6.1 Periodic detention is a sentence of imprisonment which is served for a specified number of days in each week.1 In New South Wales, where an offender is sentenced to a term of imprisonment which exceeds three months but is less than three years, the sentencing court may order that sentence to be served by way of periodic detention, which generally requires the offender to remain in custody2 for two consecutive days of each week for the duration of the sentence.3 An offender serving periodic detention may also be required by the Commissioner for Corrective Services to carry out community work and attend training or counselling.4 Since DP 33 was issued, the Periodic Detention of Prisoners Amendment Act 1996 (NSW) has introduced measures designed to tighten up the operation of periodic detention, particularly in regard to non-attendance.5
6.2 New South Wales began periodic detention in 1971 as an experiment in alternatives to custodial sanctions.6 Submissions on periodic detention unanimously supported the retention of this sanction as a valuable sentencing option.7 Reasons for this support emphasised the flexibility which this sentencing option gives to the courts to impose a custodial sentence, while at the same time permitting offenders to maintain their ties to the community by remaining in employment and living with their families for the greater part of each week, and contributing to the community through community work.8 Periodic detention is also a much cheaper sentencing option than full-time imprisonment.9
6.3 Despite its advantages, the Commission has identified several problems in the current operation of the periodic detention scheme. These relate broadly to:
- the availability of periodic detention as a sentencing option;
- non-attendance;
- powers of revocation of periodic detention orders; and
- the use of a non-residential component in periodic detention (“Stage II”).
AVAILABILITY
Access to periodic detention centres
6.4 There are currently eleven periodic detention centres in New South Wales.10 It was suggested in some submissions that if periodic detention is to be an effective sentencing option, it should be more readily available throughout New South Wales.11 For example, sentencing options in certain country areas may not include periodic detention, even though a sentencing court in a particular case may consider periodic detention to be the most appropriate sanction.12 This may have a particularly negative impact on Aboriginal offenders.13 Several new periodic detention centres are currently under construction with the aim of expanding the availability of periodic detention across the State.14 Expansion of appropriate correctional centres is subject to resources being made available. Nevertheless, the Commission considers that it is important that the scheme should be more widely available and encourages its continuing expansion to ensure that it may be used effectively as a sentencing option for all offenders15 throughout New South Wales.
Periodic detention for sentences of three months or less
6.5 At present, periodic detention is restricted to offences for which a term of imprisonment not exceeding three years but greater than three months is imposed.16 Exceptions are permitted for specific offences.17 In DP 33 the Commission proposed that the three month limitation should be abolished, making periodic detention available as an alternative to imprisonment for all short-term sentences of less than three months duration.18
6.6 Submissions generally supported this proposal.19 It was opposed by one submission on the ground that it may lead to net-widening, with offenders who now receive CSOs instead receiving short-term orders of periodic detention.20 Even submissions favouring the proposal warned of such a risk.21 As a means of avoiding this result it was suggested that a sentencing court should be required to justify why it wishes to impose a periodic detention order of less than three months instead of a CSO.22
6.7 In the Commission’s view, the three month limitation on periodic detention should be removed in order to allow for greater flexibility in the use of periodic detention for short-term sentences of imprisonment where this is appropriate in the circumstances of a particular case. We recognise there may be a perceived risk of net-widening, but consider that sufficient safeguards can be implemented to reduce this risk. One safeguard is already in place, in so far as the sentencing court is required to determine that a term of imprisonment is the appropriate sanction before ordering that it be served by way of periodic detention. An additional safeguard is provided by the Commission’s recommendation requiring sentencing courts to give reasons why it is appropriate to impose a term of imprisonment of six months or less instead of a non-custodial sanction.23
Short-term orders for domestic violence offences
6.8 The Periodic Detention of Prisoners Act 1981 (NSW) s 5A provides exceptions to the existing three month limitation on periodic detention. These will be made redundant if the Commission’s recommendation for the abolition of the three month restriction for periodic detention is implemented. There is one, however, to which the Commission draws attention.
6.9 One of the exceptions under s 5A of the Periodic Detention of Prisoners Act 1981 permits an offender sentenced to a prison term of three months or less for a domestic violence offence to be ordered to serve that term by way of periodic detention. When it was introduced in 1992 as part of a package of reforms relating to domestic violence, this provision was said to give sentencing courts an additional sentencing option for domestic violence offences.24 The Commission is concerned that this amounts to legislative endorsement of the particular suitability of periodic detention for domestic violence offenders. Given the special relationship between the victim and the offender in domestic violence offences, the risk that these offenders may seek out their victims even after being sentenced, and the possibility that victims will be less likely to report these offences if they believe that the perpetrators will be at liberty, periodic detention may not, in general, be a suitable sentencing option for such offences. This provision also seems inconsistent with the approach taken towards domestic violence in the new Home Detention Act 1996 (NSW), which expressly precludes from home detention those offenders who have been convicted of or who are likely to commit a domestic violence offence.25
6.10 In the Commission’s view, it is inappropriate to make specific reference in the Periodic Detention of Prisoners Act 1981 (NSW) to the availability of periodic detention for domestic violence offences, particularly as the Act is otherwise silent on the types of offences for which periodic detention is a suitable sanction. We therefore recommend that the exception in s 5A(1)(c) for domestic violence offences for short-term periodic detention orders should be repealed.
