Serious Offending by People Serving a Community Correction Order: 2016–17

Date of Publication: 
4 May 2018

This report examines the number of people sentenced in 2016–17 for committing a serious offence while serving a community correction order. With the publication of this report, the Council is fulfilling a requirement under the Corrections Act 1986 (Vic) to report annually on convictions for serious offences committed by people on community correction orders. The Council has also made available a complete list of serious offences current between 16 January 2012 and 30 June 2017.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2018

Contents

The Council’s reporting requirements and the focus of this report
Community correction orders in Victoria
Serious offences
Meaning of the term convicted
Reference period
Methodology
All people serving a community correction order
People sentenced for a serious offence committed while serving a community correction order
Types of serious offences committed on a community correction order
Summary
Appendix: Types of serious offences committed on a community correction order
References

The Council’s reporting requirements and the focus of this report

This report addresses a requirement in the Corrections Act 1986 (Vic) that:

[f]or each financial year commencing on or after 1 July 2016, the Sentencing Advisory Council must report for that year the number of persons convicted during that year of a serious offence committed while subject to a community correction order.1

Specifically, this report identifies the number of people sentenced in 2016–17 for a serious offence that was committed while the person was serving a community correction order (CCO).

This report also examines some important issues relating to people sentenced for a serious offence while serving a CCO, including:

  • the time people took to commit a serious offence;
  • the prevalence of different types of offences committed on a CCO; and
  • the total number of people sentenced in 2016–17 for committing a serious offence.

Community correction orders in Victoria

The CCO is a non-custodial sentence available in the higher courts (the Supreme and County Courts) and the Magistrates’ Court in Victoria. It is not available in the Children’s Court.

The purpose of the CCO is to ‘provide a community based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender’.2

A court may only impose a CCO if:

    1. the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units; and
    2. the court has received a pre-sentence report (if required) and has had regard to any recommendations, information or matters identified in the report; and
    3. the offender consents to the order.3

Under the Sentencing Act 1991 (Vic), the CCO is considered a more severe sentence than an adjourned undertaking and a fine but less severe than a custodial sentence. In practice, the severity of a CCO varies according to the conditions and length of the specific CCO imposed.

Introduction of and changes to the community correction order

The CCO became available to the courts in Victoria on 16 January 2012. At the same time, a number of other orders were abolished, including the community-based order, the intensive correction order, the combined custody and treatment order and the home detention order.

Since its introduction, the CCO has been affected by a number of amendments to the Sentencing Act 1991 (Vic):

  • The courts were encouraged in September 2014 to use a CCO in place of a suspended sentence.4
  • Initially, the maximum length of a CCO in the higher courts was equal to the maximum term of imprisonment available for the offence,5 but in March 2017 the maximum length of a CCO was set at five years for all offences.6
  • Initially, the maximum term of imprisonment that could be combined with a CCO was set at three months,7 but it was increased to two years in September 20148 and reduced to one year in March 2017.9
  • The courts’ use of CCOs was limited in March 2017 for two classes of serious offences, described as Category 1 offences and Category 2 offences.10

In addition to these legislative changes, the Victorian Court of Appeal’s first guideline judgment offered courts guidance on the purposes, strengths and limitations of the CCO.11

The Council has published a series of reports on how the courts have used the CCO from January 2012 to June 2016.12

Conditions of a community correction order

All CCOs have a set of mandatory (core) conditions, including that the offender does not reoffend.

The court must also attach at least one discretionary condition to the CCO for all or part of the duration of the order.

Mandatory conditions (attached to all CCOs) include requiring the offender to:

  • not reoffend
  • not leave Victoria without permission
  • report to a community corrections centre
  • comply with written directions from the Secretary to the Department of Justice and Regulation.

