Nicholson, John --- "Reconsidering traditional custodial sentencing policies and practices" [2018] PrecedentAULA 40; (2018) 147 Precedent 4

---

RECONSIDERING TRADITIONAL CUSTODIAL SENTENCING POLICIES AND PRACTICES

By John Nicholson SC

Current sentencing policies and practices have created a multitude of social, economic and moral problems.

PROBLEMS RAISED BY CURRENT CUSTODIAL SENTENCING POLICIES AND PRACTICES

• Whether or not one accepts that the current purposes of sentencing are valid, far too many people are in prison who should not be;

• While imprisonment may be appropriate for some criminal offenders, it has never been an effective way of addressing the overwhelming bulk of behaviour classified as criminal;

• Conduct amounting to imprisonment-level behaviour is largely confined to the poor, uneducated and disadvantaged; while identical antisocial behaviour among the wealthy and privileged is not as commonly regarded as criminal either by prosecutors or triers of fact, or by judicial officers tasked with sentencing for it;

• Imprisonment currently displaces and discriminates against Indigenous and socially disadvantaged persons;

• Sentencing reflects a criminal justice system in which judicial decision-making is surreptitiously harnessed to discriminate against the poor, those suffering cognitive impairment and/or mental illness, Indigenous communities, and socially disadvantaged persons;

• More humane strategies and programs, including diversion to the health system where appropriate, would achieve the core aims and purposes of sentencing for a majority of imprisoned persons;

• Resources currently devoted to avoiding or removing opportunities for criminal offending are inadequate in postcodes with high criminal offending rates;

• Total imprisonment costs, whether measured in terms of money, human suffering, adverse family dynamics or economic loss, affect a far greater number of people than those actually imprisoned;

• Key assumptions upon which sentencing purposes are predicated are not supported by the evidence and are contradicted by the research; and

• Far too little guidance has been provided by appellate courts on crucial matters underpinning sentencing purpose and policy.

STATUTORY PURPOSES OF SENTENCING

Traditional custodial sentencing policies and practices are partly coded in a legislated sentencing framework detailed in s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA). The Act identifies seven purposes for which a court may impose sentence on an offender:

‘

(a) to ensure that the offender is adequately punished for the offence;

(b) to prevent crime by deterring the offender and other persons from committing similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender; and

(g) to recognise the harm done to the victim of the crime and the community.’

These purposes should be considered alongside other common law sentencing principles, such as proportionality and totality.^[1] When determining an appropriate sentence that constitutes adequate punishment, the court considers specified aggravating and mitigating factors and any other objective or subjective factors affecting the relative seriousness of the offence.^[2] Aggravating and mitigating factors are sourced in part from common law and in part from the legislature’s response to modern day criminal activity.

A fundamental proposition of sentencing is that before imposing a sentence of imprisonment, the court must satisfy itself, after having considered all possible alternatives, that no other penalty is appropriate (s5(1) CSPA).

Any analysis of the purposes of sentencing as set out in s3A might, depending on the discretion being exercised by the sentencing judge, result in the imposition of additional punitive treatment to the offender, exceeding the first ‘adequate punishment’ purpose.

What amounts to ‘adequately punished’ does not seem to worry the appeal courts. They are more interested in manifest error. Before a sentence can be appellable based upon the length of the sentence, it must fall outside the range of being manifestly inadequate at one extreme and manifestly excessive at the other. Knowing these parameters is difficult for a sentencing judge because they invariably depend upon the nature of criminality, an offender’s subjective circumstances and the jurisprudential philosophy of the judges composing the appeal court bench.

PROMOTING THE REHABILITATION OF THE OFFENDER – I DON’T THINK SO

The notion of punishment for wrongdoing is probably as old as the human race. Within the family structures of yesteryear, it was seen as a means of correcting behaviour. Punishment goes beyond denunciation to the infliction of penalty, confinement, pain and loss. In today’s sentencing system, imprisonment as penalty does not focus on the causes of crime, but has become a judicial consequence of criminal conduct.