NON-ATTENDANCE
6.11 The periodic detention scheme in New South Wales has at times come under attack for high non-attendance rates amongst detainees.26 To a limited extent, these criticisms may have presented a distorted view of the statistics relating to non-attendance.27 Nevertheless, risks of regular non-attendance and non-attendance without reasonable cause need to be reduced if periodic detention is to be accepted both by the general public and by the judiciary as an effective sentencing option.28 In DP 33 the Commission invited submissions on the strategies which should be adopted to deal with non-attendance.29 The use of full-time imprisonment was strongly supported as an appropriate sanction for regular non-attendance.30 Submissions suggested two other ways of dealing with the problem of non-attendance, namely through appropriate assessments of suitable candidates for periodic detention and efficient administrative responses to non-attendance.
Assessing suitability
6.12 One way in which the risk of non-attendance might be reduced is through a strict screening process to assess suitable candidates for the scheme. There are presently few legislative guidelines for assessing suitability.31 There are no legislative restrictions on availability in terms of the particular offence involved or the particular offender’s antecedents.32 Originally, periodic detention was only available for offenders who had not previously served a term of imprisonment, but any such restrictions were removed to give sentencing courts the widest discretion to order periodic detention in appropriate cases.33 It has been submitted that closer consideration of the issue of suitability may be useful in reducing the risk of non-attendance,34 and that perhaps stricter legislative constraints on the availability of periodic detention for particular offenders should be re-introduced.35
6.13 At present, as part of the screening process, the Probation and Parole Service is required to prepare a report as to the suitability of the offender for the sentencing court’s consideration.36 The Service assesses suitability on a case by case basis, rather than according to strict criteria.37 It considers whether there are any factors which may affect the offender’s ability to attend regularly, including the offender’s ability to travel, transport costs, medical condition, and employment. Offenders who are chronic alcoholics, high rate drug users, or who have significant psychiatric problems, are often assessed as more suitable for full-time custody. The offender’s antecedents are considered but do not necessarily preclude assessment as suitable. Evidence indicates that it is the younger male offender, between 19 to 35 years, serving a short-term order of periodic detention, who is more likely not to attend rather than the older offender serving a longer term.38 Further empirical research would determine more precisely the common characteristics of those offenders who regularly do not attend.
6.14 Various additional strategies could be used to determine suitability more effectively. Courts could place the onus on offenders to supply evidence of any factor relevant to assessing suitability and their ability to attend regularly,39 or require the offender to submit to a medical examination. Courts could be required to explain fully the operation, conditions and breach consequences of an order to offenders before periodic detention is imposed,40 or be satisfied that the offender consents to the imposition of the order. The latter three conditions are imposed on courts in the ACT by the Periodic Detention Act 1995 (ACT).41
6.15 The Commission does not accept that additional legislative guidelines or constraints on the discretion to order periodic detention are necessary.42 In our view, it is preferable that the scheme remains flexible in order that it may be utilised in any case where the court determines it is an appropriate means of dealing with an offender. There may often be matters which make particular offenders unsuitable for periodic detention, but these should be properly identified in the report prepared by the Probation and Parole Service. Greater awareness of the factors relevant to successful completion of periodic detention will assist courts in the appropriate use of this sanction.43
Administrative action in response to non-attendance
6.16 It has been submitted that some of the difficulties connected with non-attendance may result from delays and inaction on the part of the Department of Corrective Services in dealing with absenteeism.44 Section 25(3A) of the Periodic Detention of Prisoners Act 1981 (NSW) permits the Commissioner to apply to the court for cancellation of a periodic detention order if the offender has not attended on three occasions without reasonable excuse. In the past, there have been said to be significant delays of six to 18 months in bringing an application for cancellation of an order.45 As a consequence, cancellation may not have acted as an effective deterrent against non-attendance because detainees have considered that non-attendance apparently was not punished. It is said that the Department of Corrective Services is now more vigilant and quickly brings action against non-attenders.46 Furthermore, the Periodic Detention Amendment Act 1996 (NSW) has introduced additional measures to assist in ensuring that offenders are not absent without a genuinely valid excuse.47 The sentencing court may now order that the periodic detainee submit to the taking of identifying particulars (to prevent another person attending periodic detention in the offender’s place),48 and the Department may require medical examination to verify an offender’s reason for absence.49
6.17 One submission suggested a supervising role for the courts as a means of dealing with non-attendance.50 The Department of Corrective Services could be required to report to a supervising Local Court on a weekly basis as to the attendance of periodic detainees. The court could then move to cancel an order on its own motion under s 25. In our view, this falls beyond the normal functions of the courts, as well as being unworkable in practice.