Discretionary conditions include requiring the offender to:

  • undertake medical treatment or other rehabilitation
  • not enter licensed premises (such as a hotel, club or restaurant)
  • complete unpaid community work up to a total of 600 hours
  • be supervised, monitored and managed by a corrections worker
  • abstain from contact or association with particular people (for example, co-offenders)
  • live (or not live) at a specified address
  • stay away from nominated places or areas
  • abide by a curfew, remaining at a specified place for between two and 12 hours each day
  • be monitored and reviewed by the court to ensure compliance with the order
  • pay a bond – a sum of money that may be given up wholly or partly if the offender fails to comply with any condition imposed.

Length of a community correction order

The maximum length of a CCO imposed on a single offence is five years in the higher courts13 and two years in the Magistrates’ Court.14

A CCO may be imposed for multiple offences, providing the offences ‘are founded on the same facts or form or are part of a series of offences of the same or a similar character’.15

Where a CCO is imposed for multiple offences in the higher courts, the maximum length of the CCO remains five years. In the Magistrates’ Court, the maximum length is four years in relation to two offences and five years in relation to three or more offences.16

Other sentences in addition to a community correction order

A court may impose a fine17 or a sentence of imprisonment in addition to a CCO.18 If a court imposes a sentence of imprisonment in addition to a CCO, the term of imprisonment must not exceed one year.19

Contravention of a community correction order

Contravention (breach) of a CCO without a reasonable excuse is a criminal offence with a maximum penalty of three months’ imprisonment.20

If a person contravenes their CCO, either through committing a new offence or through failing to comply with another condition of the order, they face a number of potential consequences.

If the person is found guilty of the offence of contravening a CCO, the court must also make a decision about how to deal with the original CCO. If the contravention is due to new offending, the offender is also sentenced for the new offences.

Serious offences

This report identifies the number of serious offences committed by people serving a CCO. Serious offences21 include:

  • serious violent offences22 such as armed robbery, aggravated burglary, arson causing death and false imprisonment, conspiracies, attempts and incitements of these offences, and similar offences committed in Victoria or elsewhere that contain elements of these offences; and
  • sexual offences23 such as rape, sexual assault and indecent act with a child under 16.

Specific information required to determine whether an offence is serious was not available in the source data for a small number of offence types. Such offence types include burglary, which, if sexually motivated, falls within the definition of a serious offence, and offences relating to the commission of an indictable offence where the indictable offence is not specified. In these instances, the offence has been classified as not serious and has therefore been excluded from the analysis.

Meaning of the term convicted

The Corrections Act 1986 (Vic) uses the term convicted to define a court decision that must be counted in the Council’s report on serious offences committed on CCOs. Two meanings of the term are relevant. One is a finding of guilt against a person made by a court; the other is a recording made by a court following a finding of guilt.24

In this report, convicted is defined as a finding of guilt made by a court. This excludes a finding of not guilty due to mental impairment.25

Data containing the date of conviction is required to count the number of convicted persons within a given period. However, the date of conviction was not available in the data used by the Council for this report.

The closest available date to the date of conviction is the date of sentence. Therefore, the date of sentence is used in this report as a proxy for the date of conviction. Typically, the date of sentence shortly follows the date of conviction.

Reference period

The reference period for this report is 1 July 2016 to 30 June 2017. This period relates to the date of sentence rather than the date of the offence. The date of the offence is irrelevant to the Council’s reporting obligation, which only requires that the relevant offence was:

  • committed by a person who, at the time, was serving a CCO; and
  • sentenced in the reference period.

Some serious offences included in this report were committed prior to the reference period (there is always some delay between the commission of an offence and the sentence for that offence). For example, a person who committed a serious offence on 30 May 2013 while serving a CCO may not have been sentenced for the offence until 1 July 2016.

Methodology

The analysis in this report measures the overlap between two populations (see Figure 1):

  • the population of offenders serving a CCO (the CCO offender population); and
  • the population of offenders who committed a serious offence (the serious offence population).

The CCO offender population comprises all people who served a CCO in the period from the order’s introduction on 16 January 2012 to the end date of the reference period, 30 June 2017. The number of people in the CCO offender population is 45,512.

