In responding to Question Paper 8, CSNSW understands the need to:

1. actively prevent net-widening, and

2. promote early intervention and rehabilitation of offenders.

Both of these objectives can be achieved by:

1. the identification of those at higher risk of further offending at the earliest point in their offending careers, and

2. the provision of intensive services to this group of offenders which directly address their offending needs.

For this to happen, there is a need for continued or greater flexibility in the legal orders imposed by the courts. This flexibility includes the continuation of the practice of including a condition in Good Behaviour Bonds giving CSNSW discretion in relation to the duration of active supervision of an offender. It also includes the proposal outlined in the below response to Question 8.2(d) that, in relation to Community Service Orders, CSNSW has the flexibility to convert work hours to program hours and vice versa to address offending behaviour at the optimum and appropriate level of intensity.

The NSW Government has made a commitment to continue to reduce the custodial population and this commitment appears to have implications for the review of sentencing practices in NSW. CSNSW recommends the retention of the hierarchy of sentencing as such a hierarchy provides further community-based options for courts to consider when ‘lower level’ community-based options have not been successful. A reduction in the number of community-based options may limit the opportunities a court has to divert offenders from custody and to enhance opportunities for offender rehabilitation.

A range of community-based sentencing alternatives in the context of a sentencing hierarchy also appears to be well aligned with the evidence in relation

to offending careers. Desistance from offending is a process by which the offending rate declines steadily over time to zero or to a point close to zero (Bushway, Piquero, Broidy, & Mazerolle, 2001; Laub and Sampson, 2001; Leblanc and Loeber, 1998). This gradual desistance pattern is consistent with life-course changes from high levels of impulsivity, to basic maturation and the formulation of adult social bonds. The imposition of custodial sentences may be seen as detrimental to this maturation/desistance process. A further community-based option imposed by the court in response to a breach would actively promote the development of skills, knowledge and values that allow the offender to develop pro-social bonds which promote the desistance process.

CSNSW recommends that the current separation of components by way of separate orders should remain so that courts continue to have a range of community-based options as a response to a breach.

Flexibility in the components of the sentencing hierarchy allows CSNSW to effectively manage offenders both in relation to the conditions imposed by courts and in accordance with international evidence-based practice to reduce re-offending. For example, conditions on Good Behaviour Bonds to "comply with all reasonable directions of the Probation and Parole Officer" allows offenders to attend intervention programs as required at a level of intensity commensurate with the level of risk the offender poses to the community. Similarly, CSNSW strongly recommends that the inclusion of the condition for supervision should be retained as this promotes the efficient use of resources, including targeting of resources to those offenders who pose a higher risk of further offending. These practices actively protect the community from harm.

The combination of components of sentences already exists at the higher end of the sentence hierarchy. The Intensive Correction Order essentially combines community service and rehabilitation orders with some options for movement restrictions on the offender.

CSNSW does not support the combination of sentences for one offence.

Combining sentences for one offence would only make the administration of such orders complex and resource intensive for CSNSW.

Combining sentences for one offence may be a barrier to the retention of the current hierarchy of sentences.

Further, combining sentences may, unintentionally, have a net widening effect in hastening custodial sentences for those who do not successfully complete a ‘lower’ level community-based order. This would be inconsistent with the NSW Government’s focus on diversion from custody.

Finally, a combination of sentences may be perceived as ‘double sanctions’. Many offenders have multiple offences sentenced concurrently. Accordingly, there are already opportunities for courts to combine sentences in a large number of cases where there are multiple offences and where the court sees fit to do so.

CSNSW recommends changes to Community Service Order practices to promote flexibility for evidence-based practice to be applied to higher-risk offenders. The current practice is for the court to specify both the number of work hours and the number of program hours on Community Service Orders.

The number of program hours can generally be accurately specified by the Probation and Parole Officer when a full Pre-Sentence Report has been prepared for the court, unless further issues come to light. However, in cases where a Probation and Parole Court Duty Officer has prepared court advice, a full assessment of the offence-related needs and appropriate intervention may be inaccurate because it is difficult to verify information provided by the offender in the timeframe required by the court. In such circumstances, program hours imposed by the Community Service Order may be insufficient or may not be required.