6.18 The Commission considers that the existing system is the most practicable means of dealing with absenteeism. However, we recognise that in order to be effective in reducing the incidence of non-attendance, applications must be brought quickly against those offenders who do not attend without reasonable excuse. We therefore urge that the Department of Corrective Services bring applications for cancellation under s 25(3A) expeditiously.
POWERS OF REVOCATION
6.19 The Commission has identified several problems in relation to the power to revoke an order for periodic detention and the consequences flowing from revocation, namely:
- revocation powers under s 25;
- revocation powers under s 24;
- notice to cancel;
- re-sentencing to full-time imprisonment following revocation;
- right of appeal from cancellation; and
- consequences of successful appeals from cancellation.
Revocation powers under s 25
Recommendation 26
Section 25(1) of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to make it clear that the court may cancel an order for periodic detention, with or without application, if it appears to the court that there is good reason for doing so.
Recommendation 27
Section 25A(2) of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to make it clear that the court may cancel a cumulative order for periodic detention, with or without application, if it appears to the court that there is good reason for doing so.
6.20 The court has power to cancel an order for periodic detention in a number of circumstances, including where an offender has not attended for three detention periods. The Commissioner of Corrective Services or the periodic detainee may apply to the court to cancel the order, or the court itself may simply cancel the order without any application being made.51 The court’s power to grant an application to cancel an order under s 25(1)(a) of the Periodic Detention of Prisoners Act 1981 (NSW) is ambiguous.52 While s 25(1)(b) makes it clear that the court may cancel a periodic detention order without application on the ground that it appears to the court that there is good reason for doing so, it is unclear whether the section similarly permits a court to cancel an order on the same ground where an application for cancellation has been made. In DP 33 the Commission proposed that s 25(1) should be amended to make it clear that the court has this power.
6.21 Submissions supported the Commission’s proposal.53 It was argued in one submission that the Periodic Detention Amendment Act 1996 (NSW) introduces a similar power in respect of cancellation of a cumulative order of periodic detention under s 25A(2), and that this amendment clarifies the powers of the court to allow an application to cancel.54 In the Commission’s view, however, s 25A(2) has no such effect, given that it applies only to cancellation of cumulative orders of periodic detention and simply repeats the wording in s 25(1). Indeed, we consider that s 25A(2) should also be amended to make it clear that a court may cancel a cumulative order for periodic detention upon application by the Commissioner of Corrective Services or the detainee where it appears to the court that there is good reason for doing so.
6.22 The Commission recommends that both s 25(1) and 25A(2) be amended to make it clear that the court can cancel an order for periodic detention and a cumulative order for periodic detention with or without application if it appears to the court that there is good reason for doing so.
Revocation powers under s 24
Recommendation 28
Section 24(1) of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to give the court a discretion not to cancel an order for periodic detention upon conviction for another offence if, in the circumstances of the case, the court considers this to be appropriate.
6.23 At present an order for periodic detention must be revoked where the periodic detainee is convicted of another offence while serving the periodic detention order and is sentenced for that second offence to a term of full-time custody exceeding one month.55 Where the term of full-time custody is less than a month, the court has a discretion to cancel the periodic detention order.56 It has been suggested that automatic revocation of a periodic detention order following a sentence of full-time imprisonment exceeding one month may be too harsh in certain circumstances.57 For example, an offender serving a three year periodic detention order subsequently sentenced for a minor offence to a six week term of imprisonment must serve the remainder of the three year periodic detention order in full-time custody as the order must be automatically revoked. Moreover, the offence for which the offender was subsequently convicted and sentenced to full-time custody may well have been committed before the periodic detention order was imposed, or the offender may have made significant attempts at rehabilitation while serving the periodic detention order. In such circumstances, courts may be reluctant to revoke the periodic detention order.
6.24 The Commission recommends that s 24(1) should be amended to the following effect. When sentencing an offender for a second offence the sentencing court should have the discretion not to revoke the order for periodic detention if, in all the circumstances, it considers this is appropriate. If the court exercises its discretion not to revoke the periodic detention order, the offender would be required to serve the term of full-time imprisonment and the periodic detention order concurrently for the duration of the term of full-time custody. Thereafter the offender should be given credit for the periodic detention periods which are served in full-time custody.58
Notice to cancel
Recommendation 29
Before a court cancels an order for periodic detention, it should be satisfied that proper notice of the proceedings for cancellation has been served on the offender. Time for appeal against cancellation of an order for periodic detention should not begin to run until notice of the proceedings for cancellation has been properly served on the offender.
Recommendation 30
A court should not be able to re-sentence an offender following cancellation of an order for periodic detention unless the offender is present before the court.