The serious offence population comprises all proven charges of a serious offence committed by any person and sentenced in the Magistrates’ Court or in the higher courts in the period from 1 July 2016 to 30 June 2017. The number of people in the serious offence population is 3,956, and these people committed 6,180 proven charges of a serious offence.

The methodological objective is to identify the overlap between the two populations: offences in the serious offence population committed by people in the CCO offender population (that is, while the people were serving a CCO).

Figure 1: Populations used to identify people sentenced for a serious offence committed while serving a CCO, 2016–17


Data limitations

There are a number of limitations in the data used for the analysis.

Exclusions

Due to data limitations, serious offences were excluded if the offence was:

  • committed outside Victoria (it is possible for a person serving a CCO to depart Victoria and commit a serious offence in another jurisdiction);
  • committed while the person was serving a CCO but no link was established between the serious offence population and the CCO offender population; and/or
  • insufficiently described in the source data (for example, burglary is not classed as a serious offence even though it falls within the definition of a serious offence in some circumstances, such as when it is sexually motivated).

Each of these exclusions may result in an undercount of the number of people who committed a serious offence while serving a CCO.

Inclusions

Due to data limitations, serious offences were included if:

  • the convictions for the offences were subsequently quashed by an appellate court; and/or
  • the relevant CCO was cancelled before the serious offence was committed and the cancellation date was not available in the source data.

Each of these inclusions may result in an overcount of the number of people who committed a serious offence while serving a CCO.

All people serving a community correction order

A total of 45,512 people received a CCO in the period from 16 January 2012 to 30 June 2017.

Figure 2 shows the number of people who received a CCO each financial year according to whether the person had previously received a CCO. The number of people who received a CCO increased each year throughout most of this period, rising from 8,109 in 2012–13 to 14,770 in 2015–16 (an increase of 82.1%) but declining slightly to 14,561 in 2016–17.

Figure 2: Number of people who received a CCO from 16 January 2012 to 30 June 2017, by financial year and whether the person had previously received a CCO

Financial year People who received a CCO for the first time People who received a CCO and had previously received a CCO Total
2011–12 3,980 0 3,980
2012–13 7,408 701 8,109
2013–14 7,457 1,801 9,258
2014–15 9,133 3,270 12,403
2015–16 9,602 5,168 14,770
2016–17 7,832 6,729 14,561

People sentenced for a serious offence committed while serving a community correction order

A total of 551 people were sentenced in 2016–17 for committing a serious offence while serving a CCO.

To place this in context, it is useful to determine what this number represents as a proportion of all people serving a CCO. However, calculating the rate that CCOs are contravened by serious offending is not straightforward. People who were sentenced for a serious offence in 2016–17 could have had their CCO imposed at any time from 16 January 2012 to early June 2017. As Figure 3 shows, the vast majority (96.5%) of people who contravened a CCO by serious offending received their CCO between 2014–15 and 2016–17, but a very small percentage received their CCO in 2011–12. This wide range of dates on which CCOs were imposed makes it difficult to define a meaningful base population on which to calculate the rate of CCO contravention by serious offending.

The population who received a CCO between 2014–15 and 2016–17 has been used to calculate an approximate contravention rate. A total of 33,012 people received a CCO over the three-year period, and 524 of these people contravened their CCO by committing a serious offence that was sentenced in 2016–17. The approximate rate of CCO contravention by serious offending is therefore 1.6%. This percentage is likely to underestimate the true rate of CCO contravention by serious offending because it is likely that some people who committed a serious offence on a CCO imposed in this period were sentenced either before or after 2016–17. Previous unpublished research by the Council, utilising a different methodology, found that 3.8% of all people who received a CCO in 2012–13 went on to commit a serious offence while serving their order.26

Figure 3: Percentage of people sentenced in 2016–17 for committing a serious offence while serving a CCO, by financial year that the CCO was imposed

Financial year that CCO was imposed Percentage of people sentenced in 2016-17 for committing a serious offence while serving a CCO
2011–12 0.2
2012–13 0.9
2013–14 2.4
2014–15 19.2
2015–16 49.0
2016–17 28.3

Gender and age of people who committed a serious offence while serving a community correction order

A total of 504 males and 47 females committed a serious offence while serving a CCO. The majority of people were therefore male (91.5%) (8.5% were female).

