Proposal 2: Taking steps to reduce the imposition of sentences of six months or less, by encouraging greater use of ICOs and other non-custodial options, and to consider strategies to encourage courts toprovide reasons as to why an eligibility assessment for an ICO was not made.
Proposal 1 and Proposal 2 must be implemented together. Reducing the imposition of sentences of less than 6-months is not viable unless there are adequately resourced sentencing alternatives.
Current legal framework
Section 5 of the Crimes (Sentencing Procedure) Act requires a Court to give reasons when sentencing an offender for a term of imprisonment of six months of less.[1] This includes reasons for deciding that no penalty other than imprisonment was appropriate. It is important to note that a sentence which does not comply with this section is not invalidated.[2]
Background
It is critical that theNSW Criminal Justice Reform Packageis effective in reducing the imposition of sentences of six months or less through encouraging greater use of ICOs and other non-custodial options. In the 12 months to June 2016, almost half (43.4%) of those sentenced to prison in NSW received a sentence of less than 6 months. In the same period, approximately two-fifths (37.6%) of persons sentenced to prison in NSW for less than 6 months were Indigenous.[3]14% of all persons sentenced in Australia will serve no more than six months in prison.[4]
BOCSAR found that ‘the number of Indigenous offenders receiving a prison sentence could be reduced by more than 500 a year if half of those currently given a short prison sentence for Assault Actual Bodily Harm, Common Assault, Stalking/Intimidation, Breaching an Apprehended Violence Order, Breaching a s.9 Bond or Breaching a s.12 Bond were instead placed on an Intensive Correction Order or Home Detention.’[5]
Short sentences[6] are costly[7]and ineffective in rehabilitating offendersand reducing recidivism. 63% of offenders given short sentences reoffend within two years.[8]People sentenced to short periods of incarceration often do not have access to prison programs, providing limited opportunity for rehabilitation.[9]
Indigenous women make up a third of the NSW female prison population.[10] They are impacted disproportionately by the imposition of short sentences.[11] They are being imprisoned for more minor offences, with the sentences they receive being on average half the length that of their non-Indigenous counterparts.[12]Non-custodial sentencing alternatives are not being adequately utilised for Indigenous women.
Benefits of the Proposal
Less serious offences that currently result in short sentences can be served through community-based sentences instead of full time custody. Community-based sentences provide offenders with supervision and support that enables them to re-orient their lives away from re-offending. Community based programs can achieve long term rehabilitation and reintegrate offenders into the community, increasing overall community safety.
Short term incarceration disrupts and disconnects people from family and support relationships, employment, education and causes the offender to lose any public housing which they may have secured. They are also exposed to detrimental influences within the prison system.
Evidence suggests that short custodial sentences fail to achieve any particular deterrent effect.[13] There is little evidence that offenders sentenced to imprisonment are less likely to re-offend than offenders given a non-custodial sanction.[14] On the contrary, the NSW Sentencing Council has found that "a prison sentence may increase the likelihood of re-offending."[15]
A 90% reduction in the number of sentences of less than 6 months would:
•cut the number of prison sentences handed down in NSW courts and the number of people coming through the prison system by almost 40% [16]
•result in a 5% reduction in the overall prison population.
•free up approximately $30 million the government currently spends on locking up people for less than 6 months each year - not including potential savings in capital expenditure[17]
Any reduction in recidivism will also generate savings extending to court costs, police resources, property damage, health care and victims compensation, as well as reduced lifelong individual and societal costs as a result of improved productivity.
Reducing the amount of short sentences will significantly impact on Indigenous women, who are heavily burdened by the imposition of short sentences. The specific needs of Indigenous women who are at risk of re-offending should be addressed through services specific to Indigenous women. This includes holistic support services, particularly in relation to family violence, child protection and inter-generational trauma. As well as ensuring the availability of culturally appropriate, trauma informed healing processes and community-controlled women’s health services.
Encouraging greater use of ICOs
There is a need to ensure that ICOs are utilised by judicial officers as an alternative to short sentences of six months or less.This includes the need for education of the judiciary, including mock sentence hearings, regarding ICO’s as a real alternative to a custodial sentence with a particular focus on short sentences.
Further consideration should be given to strategies to encourage courts to provide reasons as to why an eligibility assessment for an ICO was not made. This maintains judicial discretion, while restricting the use of short sentences.
