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Probation: An Overview

Probation: An Overview

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 21/1998 by Honor Figgis

This briefing paper examines the sanction of probation, a commonly used sentence in NSW that involves some supervision and control of offenders by the Probation and Parole Service, in combination with programs to assist and rehabilitate them. Traditionally the purpose of probation was to advise, assist and befriend' offenders who were in more need of help than punishment. Today, the Probation and Parole Service balances the role of friend and guide of offenders with the role of controlling and monitoring them to ensure that the orders of the courts are complied with (pp 9-12).

Probation has several advantages over imprisonment: it promotes rehabilitation of the offender by maintaining normal family and community contacts; offenders can be required or assisted to undertake treatment programs aimed at preventing further offending; it avoids the negative effects of imprisonment; it costs much less than confining an offender in prison; and it minimises the impact of conviction upon the family of the offender. The disadvantages of probation are that it leaves offenders free to re-offend if they are so inclined, although the Probation and Parole Service and sentencing courts are careful to make community safety their main priority. There are measures that can reduce re-offending in some cases, but it is probably inevitable that some offenders on probation will re-offend during their period of conditional liberty (pp 1-2).

Legislative framework: In NSW, probation is not expressly recognised in legislation and its administration does not have a statutory basis. Instead, the court may order that an offender be released on a bond or recognizance with a condition that the offender is to be supervised by the Probation and Parole Service. A recognizance' or bond' is an undertaking by the offender to be of good behaviour. The courts can attach a range of conditions to the different kinds of bonds and recognizances. In the event that any conditions of the bond are breached, the offender can be required to appear before the court to be sentenced for the original offence (pp 2-6).

What does probation involve? An offender who is placed on probation is initially assessed to determine how likely he or she is to re-offend, and the level of risk that the offender poses to the community. The offender is assigned to a Probation Officer who will assist the offender to develop positive goals and skills directed to a law-abiding lifestyle, and will monitor the offender's progress. The probation officer will work with the probationer to analyse why the offending behaviour occurred, and to draw up an individual case plan with the offender to address those areas that incline the offender towards criminal conduct. The plans take into account the needs of the offender, the type of offence, and the offender's risk level. These factors also determine the level of contact that the offender is to have with the probation officer, in combination with the minimum reporting standards (pp 6-8).

Some statistics: In 1997 the NSW Local, District and Supreme Courts together sentenced 4,842 adults to recognizances with a supervision condition; 4,607 of these sentences were made in the Local Court. The Children's Court made 1,828 probation orders in 1996/97. As at 30 June 1998 there were 9,786 adult offenders under the probation supervision of the Probation and Parole Service. In the Local Courts, most of the orders for recognizance with supervision in 1997 were imposed for assaults, break and enters, other larceny offences, property damage, breach of public order, and driving with a high prescribed concentration of alcohol. In 1996-97 in New South Wales, 81% of community supervision' sentences were successfully completed and 19% were revoked. This figure covers offenders on community service orders, probation and parole (pp 13-14).

Reforms to the current NSW probation system have been suggested by the Department of Corrective Services and the NSW Law Reform Commission. The Department has proposed that the existing recognizances and bonds should be replaced with a new structure for imposing a single order of supervised probation, to which the courts can attach core, additional and rehabilitation program conditions. The Law Reform Commission considered that the Department's proposed reforms were not essential, but recommended some other changes to make the existing bonds more consistent, and to extend the sentencing options available to the courts (pp 15-17).

The Commonwealth and every State and Territory in Australia provides some form of order to allow conditional release for an offender under the on-going supervision of corrections officers. The statutory basis for these supervised conditional releases varies among the jurisdictions. In the last decade, several States have reshaped their community corrections legislation to replace existing orders with a single consolidated community-based order', with the sentencing legislation specifying the mandatory and optional conditions of the order. Other differences among the jurisdictions include the legal consequences of breaching a probation order - in some jurisdictions breach of an order is an offence in itself, carrying its own penalties, while in others, such as NSW, a breach is not a separate offence. An interesting feature of some jurisdictions is a court-ordered period of probation following imprisonment (distinguished from parole in that there is no discretion for a parole authority to approve or refuse release from prison) (pp 17-25).

Recidivism: International research studies have begun to identify the elements of community corrections programs that can reduce offending. The elements of successful programs include: targeting intensive programs at high risk offenders, while those of lower risk receive lower or minimal intervention; using treatments that address characteristics that are directly associated with an individual's criminal behaviour, rather than more general counselling or therapy; and using interventions that are skills based, designed to improve problem solving, social interaction, or self control, and which also include a cognitive component to address attitudes, values and beliefs that support offending behaviour. Few figures are available in New South Wales about the extent to which offenders re-offend during or after a period of probation supervision (pp 25-28).