Thinking Outside the Cell
Articles & Reports
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
• 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;
protect the community from
(d) to promote the
rehabilitation of the
(e) to make the offender
accountable for his or her actions;
denounce the conduct of the
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.
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
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’
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 -
a) the nature of criminality,
b) an offender’s subjective circumstances; and
c) 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
the uneducated to achieve
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.
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.
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.
Those incarcerated for more than three months also lose housing, furniture and
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
A question of qualifications
The primary qualifications for
sentencing in NSW centre on being legally qualified to practice 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
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
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
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
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.
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
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
or of the effectiveness of strategies to reach them with any ‘don’t do it’
Yet the appeal courts’ approach to deterrence is that sentencing should be
severe enough to discourage like-minded members of the community from committing
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,
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
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
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
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
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
poor quality food;
arbitrary decisions by those in
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
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
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
Jurisdictions where Aboriginal people constitute a high percentage of the
population have extraordinary imprisonment rates.
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’?
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
• 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
• 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).
It would seem the leading case on s5(1)
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
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
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,
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
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 anti-social 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
‘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.
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.