6.25 There is no legislative requirement that the offender be present when a periodic detention order is cancelled, beyond that which requires that written notice of the proposed hearing to cancel is served on the offender by post at the offender’s last known address,59 and that reasonable efforts are made to notify the offender if the Commissioner of Corrective Services intends to tender a certificate of certain particulars in an application for cancellation.60 It has been suggested that injustice frequently arises as a result of an order for periodic detention being cancelled in the offender’s absence.61 For example, an offender may be denied the opportunity of disputing the accuracy of the information provided by the Department of Corrective Services, or of making submissions in favour of setting a minimum term where the court has not considered this issue.62 Moreover, if there is a delay of more than three months in arresting the offender after the order is cancelled, the offender may have no right to appeal against the cancellation.63
6.26 One solution proposed is that the court should be required to issue a warrant for the offender to be brought before it where the Department of Corrective Services satisfies the court of prima facie grounds for cancelling an order.64 Cancellation proceedings could then not take place without the offender being present. A similar procedure is already in place in relation to cancellation of CSOs.65
6.27 The Commission agrees that the legislation should require greater efforts to be made to ensure an offender’s presence at cancellation proceedings. Significant injustices can result from a failure to ensure that the offender has had an opportunity to be heard before re-sentencing him or her to full-time imprisonment. However, the Commission rejects the procedure for obtaining a warrant or summons for cancellation of a CSO as a model for cancellation proceedings in relation to a periodic detention order. There is an important distinction between periodic detention and community service, in so far as periodic detention is a form of incarceration. There may be situations in relation to periodic detention where the Department of Corrective Services needs to act quickly to prevent an offender from fleeing the jurisdiction and escaping imprisonment. In these situations, delays may be caused by a requirement first to obtain a warrant before bringing an application to cancel the periodic detention order. In our view, it is better simply to require that the court which is hearing the cancellation proceedings be satisfied that proper service has been effected on an offender before the proceedings can commence. It should be a matter for the court to determine whether proper service has been effected. In the majority of cases, this will require the court to be satisfied that notice has been served personally on the offender. In exceptional circumstances, the court should have a discretion to determine that service has been properly effected through other means if, for example, the offender is about to flee the jurisdiction. Time for leave to appeal should not begin to run until notice of the cancellation proceedings has been properly served. We recommend that the Periodic Detention of Prisoners Act 1981 (NSW) be amended to reflect these requirements.
6.28 In relation to re-sentencing the offender following cancellation of the periodic detention order, the Commission agrees that the court should require the offender to be present before a new sentence can be imposed. This will allow the offender to make representations to the court as to why a minimum term should be set for the separate sentence of imprisonment, or why a sentence other than imprisonment should be imposed in the circumstances of the case. We recommend that a provision, similar to s 80AA of the Justices Act 1902 (NSW), should be introduced to ensure that the offender is not re-sentenced to imprisonment unless the offender is present at the time of re-sentencing.66
Re-sentencing to full-time imprisonment following revocation
Recommendation 31
When revoking an order for periodic detention, a court should have the discretion to impose a term of imprisonment which is less than the unexpired portion of the periodic detention order where the court considers this to be appropriate in the circumstances of the case.
Recommendation 32
When imposing a separate sentence of imprisonment of six months or less following revocation of a periodic detention order, a court should have the discretion to set a minimum term.
6.29 Where an order for periodic detention is cancelled under s 24 or 25 of the Periodic Detention of Prisoners Act 1981 (NSW), the offender must usually serve the unexpired portion of that sentence in full-time custody, although the court may direct that the unexpired portion is to consist of a minimum and an additional term, make a parole order, or, on application of the Commissioner, make such other orders as the court considers appropriate.67 It has been argued that where an order for periodic detention is subsequently converted into a term of full-time imprisonment, the offender may often be required to serve a more severe sentence than was originally intended by the sentencing court.68 This is because an order for periodic detention is often longer than a sentence of full-time imprisonment would be in similar circumstances, owing to the element of leniency inherent in periodic detention.69 Therefore, where the order is converted into a term of full-time imprisonment, the offender may be required to serve a substantially longer custodial sentence than would ordinarily have been imposed.
6.30 To overcome this problem, it has been suggested that where an order for periodic detention is revoked and a sentence of imprisonment subsequently imposed, the court which imposes that sentence should have a discretion to re-sentence the offender, taking into account the time spent in periodic detention and allowing the court to impose a shorter term of imprisonment in appropriate cases.70 The DPP has also suggested that the discretion of the court to set a minimum term for converted sentences of imprisonment following revocation of a periodic detention order should be extended to sentences of six months or less as a means of ensuring that offenders do not spend a substantially longer period in prison than they would normally spend.71
6.31 The Commission supports both these suggestions, which inject flexibility into the system and avoid unjustifiably harsh sentences. We recommend accordingly.
Rights of appeal from cancellation of a periodic detention order
Recommendation 33
The Justices Act 1902 (NSW) and the Criminal Appeal Act 1912 (NSW) should be amended to confer an express right to seek leave to appeal against cancellation of an order for periodic detention, and against the separate order imposed following cancellation. Where a periodic detention order is cancelled by the Local Court, the defendant should have a right to seek leave to appeal to the District Court. Where a periodic detention order is cancelled by the District Court or by the Supreme Court, the defendant should have a right to seek leave to appeal to the Court of Criminal Appeal.
