Bail Amendment (Repeat Offenders) Bill 2002
Institute of Criminology Seminar: “Crisis in Bail and Remand”
29 May 2002
The Bail Amendment (Repeat Offenders) Bill 2002 as at 29 May 2002.
Paper by: Mark Marien, Director and Jennifer Hickey, Principal Policy Officer
Criminal Law Review Division Attorney General’s Department
Introduction
The Bail Act 1978
Background rationale
The Bureau of Crime Statistics and Research Report
Impact upon the remand population
What does the Bill do?
Merit
Other initiatives
Introduction
The Bail Amendment (Repeat Offenders) Bill 2002 was introduced in the Legislative Assembly on 20 March this year. It has passed through both Houses of Parliament, with several amendments made in the Legislative Council.
The Bill has not yet been finalised and assented to. I won’t bore you with the details, suffice to say there is an outstanding amendment that requires further debate.
I expect that the commencement of the Act will occur quite quickly after the Bill has received assent.
In any case, this paper provides an overview of the Bill and discusses some of the other initiatives the Attorney General’s Department is considering in relation to the prison population and remand population.
First, a brief outline of how the Bail Act 1978 operates, then some background to why the legislation was developed.
The Bail Act 1978
The law in relation to bail is contained in the Bail Act 1978. It provides a comprehensive code for both judicial officers and police to assess persons applying for bail.
In deciding whether or not a person will get bail, the police officer or Court must first consider how the offence for which the accused has been charged with is classified. There are four general classifications:
a person charged with a minor offence has a general entitlement to bail; s 8
the most serious drug offences carry a presumption against bail; s 8A
some serious sexual and violent offences, including domestic violence offences, do not have a presumption in favour of bail; ss 9, 9A
the remaining offences which constitute the majority of offences, carry a presumption in favour of bail.
Secondly, the police officer or Court must consider the criteria outlined in s 32 of the Act. The four main factors to consider in deciding whether or not to grant bail are:
the probability of whether or not the accused person will appear in Court;
the interests of the accused person;
the protection of the victim and the victim’s close relatives; and
the protection and welfare of the community.
Thirdly, the police officer or Court may impose conditions on the accused person only for the purpose of promoting further effective law enforcement, or for the protection and welfare of any specially affected person or the community. As set out in ss 36, 36A, 36B and 37A.
Conditions may not be imposed that are any more onerous for the accused person than is required by the nature of the offence or for the protection and welfare of any specially affected person or by the circumstances of the accused person. s 37.
The Act attempts to balance the varying legitimate interests of the right of the accused to the presumption of innocence against the protection and welfare of the community and the probability of the person appearing in court.
Background and rationale
In recent years, police have had an active campaign to target repeat offenders. The philosophy behind this operational priority is that a small number of offenders commit a disproportionate amount of crime.
In June 2001 the former Police Commissioner called for amendments to the Bail Act in relation to repeat offenders. In December 2001 the NSW Police provided a report based on 170 collated case studies which recommended a number of procedural, operational and legislative changes.
The literature, research and anecdotal evidence all pointed to the fact that the problem concerning bail being granted to repeat offenders was due to the types of offences these persons are alleged to have committed. These offences are generally lower down the scale in criminality in comparison to say, murder, malicious wounding, or drug trafficking, and would include the offences of theft, receiving, break and enter, shoplifting, driving offences and minor assaults. These offences fit within the general presumption in favour of bail category.
Whilst the overall seriousness of the individual’s offending behaviour may not appear to be great, the resources required by the Police to pursue these offenders is significant, as is the cost to the community.
Traditionally, bail is refused for defendants who were a flight risk or in danger of not appearing at their next court date. In recent times the protection of the community has also become an increasingly important criteria for the courts to consider. This was particularly the case for serious offenders.
The Bail Act 1978 already adequately addresses the issue of “serious” repeat offending. In 1998, the Act was amended to strengthen these requirements. The Court must take into account when assessing bail for a person charged with a serious offence:
whether or not it is likely that the person will commit any serious offence while at liberty on bail; s 32(1)(c)(iv).
if the offence for which bail is being considered is a serious offence, whether, at the time the person is alleged to have committed the offence, the person had been granted bail, or released on parole, in connection with any other serious offence. s 32(1)(c)(v).