Any assumption that a punitive response to offending encourages contrition and reformed behaviour is simplistic, ignoring the human dynamics in an offender’s past, present and future circumstances. The punitive approach was not arrived at by research, science, or any input from some Law Reform Commission, but springs from the barbarism of the past.

Gaol is not a place where people are likely to be reformed; indeed, the opposite is more likely. Nor is it a place where the sick are likely to have their health restored, the uneducated to achieve learning, or the maladjusted or mentally unwell to find healthy realignment.

THE COSTS OF IMPRISONMENT

The financial cost of imprisonment to the NSW government budget is measured in the billions of dollars. The annual cost of keeping one person imprisoned can vary – depending upon his/her housing, health and classification – however, in 2016-17, the average cost per prisoner in Australia was $286 per day or over $100,000 per year.^[3] Capital costs for buildings, supplying or maintaining capital items also amount to billions of dollars.

But costs can also engulf an incarcerated offender, their family and workplace. Even offenders on a pension – taken from the community – lose their pension-spending capacity.

Economically, those who rely upon the sale of household consumer items also lose out. Currently, incarcerated persons in NSW exceed 14,000. The community has therefore lost the spending power of 14,000 people, conservatively estimated at $156 million annually.^[4] Other community-based losses are more difficult to measure – loss of a support figure (father, mother, partner, carer), family break-ups, loss of custody of children, and/or loss of a worker in the workplace. Communities – particularly small or remote communities that experience multiple incarcerations, especially of males – may see increases in crime, leading to further incarcerations.^[5] Those incarcerated for more than three months also lose housing, furniture and other possessions.^[6]

Given that gaol accomplishes so little – usually, punishment of and/or community protection from an offender for the duration of the sentence’s non-parole period – it should be reserved only for those whose crime is so severe as to require punishment, notwithstanding the adverse consequences of gaol, or those whose criminal conduct demonstrates an antisocial personality so defiant that the community will require long-term protection from them.

WEAKNESSES IN THE PRESENT SENTENCING LANDSCAPE

A question of qualifications

The primary qualifications for sentencing in NSW centre on being legally qualified to practise as a solicitor or barrister, having at least seven years’ legal experience, being of good character and not being a bankrupt. Those qualifications emphasise the importance of proper legal reasoning to fit a sentence within the legal framework. But they are hardly the appropriate qualifications for assessing the psychosocial qualities of an offender, or the impact that imprisonment may have upon the offender, the victim or others. Nor are they suitable for determining a proper balance of the relevant stated purposes of sentencing, and expressing that in a sentencing outcome that may affect the rest of an offender’s life.

Prior experience in criminal law may be of value in respect of a judicial officer’s comfort zone for proper legal reasoning and analytical deconstruction of aggravating and mitigating features when assessing the criminality of an offence. But it is no substitute for appropriate training in respect of assessing the workings of an offender’s mind, their response to pressure, punishment, or factors that may affect their prospects of rehabilitation, or reconciliation where that is appropriate. Moreover, not all sentencing judges practised in criminal law – many gained their legal experience in civil law disciplines.

The established alternative to judges possessing personality and/or mental health evaluation qualifications is the use of an evidential system. The present system relies upon the judicial officer’s qualifications and ability to base sound decisions upon evidence before the court. Often compounding the narrowness of a judicial officer’s qualifications is the inadequate advocacy and evidence to make custody decisions. All too frequently, evidence or the testing of it is inadequate in complex cases.

Imprisonment on scant sworn or tested evidence

A judicial officer will often focus his/her sentencing remarks on two primary aspects – the objective seriousness of the offence and the subjective circumstances of the offender – in an effort to understand what personal circumstances caused or influenced the antisocial conduct and what the chances are of rehabilitation. Such an approach permits a court to satisfy some purposes of sentencing, as outlined in s3A of the CSPA.

In the district and supreme courts, findings will normally be evidence-based, usually consisting of a combination of oral evidence, references and, sometimes, expert reports. However, local court^[7] workloads and time constraints are such that evidence-based material is traditionally limited to written references and reports. Oral evidence and cross-examination play a less prominent role in comparison with higher court sentencing proceedings. Local courts tend to rely upon police allegations contained in a so-called Statement of Facts describing the circumstances of offending conduct. The defendant’s version of events and subjective circumstances are submitted by a legal representative.

