New Sentencing Regime Being Suggested for NSW

Sweeping changes to sentencing in NSW have been suggested in a recent report by the Law Reform Commission.

The document, which was tabled before the NSW Attorney General Greg Smith in September 2013, details 100 proposed changes.

These changes are intended to simplify sentencing law, and emphasise the rehabilitation of offenders in order to reduce the risk of them reoffending.

Sentencing to focus more on rehabilitation

According to the report, sentencing should have an emphasis on reducing reoffending and rehabilitation for offenders, as well as on protecting the community.

Some of the recommendations in line with this philosophy include introducing flexible community-based custodial orders to replace home detention, which would allow offenders to attend rehabilitation where required, and potentially reduce the risk of reoffending for habitual drug and alcohol users.

The proposed changes also include extending the maximum duration of a home detention order to three years, and establishing alternative ways of monitoring offenders so that areas where there is no electronic monitoring available can still make use of home detention orders.

Simplification of the sentencing process

Under the current sentencing system, there are a total of 22 aggravating factors and 13 mitigating factors that magistrates and judges must take into consideration when deciding on a sentence.

The Law Reform Commission report suggests reducing these factors to just six as a way of simplifying the process and making it easier for judges to apply them consistently when sentencing.

Under the proposed legislation the six factors would be:

• The nature, seriousness and the circumstances of the offence.
• Any particular circumstances or vulnerability on the part of victim arising from age, relationship to the offender, occupation or disability, or any other factors.
• The extent of any physical injury, emotional harm, or loss or damage as a result of the offence. This includes any threats to national security or any significant risk or danger to anyone else.
• The character and background of the offender including any previous criminal history or any cognitive or mental impairments.
• Whether or not the offender has shown remorse for their actions and to what extent they have attempted to make reparations.
• The prospect of the offender being able to be rehabilitated.

These factors would not interfere with any other factors the court was required to take into consideration, and if any of the six factors contradicted the requirements for sentencing for a particular offence, it is suggested in the report that the court disregard the factor in question.

There are also a number of stand-alone factors that the court would be required to take into consideration where applicable, including whether the crime was motivated by racial prejudice or group hatred, and whether the offender was on a conditional liberty order at the time the offence was committed.

Other factors include disregarding the offender’s good character in sexual offences, and disregarding any potential consequences from the confiscation of assets or goods as a result of sentencing.

There are a number of other suggestions that have been put forward in the Law Reform Commission report, including abolishing suspended sentences and replacing them with community detention orders, and the introduction of parole for offenders serving life sentences.

The government has reportedly ruled out adopting this measure, and is expected to make a final decision on the report’s other recommendations shortly.

Criminal lawyers will need to quickly make themselves very familiar with the changes if they are to come into effect.