6.32 There is no express provision in the Periodic Detention of Prisoners Act 1981 (NSW) conferring a right of appeal from cancellation of a periodic detention order. It has been held that where a periodic detention order has been cancelled, the offender has a right to appeal against the separate term of imprisonment which is deemed to be imposed following cancellation of the order: where the order is cancelled by the Local Court, an appeal lies to the District Court; where the order is cancelled by the District Court or the Supreme Court, an appeal lies to the Court of Criminal Appeal.72 Rights of appeal are uncertain.73 For example, the Court of Criminal Appeal may lack jurisdiction to hear an appeal against cancellation under s 24 of the Periodic Detention of Prisoners Act 1981 (NSW) where the order was made by the Supreme Court or the District Court.74 This could result in an offender having no right to appeal in these circumstances.
6.33 In the Commission’s view, the existing appeal rights and procedure are unnecessarily complicated. When a periodic detention order is cancelled, an offender should be able to seek leave to appeal on two grounds. First, he or she should have a right to seek leave to appeal against the court’s decision to cancel the order for periodic detention. Secondly, he or she should have a right to seek leave to appeal against a separate term of imprisonment which is subsequently imposed, or more particularly against the exercise of the court’s discretion to impose a minimum term or any other order which the court considers to be appropriate.75 The legislation should confer an express right to seek leave to appeal on these two grounds.
6.34 A straightforward means of conferring a right of appeal is simply to amend s 122 of the Justices Act 1902 (NSW) and s 5 of the Criminal Appeal Act 1912 (NSW) to include a provision giving a right to seek leave to appeal against a decision to cancel an order for periodic detention and against the order which is subsequently imposed. As a consequence, where the periodic detention order is cancelled by a Local Court, an appeal will lie to the District Court. Where the periodic detention order is cancelled by the District Court or by the Supreme Court, an appeal will lie to the Court of Criminal Appeal. This solution is preferable to adopting a deeming provision similar to s 26 of the Community Service Orders Act 1979 (NSW), which deems a right of appeal against the manner in which an offender is dealt with under the Justices Act 1902 (NSW) and the Criminal Appeal Act 1912 (NSW). Such a deeming provision may give rise to some uncertainty as to its scope,76 and is less straightforward than our recommendation.
Consequences of successful appeals from cancellation
Recommendation 34
Where an appeal against cancellation of an order for periodic detention is successful, the court upholding the appeal should have a discretion to remould the original sentence of periodic detention where it considers this to be appropriate, taking into account any time served by the periodic detainee in full-time custody following cancellation of the order.
6.35 Where a periodic detention order is cancelled, the offender is ordinarily placed in full-time custody.77 Where an appeal against cancellation is successful, the original periodic detention order is deemed to remain in force, and the offender returns to serving the remainder of that order.78 There is, however, no legislative provision which allows for the time spent in full-time custody to count towards the term of the periodic detention order.79 Moreover, the term of the periodic detention order is extended by one week for every detention period not attended during the time the offender is in full-time custody.80 The result is that where there is a significant delay in hearing the appeal, the offender may be required to serve a sentence of periodic detention which is substantially longer than that originally intended by the sentencing court.81 This is exacerbated by the fact that a periodic detention order is often longer than a sentence for full-time imprisonment under similar circumstances, because of the element of leniency inherent in an order for periodic detention.82
6.36 To remedy the possible injustice of an offender serving a disproportionate sentence as a result of the wrongful cancellation of a periodic detention order, it has been proposed that a court upholding an appeal should be given the discretion to remould the original periodic detention order where it believes this to be appropriate in the circumstances of the case.83 This would allow the court to impose a shorter sentence where offenders have served a substantial time in full-time custody while waiting for their appeals to be heard. The Commission supports this proposal and recommends that the court upholding an appeal have such a discretion.
STAGE II
6.37 The periodic detention scheme currently operates in two stages.84 During Stage I periodic detainees are required to remain in custody for the full duration of each detention period. After serving at least one third or three months (whichever is the greater) of their sentences, periodic detainees who have attended regularly and been of good behaviour may then be eligible for Stage II. Stage II is a non-residential component during which periodic detainees are allowed to return to their homes at night and attend a designated work site during the day for each detention period. Progression to Stage II is not automatic.85 The decision to place an offender on Stage II is made by the Periodic Detention Review Committee which consists of three to four officers from the Department of Corrective Services. It sits fortnightly to determine eligibility for Stage II, as well as to evaluate the reclassification of offenders from Stage II to Stage I. The committee makes its decisions on a case by case basis, having regard to matters such as satisfactory attendance, disciplinary proceedings, adverse work or behavioural reports, and any special risks which a particular offender faces in custody. To assist in making its decision, the committee may, for example, request reports from departmental officers, conduct an interview by telephone or face to face with the detainee, or seek medical and psychiatric advice. If the Committee decides against progression to Stage II, the reasons for its decision are noted.86
6.38 In DP 33 the Commission proposed that Stage II should be abolished. We noted that Stage II is an administrative interference with the sentence handed down by the sentencing court; that it results in a significantly less punitive sentence than that envisaged by the sentencing court; and that it has no clear legislative base.87 However, the majority of submissions did not support the abolition of Stage II,88 although it was suggested that it be given a clearer legislative base in view of the apparent ambiguity in the existing legislative provisions.89
Arguments in favour of Stage II
6.39 The following are the arguments in favour of retaining Stage II:
- It provides the only incentive for regular attendance and good behaviour in Stage I, especially for longer term orders which can require a high degree of self-discipline to attend every weekend for up to three years.90
- It is a good management tool, especially for offenders who may be at risk while residing at a periodic detention centre.91
- It is cost-effective, because it frees up accommodation in periodic detention centres.92
- It is not an excessively lenient sentence, and is not comparable with a CSO. On the contrary, it requires a greater number of hours of community service per week than a CSO and requires attendance for community work on specified days with little flexibility to change the required times of attendance.93
Arguments against Stage II
6.40 The following are the arguments against Stage II:
- It is inconsistent with the concept of truth in sentencing, because the residential prison term actually served by the offender is significantly less than that set down by the sentencing court.
