Bringing-Them-Home-Report-Web

well as Indigenous involvement in and control over the nature of community-basedorders (Recommendations 111-114, 236). Recommendation 236 in particular proposedthat ‘governments should recognise that local community based and devised strategieshave the greatest prospect of success and this recognition should be reflected in funding’.There are a number of interconnected issues relating to non-custodial sentencingoptions including the appropriateness of their design for Indigenous young people, theiravailability both in legislation and in practice, their relative use by magistrates comparedto custodial sentences and the supervision of the orders by the relevant department. Noncustodialorders are directly relevant to the issue of contemporary removals. Withoutadequate alternatives there is an increased likelihood that custodial sentences will beimposed. However, inappropriate or poorly supervised non-custodial options mayincrease the failure of Indigenous young people to successfully complete the orders andso may result in detention.In WA Youth Community Based Orders are the principal supervised non-custodialoption for young people. The Inquiry was told that Aboriginal people are not involved inthe development of these ‘community-based’ options. A secondary concern was theability of the department to supervise the orders adequately (ALSWA submission 127page 350). This leads to another set of problems and potential further criminalisation.Indigenous people have the highest level of non-completion in every community-basedorder category (submission 127 page 267).The failure to use non-custodial sentencing options as often as possible was alsoraised. Part of this failure relates directly to sentencing disparities between specialistChildren’s Courts, primarily in the large cities, and rural courts constituted by nonspecialistmagistrates or, in WA, lay Justices of the Peace. Because the majority ofIndigenous young people appear in non-specialist country courts, any sentencingdisparity disproportionately affects Indigenous children (Luke 1988). Recent datasupplied by the Senior Children’s Court Magistrate in NSW indicated that non-specialistcountry courts impose longer minimum terms and shorter additional terms than specialistmagistrates and that in some country circuits young people are about two and a half timesmore likely to receive a custodial sentence than in specialist Children’s Courts (Scarlett1996 page 5). This pattern effectively means that Indigenous young people are morelikely to receive a custodial order than a non-custodial order and that the order is morelikely to have a longer mandatory imprisonment period (the minimum term) and a shorterpotential period of supervision after release to the community (the additional term).In WA lay Justices of the Peace try and sentence for many criminal offences in ruralareas. They impose higher fines than magistrates for comparable offences, capacity topay was considered in only a minority of cases and half of the defendants fined by theJustices of the Peace defaulted on their fine (ALSWA submission 127 page 254). Againthese differences directly affect Indigenous youth because they are more likely to besentenced in areas where Justices of the Peace preside over courts. The ALSWA stronglyargued that the power of Justices of the Peace in WA to determine charges and imposepenalties,