Section 32(2A) outlines matters to be considered in determining whether an offence is a serious offence, but does not limit the matters that can be considered. Such matters include:
whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, the likely effect of the offence on any victim and on the community generally, the number of offences likely to be committed or for which the person has been granted bail or released on parole.
A gap in the law therefore became apparent in relation to offenders who commit less serious offences and are likely to do so again.
The Bureau of Crime Statistics and Research Report
The second major impetus for the legislation was a report by the Bureau of Crime Statistics and Research (BOCSAR) entitled “Bail in NSW: Characteristics and Compliance” Chilvers M et al 2001 “Bail in NSW: Characteristics and Compliance”, Crime and Justice Statistics Bureau Brief, Issues paper no. 15 September 2001, NSW Bureau of Crime Statistics and Research, Sydney. which highlighted the increasing incidence of persons failing to appear in compliance with their bail condition to attend at the next court date.
Don has already told you about the findings of that study. It is perhaps worth revisiting a few particular findings.
In 14.6% of cases finalised in the Local Courts in 2000 (for persons on bail), the accused person had a warrant issued by the court as a result of failing to appear at court.
Nearly 29% of persons on bail for theft offences for example Except motor vehicle offences, failed to appear in respect of those offences. Similarly, 25.4% of persons on bail for receiving, 24.7% of persons on bail for break and enter offences, and 20.4% of persons on bail for disorderly conduct failed to appear in respect of those offences. This highlighted a particular concern in relation to property offenders.
In addition, persons with prior convictions were found to be far more likely to have a warrant issued against them for failing to appear when on bail.
The inference is that those defendants who fail to appear are committing further offences whilst on bail. If this is the case, the type of offences identified by the BOCSAR as having a high rate of failing to appear also supports the assumption that the problem with repeat offenders is centred around offenders who commit offences which have a presumption in favour of bail.
A working party with representatives from the Legal Aid Commission, the Department of Juvenile Justice, the Probation and Parole Service, the Department of Corrective Services, the NSW Police, the Police Ministry and the Attorney General’s Department was established. The working party’s aim is to develop a number of proposals and progress a package of legislative reform and strategies aimed at stopping the re-offending behaviour. A package of reforms in relation to bail and repeat offenders were discussed and generally agreed upon.
Impact upon the remand population
Now it may seem to some that the development of this legislation is at odds with other Government initiatives in trying to reduce the size of the prison population.
Indeed, there is no doubt that the amendments will impact upon the remand population. BOCSAR statistics show that over the past five years, the number of adults refused bail by magistrates in the Local Court has risen both in their actual number and as a percentage of the total number of matters dealt with. Two of the four reasons put forward by BOCSAR as likely for this increase is the Police targeting of repeat offenders; and evidence that police and magistrates have been less willing to grant bail in recent years. Chilvers M et al 2001 “Bail in NSW: Characteristics and Compliance”, Crime and Justice Statistics Bureau Brief, Issues paper no. 15 September 2001, NSW Bureau of Crime Statistics and Research, Sydney.
The report released by the Select Committee on the Increase in Prisoner Population noted that the largest contributing factor to the increasing size of the prison population is the growth in the number of people on remand, and the fact that the majority of these people are ultimately not given sentences of imprisonment. New South Wales Parliament. Legislative Council. Select Committee on the Increase in the Prisoner Population. Final Report - November 2001 Sydney p xii.
This is particularly pertinent given that the time spent while on remand will be taken into account at sentencing (if convicted) and may lead to the release of the offender when the matter is finalised given that the offences for which the offender is convicted are relatively less serious.
The Government is well aware of these concerns and has done its best in bringing forward amendments which balance the protection of the community against the rights of the accused who is legally presumed to be innocent.
It is however, only one step in the reform process. A range of initiatives across government agencies, some of which I will mention later, are also being developed to address the underlying issues causing the repeat offender behaviour and break the cycle of recidivist offending.
What does the Bill do?
The Bill removes the presumption in favour of bail for accused persons – irrespective of the type of offence they have committed – in certain circumstances.
The Bill inserts a new section 9B into the Bail Act. Section 9B provides that the presumption in favour of bail is removed for accused persons:
a) who are charged with other crimes whilst on bail;
b) who are charged with other crimes whilst on bonds or parole or on community release; or
c) who have been convicted of a previous fail to appear offence in accordance with a bail undertaking.
