Appropriateness of alternative sentencing options

Suspended sentences

7.136  Aboriginal and Torres Strait Islander offenders may be disproportionately represented as recipients of suspended sentences compared to non-Indigenous offenders.^[198]

7.137  Victoria began phasing out suspended sentences in 2011.^[199] The NSW Parliament passed a Bill on 18 October 2017 to phase out suspended sentences from 2018.^[200] Tasmania has also released a draft exposure Bill titled the Sentencing Amendment (Phasing Out Of Suspended Sentences) Bill 2017 which, if implemented, would also abolish suspended sentences.^[201] On 19 November 2017, the Bill passed with amendments from the Tasmanian Legislative Council. The amendments prevent imposition of suspended sentences for certain offences,^[202] with the Tasmanian Parliament to consider fully removing suspended sentences within two years.^[203]

7.138  In the second reading of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017, NSW Attorney General Mark Speakman noted:

there are significant problems with suspended prison sentences—44 per cent of them are unsupervised and only require offenders to be of good behaviour. … Many offenders are not receiving the supervision and programs under a suspended sentence that would compel them to address their offending behaviour in the community.

… Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this.^[204]

7.139  Stakeholders drew attention to the need to ensure that intermediate sentencing options are uniformly available before suspended sentences are phased out—with particular attention to ensuring that Aboriginal and Torres Strait Islander people living in regional and remote communities are not disproportionately affected by the removal of a uniformly available sentencing option that is able to be served in the community.^[205]

7.140  Queensland and WA have restrictions in relation to placing conditions on suspended sentences, including conditions requiring attendance at rehabilitation or treatment programs.^[206] There are also states and territories with restrictions on the types of offences that potentially attract a suspended sentence, including SA and the NT.^[207]

Issues with suspended sentences

7.141  Issues that have been identified in relation to suspended sentence regimes include their potential for net widening, their conceptually flawed nature,^[208] and the potentially harsh consequences for offenders who breach them due to their ‘all or nothing’ nature.

Net widening

7.142  Research suggests that the reintroduction of suspended sentences in NSW in 1999 resulted in ‘net widening’—whereby offenders who would previously have been dealt with by way of a good behaviour bond or CSO were instead given a suspended sentence.^[209] According to NSW BOCSAR, it is:

clear that suspended sentences have been used where non-custodial sanctions would otherwise have been employed. This is particularly true for CSOs in both court jurisdictions, but also for good behaviour bonds in the Higher Criminal Courts.^[210]

7.143  Homeless Legal Persons’ Service (HPLS) submitted to an earlier Inquiry that net widening is particularly acute in relation to:

offences that may not warrant a term of actual imprisonment; namely, where an offender is not suitable for a community based order due to their homelessness, drug or alcohol dependence, disability, mental illness, or other chronic illness … in such circumstances, suspended sentences are the only appropriate and available option, despite the fact that the offending in question does not warrant a term of imprisonment.^[211]

7.144  Despite the potential for net widening, stakeholders in this Inquiry stated that suspended sentences provide a useful sentencing option as a ‘last chance’ for Aboriginal and Torres Strait Islander offenders to avoid full-time custody. There is research to support this view.^[212]

7.145  In consultations and submissions, suspended sentences were emphasised by stakeholders to be particularly useful in relation to Aboriginal and Torres Strait Islander women because they are a type of sentence that is able to be structured such that there are few reporting obligations or onerous conditions—making them more suitable for offenders with kinship and cultural obligations than other types of community-based orders. For example, Sisters Inside submitted that:

Aboriginal and Torres Strait Islander women are at high risk of breaching community-based sentences, due to sentence obligations which are incompatible with their parenting/caring responsibilities and statutory obligations. … We support a process to identify the gaps and failures of supervised community-based sentences (including court-ordered parole). Sentencing Advisory Councils may be well-placed to undertake this review in relevant jurisdictions. Any further review must take into account the unique needs of Aboriginal and Torres Strait Islander women.^[213]

Breach and revocation

7.146  A breach of a suspended sentence will generally require the court to reinstate the entirety of the sentence of imprisonment that was initially suspended.^[214] This means that time spent in the community under a suspended sentence is generally not counted as ‘time served’ in the event of revocation, even if a considerable amount of time has passed.^[215] For example, revocation occurring at 11 months of a 12 month suspended sentence would result in a total of 23 months under sentence.^[216]

7.147  This quirk of suspended sentences means that the longer an offender complies fully with the conditions of his or her order, the harsher the consequences of a breach resulting in revocation of the suspended sentence. Revocation of a suspended sentence, resulting in the offender being required to serve the term in prison, may also undo any rehabilitative progress made and increase the risk of future reoffending.^[217]

7.148  As noted above, academics in the US have described policy movement towards graduated sanctions as providing a more flexible and receptive range of responses than an ‘all or nothing’ approach to breaches of community-based orders.^[218]

Conclusion

7.149  Suspended sentences are problematic. In particular, research has demonstrated that they have resulted in net widening while being perceived as too lenient by the public. While offering some offenders a last chance, suspended sentences can and do ‘set people up to fail’, particularly people with complex needs.^[219]

7.150  Nevertheless, the removal of suspended sentences without improving access to community-based sentences is likely to lead to even greater number of Aboriginal and Torres Strait Islander offenders going to jail. Improving access to community-based sentences is necessary to reduce the incarceration rates of Aboriginal and Torres Strait Islander offenders. Once this is addressed, consideration could safely be given to abolishing suspended sentences.

