Mandatory Imprisonment Seminar

University of Sydney Law School

On behalf of the Greens, thanks for the opportunity to comment at the end of tonight's forum.

Sentencing options are being debated in our parliament and in our wider society, so it is useful to have this opportunity to explore the issue in some depth.

The comments that I make tonight on this topic are in the context of the Greens approach to justice issues.

The four speakers have presented a range of viewpoints; and while there has been differences, I think we would agree that there has been a common theme of humanity and a commitment to reduce crime.

We need to also consider this debate in the political context. At the moment in NSW, and it has been the case for about the past decade, MPs from the major parties are driven by electoral concerns rather than a commitment to justice when it comes to determining criminal laws.

Mandatory sentencing is coming in by stealth. I believe we should view this with concern. Crimes vary, people vary, overall circumstances vary and the impact on the victim varies.

One of the reasons we have judges and magistrates is that we need a system that moulds sentences to the individual who has committed the crime. A mandatory system would not allow this, as it would remove the discretionary power of judicial officers and would impose inappropriate sentences.

Tonight we have also considered the impact that abolishing sentences of less than six months would have on the prison population and the rate of crime.

Some of the speakers have given emphasis to the need for flexibility in the application of the law. If we consider the complexity of people's lives and our responsibility as a society to foster rehabilitation programs, clearly we need a system that allows judges and magistrates to be flexible in sentencing.

As a society we need to be wary of MPs amending criminal legislation again and again. Last year 12 bills relating to law and order measure were passed by the NSW parliament. I would dispute that any of these bills have made our society safer - the justification used by the Labor Government when introducing this legislation.

I am no legal expert, but I understand that there is a key measure in the Crimes (Sentencing procedure) Act that very neatly addresses the issue of limiting minimum sentences, but not in a dogmatic, one-size-fits-all way.

Section 5(2) of the Crimes (Sentencing Procedure) Act has two important aspects. The Act stipulates that gaol should be used as a last option, and that judges must put down reasons if they give a sentence of less than six months.

That is, courts are currently required, in the event that they decide to impose a sentence of less than six months, to provide reasons as to why nothing other than full-time gaol was appropriate. I would argue that if this point were activated it would make the argument to abolish sentences under six months redundant, because the current regime can provide protection against inappropriate gaol sentences.

Section 5(2) is very relevant to the debate on sentencing options. If sentences of less than 6 months were abolished, life would be a lot harder for people sentenced in rural and regional Australia. Women and Aborigines and Torres Strait Islander people appearing before our courts would be hit hard.

Outside our major cities there is often a total lack of alternatives to full time custody. The Law Society's submission is entirely correct when it highlights this problem.

In rural and regional Australia Aboriginal people appear before the courts at a higher rate than in our cities. Aboriginal persons figure in a large number of arrests for petty street crime - these are just the sort of offences which would attract a sentence of more than 6 months if that was the minimum available because: (a) no alternatives are available such as home detention or periodic detention; and (b) six months would be the minimum term open to a magistrate.

Current Aboriginal rates of incarceration are unacceptable, and an indictment of our society. I was a member of a parliamentary inquiry into the increase in the prison population. As part of this work I went to prisons around the state. It was a shocking experience seeing such large numbers of young black men locked up in Goulburn and Grafton gaols.

To my mind any measure that would increase the number of indigenous people in our gaols should be scrapped.

We also need to consider how magistrates and judges view their sentencing options. I understand that alternatives to full-time custody are viewed by many magistrates and judges as a "soft option" - that is, they see such alternatives as inappropriate punishments for offenders.

From the discussion tonight, I think it's fair to assume that amending the legislation to make six months the minimum available gaol term would simply mean that many people would be sentenced by judicial officers to longer gaol sentences.

The speakers did agree on the need for rehabilitation, but differed on how to achieve it. Whilst sending people to gaol - especially for short periods of time - does nothing to assist any form of rehabilitation, there is no guarantee that abolishing terms of six months or less will either encourage judicial officers to consider alternatives or ensure governments continue to support and improve intervention programs that might be used in place of such short sentences. Another critical argument against abolishing sentences less than 6 months is that we need to maintain sentencing discretion. Sentences must be tailored to meet the individual case. Removing the availability of short sentences restricts the breadth of the discretion for no good reason.

If sentences under six months were abolished we could end up with the ironic situation of more people going to goal for longer.

1. Educate judges and magistrates of the need to consider in detail and then spell out, as required under Section 5(2) of the Crimes (Sentencing Procedure) Act, why they are opting for a sentence of less than 6 months. 2. Provide more resources for rehabilitation, mental illness and drug education. 3. Find politicians with the political will to drop the 'law and order' agenda and the populist approach that results in government imposing inflexible, impractical rules on sentencing.

A system that leaves judges and magistrates with little or no ability to take circumstances into account cannot deliver justice to the individual or a safer society. Judicial officers need to be able to mould a sentence to each individual case.

