The NSW Government’s ‘Justice’ Reforms: Part Two


By Paul Gregoire and Ugur Nedim

As outlined in an earlier post, the NSW government recently announced a suite of new “justice” reforms, as part of its ongoing “tough on crime” stance. Not only is the government investing heavily in more prisons, its also strengthening the laws to keep people behind bars for longer.

Described as “tougher and smarter,” the reforms encompass changes to the system of parole, less community-based sentencing options, broader scope for managing “high risk offenders” and tighter rules when it comes discounts for guilty pleas.

The Coalition government has set aside $237 million to fund the reforms, which will pay for employing an extra 200 community corrections officers. The officers will be charged with monitoring offenders out on parole, as well as those who have been given community-based penalties.

The reforms come in the wake of last year’s announcement that the state government is investing $3.8 billion into the ‘Better Prisons’ program. The money will go towards an extra 7,000 prison beds, which is an almost 50 percent increase in the capacity of NSW correctional facilities.

This expansion of the state’s prison system includes the construction of Australia’s largest prison, the privately-run Grafton Correctional Facility, which will have the capacity to hold 1,700 inmates.

Berrima prison will also be re-opened, and two others are being constructed in Lidcombe and Unanderra. Cessnock and Wellington prisons are also being expanded.

We’ve already taken a look at what the reforms will mean in relation to parole and sentencing. Today, we’re looking at how they will affect high risk offenders, discounts for pleading guilty, police responsibilities and prosecution powers.

Managing the state’s most dangerous

According to the government, changes to the High Risk Offenders Scheme are designed to protect the community from offenders who are deemed to pose a risk to the community at the end of their sentences.

The proposed reforms are the outcome of the government’s review of the NSW Crimes (High Risk Offenders) Act 2006.

The proposal allows the government to make an application to the NSW Supreme Court for an order to supervise or further detain “high risk” offenders.

Continuing Detention Orders (CDOs) allow for the extension of an inmates sentence, while Extended Supervision Orders (ESOs) facilitate strict monitoring after release.

The orders can last for up to five years after an inmate has completed their sentence. And the Supreme Court has the power to issue further orders if he or she is believed to present a continuing risk.

As of January this year, there were 71 high risk offenders on an ESO, and four subject to a CDO.

More inmates to be classified as “high risk”

The number of inmates classed as “high risk” under this scheme is set to broaden, as courts will now be asked to consider an offender’s criminal history and future risk of committing both sex and violent offences, not just one or the other, as occurs at present.

Currently, when deciding whether to issue a CDO, the court is required to consider whether a high risk offender can be adequately supervised in the community under an ESO. But under the reforms, the court will determine whether the person poses an unacceptable threat to the community if they’re not detained in a correctional facility.

ESOs will continue to allow corrections officers to strictly supervise high risk offenders in the community. This can include electronic monitoring, and restrictions on association and movements.

Registered victims will be informed when the person who offended against them is to be considered for one of these orders. Victims will also have the right to submit information to the Supreme Court.

Critics of CDOs argue that they undermine the principles of certainty and fairness – asserting that an inmate should be entitled to release once they have completed the entirety of their sentence. The orders are further criticised on the basis that they punish a person by keeping them behind bars for an offence they may commit some time in the future.

ESOs have been criticised on similar grounds, with critics arguing that people should be allowed to get on with their lives after they have served the totality of their sentences. Strict monitoring, limitations on movement and non association orders after the completion of sentences is seen as further punishing offenders after they have ‘served their time’, and can make it more difficult for them to put their past behind them and get on with their lives, free from ongoing requirements and stigmatisation.

The new rules will mean that more inmates who have completed their sentences will be kept behind bars, and/or subjected to strict conditions for years after release.

Changes to sentencing discounts

The government is set to implement new rigid rules for sentencing discounts, which it claims will encourage earlier guilty pleas.

At present, the common law allows for reductions of up to 25 percent for early guilty pleas, and courts have discretion when assessing the discount in any given case. Judges may look at a whole range of factors when determining the quantum of the discount applied.

The maximum (25 percent) discount – or close to it – may currently be given at a late stage in the proceedings if the nature of the allegations has changed significantly over the course of the case, and the defendant quickly entered a plea of guilty after that change.

In practice, allegations against a defendant often become far less serious over the course of the proceedings, which can result in allegations that bear little resemblance to those which were originally brought.

This can occur in several ways, including:

  • The ‘facts’ (ie the prosecution’s version of the incident) can be changed significantly,
  • The charges can be downgraded to far less-serious ones, and/or
  • Charges can be merged (eg many charges rolled into a one charge or fewer charges).

All of the above may even occur in a single case, significantly changing its nature and seriousness, and making the allegations consistent with what actually occurred rather than a heavily exaggerated and/or inaccurate version. Again, a defendant who then pleads guilty may currently be entitled to a significant discount, despite the prosecution only accepting to the changes late in the proceedings.

