Short sentences of imprisonment

4.34     The effectiveness of short terms of imprisonment was a key issue for a number of stakeholders consulted by the ALRC.^[32] Some stakeholders called for their abolition. There were, however, strong views that retention of all sentencing options is preferable, and that ensuring that judicial officers have maximum discretion and a variety of alternatives available to them is key to achieving individualised justice.

The impact on Aboriginal and Torres Strait Islander peoples

4.35     Aboriginal and Torres Strait Islander offenders are more likely to be sentenced to short terms of imprisonment than their non-Indigenous counterparts.^[33]

4.36     Over one-fifth of Aboriginal and Torres Strait Islander prisoners in Australian prisons are serving sentences of less than 12 months. About 10% of the national cohort are serving sentences of under 6 months. This suggests Aboriginal and Torres Strait Islander prisoners are being incarcerated for relatively minor, or repeat low level, offences.

4.37     ABS statistics indicate that Aboriginal and Torres Strait Islander offenders are more likely to receive shorter sentences than non-Indigenous offenders. Nationally, 14% of non-Indigenous offenders were serving terms of imprisonment under 12 months, compared to 22% of Aboriginal and Torres Strait Islander offenders.^[34]

4.38     Australian Bureau of Statistics (ABS) data shows the national median aggregate sentence length for Aboriginal and Torres Strait Islander prisoners was 2.0 years, compared to 3.5 years for non-Indigenous prisoners. The longest median aggregate sentence was in South Australia (3.3 years) and the shortest was in the NT (1.2 years).^[35]

4.39     Chart 1 and Table 1 below indicate sentence lengths imposed on Aboriginal and Torres Strait Islander offenders in each state and territory in 2016, and give a comparative snapshot.

Chart 1: Aboriginal and Torres Strait Islander prisoner median aggregate sentence lengths by state/territory (2016)^[36]

Table 1: Aboriginal and Torres Strait Islander prisoner median aggregate sentence lengths by state/territory (2016)

4.40     Table 2 below concerns Aboriginal and Torres Strait Islander offenders serving short terms of imprisonment. It shows:

• the number of Aboriginal and Torres Strait Islander prisoners serving sentences of under three months, three to six months, and six to 12 months respectively;

• the total number of Aboriginal and Torres Strait Islander prisoners per jurisdiction; and

• how many Aboriginal and Torres Strait Islander prisoners are serving those sentences as a percentage of the total Aboriginal and Torres Strait Islander prison population.

Table 2: Aggregate sentence length by state and territory of sentenced Aboriginal and Torres Strait Islander prisoners (2016)^[37]

4.41     Several stakeholders reported that short sentences of imprisonment are particularly damaging to Aboriginal and Torres Strait Islander offenders. Apart from issues relating to availability and access to programs, courses and counselling while serving short terms of imprisonment, stakeholders spoke about the devastating impacts that incarceration has on the offender’s community and family. These impacts included homelessness post-release, loss of employment, children being removed and taken into care, stigmatisation and further marginalisation. Dislocation from family was also identified as a significant concern, with stakeholders noting that offenders were sometimes incarcerated in prisons far from their communities, making it extremely difficult for their families to visit them during their sentences.

4.42     Aboriginal and Torres Strait Islander offenders also have higher recidivism rates than non-Indigenous offenders.^[38] This experience of ‘cycling’ through the system also has significant health impacts:

[T]he high rates of repeated short-term incarceration experienced by Aboriginal people in Australia have a multitude of negative health effects for Aboriginal communities and the wider society, while achieving little in terms of increased community safety.^[39]

4.43     Of particular concern is the effect of short terms of incarceration on female Aboriginal and Torres Strait Islander offenders.^[40] Several stakeholders commented that a short period in prison for many women frequently triggered other significant life events that often spiralled the women back into prison. The common scenario was described as a prison term resulting in a woman losing her rental property, and subsequently having her children removed because she no longer had a residence. This then resulted in the woman turning to drugs and/or alcohol, which in turn led to further offending.

