Use of Community Correction Orders in Victoria: SAC Report

Wednesday 6 July 2016 @ 9.59 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

In late June 2016, the Victorian Sentencing Advisory Council (the SAC) released its third monitoring report dealing with: Community Correction Orders: Third Monitoring Report (Post-Guideline Judgement),  (the SAC Report) which is part of a more general process closely studying sentencing practices in Victoria. The main revelation from this  SAC report was its finding that the use of Community Correction Orders (CCOs) as ". . . a principal sentence" had increased by some 38 percent in the Magistrates Court and 15 percent in the County and Supreme Courts over the year 2015.

What is a CCO?

Generally, an offender under a CCO is barred from re-offending or leaving Victoria and can also be required to:

  • perform unpaid community work;
  • undertake rehabilitation;
  • stay away from specified venues;
  • abide by a curfew;
  • submit to monitoring; and/or
  • a range of various other conditions.

The Victorian courts have used the CCO's since their introduction in 2012, and they have come into prominence since the 2015 calendar year which was the year following the Victorian Court of Appeal’s guideline judgment in Boulton v The Queen [2014] VSCA 342 (22 December 2014) (the guideline judgment).

The SAC's Report

In its report, SAC states that the report seeks to examine how the Victorian courts have used CCOs since their introduction in 2012 focusing in particular on 2015, the year following the guideline judgment.

The SAC's report looks at five research questions in relation to the use of CCOs by the Courts:

  • Was there a change in the number and type of CCOs imposed in 2015 compared with previous years?

On this point the SAC report found that between 2014 and 2015, there had been substantial increases in the number of CCOs imposed in Victorian adult courts. The main area of substantial increase had been in the Magistrates' Court, with for example a 36% increase in the number of offenders who received a CCO as a "principal sentence" and a 100% increase in the number of offenders who received imprisonment combined with a CCO (a ‘combined order’) - increase were also recorded in the higher court but not as great as in the Magistrates' Court.

  • Was there a change in the offence profile, offender demographics, or the duration and conditions of CCOs imposed as principal sentences in 2015 compared with previous years?

The SAC report found the increased number of offenders receiving a CCO as a "principal sentence" in 2015 compared with previous years reflected three important changes in the offence profile, offender demographics, and conditions and duration of CCOs imposed. Firstly, the age of offenders who received a CCO increased; second, CCOs became longer, CCO conditions became more intensive, and third, the offence profile of offenders who received a CCO shifted modestly away from non-sexual violent offences.

  • How do the offence profile, offender demographics, and the duration and conditions of CCOs imposed in combination with imprisonment differ from those of CCOs imposed as a principal sentence?

The SAC Report found that the offence profile, offender demographics, and duration and conditions of CCOs imposed in combination with imprisonment differed in a number of ways from those of CCOs imposed as principal sentences. Firstly, offenders who received a CCO in combination with imprisonment were more likely to be male and were typically older than offenders who received a CCO as a principal sentence; second, the duration of CCOs imposed in combination with imprisonment tended to be longer than the duration of CCOs imposed as principal sentences; and third, the offence profile differed between CCOs imposed in combination with imprisonment (‘combined orders’) and CCOs imposed as principal sentences (‘principal CCOs’).

On this point, the SACs report found that in the higher courts, combined orders were more likely than principal CCOs to be used for robbery and burglary offences and less likely to be used for sexual offences, while in the Magistrates’ Court, combined orders were more likely than principal CCOs to be used for drug offences, assaults, and robbery and burglary offences and less likely to be used for traffic and theft and deception offences.

  • Which factors contributed to a change in the numbers of CCOs imposed as principal sentences in 2015 compared with previous years?

On this point, the SAC's key finding was that the abolition of suspended sentences, combined with legislation that encouraged the use of CCOs in place of suspended sentences, was the most influential factor in the increase in the number of CCOs imposed as principal sentences. The SAC also observing that:

"The guideline judgment, handed down in December 2014, was referred to in many sentencing remarks throughout 2015."

  • Which factors contributed to a change in the numbers of CCOs imposed in combination with imprisonment in 2015 compared with previous years?

The SAC report found that the influence of the guideline judgment on the volume of CCOs imposed as principal sentences was not sustained throughout 2015 and that instead, the guideline judgment ". . . seemed to play a greater role in the use of CCOs in combination with imprisonment".

The SAC report indicates that the guideline judgment ". . . appears to have accelerated an increase in the use of combined orders" and that the use of combined orders was also influenced by the courts’ preference for using a CCO in combination with imprisonment over fixing a non-parole period after imposing an imprisonment sentence.

The Victorian Government's Response on CCO Increased Use

Judging by  a recent ABC News report, the Victorian Government's response appears to be a tightening of where CCO's can be used. The ABC quotes the Victorian Attorney-General Martin Pakula (the AG) as announcing plans to strip Victorian courts of the power to impose CCOs for serious crimes, such as rape and murder, and further, according to the AG, the ban on CCOs would also affect offences such as commercial drug trafficking and incest.

The ABC quotes the Victorian AG as saying that legislation to give effect to these changes would be introduced before the end of 2016. The AG is also quoted as saying:

"It's already the case that in the absolute overwhelming major of convictions for those crimes that people do go to jail, . . . But I don't think anybody wants to see someone convicted of rape getting out on a community corrections order, it's not appropriate and it shouldn't occur."

The AG is also reported as indicating that the Victorian Government is also looking at limiting the duration of CCOs and limiting combined CCOs and prison sentences. Further, the  AG indicates that the Victorian Government is not concerned that the proposed legislative changes will put pressure on prison capacity:

"There is capacity in the prison system . . . we've got no doubt at all that the system can cope with additional offenders being placed in prisons cells if that's the consequence of this change."

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