- Periodic detention may be seen as a significantly more lenient sentence than full-time imprisonment owing to the use of Stage II. This may have a negative effect on public perception of periodic detention as an effective sentencing option. As well, sentencing courts may be discouraged from making use of periodic detention because of a perception that it has become excessively lenient.94
- Abandonment of Stage II may encourage greater use of periodic detention by sentencing courts because it will be seen to have a stronger punitive element.
Alternative models for Stage II
6.41 Various alternative models could be adopted for the operation of a Stage II in periodic detention. The Commission here considers three, each of which involves greater legislative control over the progress of offenders.
Setting minimum terms
6.42 The first model is to allow for the sentencing court to set a minimum term when making an order for periodic detention. The minimum term would be equivalent to Stage I of the current scheme. At the expiration of the minimum term, the offender would be eligible to apply for progression to Stage II. This could be determined by a body similar to the existing Periodic Detention Review Committee, with its composition and procedures governed by legislation or regulation. This option would have the advantage of ensuring that the sentence of imprisonment set down by the sentencing court is the minimum period actually served in custody. The sentencing court could impose a longer minimum term where the seriousness of the offence calls for a more punitive sentence. One possible disadvantage of this option is that it may give rise to administrative difficulties. For example, if the length of an offender’s sentence is extended due to a leave of absence, adjustment of the length of the minimum term would be necessary.
Discretion to exclude Stage II
6.43 A second option would give a sentencing court, when imposing periodic detention, power to make an order prohibiting a particular offender from progression to Stage II.95 There could be a legislative presumption against the sentencing court making such an order so as to ensure that offenders are only precluded from eligibility to Stage II where the seriousness of the particular offence or other circumstances requires this. In all other cases, progression to Stage II would not be automatic, but would be determined by a body regulated by legislation.
Legislative regulation of Stage II
6.44 A third option may be to enshrine the existing scheme into legislation. That is, the legislation could spell out that periodic detainees are eligible to apply for progression to Stage II after serving one third or three months of their sentences. Applications would be determined by a committee, regulated by legislation.
Discontinuation of Stage II
6.45 After carefully considering the arguments in favour of retaining Stage II which were raised in submissions, the Commission nevertheless recommends that the practice of allowing prisoners serving periodic detention to proceed to Stage II should be discontinued. Our reasons follow.
6.46 First, we consider that the current scheme breaches the concept of truth in sentencing. It amounts to an administrative interference with the sentence imposed by the court, in so far as a committee composed of officers from the Department of Corrective Services may alter the form of the sentence to be served from that which was originally envisaged by the sentencing court.
6.47 Secondly, retention of Stage II in any form adds an excessive amount of leniency to the periodic detention scheme. Periodic detention already has an inherent element of leniency, and to permit offenders to remain outside custody for a portion of their sentence unspecified by the court makes it an even more lenient sentencing option. This undermines public and judicial confidence in a sentence of this nature. We have referred to indications that sentencing courts are reluctant to make use of periodic detention as an alternative to full-time custody because it is not considered to be a sufficiently punitive sanction.96 As a consequence, more offenders may be sentenced to full-time imprisonment where periodic detention is not seen as an appropriate sanction. This consideration necessarily means that we do not, on balance, accept any of the proposed variations to Stage II. We nevertheless recognise that they have advantages over the existing scheme, in so far as they give a clear legislative base to Stage II and are consistent with the concept of truth in sentencing because they allow for eligibility to Stage II to be determined by the sentencing court.
6.48 Thirdly, we are not convinced that the wording in the existing legislation is sufficient to give Stage II a proper legislative base, whatever may have been the original intention of Parliament.
6.49 The Commission recognises that requiring periodic detainees to be in custody for the full term of their sentence may have repercussions for the resources which are necessary to accommodate those so sentenced, but we do not consider this to be a sufficiently compelling reason to retain Stage II, given its manifest disadvantages. If Stage II is discontinued, periodic detention may be seen by sentencing courts as a more appropriate sanction. The Commission urges that sufficient resources be made available to support periodic detention as an effective sentencing option.