In circumstances where a custodial option is a real and open possibility, such a non-evidence-based approach effectively cheapens and eases entry through the prison gate, essentially devaluing the freedom for socially disadvantaged people.

GENERAL AND PERSONAL DETERRENCE – JUSTICE REALLY IS BLIND

Imprisonment and the relocation of prisoners^[8] have long been linked as punitive actions in western world cultures usually, but not always, as forms of state-sponsored punitive action. They are still alive and well in NSW.

Punitive consequences do not address the causes of crime. There is a difference between ‘prevention’ caused by applying personal or general deterrence and removing risk-takings or the need and/or desire to commit crime. Prevention through deterrence is based on creating fear of future punishment. Removing desire, risk-taking or need is about addressing underlying causes of crime.

If one assumes that personal and/or general deterrence through sentencing does reduce crime, the question of whether the use of sentencing for this purpose is moral has not been adequately addressed. The first purpose of s3A is to ensure that an offender is ‘adequately punished’. Given that any imprisonment-based outcome adversely impacts upon an offender’s rights, freedoms and interests, any sentence ordered should interfere with those rights, freedoms and interest to the minimum extent that is appropriate.^[9] Arguably, that approach explains the s5(1) requirement to consider all possible alternatives before deciding to imprison. Also arguable is whether the s5(1) requirement applies equally to what imprisonment length constitutes adequate punishment. It makes little sense that, once the ‘no possible alternative’ threshold is passed, s5(1) has no other work to do as a brake on imprisonment time.

Increasing a sentence of imprisonment for the purpose of personal or general deterrence amounts to imposing additional custody time beyond what was otherwise an adequate starting point.

Imposing additional custody for an uncertain future result (be it one of personal or general deterrence) bears no relevance to the criminality involved in a past offence, or to the offender’s personal circumstances. A sentence increase justified on grounds of general deterrence is thus akin to a state-sponsored imprisonment-levy confined only to offenders, although ostensibly aimed at deterring some third party from engaging in similar criminal conduct.

Moreover, since reducing criminal offending requires a complex assessment of needs and manipulating social behaviour from postcode to postcode, it is rightly the responsibility of the executive and legislative branches of government. Playing any part in altering third-party social mores is hardly a legitimate judicial function when imposing a sentence for the past conduct of an unrelated offender, especially in the absence of any evidence as to the relevant characteristics of ‘persons with similar impulses’^[10] or of the effectiveness of strategies to reach them with any ‘don’t do it’ messages.

Yet the appeal courts’ approach to deterrence is that sentencing should be severe enough to discourage like-minded members of the community from committing that offence.^[11] In the context of a sentence that amounts to ‘adequate punishment’ for the crime but is not considered severe enough to deter others, any increased penalty extends beyond punishment of the specific offence committed – it becomes a judicial act with a much broader hoped-for policy outcome.

Academic research-based evidence,^[12] which clearly debunks the link between sentencing and both personal and general deterrence as a myth, never seems to be considered by judicial officers. If further evidence were needed, released prisoners’ recidivism rates exceed 70 per cent in some groups, strongly indicating the ineffectiveness of sentencing as a personal deterrent.

For decades now the objective of wider deterrence has influenced sentencing policies and practice. The legislators took a lead from the case law in including it in s3A.

SENTENCING HEARINGS – A LIMITED ENCOUNTER FOR A LIFETIME EFFECT

While some sentencing hearings, particularly in the higher courts, may require extended hearings, most are completed relatively quickly. Given that 96 per cent^[13] of criminal matters are determined in the local court, local courts are also likely to determine a similar proportion of sentences state-wide. Non-custodial sentences might be determined within half an hour, while custodial sentences may take longer.

Sentences should be imposed as close as possible to the time of offending, so that the circumstances of past facts can be accounted for with some degree of accuracy. However, when accounting for future circumstances – rehabilitation, deterrence, family dynamics – sentencing practices are built upon assumptions, speculation and ignorance. In the local court, with its more limited range of incarceration periods, the implications may not be as serious as in the higher courts, where sentences exceeding five years, and sometimes life without parole, can be imposed.