Whether to abolish short sentences of imprisonment

4.44     A number of stakeholders have reported that short terms of imprisonment serve no justifiable purpose, particularly when considering the economic and social cost of incarceration. Many referred specifically to the heavy impact on Aboriginal and Torres Strait Islander women (see Chapter 9).

4.45     While there are various arguments supporting the abolition of short sentences, these are principally based on the fundamental assumption that those offenders, who would have otherwise received a short term of imprisonment, would instead receive a community-based penalty, thereby reducing the prison population and attendant social and economic costs. Although the ALRC notes that this assumption may be flawed, given the dire shortfall in the availability and/or resourcing of sentencing alternatives, particularly in regional and remote areas, but also in some metropolitan areas.

4.46     Some stakeholders argued that incarceration, as the most serious punishment available, ought to be reserved only for those offenders who represent a serious risk to the community, and for whom no other penalty is appropriate. It was argued that jails should not be used for minor or low level offenders, particularly given the cost to the community, and the detrimental impact of incarceration on the individual and their community. Those supporting the abolition of short terms of incarceration were of the view that short sentences of imprisonment:

• expose minor offenders to more serious offenders in prison;

• do not serve to deter offenders;^[41]

• have significant negative impacts on the offender’s family, employment, housing and income; and

• potentially increase the likelihood of recidivism through stigmatisation and the flow on effects of having served time in prison.

4.47     Stakeholders also reported that prisoners serving short sentences are less likely to be able to access programs or training, and in that regard, the time in prison does little to address offending behaviour or to develop skills that might later promote desistence from offending.^[42] Offenders on short sentences are generally released into the community without supervision or supports to assist reintegration into the community on release.^[43]

4.48     There were also concerns that short terms of imprisonment are not cost-effective. Stakeholders were firmly of the view that the money spent incarcerating prisoners serving short sentences would be better spent implementing programs and supports in the community which, they argued, would be cheaper and more effective for low level offenders, with prisons being reserved for the most serious offenders. There is some research to support this view. In 2002, the NSW Bureau of Crime Statistics and Research reported that if all offenders in NSW prisons serving six months or less instead received a non-custodial penalty, the prison population would drop by about 10%, resulting in savings (at that time) of between $33m–47m per year.^[44]

4.49     Other stakeholders were firmly of the view that short sentences should remain an option. The key reason was the risk of ‘sentence creep’, that is, the risk that judicial officers will ultimately sentence offenders for longer periods because of a lack of alternate sentencing options, combined with the inability to sentence an offender to a short term of imprisonment. Some referred to the experience in WA, discussed below.

4.50     Stakeholders acknowledged that there may be merit in abolishing short sentences when alternatives to full-time custody are uniformly available, including in remote and regional areas. It was not disputed that such options are not uniformly accessible (see below). Just Reinvest NSW, a coalition of legal, medical, sports, youth, community, and Aboriginal and Torres Strait Islander organisations, have identified reducing the number of people who receive terms of imprisonment under six months as a key policy proposal, to be achieved by encouraging greater use of non-custodial options.^[45] Just Reinvest argue that in NSW alone, a 90% reduction in the number of sentences of less than six 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%;

• result in a 5% reduction in the overall prison population; and

• 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.^[46]

4.51     Two case studies identified in a policy paper by an Aboriginal Legal Services lawyer highlight some of the issues with short sentences and Aboriginal and Torres Strait Islander defendants:

We recently had a matter where a woman received a two month sentence for stealing $5 worth of chicken from the IGA, another where a man with an intellectual disability was given 3 weeks for breaching an AVO by making contact with his ex-partner. These are clients with drug and alcohol and mental health problems—none of which get addressed in custody in those short stints. Then there is no supervision or support on release. It doesn’t make sense.^[47]

4.52     Proponents for retaining the option of short sentences were generally of the view that, until such alternatives are in place (community-based sentences), removing a sentencing option will further disadvantage offenders from those areas in particular, many of whom are from Aboriginal or Torres Strait Islander communities, because of sentence creep.

