The Crimes (Sentencing Procedure) Act 1999 (the Act) is the primary legislation applicable to sentencing offenders who have committed criminal offences in New South Wales.
Section 3A of the Act provides a list of the ‘purposes of sentencing’ delineated as follows:
(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,
(g) To recognise the harm done to the victim of the crime and the community.
Through section 21A, the Act then provides a list of ‘Aggravating and mitigating factors’ which are to be taken into account by the Court when sentencing an offender.
Aggravating factors include the use of violence or gratuitous cruelty. Mitigating factors include provocation and good character.
In addition to the Act, Magistrates and Judges are also guided by case law which not only interprets the Act but also sets down important principles. For example, there are many cases which outline the competing considerations to be applied when sentencing an offender who suffers from a mental health condition or illness.
The New South Wales Bureau of Crime Statistics and Research in its report released in October 2015 notes that almost 60 per cent of offenders (juvenile and adult) are convicted of another offence within 10 years.
Given such high rates of recidivism, it should be little surprise that Courts are often tasked with sentencing offenders who have committed numerous previous offences.
Each time this occurs, an important question arises: how much weight is to be given to a person’s criminal record?
‘Common sense’ would dictate that each time an offender commits an offence they should face a heavier and more serious penalty; the rationale being that previous penalties and Court sanctions have simply not worked and a tougher penalty is therefore warranted.
By way of an example, where an offender comes before a Court for the first time charged with a relatively minor offence like common assault, the Court might extend some leniency by not recording a criminal conviction. If the person repeats the offence on a second occasion, there would be an expectation of a tougher penalty.
But what about someone who is to be sentenced for common assault for the tenth time? There may be a community expectation that they are a danger to the community and must be sentenced to full time imprisonment.
What the Law Says About Repeat and Dangerous Offenders
Of course, things are not as simple as in our example.
The Courts have long recognised that offenders are to be punished for the offence at hand, and are not to be repunished for previous offences which they have already served their penalty.
Going back to our example, the person charged with common assault for the tenth time is not to be given a sentence which repunishes them for the nine other offences. However, this does not mean the offender’s criminal record is completely disregarded.
The case law recognises that more emphasis is to be placed upon specific deterrence – ie deterring the particular offender – where he or she has a prior criminal record which manifests a continuing attitude of disobedience. The authorities also recognise that, in such cases, greater emphasis may be placed upon retribution and general deterrence (or deterring others).
Where there is repeat offending, harsher penalties are not to repunish for past offences but to reflect both the offender’s continuing disregard for the law, as well as the associated need to protect the community.
Community Protection and Preventative Detention
In the classic case of Veen v R (No 2)  HCA 14, the High Court of Australia found that the function of a sentencing Court is not to increase sentences solely to protect the community from the risk of further offending by the offender:
“ It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible”.
Community protection becomes particularly relevant in cases of repeat and dangerous offending, but ultimately any sentence imposed must reflect the seriousness of the crime committed.
In other words, if a crime warrants a five-year prison sentence, the Court cannot sentence someone to seven years simply and solely to protect the community. The basic principle is that an offender is to be punished for the crime committed, and whilst community protection is an important consideration, the sentencing Court’s function is not to detain someone simply and solely to protect the community.
High Risk Offenders
Whilst the Courts have long recognised that a person is to be punished for the offence committed and there is no general power to detain someone indefinitely to protect the community, there are, and long have been, legislative provisions in place to detain offenders on account of them possibly committing a crime in the future.
Looking back in history, the Habitual Criminals Act 1905 (NSW) empowered a sentencing Judge to declare a person to be a ‘habitual offender’. At the expiration of their sentence, the person could be detained in a gaol, possibly indefinitely, at ‘his Majesty’s pleasure’.
The modern incarnation of this law in New South Wales is the Crimes (High Risk Offenders) Act 2006. Whilst the modern legislation is more comprehensive and contains further checks and balances, the law essentially allows for ongoing supervision and even detention of high risk offenders after their time has been served.
By enacting such legislation, governments are able to circumvent the basic principles recognised in Veen, namely that an offender must be sentenced for the offence at hand, that the sentence must reflect the seriousness of the offence committed and that it cannot be extended solely to protect the community.
Whilst some believe that those who are a continuing danger to the community should be kept in prison, others are concerned about the government bureaucrats having the power to indefinitely detain a person on the basis that they might commit further offences in future – essentially, to pre-emptively punish.
Whilst the High Court has upheld the constitutional validity of high risk offender legislation in cases such as Fardon v Attorney-General (Qld) (2004) 223 CLR 575, many argue that these laws allow for arbitrary detention and double punishment, contrary to the International Covenant on Civil and Political Rights, which Australia signed in 1980.
Ultimately, whilst there may well be a need to supervise and perhaps control the most dangerous offenders after release, it is also clear that more must be done to rehabilitate such offenders as opposed to ‘locking them up’ indefinitely. In that regard, many argue there is a need for governments to direct funds towards proper rehabilitation, rather than taking a simplistic, punitive view towards incarceration.
The New South Wales Auditor General recently reported a 112% occupancy rate in prisons, recognising that: “Overcrowding of correctional centres can negatively impact all aspects of custodial life, and could ultimately result in high re-offending (recidivism) rates.”
Whilst increasing funding for the rehabilitation of offenders through mental health support, drug and alcohol programs, and vocational studies may not be politically popular, it is clear that more must be done to rehabilitate offenders if governments are serious about reducing recidivism.