ADMINISTRATION OF THE SENTENCE

Once the appeal process is finished, a sentence is set in stone (except for rare exceptions); those administering the sentence can rarely interfere with it. A sentence is an exercise of judicial power, while administering it becomes the responsibility of the executive arm of government, such as Corrective Services.

When determining a sentence, a judicial officer assumes that its imposition will be properly administered by prison staff, including appropriate and safe accommodation facilities for the duration of the imprisonment. Although technically correct, the history of Royal Commissions and judicial enquiries reveals this assumption to be subject to exceptions.

Upon release, many prisoners have stories suggesting judicial failures in assuming the fair and proper administration of a sentence. The inadequacy of health services, including mental healthcare; brutality by individual custodial officers and other prisoners; failure in the duty of care to keep prisoners safe; transfers to prisons far from home; poor quality food; arbitrary decisions by those in authority; and the absence of programs or relevant programs are common complaints. Individual grievances arising from imprisonment rarely make the news, but they are intrinsic to the sentences currently being imposed. Yet seldom does the sentencing judge become aware of the inaccuracy of his or her assumptions in these respects.

PROPOSED REFORM [Tinted box]

When ‘life means life’ sentences were introduced in NSW, existing life sentences were reviewed upon the prisoner’s application. I was involved in many of those life re-sentences. In many cases, the findings of the initial judges – particularly in respect of subjective circumstances – had not stood the test of time. What was accurate at the time of sentencing was no longer accurate. Sometimes a judge may have misinterpreted a given set of facts; in others, the judge may have been right, but circumstances had changed – sometimes positively as a result of the prisoner’s efforts. All previously existing life prisoners had a second chance at sentence.

I would like to see prisoners who are sentenced to minimum terms of five or more years to be given an opportunity, after serving at least four years, to apply for judicial review by a judge of the sentencing court – perhaps with consent of the Serious Offenders Review Council – on the basis of changed favourable circumstances and to be re-sentenced in the light of those changed circumstances.

IMPRISON ONLY WHEN NO POSSIBLE ALTERNATIVES AVAILABLE?

National sentencing statistics support the proposition that NSW has a high imprisonment rate. The ACT, Victoria and Tasmania share imprisonment rates in the low to mid-140s per 100,000 of their population.^[14] Characteristics of their population and crime rates are roughly equivalent to those of NSW. Yet NSW and Australia as a whole share a figure of 216 per 100,000.^[15] Jurisdictions where Aboriginal people constitute a high percentage of the population have extraordinary imprisonment rates.^[16] Compared with imprisonment rates in ACT, Victoria and Tasmania, NSW judicial officers sentence about 55 per cent more offenders to imprisonment than do those three jurisdictions. The issue is not whether these discrepancies in imprisonment rates can be rationalised, but whether the NSW imprisonment rate is as low as s5(1) demands.

The view that many prisoners serving custodial sentences should not be in prison is held by many reasonable, informed observers. In NSW it is appropriate to question how a situation has arisen whereby persons who shouldn’t be in prison are in prison, given that ‘a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate’?^[17]

Possible explanations include:

• That s5(1) is not being properly interrogated by sentencing judges;

• The paucity of possible alternatives to imprisonment, such as those that form part of justice reinvestment programs aimed at reducing prison populations through initial avoidance and recidivism reductions;

• The sub-section’s limitations are inadequately defined by the case law;

• Weakness in sentencing advocacy by defence advocates;

• Some individual judicial officers may be influenced in their assessment of the imprisonment test threshold by the court tier level in which they serve, rather than by the level of criminality; and

• The selection of criteria by judicial officers to satisfy the ‘no other alternative’ test.

What elevates the criminality of an offence to a point where there is no alternative other than imprisonment? The answer is not to be found in any of the cases dealing with CSPA s5(1).^[18] It would seem the leading case on s5(1)^[19] speaks only in terms of general sentencing principles that apply equally to any offence where an option other than imprisonment were also available. As case law indicates, the threshold discretion leading to a determination of ‘no penalty other than imprisonment’ is ill-defined. Appellate guidance on what criteria lifts an offence to a point where only imprisonment is called for is much needed.