On behalf of the Greens, thanks for the opportunity to comment at the end of tonight's forum.

Sentencing options are being debated in our parliament and in our wider society, so it is useful to have this opportunity to explore the issue in some depth.

The comments that I make tonight on this topic are in the context of the Greens approach to justice issues.

The four speakers have presented a range of viewpoints; and while there has been differences, I think we would agree that there has been a common theme of humanity and a commitment to reduce crime.

We need to also consider this debate in the political context. At the moment in NSW, and it has been the case for about the past decade, MPs from the major parties are driven by electoral concerns rather than a commitment to justice when it comes to determining criminal laws.

Mandatory sentencing is coming in by stealth. I believe we should view this with concern. Crimes vary, people vary, overall circumstances vary and the impact on the victim varies.

One of the reasons we have judges and magistrates is that we need a system that moulds sentences to the individual who has committed the crime. A mandatory system would not allow this, as it would remove the discretionary power of judicial officers and would impose inappropriate sentences.

Tonight we have also considered the impact that abolishing sentences of less than six months would have on the prison population and the rate of crime.

Some of the speakers have given emphasis to the need for flexibility in the application of the law. If we consider the complexity of people's lives and our responsibility as a society to foster rehabilitation programs, clearly we need a system that allows judges and magistrates to be flexible in sentencing.

As a society we need to be wary of MPs amending criminal legislation again and again. Last year 12 bills relating to law and order measure were passed by the NSW parliament. I would dispute that any of these bills have made our society safer - the justification used by the Labor Government when introducing this legislation.

I am no legal expert, but I understand that there is a key measure in the Crimes (Sentencing procedure) Act that very neatly addresses the issue of limiting minimum sentences, but not in a dogmatic, one-size-fits-all way.

Section 5(2) of the Crimes (Sentencing Procedure) Act has two important aspects. The Act stipulates that gaol should be used as a last option, and that judges must put down reasons if they give a sentence of less than six months.

That is, courts are currently required, in the event that they decide to impose a sentence of less than six months, to provide reasons as to why nothing other than full-time gaol was appropriate. I would argue that if this point were activated it would make the argument to abolish sentences under six months redundant, because the current regime can provide protection against inappropriate gaol sentences.

Section 5(2) is very relevant to the debate on sentencing options. If sentences of less than 6 months were abolished, life would be a lot harder for people sentenced in rural and regional Australia. Women and Aborigines and Torres Strait Islander people appearing before our courts would be hit hard.

Outside our major cities there is often a total lack of alternatives to full time custody. The Law Society's submission is entirely correct when it highlights this problem.

In rural and regional Australia Aboriginal people appear before the courts at a higher rate than in our cities. Aboriginal persons figure in a large number of arrests for petty street crime - these are just the sort of offences which would attract a sentence of more than 6 months if that was the minimum available because: (a) no alternatives are available such as home detention or periodic detention; and (b) six months would be the minimum term open to a magistrate.

Current Aboriginal rates of incarceration are unacceptable, and an indictment of our society. I was a member of a parliamentary inquiry into the increase in the prison population. As part of this work I went to prisons around the state. It was a shocking experience seeing such large numbers of young black men locked up in Goulburn and Grafton gaols.

To my mind any measure that would increase the number of indigenous people in our gaols should be scrapped.

We also need to consider how magistrates and judges view their sentencing options. I understand that alternatives to full-time custody are viewed by many magistrates and judges as a "soft option" - that is, they see such alternatives as inappropriate punishments for offenders.

From the discussion tonight, I think it's fair to assume that amending the legislation to make six months the minimum available gaol term would simply mean that many people would be sentenced by judicial officers to longer gaol sentences.

The speakers did agree on the need for rehabilitation, but differed on how to achieve it. Whilst sending people to gaol - especially for short periods of time - does nothing to assist any form of rehabilitation, there is no guarantee that abolishing terms of six months or less will either encourage judicial officers to consider alternatives or ensure governments continue to support and improve intervention programs that might be used in place of such short sentences. Another critical argument against abolishing sentences less than 6 months is that we need to maintain sentencing discretion. Sentences must be tailored to meet the individual case. Removing the availability of short sentences restricts the breadth of the discretion for no good reason.

If sentences under six months were abolished we could end up with the ironic situation of more people going to goal for longer.

1. Educate judges and magistrates of the need to consider in detail and then spell out, as required under Section 5(2) of the Crimes (Sentencing Procedure) Act, why they are opting for a sentence of less than 6 months. 2. Provide more resources for rehabilitation, mental illness and drug education. 3. Find politicians with the political will to drop the 'law and order' agenda and the populist approach that results in government imposing inflexible, impractical rules on sentencing.

A system that leaves judges and magistrates with little or no ability to take circumstances into account cannot deliver justice to the individual or a safer society. Judicial officers need to be able to mould a sentence to each individual case.