In addition, section 9B(3) removes the presumption in favour of bail for any person accused of an indictable offence if the person has been convicted of one or more indictable offences.
Criminal justice agencies use the existence of prior offences as part of their criteria in assessing high risk offenders on the basis that past behaviour is a good predictor of future behaviour.
Of importance however, is that the existence of a prior offence is only one factor in making that assessment. This is also true of the courts when making bail determinations.
In order to preserve the discretion of the person determining bail, this provision is to be read in conjunction with the new criteria added to section 32. s 32(1)(b)(vi). The amendment provides that the court must also have regard to the nature of the criminal history of the accused person as part of the criteria when considering granting bail. That is, the court is to consider the nature and seriousness of any previous indictable offences for which the person has been convicted, the number of previous offences and the length of time between those offences.
For example, an accused person with a single prior offence committed five years ago is likely to be treated in a different manner than an accused with five convictions in the past six months.
Section 32(1)(b)(v) inserts further new criteria that should be considered by the court in assessing the interests of the person. If the accused person is under the age of 18, or has an intellectual disability or mental illness, or is an Aboriginal person or a Torres Strait Islander, the court must consider any special needs of the person arising from that fact when determining bail. The literature on juvenile re-offending shows that once a child is incarcerated in a detention centre, the probability of them committing further offences is very high. Gaol as a last resort for juveniles is therefore particularly important.
Section 36 has been amended to provide the court with more options when granting bail in relation to the conditions that might be imposed upon the accused person.
The provisions in the proposed s 36(2A) allow the court to consider the appropriateness of bailing accused persons, particularly those of an Aboriginal or Torres Strait Islander background, to supervised accommodation for persons on bail if they are suitable and a place is available. This is in line with the recommendations made by the Royal Commission into Aboriginal deaths in custody in relation to gaol as a last resort and the over representation of Aboriginal persons in custody.
Often the lack of employment or appropriate residence will be a debilitating factor in deciding whether or not to grant bail. The availability of supervised bail accommodation and the suitability of the accused person to be bailed to this type of accommodation allows the court to both strengthen existing requirements of bail or divert defendants who might otherwise be incarcerated.
The Government also accepted an amendment moved by the Greens in the Legislative Council which expands the concept of community ties for Aboriginal and Torres Strait Islanders. A recent report by the Aboriginal Justice Advisory Council drew attention to the fact that western concepts of community ties were being used when determining bail applications which indirectly discriminated against some Aboriginal persons.
The amendment recognises that an indigenous person who might not be employed or own or rent a house, or even reside at one specific residence, may still have significant family or spiritual connections to an area. The proposed section 32(1)(a)(ia) allows the court to consider an Aboriginal person’s ties to extended family and kinship and other traditional ties to a place.
Finally, provision is made in the Bill to review these amendments in 12 months, particularly in relation to Aboriginal and young offenders and offenders with an intellectual disability or mental illness.
MERIT
These amendments sit within the context of the Magistrates Early Referral Into Treatment Program (MERIT) as a program that can address repeat offending. In brief, the program uses the Bail Act to divert defendants with drug problems into treatment as a condition of bail.
It is an “opt in” program, targeting those who are motivated to treat their problem with intensive supervision provided by the Department of Health. In many cases these people already have a significant criminal history. Early reports on the success of this program are very encouraging.
Other initiatives
As I stated earlier, these amendments are part of a wider strategy of reform. In addition to procedural changes by police and the courts, joint initiatives are being developed by an inter agency working party chaired by the Attorney General’s Department.
Representatives from a number of government agencies have been consulted on these reforms and will continue to meet to develop further programs, including procedural changes and diversion options. At present, more intensive supervision for certain defendants; the provision of extra mental health nurses, a focus upon the intellectually disabled accused person, and a program targeting bail supervision for juveniles are all being considered.
In addition, the recommendations of the Select Committee on the Increase in Prisoner Population are currently being considered by the Attorney General’s Department, the Department of Corrective Services and NSW Health. This includes investigating a pilot scheme to divert particular categories of offender from imprisonment.
These initiatives are aimed at counteracting the cycle of crime through early intervention and use of rehabilitation programs and intensive supervision. These proposals recognise that the co-operation of all criminal justice agencies and the Department of Health is required in order to develop a co-ordinated and effective response.
The Criminal Law Review Division would be more than happy to receive submissions on further worthwhile initiatives.
Thank you.
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