FOOTNOTES
1. See generally DP 33 Ch 8.
2. At present, periodic detainees who have served a portion of their terms may be placed on Stage II of the periodic detention scheme. Stage II does not require periodic detainees to remain in custody overnight during each detention period: see paras 6.37-6.49.
3. Periodic Detention of Prisoners Act 1981 (NSW) s 5. Terms of less than three months may be ordered for certain offences: Periodic Detention of Prisoners Act 1981 (NSW) s 5A: see paras 6.5-6.7.
4. Periodic Detention of Prisoners Act 1981 (NSW) s 10.
5. See New South Wales, Parliamentary Debates (Hansard) Legislative Council, 17 April 1996 at 100-102.
6. Periodic detention was tried but abandoned in Queensland, and recently adopted in the Australian Capital Territory: Periodic Detention Act 1995 (ACT).
7. W D T Ward, Submission (25 July 1996) at 16; Law Society of NSW, Submission (19 July 1996) at 29; Legal Aid Commission of NSW, Submission (18 July 1996) at 12; Department of Corrective Services, Submission (15 July 1996) at 22; N J H Milson, Submission (3 July 1996) at 7; M L Sides and Bar Association, Submission (24 June 1996) at 58; S Scarlett Submission (11 June 1996) at 2; Confidential Submission (22 May 1996) at 35.
8. It is estimated by the Department of Corrective Services that approximately $2.5 million worth of labour is contributed to the community by periodic detainees each year: S D’Silva, “Sentencing Options: Changes to the Periodic Detention Program” Paper presented at the NSW Bar Association CLE Seminar, 14 October 1996 at 5.
9. In 1996, the cost of periodic detention per prisoner per day was estimated at $30. The estimated cost of full-time minimum security prison per prisoner per day was $104.35: see New South Wales, Department of Corrective Services, Annual Report 1995/96 at Appendix 25.
10. Department of Corrective Services, Annual Report 1994/95 at Appendix 38; S D’Silva, “Offender Suitability - A Central Issue to the Success of Periodic Detention in New South Wales” (1996) 8 Judicial Officers Bulletin at 59.
11. S Scarlett, Submission (11 June 1996) at 2; M L Sides and Bar Association, Submission (24 June 1996) at 58.
12. See for example R v Turner [No 1] (NSW CCA, No 60105/95, 26 July 1995, unreported) which involved a Crown appeal against the leniency of a sentence of community service. The sentencing judge considered that periodic detention was the appropriate sentence to impose, but periodic detention was not readily available in the offender’s local area.
13. Issues relating to the sentencing of Aboriginal offenders will be dealt with in the second phase of the Commission’s reference on sentencing.
14. New centres or expanded facilities are scheduled to come into operation in the next year in Bathurst, Broken Hill, Tamworth, Tomago and Emu Plains. A mid-week program is scheduled to commence at Campbelltown Periodic Detention Centre in late 1996: Information supplied by S D’Silva, Director of the Periodic Detention Program (16 August 1996). See also Department of Corrective Services, Annual Report 1994/95 at 6.
15. Female offenders experience particular problems with periodic detention: see I Potas, S Cumines and R Takach, A Critical Review of Periodic Detention in New South Wales (Judicial Commission of New South Wales, Monograph Series No 5, 1992) at paras 4.2-4.3; D Harvey, “Women in Periodic Detention in New South Wales” unpublished paper, 28 November 1991, held at the Judicial Commission of NSW. Issues relating to sentencing of female offenders will be examined in the second phase of the Commission’s inquiry.
16. Periodic Detention of Prisoners Act 1981 (NSW) s 5(1).
17. For offences against the Act itself, for offences against the Summary Offences Act 1988 (NSW), and for domestic violence offences: Periodic Detention of Prisoners Act 1981 (NSW) s 5A.
18. See DP 33 at para 8.19.
19. W D T Ward, Submission (25 July 1996) at 16; Law Society of NSW, Submission (19 July 1996) at 29; Legal Aid Commission of NSW, Submission (18 July 1996) at 13-14; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 24; N J H Milson, Submission (3 July 1996) at 8; J L Swanson, Submission (1 July 1996) at 2; M L Sides and Bar Association, Submission (24 June 1996) at 60; N R Cowdery, Submission (17 June 1996) at 12.
20. Department of Corrective Services, Submission (15 July 1996) at 22.
21. Law Society of NSW, Submission (19 July 1996) at 32; Legal Aid Commission of NSW, Submission (18 July 1996) at 13-14.
22. Department of Corrective Services, Submission (15 July 1996) at 22.
23. See Recommendation 40 and paras 8.2-8.7.
24. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 9 November 1992 at 2368.
25. Home Detention Act 1996 (NSW) s 6, 7 and 10. See further at paras 7.9-7.12.
26. See for example, “Jail Fiasco: 500 Fail To Serve Weekend Terms” Sydney Morning Herald, 12 May 1991 and “200 Weekend Jail Shirkers Go Scot Free” Sydney Morning Herald, 13 August 1990. Similar criticisms have also been made of the periodic detention scheme which was recently introduced in the ACT: see for example, “Police Slate ‘Joke’ Detentions” Canberra Times, 30 June 1996.