Short sentences

7.151  The ALRC adopts a similar approach to short sentences of imprisonment. That is, short sentences of imprisonment are highly problematic. However, in the absence of implementing the preceding recommendations, the abolition of short sentences is likely to be detrimental.

7.152  Aboriginal and Torres Strait Islander offenders are more likely to be sentenced to short terms of imprisonment than their non-Indigenous counterparts.^[220] It has been suggested that short sentences of imprisonment are not only ineffective in reducing offending but are particularly damaging to Aboriginal and Torres Strait Islander offenders. Short terms of imprisonment:

• expose minor offenders to more serious offenders in prison;
• do not serve to deter offenders;^[221]
• have significant negative impacts on the offender’s family, employment, housing and income;^[222] and
• potentially increase the likelihood of recidivism through stigmatisation and the flow on effects of having served time in prison.^[223]

7.153  Two case studies identified by Just Reinvestment (NSW) highlight some of the issues with short sentences for 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.^[224]

7.154  The imposition of a short term of imprisonment would appear to be inconsistent with the principle of ‘imprisonment as a last resort’ which ought to be reserved only for those offenders who represent a serious risk to the community, and for whom no other penalty is appropriate. Most Aboriginal and Torres Strait Islander offenders who receive a short sentence of imprisonment do so when convicted of minor or low-level offending.

7.155  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.^[225] Offenders on short sentences are generally released into the community without supervision or supports to assist reintegration into the community on release.^[226]

7.156  Short terms of imprisonment are costly. For example, 2002 research found 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.^[227]

7.157  Aboriginal and Torres Strait Islander offenders also have higher recidivism rates than non-Indigenous offenders.^[228] This experience of ‘cycling’ through the system also has significant health impacts:

the 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.^[229]

7.158  Short terms of incarceration for female Aboriginal and Torres Strait Islander offenders are particularly damaging.^[230] 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.

7.159  Just Reinvest NSW 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.^[231]

The problem with abolishing short sentences of imprisonment

7.160  A key concern regarding the potential abolition of short sentences is the risk of sentence creep, that is, the risk that judicial officers will ultimately sentence offenders for longer periods because of a lack of alternative sentencing options, particularly in the absence of community-based sentencing alternatives.

Sentence creep

7.161  There is evidence that abolishing short sentences has the unintended consequence of increasing the length of incarceration. In 1995, WA abolished terms of imprisonment of three months or less.^[232] In 2003, the WA legislature increased the threshold to six months.^[233] These reforms were not accompanied by any changes to the practical availability of community-based sentencing options or diversion programs.

7.162  In 2007, the Department of Correction Services (WA) reviewed the impact of increasing the threshold for a sentence of imprisonment to six months. That report indicates that sentence creep did occur.^[234] Stakeholders similarly identified sentence creep as a particular problem arising out of the abolition of sentences of less than six months in WA. A key reason for the sentence creep in WA appears to be the absence of alternative sentencing options such as appropriate community-based options.^[235]

7.163  Accordingly, Sisters Inside were ‘concerned about the real possibility of ‘sentence creep’, and the likelihood that this would ‘have a disproportionate and negative effect on women.’ NAAJA submitted that:

what occurred in Western Australia was the factor of ‘sentence creep’ where sentences which ordinarily would be in terms of days, weeks and months increased to sentences of 6 months and 1 day imprisonment. In order to protect against such incursions of inflated sentences there must be clear provisions for alternatives to prison to be resourced and supported appropriately and clear provisions for imprisonment as a last result.^[236]

7.164  Similarly, NATSILS submitted that:

short sentences of imprisonment should only be abolished if supported by an increase in the availability of culturally responsive diversion and rehabilitative programs. The abolition of short sentences of imprisonment cannot assist the position of Aboriginal and Torres Strait Islander people who are in contact with the criminal justice system if the courts are not provided alternative sentencing options. It is vital that we increase the number of culturally responsive diversion and rehabilitation programs available.^[237]

7.165  Jesuit Social Services suggested that:

If short sentences of imprisonment were to be abolished, there should be pre‐conditions as to the availability of a comprehensive range of community sanctions as non‐custodial alternatives to prison, with a requirement that these be uniformly available in regional and remote areas and all states and territories.^[238]

7.166  A similar view was expressed by the Law Council of Australia who were ‘concerned that if short prison sentences were abolished without the introduction of uniformly available diversionary sentencing options, offenders may be sentenced to longer periods of imprisonment or forced into inappropriate alternatives’.^[239] This view was shared by other stakeholders such as the Human Rights Law Centre, and ALS NSW/ACT.^[240]

Judicial discretion and family violence

7.167  Another reason for opposing the abolition of short sentences put forward in submissions was that it restricted judicial discretion. NATSILS stressed that:

It is essential that judicial discretion is retained in all sentencing practices. … [J]udicial discretion is critical to ensuring that the individual circumstances of a person are taken into account, and accords with the principle of proportionality.^[241]

7.168  Change the Record Coalition highlighted another potential benefit of short sentences of imprisonment:

In certain circumstances, short term sentences can serve an important community safety purpose; for example, a short prison sentence may provide sufficient time for a victim/survivor of domestic violence to extricate themselves from the circumstances surrounding the trauma, for example, by moving homes or seeking counselling or other support.^[242]

7.169  A similar view was expressed by the Law Council of Australia.^[243] National Family Violence Prevention Legal Services supported the retention of short sentences but noted that:

While short prison sentences might in some situations provide a brief period of safety for the victim/survivor of family violence, there needs to be increased access to programs that address the violent behaviour of perpetrators, and are delivered in community.^[244]