a lot of higher court matters into the Magistrates Court. So do you think a community correction order for a shorter period of time would probably be an option say in the Magistrates Court that would be more palatable to community interests because rather than giving someone one month for common assault you can give them a 6-month community corrections order and what are the purposes of sentencing that are met by a community correction order when it’s properly administered?

Lorana Bartels:

I think theoretically, depending on the circumstances, all of the purposes can be met. I think we can say this is a form of punishment. It’s onerous. It is absolutely geared towards rehabilitation. So if the conditions are, for example, that the offender undertake drug and alcohol treatment if that’s relevant to his or her offending pattern that obviously goes very much to their rehabilitation.

It can effectively communicate denunciation of the conduct involved. It can promote community protection. We have to get away from this fiction that only prison can punish, only prison can keep the community safe, let alone quite frankly the notion that prison can rehabilitate which I think the research shows it does unfortunately quite poorly.

So in appropriate circumstances, the potential for these sorts of orders to meet multiple purposes of sentencing is clear.

While intensive corrections conveys something different both of them are obviously accurate descriptors, but I think if people understand, as I say, that there are conditions imposed that are required of the offender and that are ideally designed to ensure that the person is less likely to reoffend then that should theoretically be palatable to the populous.

In relation to the intensity of those conditions and what they’re designed for, when I was advising the ACT Government on their design of what ultimately was called the intensive corrections order what became very clear to me from the research both in Australia and overseas is intensive should not be about intensive supervision or surveillance.

That does not work. The focus needs to be on intensive support, whether that be drug and alcohol, mental health, support with basic literacy, education, employment, housing obviously. There’s a whole host of things that are social factors that are, if not universal to people in the offending population, obviously are key issues for people who do come before the courts. If we want a system that is to really effectively address those issues and in so doing prevent crime the intensive component of this order should not be about someone had a curfew at 8pm and they arrived at 8:02 because their bus was late so they’re in breach and we’ll send them inside. The intensive component has to be about ensuring here’s somebody who may have a whole host of issues and that’s why they offend and we’re going to work with them to address those issues.

John Robertson:

So again from your perspective and from your research and your knowledge of the topic, what do you say about supervising officers?

There are a number of suggestions that community corrections officers that supervise these orders should have some form of discretion about breaches that don’t involve returning to the court. Do you think that’s good from a public policy point of view when it comes to sentencing?

Lorana Bartels:

Yes. I think recognising the circumstances in which a breach takes place and the nature of the breach is critical. I mean, daily life is difficult for all of us. We could all say we’re going to be there at 8 o’clock and we arrive at 8.05. If there are good reasons, the bus was late, my boss kept me back for five minutes, that’s very different from simply not caring about a curfew, turning up at two in the morning, turning up drunk, whatever.

I think it’s vital that the probation and parole officer or community corrections officer develop a therapeutic rapport with the offender. If that means that they’re by and large doing well but there’s a breach that is not a breach constituted by some form of offending but it’s a breach that is fairly trivial in nature I think it should be within the purview of the corrections officer’s job to say Jim Smith’s doing well, he messed up but that’s okay.

We’re going to keep on working with him because he’s actually heading down the right path and I think that models that are excessively punitive in nature, models that, for example, make it mandatory to impose a prison sentence where someone breaches their order, that’s problematic.

John Robertson:

When I was a judge I sentenced a lot of children over the period. You often found because of the delays in the system that by the time you came to sentence an offender, even for quite serious offending and I’m talking 15 and 16 year old’s, I’m talking robberies, armed robberies, offences of violence, burglary, they’d served a lengthy period, often up to two years, on a conditional bail program that has a very similar appearance to a community corrections order and it was argued in effect that was a form of punishment.

So I take onboard what you say about the punitive nature, particularly with curfews and compulsory attendance of drug rehabilitation programs, compulsory attendance of programs designed to create employability.

Lorana Bartels:

I think even in circumstances — and perhaps this is not a popular perspective but if you are dealing for argument’s sake with someone who has had a longstanding drug habit — if they have dramatically curbed that drug intake and they have a horrible personal issue, their mother dies or something horrific happens, if they relapse I think we need to be sufficiently informed by relapse research and drug and alcohol research to say that’s actually part of getting off the drugs and getting clean.

So if we build that into our system in a way that doesn’t castigate the person and say you’re a bad person, once a criminal you’re always a criminal. If you have a probation and parole officer who can work with you and recognise this wasn’t you just going out and taking drugs because you felt like it, this was a horrific experience and you were processing it, even something like that I don’t think necessarily should result in a breach of a community corrections order, straight back to prison.

John Robertson:

Thank you very much, Professor Bartels, for speaking to us.

Lorana Bartels:

Thank you very much.

John Robertson:

I hope you enjoyed this edition of Sentencing Matters. For more information on sentencing issues in Queensland head to our website, sentencingcouncil.qld.gov.au.