This article was written by Sally Crosswell
Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.
Probation (ACT)
Probation is a sentencing option commonly used by courts in the Australian Capital Territory for adult offenders.
How do you define probation?
Probation involves supervision of offenders in the community by ACT Corrective Services, combined with rehabilitation programs.
It is considered when an offender is facing prison but would benefit instead from supervised rehabilitation in the community.
In deciding whether probation is appropriate, a court considers the circumstances of the offence and the characteristics of the offender.
Probation reflects a welfare approach to criminal justice, where offending is often the result of social disadvantage, such as a lack of family or economic support.
Why probation?
The rationale for probation is that it:
- promotes rehabilitation by helping an offender to maintain normal social contacts and fulfil social obligations such as employment;
- allows an offender to take part in programs to prevent re-offending, such as restorative justice, drug treatment, anger management, or community service;
- avoids the negative impacts of imprisonment;
- costs less than imprisonment; and
- minimises the impact of a conviction on an offender and their family.
Types of probation orders
The Crimes (Sentencing) Act 2005 provides for several probation orders in the ACT, including a Deferred Sentence Order, Good Behaviour Order, Intensive Correction Order, and Drug and Alcohol Treatment Order.
Deferred Sentence Order
A Deferred Sentence Order can be made for a period of up to a year, and can include conditions such as drug and alcohol testing, and non-association conditions.
To be eligible for a deferred sentence order, a person must:
- have been convicted or found guilty of an offence punishable by imprisonment;
- have not been sentenced;
- not be serving a prison sentence for another offence;
- be able to be released on bail.
The court must consider any pre-sentence report made about the offender and any evidence given by a Corrective Services Officer.
If the order is breached, the offender must reappear before the court. After reviewing the order, the court can:
- take no action;
- warn the offender about the need to comply with conditions;
- amend any conditions;
- cancel the order.
If the order is cancelled, the court must sentence the offender for all offences.
Good Behaviour Order
A Good Behaviour Order requires an offender to be of good behaviour for a specified period, usually between six months and three years. Core conditions of the probation order can include:
- not committing a further offence;
- not providing a positive drug sample;
- not leaving the ACT for more than 24 hours;
- attending court when directed.
Other conditions can include:
- community service;
- a reparation order;
- drug or alcohol rehabilitation.
If the order is breached, the offender must reappear before the court. The court can:
- take no action;
- amend any conditions;
- impose further conditions;
- cancel the order and resentence the offender.
Intensive Correction Order
A court can impose an Intensive Correction Order if it deems imprisonment as the only appropriate penalty, and the prison term is between two and four years. The court must consider:
- the harm caused to the victim and community by the offence;
- whether the offender is a risk to public safety;
- the offender’s culpability for the offence in light of all the circumstances.
This probation order cannot be combined with a sentence of full-time imprisonment, a suspended sentence, or a good behaviour order.
Core conditions of the order can include:
- not committing a further offence;
- not leaving the ACT without permission;
- living at a specified address.
Other conditions can include:
- community service;
- reparation or non-association orders;
- a curfew;
- drug or alcohol rehabilitation.
If the probation order is breached, the offender can be warned and the ICO can be amended, suspended or cancelled. If the order is cancelled, the offender must serve the rest of their sentence in prison.
Drug and Alcohol Treatment Order
The Supreme Court can sentence an offender under the Drug and Alcohol Sentencing List (DASL) when the crime is related to drug or alcohol dependency. The approach is designed to improve the offender’s health and well-being, help their reintegration into the community and reduce their offending. The offender must take part in an intensive treatment program overseen by a judge.
To be eligible for a Drug and Alcohol Treatment Order (DATO), a person must:
- be aged over 18 and live in the ACT;
- have entered or indicated a guilty plea;
- be liable for a jail term of between one and four years;
- be subject to no other sentencing orders;
- be dependent on drugs or alcohol;
- give informed consent to the order being made;
- have not committed a serious violent offence or sexual offence.
A DATO can include conditions such as:
- regular attendance at court;
- urine testing;
- regular appointments with Health and Corrective Services;
- residential rehabilitation;
- counselling;
- work or study.
If a participant commits an offence, does not comply with the conditions of the probation order, or does not want to continue treatment, the order can be cancelled and the person may have to serve the remainder of their sentence in prison.
For advice or representation on probation or any legal matter, please contact Armstrong Legal.