The majority of people who committed a serious offence while serving a CCO were aged under 35 when their CCO was imposed (65.3% of all people who committed a serious offence while serving a CCO).

As Figure 4 shows, the most prevalent age group was 25 to 34 years (37.4%) while the least prevalent age group was 55 years and over (1.6%).

The median age of people who committed a serious offence while serving a CCO was 30 years; ages ranged from 18 to 67 years.

Figure 4: Percentage of people sentenced in 2016–17 for committing a serious offence while serving a CCO, by age of person when they received their CCO

Age group of person when CCO was imposed Percentage of people sentenced in 2016-17 for committing a serious offence while servinga CCO
18 to 24 27.9
25 to 34 37.4
35 to 44 27.2
45 to 54 5.8
55 and over 1.6

Community correction orders combined with imprisonment

CCOs imposed in addition to a sentence of imprisonment comprised the minority of CCOs that people were serving when they committed a serious offence, representing 17.6% of CCOs or 97 people. Straight CCOs (that is, CCOs not combined with another order) comprised the majority, representing 82.4% of CCOs or 454 people.

Time to first serious offence

The majority of people who committed a serious offence while serving a CCO did so within the first six months of the CCO commencing (61.1%). As Figure 5 shows, 95.0% committed their first serious offence within the first year of the CCO commencing.

The median time between the start date of a CCO and the first serious offence was 140 days (4.6 months) while the maximum was 881 days (2 years and 5 months).

Figure 5: Cumulative percentage of people sentenced in 2016–17 who committed a serious offence while serving a CCO, by time between the start of the CCO and the commission of the first serious offence

Time from start of CCO to first serious offence Percentage
Under 3 months 34.6
Under 6 months 61.1
Under 9 months 80.4
Under 12 months 95.0
Under 30 months 100.0

Types of serious offences committed on a community correction order

This section provides an analysis of the type of serious offence committed on a CCO. The analysis considers all charges of serious offences committed on a CCO and expands on the analysis in the previous section of this report, which focused on all people who committed a serious offence while serving a CCO. A total of 794 charges of a serious offence were committed by the 551 people sentenced in 2016–17 for serious offending on a CCO. A full list of these offences is presented in the Appendix.

As Figure 6 shows, three offences stand out as the most common serious offences committed on a CCO in 2016–17: make threat to kill (258 charges), make threat to inflict serious injury (172 charges) and aggravated burglary (152 charges).

The next most prevalent offence was armed robbery (44 charges) followed by false imprisonment (33 charges).

The most common sexual offence was indecent act with or in the presence of a child under 16 (15 charges) followed by sexual assault (14 charges).

In addition, the courts sentenced two charges of murder committed by a person serving a CCO. These represent 4.7% of all murder charges sentenced in 2016–17.

One additional charge of murder was committed by a person serving a CCO; however, the court found the person not guilty of the offence by reason of mental impairment. Therefore, this person falls outside the scope of the Council’s reporting obligation.

One charge of manslaughter (7.7% of all manslaughter charges sentenced in 2016–17) and five charges of rape (6.8% of all rape charges sentenced in 2016–17) were also committed by people serving a CCO.

Figure 6: Number of charges sentenced in 2016–17, by offence type for the 10 most common offences committed by people on a CCO

Offence Number of charges sentenced in 2016-17 that had been committed by people serving a CCO
Make threat to kill 258
Make threat to inflict serious injury 172
Aggravated burglary 152
Armed robbery 44
False imprisonment 33
Recklessly cause serious injury 18
Indecent act with a child under 16 15
Sexual assault 14
Knowingly possess child pornography 10
Attempted armed robbery 9

Summary

A total of 551 people were sentenced in 2016–17 for a serious offence that they committed while serving a CCO.

