: Courts becoming less lenient in NSW

Courts becoming less lenient in NSW

Elyse Methven
New South Wales

In March this year, the NSW Bureau of Crime Statistics and Research (‘BOCSAR’) published a report on whether NSW criminal courts have become more lenient. The report concluded, contrary to popular opinion, that the opposite is true. Over a 20-year period, from 1994 to 2013, NSW local and higher criminal courts had: become more restrictive in the granting of bail; increased their use of imprisonment for convicted offenders; and lengthened average prison sentences across many offence types.

In higher courts, BOCSAR documented a significant upward trend in the proportion of defendants refused bail with an increase from 26.1 per cent in 1994 to 47.7 per cent in 2013. In NSW local courts, the proportion of all defendants refused bail between 1994 and 2013 almost doubled, from 4.7 per cent in 1994 to 8.8 per cent in 2013.

Further, the use of imprisonment in NSW higher courts was found to have increased significantly for 10 of the 15 offence categories examined. Those with the most marked increases in the proportion of convicted offenders receiving a term of imprisonment were: fraud, deception and related offences (up 44.9 per cent); dangerous or negligent acts endangering persons (up 41.4 per cent) and; prohibited and regulated weapons and explosive offences (up 37.7 per cent).

Over the two decades, the average length of prison sentences increased significantly in NSW higher courts for six offence categories: murder (up 25 per cent); homicide and related offences (up 75.1 per cent); acts intended to cause injury (up 33.2 per cent); unlawful entry with intent/burglary, break and enter (up 17.2 per cent); prohibited and regulated weapons and explosive offences (up 30.6 per cent); and offences against justice procedures, government security and government operations (up 96.8 per cent). One significant downward trend was in the length of sentences handed down in higher courts — for robbery, extortion and related offences (down 9.3 per cent).

Increasingly restrictive bail decisions have contributed to expanding remand populations. According to NSW Corrective Services, on 30 June 1995 the total inmate population was 6384, of which 703 inmates (11 per cent) were on remand. Twenty years later, the total inmate population was 10 578, with 2749 (26 per cent) on remand. Rather than address this issue, amendments to the Bail Act 2013 (NSW) in January 2015 make it increasingly unlikely for defendants to receive bail in NSW, with the reintroduction of presumptions under the label of ‘show cause’ offences (ss 16A and 16B) and the tightening of the ‘unacceptable risk test’ (ss 17–19).

Increasing prison numbers come with significant social and economic costs. It costs more than $100 000 a year to send a person to gaol in NSW. As at 30 June 2014, NSW had the largest adult prisoner population — 31 per cent of the total Australian adult prisoner population — with a disturbingly high proportion being Indigenous Australians (24 per cent). Other important concerns are high recidivism rates (approximately 60 per cent of those in custody in Australia have previously served a period of imprisonment), as well as the high number of prisoners with mental health disorders and/or from low socioeconomic backgrounds. It is high time that NSW politicians address the costs of burgeoning remand populations, and increasingly lengthy prison sentences.

BOCSAR’s report is at — http://www.bocsar.nsw.gov.au/Documents/BB/BB101.pdf.

ELYSE METHVEN teaches law at the University of Technology, Sydney.

(2015) 40(2) AltLJ 139
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