In 2004, the NSW Sentencing Council recommended that section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be amended to restrict the use of short sentences, as opposed to the complete abolition of short sentences.[18]One recommendation was to include a requirement that the court be satisfied that the offender poses a real or imminent threat to safety.[19]
The Sentencing Council recommends that the abolition of short prison sentences should be considered, but not until:
(a)primary alternatives to full-time custody are uniformly available throughout NSW;
(b)the impact of abolition of short sentences in Western Australia is evaluated;
(c)exceptions to the abolition are settled; and
(d)abolition is trialled for Indigenous women in NSW.[20]
There is no substantial evidence that suggests abolishing short term sentences would cause sentence creep.[21]Data published by the WA crime research centre provides no evidence that magistrates in WA began imposing sentences longer than six months after the abolition of short term sentences in 2003.[22]
Appendix 1 – UK Evidence
Research conducted in the UK indicates that offenders who are sentenced to prison sentences of less than 12 months are more likely to re-offend than similar offenders who receive a community sentence order.[23]
Another UK study considered 5,500 male offenders from 10 regions to examine rates of reoffending between two separate groups of offenders, those who had been incarcerated and those who had received community orders involving supervision. Results indicated that a year after release offenders who had been incarcerated were significantly more likely to have committed another offense and were associated with a 40% increase in likelihood of incarceration.[24] Offenders also started reoffending earlier than those supervised in the community.[25]
A further study that explored the use and effectiveness of short prison sentences affirmed the cyclical effect of imprisonment. The study presented evidence of high rates of recidivism for offenders who served short prison sentences as well as the inability of short term sentences to reform or rehabilitate.[26] The evidence suggested that over half of all custodial sentences in the UK were for up to six months, with the majority of prisoners serving only a few weeks or months. Accordingly, the UK studies corroborate the findings that rehabilitation is generally not achieved from short sentences. Over half of those on short sentences were reconvicted within one year.
[1] Crimes (Sentencing Procedure) Act 1999 (NSW) s 5.
[2]Section 5(3), Crimes (Sentencing Procedure) Act 1999 (NSW).
[3]BOCSAR NSW Criminal Court Statistics, unpublished 2017.
[4] Don Weatherburn, 2016, “Rack ‘em, Pack ‘em and Stack ‘em”: Decarceration in an Age of Zero Tolerance.
[5]Weatherburn, D. & Routledge, K. (2017). Indigenous imprisonment in NSW: A closer look at the trend (Bureau Brief No. 126). Sydney: NSW Bureau of Crime Statistics and Research.
[6] The term "short sentence" is a reference to a prison sentence of no more than six months.
[7] Don Weatherburn, 2016, “Rack ‘em, Pack ‘em and Stack ‘em”: Decarceration in an Age of Zero Tolerance.
[8]BOCSAR NSW Criminal Court Statistics, unpublished 2017.
[9] NSW Law Reform Commission, Sentencing, Report 139 (2013), [6.96].
[10] NSW Bureau of Crimes Statistics and Research, Custody Statistics (March 2017) <
[11]Australian Government, Australian Institute of Australian Studies (2012). Addressing women's victimisation histories in custodial settings. Online Issues No. 1, December 2012
[12]Lorana Bartels, ‘Sentencing of Indigenous Women’, Indigenous Justice Clearinghouse, 2012, Brief 14, p.3; Australian Bureau of Statistics, 2011.
[13] Judy Trevena and Don Weatherburn, ‘Does the first prison sentence reduce the risk of further offending?’, Contemporary Issues in Crime and Justice, 2015, No 187.
[14] NSW Sentencing Council, ‘Sentencing Trends and Practices’, Annual Report 2015, p. 16.
[15] NSW Sentencing Council, ‘Sentencing Trends and Practices’, Annual Report 2015, p. 16.
[16]BOCSAR data request kr17-14992
[17]BOCSAR data request – Savings from 85% reduction in short sentences
[18] NSW Sentencing Council, ‘Abolishing Prison Sentences of 6 months or less’, August 2004, 24; NSW Sentencing Council, ‘Abolishing Prison Sentences of 6 months or less’, August 2004, Annexure ‘F’.
[19] NSW Sentencing Council, ‘Abolishing Prison Sentences of 6 months or less’, August 2004, 24; NSW Sentencing Council, ‘Abolishing Prison Sentences of 6 months or less’, August 2004, Annexure ‘F’.
[20] NSW Sentencing Council, ‘Abolishing Prison Sentences of 6 months or less’, August 2004, 24.
[21] NSW Law Reform Commission, Sentencing, Report 139 (2013), [6.102].
[22] Wan et al. 2012 in Don Weatherburn, 2016, “Rack ‘em, Pack ‘em and Stack ‘em”: Decarceration in an Age of Zero
[23] Aidan Mews et al, ‘The impact of short custodial sentences, community orders and suspended sentence orders on re-offending’, Ministry of Justice Analytical Series, 2015, p.18.
[24]DarrickJolliffe and Carol Hedderman, ‘Investigating the Impact of Custody on Reoffending Using Propensity Score Matching’, Crime & Delinquency, 2015, Vol. 61, no 8.
[25]DarrickJolliffe and Carol Hedderman, ‘Investigating the Impact of Custody on Reoffending Using Propensity Score Matching’, Crime & Delinquency, 2015, Vol. 61, no 8.
[26] Helen Johnston, Barry Godfrey, ‘Counterblast: The Perennial Problems of Short Prison Sentences, The Howard Journal, 2013, Vol 52, No 4.