7.1 ALRC recommendations in this chapter focus on reform to community-based sentence regimes to make them more accessible and flexible to provide greater support and to mitigate against breach.
7.2 The sentencing of offenders has been described as being at the core of the criminal justice system. Each state and territory, and the Commonwealth, have legislation that guides the sentencing process and all have sentencing regimes that enable courts to order that certain offenders serve their sentences in the community.
7.3 Community-based sentences have some significant advantages over full-time imprisonment where the offender does not pose a demonstrated risk to the community. A community-based sentence offers a sentencing court ‘the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender.’
7.4 Despite the advantages of community-based sentences, Aboriginal and Torres Strait Islander peoples are less likely to receive a community-based sentence than non-Indigenous offenders and, as a result, may be more likely to end up in prison for the same offence. In addition, even when Aboriginal and Torres Strait Islander people are given a community-based sentence, they may be more likely to breach the conditions of the community-based sentence and may end up in prison as a result.
7.5 This chapter also examines short and suspended sentences of imprisonment, both of which can be problematic as such sentences do not always address the purposes of sentencing and can have significant negative consequences for the offender. Nevertheless, unless access to community-based sentences is improved, the removal of short and suspended sentences of imprisonment as sentencing options may lead to an even greater number of Aboriginal and Torres Strait Islander offenders going to jail. Improving access to community-based sentences is necessary to reduce the incarceration rates of Aboriginal and Torres Strait Islander offenders. Once community-based sentences are uniformly available, consideration could be given to abolishing short terms of imprisonment and suspended sentences.
Judicial Conference of Australia, Judge for Yourself: A Guide to Sentencing in Australia (2014).
Crimes (Sentencing) Act 2005 (ACT); Crimes Act 1914 (Cth); Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act (NT); Penalties and Sentences Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA).
Crimes (Sentencing) Act 2005 (ACT) ch 5 pt 5.4; Crimes (Sentencing Procedure) Act 1999 (NSW) pt 2 div 3, pt 7; Sentencing Act (NT) pt 3 divs 4–5; Penalties and Sentences Act 1992 (Qld) pt 5 div 2; Criminal Law (Sentencing) Act 1988 (SA) pt 6; Sentencing Act 1997 (Tas) pt 4; Sentencing Act 1991 (Vic) pt 3a; Sentencing Act 1995 (WA) pt 9.
Community-based sentences are also much less costly than full-time custody. Other benefits of community-based sentences include the avoidance of contaminating effects arising from imprisonment with other offenders, see NSW Law Reform Commission, Sentencing, Report No 139 (2013) [9.16]–[9.17].
Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen  VSCA 342 (22 December 2014) –.
Australian Bureau of Statistics, Corrective Services, Australia, June Quarter 2017, Cat No 4512.0 (2017) table 19. See also ch 3.
A suspended sentence is a community-based sentence but is discussed separately to other community-based sentences because of its link to incarceration (see [7.7] below).