Nearly two-thirds of people who committed a serious offence while serving a CCO did so within the first six months of their CCO commencing (61.1%).

Many of the serious offences committed by people serving a CCO involved threats of violence. Of the 794 charges of serious offences committed by people serving a CCO, 430 (or 54.2%) were charges of make threat to kill or make threat to inflict serious injury.

The most common serious offence that did not inherently involve threats was aggravated burglary (152 charges). The most common serious sexual offence was indecent act with a child (15 charges) followed by sexual assault (14 charges).

Appendix: Types of serious offences committed on a community correction order

Table 1: Number of charges of a serious offence sentenced 2016–17 by offence type and whether the charge was committed by a person serving a CCO

Offence Charges of serious offences committed by a person serving a CCO All charges of serious offences sentenced in 2016–17
Number Percentage Number Percentage committed on CCO
Make threat to kill 258 32.5 1,945 13.3
Make threat to inflict serious injury 172 21.6 1,061 16.2
Aggravated burglary 152 19.1 538 28.2
Armed robbery 44 5.5 265 16.6
False imprisonment 33 4.2 192 17.2
Recklessly cause serious injury 18 2.3 132 13.6
Indecent act with/in the presence of a child under 16 15 1.9 382 3.9
Sexual assault 14 1.8 211 6.6
Knowingly possess child pornography 10 1.3 157 6.4
Attempted armed robbery 9 1.1 65 13.8
Attempted aggravated burglary 7 0.9 32 21.9
Sexual penetration with a child under 16 6 0.8 176 3.4
Visually capture a person’s genitals (upskirting) 6 0.8 26 23.1
Convicted sex offender loitering at school/public place 5 0.6 14 35.7
Rape 5 0.6 74 6.8
Make/produce child pornography 4 0.5 55 7.3
Indecent assault 3 0.4 117 2.6
Threaten to commit a sexual offence 3 0.4 13 23.1
Use carriage service to make threat to cause serious harm 3 0.4 8 37.5
Use online information to publish/transmit child pornography 3 0.4 13 23.1
Kidnapping (common law) 2 0.3 17 11.8
Kidnapping (Crimes Act 1958 (Vic)) 2 0.3 5 40.0
Murder 2 0.3 43 4.7
Use carriage service to transmit child pornography 2 0.3 19 10.5
Attempt to procure a child under 16 for sexual penetration 1 0.1 5 20.0
Attempted kidnapping 1 0.1 2 50.0
Attempted sexual assault 1 0.1 2 50.0
Extortion with threat to inflict injury 1 0.1 3 33.3
Groom child under 16 for a sexual offence 1 0.1 18 5.6
Intent to distribute intimate image of another person 1 0.1 46 2.2
Intentionally cause serious injury 1 0.1 31 3.2
Invite a minor to make/produce child pornography 1 0.1 4 25.0
Make an unwarranted demand with menaces 1 0.1 1 100.0
Manslaughter 1 0.1 13 7.7
Manslaughter (assist offender) 1 0.1 3 33.3
Recklessly cause serious injury (gross violence) 1 0.1 3 33.3
Solicit child pornography using carriage service 1 0.1 12 8.3
Use carriage service to make threat to kill 1 0.1 7 14.3
Use carriage service to transmit indecent communication to a person under 16 1 0.1 34 2.9
Use force to steal a vehicle (carjacking) 1 0.1 1 100.0
Other serious offence 0 0.0 435 0.0
Total 794 100.0 6,180 12.8

References

Bibliography

Sentencing Advisory Council, Community Correction Orders: Monitoring Report (Sentencing Advisory Council, 2014).

Sentencing Advisory Council, Community Correction Orders in the Higher Courts: Imposition, Duration, and Conditions (Sentencing Advisory Council, 2014).

