A change in sentencing practices for select offences could reduce the number of Indigenous prisoners in NSW by more than 500 people per year, according to the NSW Bureau of Crime Statistics and Research ("BOCSAR").
The Indigenous imprisonment rate in NSW is now 13.5 times higher than the imprisonment rate for non-Indigenous people. According to BOCSAR, Indigenous imprisonment in NSW increased by 63% between 1993 and 2016 – and rose by 25% between 2013 and 2016 alone.
Now BOCSAR suggests that NSW could reduce the number of Indigenous offenders in prison by more than 500 people per year if just half of those currently serving short prison sentences for minor assault, stalking/intimidation, breaching an Apprehended Violence Order, breaching a good behaviour bond or breaching a suspended sentence were placed on an Intensive Corrective Order ("ICO") instead.
An ICO aims to address the causes of offending behaviour by supervising offenders in the community rather than sending them to prison. It currently involves mandatory community service work and may require an offender to attend rehabilitation programs. Even though the offender does not go to prison, an ICO is still classified as a "custodial sentence" because it imposes very strict conditions. For example, an offender may have to submit to electronic monitoring, drug and alcohol tests, curfews or limitations on where they can live.
Most Indigenous offenders who are convicted of minor assaults, intimidation/stalking, breaching an apprehended violence order and breaching a good behaviour bond or suspended sentence receive a sentence of imprisonment with a non-parole period of less than 12 months. This makes them eligible for an ICO. However, a court will not impose an ICO unless it is satisfied that it is a suitable and appropriate option for the offender. In particular, a court will consider the offender's suitability for community service work.
An ICO may be seen as unsuitable for Indigenous offenders who live in rural or remote areas, or who suffer from drug or alcohol problems. Even if an offender is suitable for community service work, opportunities may be limited rural and remote areas and the offender may need to travel considerable distances to meet their designated supervisor.
Unfortunately, ICOs are rarely imposed for some of the offences that are fuelling the growth of Indigenous imprisonment in NSW. These include:
not complying with good behaviour bonds or suspended sentences.
For example, BOCSAR writes that the number of stalking/intimidation convictions for Indigenous offenders was more than 8 times higher in 2016 compared to 2011. This appears to be the result of changes in policing policy, rather than an actual increase in incidences of stalking/intimidation in NSW. In May 2017, the NSW Government announced that it is planning to replace the current ICO, home detention orders and suspended sentences with a new ICO penalty. Offenders on the new ICO will still be strictly supervised – and will be required to participate in programs that target the causes of their behaviour, such as alcohol or drug misuse, or mental health issues. However community service work will no longer be mandatory, making it easier for Indigenous offenders to be assessed as suitable for an ICO. This may be an important step to ensure that Indigenous offenders in NSW have equal access to suitable sentencing options and remain connected to their communities. Read BOCSAR's report.