CSNSW recommends changes to the current practice of the court of specifying the number of program hours and number of work hours for Community Service Orders. CSNSW recommends that the court should specify the total hours at sentencing and that the division of those hours between work and programs should be left to the discretion of CSNSW. This would allow higher risk offenders to be targeted with intensive programs and services, including one-to-one interventions as required, to address their offending behaviour at an appropriate level and to facilitate community protection. Changes to legislation appear not to be necessary for this to occur. However, this proposal would require negotiations between CSNSW and the Attorney General’s Division of the Department of Attorney General and Justice.

CSNSW does not recommend that sentences or sentence components should be further combined.

See above.

See above.

See above.

CSNSW recommends that:

The current sentencing hierarchy should be retained.

The current practice of the inclusion of conditions on Good Behaviour Bonds should continue.

The current practice of courts specifying both the number of program hours and number of work hours on a Community Service Order should cease and the court should instead specify the total number of hours and the division of those hours between work and programs should be left to the discretion of CSNSW.

While diversion is currently a highly salient topic, CSNSW believes it is important to clearly specify:

For example, it should be clear if the individual is to be diverted from the criminal justice system or from custody. Secondly, it should be clear where an individual is to be diverted to, that is, which services, support and programs in the community are available to provide alternatives to the criminal justice system or custody.

Finally, where an individual is being diverted from the criminal justice system, there should be careful consideration of the relationship between the offending behaviour and the characteristics of the individual that provide the rationale for diversion. For example, if the defendant is to be diverted from the criminal justice system on the basis of mental impairment, this course of action would only maintain community safety if the mental impairment was directly related to the offending behaviour. If the mental impairment was not directly related to the offending behaviour, providing treatment for the mental impairment would have no impact on the risk of further offending and the safety of the community may be placed in jeopardy. In addition, the mandated mental health treatment may be considered unethical since this would not be related to the offending.

There are limited programs and services in the community which address the anti-social values and beliefs and other offence-related needs that underpin offending behaviour. Accordingly, if individuals are diverted from the community or custodial management of CSNSW, they are effectively being diverted from programs and services which address offending behaviour.

CSNSW believes that there are a number of junctions that are available for diversion and each of these should be considered. For example, diversion prior to arrest, post-arrest, prior to conviction, post-conviction and post-sentence. However, in each case there should be consequences for non-compliance.

Early diversion once the offender is charged or convicted is available by way of:

The Justice Health Court Liaison Service identifies and diverts defendants from the criminal justice system to mental health treatment in the community.

• developmentally disabled;
• suffering from a mental illness; or
• suffering from a mental condition for which treatment is available in a mental health facility.

The individuals who are eligible for their matters to be heard under section 32 are identified by the Justice Health Court Liaison Service which operates in many Local Courts. A treatment plan is prepared to address the mental health problems and the individual may be diverted from further criminal justice proceedings. The legislation provides for matters to be returned to the court for failure to comply with treatment.

Section 32 requires a Magistrate to decide whether the defendant is eligible to be dealt with under section 32 and whether it is more appropriate to deal with the defendant by way of section 32 than otherwise in accordance with the law.

The Justice Health Court Liaison Service has been evaluated and found to be effective in reducing re-offending (Bradford & Smith, 2009). Given this positive evaluation, it seems likely that the Justice Health Court Liaison Service and/or the Magistrates are using sound judgement to identify defendants whose mental illness or mental condition is directly related to their offending behaviour.

There is a considerable over-representation of individuals with mental impairment in the custodial population. However, there is a common misconception that for individuals in the criminal justice system who have a mental illness or mental condition, their offending is directly related to their mental illness or mental condition. Both offending and mental impairment have similar social and structural determinants and so high levels of mental impairment in the criminal justice population should be anticipated. However, this does not mean that treating the mental impairment will necessarily reduce the risk of further offending. Recent research (for example, Constantine, Robst, Andel, & Teague, 2012) has identified that in a sample of offenders with serious mental health issues, the offending was directly related to the mental health symptoms in only a small sub-group. Constantine et al (2012) found that the relationship between the offending behaviour and the mental health issue to be completely independent (64.6%), mostly independent (17.2%), mostly direct (10.7%) or completely direct (7.5%). These findings are consistent with other research which has suggested that for individuals with mental health diagnoses, approximately 10% of the offending can be directly attributed to their mental health impairment and in 90% of cases the relationship is not direct.

According to Bradley (2009) citing the Forensic Faculty, Royal College of Psychiatrists, UK, (2008), the relationship between mental dysfunction and offending is extremely complex. The Royal College of Psychiatrists has identified the impact of mental health interventions on five groups of offenders with mental disorders. Table 1 illustrates the complexity of the relationship between mental dysfunction and offending.