Early in my career, sentencing appeals in the Court of Criminal Appeal (CCA) were mostly presided over by Chief Justice Street. There was thus a consistency in the application of judicial concepts relating to sentencing, including the appropriate quantum of sentence. The CCA sentencing workloads are more demanding now than when Street CJ was presiding, and no one judicial figure dominates the CCA sentencing appeals. Currently, a two-judges bench hears most sentence appeals. Arguably, to the extent that sentence quantum approved by the CCA impacts upon the thinking of first instance sentencing judges, the prosecution has available to it sentences at the higher end of the range, driving sentencing quantum upwards over the longer term.

Sentencing reflects the advocacy system. Traditionally the prosecution had little interest in the sentencing outcome^[20] other than to ensure that a sentencing judge did not fall into appellable error. That situation has changed – probably when the prosecution was given the right to appeal against a sentence as being tainted by error. Further, many of today’s prosecutors are willing to advocate imprisonment as an appropriate sentencing outcome, when the objective criminality of the offence and/or the subjective circumstances would tolerate a non-custodial outcome.^[21] In other words, some prosecutors are not mindful of s5(1)’s ‘all possible alternatives’ test. A growing number of prosecutors are willing to advocate the prosecution’s case at its highest and toughest – in keeping with an American tradition of prosecuting to the full extent of the law. Not every criminal case requires such an approach.

The politics of tougher sentencing

A law and order auction commenced as a political enticement to voters in the mid-1980s, offering a tough approach to so-called rising crime rates. Since then, politicians, police, radio shock jocks and victims of crime have called for tougher sentences as a means of reducing crime. Legislation aimed at truth in sentencing,^[22] creation of higher maximum penalties, and of new offences where old ones adequately covered the offending behaviour, has resulted in increased imprisonment. Yet the expected remedy of reduced crime rates through sentencing was elusive. Falls in crime rates result from other factors such as better policing and relevant community-based programs. Recidivism rates would suggest that tougher sentencing is counter-productive.

Sadly, many CCA judges were attracted to the reasoning of the legislators driving the law and order debate. Tougher and tougher sentences were imposed. Prior to the law and order phenomenon, sentences for mid-range murders ranged from 10 to 16 years. Currently, the starting point for a mid-range murder might be 16 years but might now extend beyond 20+ years. Current penalties for less serious offences have also increased.

PREVENTING CRIME AND ACCOUNTABILITY FOR CRIME

Two purposes of sentencing in s3A are crime prevention through deterrence and holding offenders accountable for their offending conduct. Does deterrence-sentencing to a point of overcrowding prisons work to prevent crime? Other means of preventing crime exist, such as laws prohibiting antisocial behaviour and a criminal justice system which holds offenders accountable. Deterrence is to be found in the existence of a criminal justice system, rather than in an individual’s sentencing. Real deterrence requires a certainty of detection, adverse fact-finding, and penalty.

Making the offender accountable

Given that the first nominated purpose in s3A is to set an ‘adequate penalty’, it is arguably an error to interpret ‘make accountable for his/her actions’ as requiring the sentencer to lift the penalty from ‘adequate’ to salutary or severe. To the extent that this is the practice of some sentencers, judicial guidance on the meaning of ‘accountable for’ is needed.

Making offenders accountable for their actions is not the same as punishing them for their actions. Accepting accountability for one’s criminal conduct is regarded as a necessary step in the rehabilitation process. The link between accepting accountability and rehabilitation arguably explains the inclusion of this purpose in s3A. Many prison inmates refuse to acknowledge any involvement in the offence for which they have been sentenced. Even many of those who have pleaded guilty have difficulty acknowledging the alleged extent of the more condemnatory aspects of their offence.

‘Accountable for’ is defined in the Macquarie Dictionary as meaning: ‘to give an explanation; to take responsibility for’. As there is no legal authority in s3A for the words ‘To make the offender accountable for his/her actions’, it is argued that the stated purpose requires the sentencer to bring about an understanding or realisation in the offender that their conduct had an antisocial context and consequence for which they are responsible, and requires judicial denunciation and a judicial remedy appropriate for the circumstances as revealed by the facts. Lifting an ‘adequate’ penalty to a salutary or severe one does nothing to make an offender more accountable.

