A convenient starting point is to compare the systems in Victoria and New South Wales. Victoria has a population of about 5.5 million people while New South Wales has a population of about 7 million. In Victoria there were 4,068 prisoners in custody on average each day in 2009. In New South Wales the equivalent figure was 10,492. Those figures mean we imprison almost twice as many people in New South Wales. On the face of it, that is a curious contrast when the populations are essentially homogenous except perhaps for idiosyncrasies in football and weather.
In 2007 the Judicial Commission did a comparative study of rates of imprisonment. It was noted that the imprisonment rate then of 170 per 100,000 of the population in New South Wales was greater than England (137) and Canada (129) and was higher than the Australian average (156).
The economic impact of this imprisonment rate in New South Wales for the 2008-2009 financial year is shown in the budget for Corrective Services that year. It was $1,090.7 million = $1,090,700,000. In its Annual Report the Department estimated that it cost $205.94 per day to house a prisoner or $75,190 a year.
The question then to be considered is why in New South Wales we are spending 500 million dollars a year more than we would if we applied the same principles and practices as are applied in Victoria.
I do not believe the reason for the difference lies in the nature of the prison populations. It is reported in New South Wales that 22.2% of prisoners are from an Aboriginal background and 21.8% are born outside Australia. I would not expect the Victorian experience to be greatly different.
However, in New South Wales 25% of the prison population is unsentenced. In Victoria the equivalent figure is 18%. That is in spite of the fact there are significant delays in getting accused persons to trial in Victoria whereas in New South Wales the time from committal to trial is the shortest in Australia. The reason for the difference is clearly changes to the Bail Act in New South Wales creating presumptions against bail for many offences and removing the presumption in favour of bail for others. Changes to bail laws in this State have significantly been driven by particular incidents. The Bail Act itself was passed in response to the number of prisoners on remand in the gaols.
It was predicated on the assumption that more care should be taken before refusing bail and the Act created a presumption in favour of bail. Since then various incidents have triggered a toughening of bail provisions but on the whole it has to be said almost all persons on bail answer their bail and although there are instances of offences committed on bail, it cannot be said to be a common occurrence. This raises the question whether it would be useful now to have a calm review of the Act with a view to reducing the number of offences where there is a presumption against bail and the number of offences where there is no presumption in favour of bail.
Another reason for the size of the gaol population in New South Wales is clearly the fact that this State is the only jurisdiction in Australia to introduce standard non-parole periods. They were introduced from 1st February, 2003 and the initial legislation included 20 offences. In January, 2008 a further 11 offences were added to this list. The Judicial Commission has recently released a study into the effect of these changes. That study shows an increase in sentence as a result in cases where the accused went to trial of 27.8% for murder, 60% for wounding with intent, 28.6% for sexual assault and 20.8% for aggravated sexual assault.
More significantly in cases where the accused entered a plea of guilty and where the standard non-parole period does not govern the sentence but is used only as a guidepost, there were increases in sentence as follows:- murder 8.3%, supply large commercial quantity of drugs 12.3%, aggravated indecent assault 51.5%, sexual intercourse with a child under 10 – 60%, supply commercial quantity of drugs 44.8%, aggravated sexual assault 33.3%, sexual assault 12.5% and break, enter and steal 10.8%. There were increases in other sentences as well.
Now, of course, none of these offences are attractive offences and it is necessary that they attract significant gaol sentences to reflect both general and specific deterrence but the question has to be asked how much is enough. 40 years ago murderers received a life sentence but most were released after serving 10 – 15 years and that was generally regarded as the most serious of offences. It was unusual for a prisoner to spend more than 20 years in gaol. It was then generally accepted that prisoners became institutionalised after serving 5 years in gaol and that after 10 years, they would have extreme difficulty coping with living by themselves in the community. I suspect little has changed in that regard. We also should ask if our community is now any safer and less prone to crime because of the increase in sentences.
Because our prison system is so costly by comparison with that in Victoria, it is appropriate to ask if we have achieved the correct balance and if our community is safer and less prone to crime than that in Victoria. I venture to suggest there is no greater level of safety in New South Wales and that the level of crime is no less as a result of the increase in sentences.
That gives rise to asking should we review our practices and procedures to see if they should be amended.
It is necessary to appreciate the issue of the length of sentences is not one that can be resolved by judges alone. Judges swear oaths to perform their duty in accordance with the laws and usages of the State. The laws of Parliament are paramount and although there is some scope for Courts to interpret those laws, the laws must be enforced. The standard non-parole period laws and the mandatory sentencing laws in some traffic offences significantly restrict the sentencing discretion of a judge. If sentencing judges stray from these dictates as interpreted by appellate courts, the sentences are adjusted on appeal. The trend towards longer sentences cannot then be ascribed by and large to a harsher attitude of the judiciary to sentencing.
I suggest the areas which need reviewing are areas where legislation has been the driving force behind the increase in sentences.
The Judicial Commission study clearly identifies the regime of standard non-parole periods as a major contributor and that, of course, accords with both your experience and mine. Should we now review that regime which is still peculiar to New South Wales and amend or abolish it.
At another end of the spectrum the mandatory laws relating to disqualifying drivers has led to many citizens losing their licences and then succumbing to the temptation to drive while disqualified very often to maintain themselves in employment. That does lead to people being imprisoned and many of these people cannot be described as dangerous drivers so the justification for a prison sentence is not road safety.
Another aspect of these driving cases is that the disqualification of a driver in the country has a far greater impact than the disqualification of a driver in the city, yet the laws require the same disqualification.
I suspect another area where sentences have increased disproportionately is where the definitions in sexual assault cases have been changed so that activity previously categorised as indecent assault is now categorised as sexual assault equivalent to rape and liable to punishment accordingly.
As I have said, gaol sentences must be imposed in many cases and in some the sentence should be substantial but the real question is how much is enough. You would have a good understanding of just how difficult serving time in gaol is. As you know, in the gaol population there is an over representation of people with mental disabilities, people with very low IQs, people with personality disorders and people from severely disadvantaged backgrounds. That is a difficult environment in which to live.
Sir Winston Churchill said in 1912: “The mood and temper of the public in relation to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of a country. A calm, dispassionate recognition of the rights of the accused and even of the convicted criminal … (is a) sign and proof of the living virtue in it.”
The question how much is enough assumes real significance in the context of a prison budget of more than a billion dollars a year.
I note in the State of Oregon in the USA the mission statement of the Criminal Justice Council is “… to punish each offender appropriately, and to insure the security of the people in person and property, within the limits of correctional resources provided by the Legislative Assembly, local governments and the people”.
That statement neatly encapsulates the problem. Do we need to spend a billion dollars a year on prisons and could we achieve the same ends at a lesser cost.
The Hon Justice R O Blanch
Chief Judge
District Court of NSW