In its infinite wisdom, the NSW government proposes to set the following discounts for cases that go to a higher court, such as the District or Supreme Court:

  • 25 percent for guilty pleas in the Local Court
  • 10 percent for guilty pleas in the District or Supreme Court
  • 5 percent for guilty pleas on the first day of trial or thereafter.

A sentencing judge will not be permitted to increase this fixed discount regardless of the circumstances, although he or she can reduce it.

The government claims the new regime will encourage defendants to plead guilty in the Local Court. However, many who are actually experienced in dealing with clients and the criminal justice system quickly recognised the practical problems with the rigid scheme – for both defendants and the system as a whole. They further see that that it may actually make it less likely that defendants will plead guilty – in which case their matters will proceed to trial, clogging up an already overburdened court system.

The scheme completely ignores the fact that cases often change significantly throughout the course of the proceedings – that the allegations in the Local Court can bear little resemblance to those down the track in the District or Supreme Court.

For example, a defendant may initially be charged with a range of serious assault offences including ‘intentionally causing grievous bodily harm’ (maximum penalty of 25 years) and ‘affray’ (10 years) based upon extremely serious police ‘facts’ (allegations).

In the District Court, the prosecution may reach the conclusion that the appropriate charge is a single count of ‘assault occasioning actual bodily harm’ (AOABH) (maximum 5 years) based upon far less serious ‘facts’ – a charge which they may see as more consistent with the evidence that is ultimately received. If the charges and ‘facts’ are downgraded in the District Court and the defendant immediately pleads guilty thereafter, he or she will only be entitled to a maximum discount of 10 percent, despite the case being very different from the one originally brought.

Currently, submissions can be made to a District Court judge that – in such cases – the defendant pleaded guilty at an early stage after the proper allegations were brought. This can lead to a discount of 25 percent, or close to it. But under the proposed regime, there is little incentive for a defendant to plead guilty to the ‘proper’ charges (as the maximum discount is only 10 percent), and they are more likely to take their chances at trial.

The defendant would be entitled to only 10 percent even if he or she offered to plead guilty to AOABH while the case was still in the Local Court, and that offer was refused by the prosecution at that stage (later to the be accepted in the District Court).

The expectation for defendants to plead guilty in the Local Court is made even more unfair by the fact that police will no longer be required to serve the defence with a brief of evidence in the Local Court (discussed below). In essence, the government expects defendants to plead guilty in the Local Court in order to receive the maximum discount in circumstances where they are not even provided with the evidence against them.

The government’s poorly devised and ill-considered scheme is both against the interests of justice and counterproductive to its intended goal of facilitating guilty pleas.

Police will no longer need to serve a brief of evidence on the defence

Police are currently required to provide a brief of evidence to the prosecution and defence in a form that is admissible in court.

The brief consists of the evidence upon which the prosecution case is based, including statements from the complainant and witnesses, any relevant footage, audio recordings, financial documents, forensic evidence etc. This material is vital for the defence to understand and scrutinise the case brought against their client, to test the evidence through its own inquiries and investigations, and to advise the client of whether the case against them establishes the ‘essential elements’ (ingredients) of the specific charges brought (which may be many and varied), their options and the best way forward.

Pandering to the interests of police – and as touched upon earlier – the NSW government proposes to dispense with the requirement to serve a brief of evidence and to provide the defence with a “simplified brief” which is not in an admissible form in the Local Court. The nature and form of this “simplified brief” has not been outlined, and the obvious concern is that police will be able to simply provide a summary of their version of the events without sufficient supporting material – making it impossible to thoroughly assess and test the evidence, and properly advise clients.

It has been proposed that the prosecution and defence meet an early stage to discuss the charge – but again, it is unclear how they will be able to properly discuss the evidence without receiving it.

Prosecutors will decide whether cases will proceed, not magistrates

Proposed new rules regarding “committal hearings” will further enhance the power of police and prosecutors at the expense of defendants, the courts the separation of powers and justice.

A committal hearing is a Local Court procedure whereby a magistrate decides if there is enough evidence for a case to proceed to a higher court, such as the District or Supreme Court.

Under the new rules, prosecutors (not magistrates) will decide whether there is enough evidence for a matter to proceed. How prosecutors are expected to fairly determine this without a brief of evidence – and while acting in their capacity of prosecutors – is unclear. What is clear, however, is that the proposal will see prosecutors acting as “judges and juries”, and will almost certainly lead to a larger number of dubious prosecutions being sent to the higher courts.

More prisons and more convictions

The NSW government is gearing up to incarcerate many more people, and the current reforms will no doubt help to achieve this end.

The justice reform legislation will be introduced into parliament later this year, and if passed will come into effect in early to mid-2018.


previous post: NSW Government’s ‘Justice’ Reforms: Part One

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