CONCLUSION

We have inherited a system of sentencing from our forefathers. Many aspects of it are still barbaric. It is a costly and inefficient means of reducing crime. We can do better. Known for its adherence to precedence, the law encourages lawyers and judges to look back at the past – not as a means of understanding its failures, but rather of adhering to its past decisions. Other disciplines such as medicine, architecture, engineering, communication and science are not so absorbed in the past as to be blind to the future. The time has come for those responsible for the future path of the criminal justice system to look closely at how we treat those who have offended to obtain better results in terms of diminishing criminal conduct.

John Nicholson SC has recently retired, having spent 40 years as a criminal law practitioner, initially as a barrister in private practice, then 17 years as a public defender, as a judge for 11 years, followed by a second stint at the bar. John can be contacted through the NSW Bar Association.

---

^[1] See, for example, R v Geddes (1936) 554 at p555 per Jordan CJ; Veen v R (No. 2) [1998] HCA 14; R v MMK [2006] NSWCCA 272.

^[2] See Crimes (Sentencing Procedure) Act 1999 (NSW), s21A.

^[3] Commonwealth of Australia, Productivity Commission for the Steering Committee for the Review of Government Service Provision, Report on Government Services, Volume C: Justice (2018) 8.18.

^[4] 12,000 pensions at $250 per week for 52 weeks.

^[5] David Brown, cited by Senator Robert McClellan, 25th Lionel Murphy Lecture: 7 September 2011.

^[6] Three months is the time for which community housing is willing to hold on to leased tenancies.

^[7] Local courts finalise 96 per cent of all criminal matters.

^[8] In Australia’s colonial days, the relocation of prisoners was ordered by a court – currently in NSW it appears to be at the discretion of the Commissioner of Corrective Services – and was not subject to any judicial supervision.

^[9] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623.

^[10] R v Radich [1954] NZLR 86.

^[11] See R v Radich [1954] NZLR 86; applied in R v Rusby [1997] NSWLR 594, 597: ‘[Offenders] will meet with severe punishment’. (Author’s emphasis, to contrast ‘severe punishment’ for purposes of deterrence against the legislative requirement of ‘adequate punishment’).

^[12] See D Richie, Sentencing Matters – Does Imprisonment Deter? – A Review of the Evidence, Sentencing Advisory Council, Victoria (April 2011) <www.sentencingcouncil.vic.gov.au/sites/default/files/publications/docs/DoesImprisonmentDeter>. See also generally works of Emeritus Professor David Brown, Professor Eileen Baldry, Professor Chris Cunneen, Professor Mirko Bagaric.

^[13] Judge Graeme Henson AM, Foreword by the Chief Magistrate, Local Court of New South Wales Annual Review (2016) 2-3.

^[14] Figures obtained from the Sentencing Advisory Council of Victoria’s website: <www.sentencingcouncil.vic.au/statistics>.

^[15] Australia’s figure is high because of the impact of NSW, SA, WA and NT figures.

^[16] The disproportionately high rates of Indigenous imprisonment are creating a lost generation of Indigenous persons, which the author dubs the ‘Incarceration Generation.’ See also PWC, Indigenous Incarceration: Unlock the Facts (May 2017).

^[17] Crimes (Sentencing Procedure) Act 1999 (NSW), s5(1).

^[18] Appellate courts exist to establish relevant principles. They have done so in respect of what constitutes a ‘worst case’ deserving of a maximum sentence; and sentencing ranges based upon relevant criteria in guideline judgments.

^[19] R v Zamagais [2002] NSW CCA 17 per Howie J, adopted by Hodgson JA and Levine J.

^[20] R v Tait & Bartley (1979) 24 ALR 478.

^[21] It is worth considering whether the system of promotion among Crown prosecutors and prosecution advocates contributes to a winner and loser reputation, where winners are promoted, and losers are overlooked.

^[22] A phrase used to describe a sentence not subject to remissions or administrative interference, as had been the previous practice with fixed sentences and life sentences.