4.53     A related concern was that abolition of short terms of imprisonment would constrain judicial discretion and restrict flexibility in determining an appropriate sentence when dealing with an offender.

4.54     Some stakeholders also suggested that a short term of incarceration may be appropriate in some circumstances. In its 2004 report examining whether sentences of six months or less should be abolished, the NSW Sentencing Council set out the following as instances where this might be the case:

A prison sentence of 6 months or less may be proportionate to the offence in question;

An offender may be found guilty of a relatively minor offence, but a very lengthy criminal history and attitude to rehabilitation may suggest that full-time imprisonment, as the option of last resort, has been reached;

An offender may have repeatedly refused to comply with alternative non-custodial sentencing options;

An offender may be refused bail and spend a period of under 6 months in custody. At sentencing, the circumstances of the offence make it appropriate for the penalty imposed to be backdated to the date of arrest;

An old offence is uncovered for an offender due to be released shortly from custody. The offence warrants a sentence of imprisonment, but should not extend the offender’s time in custody.^[48]

4.55     The NSW Sentencing Council did not ultimately recommend the abolition of short sentences, largely on the basis that there is a need to ensure that alternatives to custody are uniformly available state-wide, and it suggested waiting on the pending evaluation of the abolition of short sentences in WA before any action was taken. It did, however, acknowledge that ‘there is real potential for positive impact’,^[49] and recommended that ‘abolition of short prison sentences should be piloted for Aboriginal women throughout all of NSW’.^[50]

The experience in Western Australia

4.56     WA is the only Australian jurisdiction to have abolished short prison sentences. In 1995 it abolished terms of imprisonment of three months or less,^[51] because it was considered that short sentences were ‘of little utility since they failed as a means of providing deterrence, community protection and addressing offending behaviour’.^[52] In 2003, the WA legislature increased the threshold for abolition to six months.^[53]

4.57     An article by the Director of the NSW Bureau of Crime Statistics and Research, Dr Don Weatherburn, refers to an unpublished evaluation undertaken by the WA Government in 2003 on the effect of abolition of short sentences: ‘The analysis, which purports to show that sentence lengths increased following the reform, makes no adjustment for any changes in the profile of offenders coming before the courts.’^[54]

4.58     Dr Weatherburn goes on to note that crime data for the relevant period does not support the ‘sentence creep’ argument, stating ‘[d]ata published by the WA crime research centre, moreover, show no evidence that magistrates in WA began imposing sentences of more than six months after 2003’.^[55]

4.59     This contrasts with the views of stakeholders, who reported that the abolition of short sentences resulted in a spike in sentence length, and that magistrates began imposing terms of incarceration greater than six months. Sentence creep was said to have been the practical outcome of abolition in circumstances identified by the NSW Sentencing Council above.

4.60     The ALRC understands that WA is considering amending its provision to revert back to a restriction on the imposition of terms of imprisonment of three months or less.

4.61     In NSW, both the Law Reform Commission and Sentencing Council considered and declined to recommend removing short sentences as an option.^[56] In NSW, a judicial officer must give reasons if they are to impose a term of imprisonment for less than six months,^[57] and WA has a similar requirement for terms of imprisonment of under 12 months.^[58] Other jurisdictions require reasons to be given when sentencing more generally.^[59]

4.62     The ALRC invites submissions on the issue and is particularly interested in stakeholder views on any potential consequences flowing from the abolition of short sentences. If short sentences were to be abolished, what should the threshold be (eg, 3 months; 6 months), and why? The ALRC is also interested in whether there are pre-conditions that should be met before such amendments are pursued, and in this regard notes the recommendation of the NSW Sentencing Council in 2004 that ‘abolition of short prison sentences should be considered not until … primary alternatives to full-time custody are available uniformly [among other things]’.^[60]