Sentencing Advisory Council, Community Correction Orders: Second Monitoring Report (Pre-Guideline Judgment) (Sentencing Advisory Council, 2015).

Sentencing Advisory Council, Parole and Sentencing: Research Report (Sentencing Advisory Council, 2016).

Sentencing Advisory Council, Community Correction Orders: Third Monitoring Report (Post-Guideline Judgment) (Sentencing Advisory Council, 2016).

Sentencing Advisory Council, Contravention of Community Correction Orders (Sentencing Advisory Council, 2017).

Case law

Boulton v The Queen [2014] VSCA 342 (22 December 2014)

Legislation

Corrections Act 1986 (Vic)

Crimes Act 1958 (Vic)

Crimes (Mental Impairment and Unfitness to be Tried) Act 1991 (Vic)

Sentencing Act 1991 (Vic)

Sentencing Amendment (Community Correction Reform) Act 2011 (Vic)

Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic)

Sentencing Amendment (Emergency Workers) Act 2014 (Vic)

Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)

Footnotes

1. Corrections Act 1986 (Vic) s 104AA(2).

2. Sentencing Act 1991 (Vic) s 36(1).

3. Sentencing Act 1991 (Vic) ss 37(a)–(c).

4. Sentencing Act 1991 (Vic) s 36(2), as inserted by Sentencing Amendment (Emergency Workers) Act 2014 (Vic) s 17.

5. Sentencing Act 1991 (Vic) s 38(1)(b)(i) (repealed), as amended by Sentencing Amendment (Community Correction Reform) Act 2011 (Vic) s 21.

6. Sentencing Act 1991 (Vic) s 38(1)(b), as amended by Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic) s 10.

7. Sentencing Act 1991 (Vic) s 44(1)(b) (repealed), as amended by Sentencing Amendment (Community Correction Reform) Act 2011 (Vic) s 21.

8. Sentencing Act 1991 (Vic) s 44(1)(b) (repealed), as amended by Sentencing Amendment (Emergency Workers) Act 2014 (Vic) s 18(1).

9. Sentencing Act 1991 (Vic) s 44(1), as amended by Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic) s 12(1).

10. Sentencing Act 1991 (Vic) ss 5(2G)–(4C), as inserted by Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic) s 4(1).

11. Boulton v The Queen [2014] VSCA 342 (22 December 2014).

12. Sentencing Advisory Council, Community Correction Orders: Monitoring Report (2014); Sentencing Advisory Council, Community Correction Orders in the Higher Courts: Imposition, Duration, and Conditions (2014); Sentencing Advisory Council, Community Correction Orders: Second Monitoring Report (Pre-Guideline Judgment) (2015); Sentencing Advisory Council, Parole and Sentencing: Research Report (2016); Sentencing Advisory Council, Community Correction Orders: Third Monitoring Report (Post-Guideline Judgment) (2016).

13. Sentencing Act 1991 (Vic) s 38(1)(b).

14. Sentencing Act 1991 (Vic) s 38(1)(a)(i).

15. Sentencing Act 1991 (Vic) s 40(1).

16. Sentencing Act 1991 (Vic) ss 38(1b)(ii)–(iii).

17. Sentencing Act 1991 (Vic) s 43.

18. Sentencing Act 1991 (Vic) s 44(1).

19. Sentencing Act 1991 (Vic) s 44(A).

20. Sentencing Act 1991 (Vic) s 83AD(1).

21. Corrections Act 1986 (Vic) s 104(AA)(3). A comprehensive list of serious offences for 2016–17 is available on the Council’s website.

22. Sentencing Act 1991 (Vic) sch 1 cl 2.

23. Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) sch 1.

24. Sentencing Act 1991 (Vic) s 8.

25. Crimes (Mental Impairment and Unfitness to be Tried) Act 1991 (Vic) s 17(b).

26. This percentage is based on an unpublished analysis of data for Sentencing Advisory Council, Contravention of Community Correction Orders (2017).