NSW Government’s ‘Justice’ Reforms: Part One

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Row of prison cells

The NSW government is continuing its tough on crime stance. Last week, the Coalition announced it will be introducing a series of “tougher and smarter justice reforms,” which include tougher sentencing options, stricter rules for parole and more intense monitoring of offenders in the community.

Over the next four years, $237 million will be spent on employing an extra 200 corrections officers and implementing a range of reforms, encompassing changes to parole, sentencing options, high risk offender management, and the entering of guilty pleas.

“The government’s tough stance aims to reduce crime, allowing police officers to get on with their job of protecting the community,” NSW police minister Troy Grant claimed in a press release.

The reforms are to work alongside the state’s Better Prisons’ program. The government announced last year that it is investing $3.8 billion  into delivering an extra 7,000 prison beds – an almost 50 percent increase in the capacity of NSW correctional facilities.

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

The government asserts that the reforms are designed to “make communities safer and reduce reoffending,” while enabling Corrective Services NSW to “deliver faster, more certain justice.”

But what will they actually mean for people who come before the courts, or those who are eligible for parole?

Factors affecting parole

The State Parole Authority (SPA) will now consider a wider range of factors when deciding whether an offender can be released on parole.

These include the controversial “no body, no parole” clause. The clause prohibits a person who is convicted of murder or manslaughter from being released on parole if they do not reveal the location of the alleged deceased’s remains.

Critics of the move point out that those who have been wrongly convicted, or who don’t know the whereabouts of a body (if the person is indeed deceased rather than missing), will be ineligible for parole.

And any offender deemed to have “potential for radicalisation” will find it harder to be released on parole – even if their offence has nothing to do with terrorism. The obvious concern is that the rule will discriminate against Muslim inmates.

Monitoring all parolees

Under the reforms, supervision will be mandatory for all parolees. An extra 200 Community Corrections officers will be employed for this purpose. The officers will be specially trained in cognitive and behavioural techniques, which they are meant to use when dealing with parolees.

The officers will closely monitor parolees to make sure that they comply with all of their parole conditions, including curfews, non-association conditions and participating in rehabilitation programs.

The government claims that those who are closely monitored whilst on parole are less likely to reoffend, take longer to reoffend, and commit fewer offences than those released unconditionally back into the community.

But critics argue that many parolees – including those convicted of non-violent offences – do not require supervision, and that strict monitoring will simply increase social alienation and stigmatisation, and act as an impediment to reintegrating offenders into the community. They believe the close monitoring of all offenders is a huge waste of money.

Revoking parole

Community corrections officers will have greater powers to deal with less serious breaches of parole, rather than referring them to the SPA. The government claims that this will allow for justice to be delivered in “real time.” Only serious breaches will be referred to the SPA. However, there are concerns about procedural fairness – that corrections officers rather than a properly constituted body will determine the consequences of a breach.

The SPA will retain the power to revoke an individual’s parole if it is deemed necessary for community safety. Controversially, this can be done even if an offender has not breached their parole conditions at all!

The Corrective Services Victims Register will be used to notify victims of crime about any significant changes to an offender’s custody circumstances. This will allow victims the opportunity to submit a statement to the SPA, when the body is making a decision about an offender’s parole.

Fewer sentencing options

A number of changes to community-based sentences have been proposed, which will see an end to suspended sentences (also known as section 12 bonds), community service orders, home detention and section 9 and 10 good behaviour bonds.

Section 9 bonds and community service orders (which both come with convictions) will be replaced by Community Correction Orders (CCOs) – a sentencing option which gives courts the ability to impose an extremely broad range of conditions including curfews, non association orders and the like. CCOs can last for up to three years.

Non conviction orders (which do not carry a conviction) will be replaced by Conditional Release Orders (CROs) and courts will, again, be able to impose a range of conditions under these orders, including supervision and non-association. An offender will be able to avoid a conviction under these orders.

Suspended sentences, community service orders and home detention will no longer be available. The decision to abolish these sentencing options is based on the government’s claim that they are ineffective, and represent a ‘slap on the wrist’. Critics contend that this ignores the fact that a range of strict conditions can accompany the penalties – as well as rehabilitation programs – and the consequences of any breach can be severe. For example, a person who breaches a two-year suspended sentence after 20 months can be sent to prison to serve the full two years.

These penalty-types are to be replaced by strengthened Intensive Correction Orders (ICO). All offenders will be subjected to strict conditions, including community service, supervision and reporting, and may also have to comply with curfews and wear electronic monitoring devices.

One of the problems with this “streamlined” approach is that large numbers of people are ineligible for ICOs due to issues such as mental health and/or substance abuse. The proposed regime is likely to see many more vulnerable people sent to prison rather than receive a penalty which promotes rehabilitation, and thereby reduces the prospects of reoffending.

In addition, ICOs will be unavailable for a range of indictable offences, including murder, manslaughter, sexual assault, and terrorism offences. And domestic violence offenders will only be eligible for an ICO if the court is satisfied that the victim will be adequately protected.

Another problem with the proposed approach is that ICOs are unavailable in many regional areas, where the infrastructure to facilitate ICOs is simply not there. This will discriminate against those who are unfortunate enough to be sentenced in those regions.

If an offender breaches an ICO, community corrections officers will have the authority to impose penalties – again making them the judge and jury in many situations. More serious breaches will be brought before a court, which can result in the ICO being revoked and the individual being sent to prison.

The new regime is certain to lead to many more people being sent to prison, which is likely to draw them further into a cycle of crime and increase the prospects of reoffending.

Along with stricter conditions on parole and stronger sentencing, the reforms also include a toughening of high risk offender management and changes to discounts for pleading guilty, which are discussed in part two of this blog.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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