27. See I Potas, S Cumines, and R Takach (1992) at para 7.2. The authors point out that in reporting statistics on non-attendance, the media has taken into account offenders who have not attended because they have been serving terms of full-time custody or who are appealing their sentences and are not obliged to attend during that time. Nevertheless, statistics on attendance rates for 1995 as provided by the Department of Corrective Services would seem to indicate that non-attendance by periodic detainees in Stage I of the periodic detention scheme remains a problem: the highest rate of attendance was 66.9%, in April 1995. The lowest rate of attendance for these offenders was in December 1995, when 53.3% attended. See Department of Corrective Services, Submission (12 December 1996) Table 1.
28. See recent criticisms by the media that certain periodic detainees are granted leaves of absence for no reasonable cause: “Time Off Jail To Go Yachting” and “Editorial: Part-time Prison Too Flexible” Daily Telegraph, 23 September 1996.
29. See DP 33 at paras 8.8-8.12.
30. W D T Ward, Submission (25 July 1996) at 16; Law Society of NSW, Submission (19 July 1996) at 31; Department of Corrective Services, Submission (15 July 1996) at 23; N J H Milson, Submission (3 July 1996) at 8; M L Sides and Bar Association, Submission (24 June 1996) at 59; Confidential Submission (22 May 1996) at 35-36.
31. Section 5(1) of the Periodic Detention of Prisoners Act 1981 (NSW) requires the sentencing court to consider whether there is accommodation available in a periodic detention centre and whether travel to the centre is not reasonably likely to cause undue inconvenience, strain or hardship to the offender. The court must also consider a report from a probation officer as to the suitability of the offender for periodic detention. As to the views of judicial officers: see R Bray and J Chan, Community Service Orders and Periodic Detention Orders as Sentencing Options: A Survey of Judicial Officers in NSW (Judicial Commission of New South Wales, Monograph Series No 3, April 1991) at 36-40.
32. This contrasts with the regime established by the Home Detention Act 1996 (NSW): see Chapter 7.
33. Periodic Detention of Prisoners Act 1970 (NSW) s 3(2)(c); Periodic Detention of Prisoners (Amendment Act) 1986 (NSW) s 1.
34. Public Defenders, Consultation (8 August 1996).
35. Prison Governors, Consultation (12 August 1996).
36. Periodic Detention of Prisoners Act 1981 (NSW) s 5(1)(c). This appears to have been responsible for better attendance: B Thompson, Attendance Patterns of Periodic Detainees (NSW Department of Corrective Services, Research Publication No 28, May 1994) at 3.
37. Information supplied by S D’Silva, Director of the Periodic Detention Program (16 August 1996).
38. Information supplied by S D’Silva, Director of the Periodic Detention Program (16 August 1996). See also B Thompson, Attendance Patterns of Periodic Detainees (NSW Department of Corrective Services, Research Publication No 28, May 1994).
39. See S D’Silva, “Offender Suitability - A Central Issue to the Success of Periodic Detention in New South Wales” (1996) 8(8) Judicial Officers Bulletin at 59.
40. Public Defenders, Consultation (8 August 1996).
41. See Periodic Detention Act 1995 (ACT) s 6(1)(c) and (e).
42. This is consistent with our recommendation against strict legislative constraints on the availability of home detention: see Recommendation 36.
43. The Director of the Periodic Detention Program suggests that an important means of ensuring that periodic detention is imposed on suitable offenders is through further judicial education about the scheme: information supplied by S D’Silva (16 August 1996).
44. M L Sides and Bar Association, Submission (24 June 1996) at 58; Law Society of NSW, Submission (19 July 1996) at 30; N J H Milson, Submission (3 July 1996) at 8; Forbes Chambers, Consultation (13 August 1996).
45. Law Society of NSW, Submission (19 July 1996) at 30. See also Potas, Cumines, and Takach (1992) at 46.
46. See Department of Corrective Services, Consultation (26 July 1996). See also Potas, Cumines and Takach (1992) at 46.
47. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 28 May 1996 at 1552. The Periodic Detention Amendment Act 1996 commenced on 27 September 1996.
48. Periodic Detention of Prisoners Act 1981(NSW) s 5AA.
49. Periodic Detention of Prisoners Act 1981 (NSW) s 34(1)(e1).
50. M L Sides and Bar Association, Submission (24 June 1996) at 59.
51. Periodic Detention of Prisoners Act 1981 (NSW) s 25(1).
52. See R v Roome (1995) 84 A Crim R 1 (NSW CCA) at 4 per Hunt CJ at CL. See also DP 33 at para 8.12.
53. W D T Ward, Submission (25 July 1996) at 16; Legal Aid Commission of NSW, Submission (18 July 1996) at 12; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 24; Department of Corrective Services, Submission (15 July 1996) at 20; J L Swanson, Submission (1 July 1996) at 2; N R Cowdery, Submission (17 June 1996) at 11. The Law Society stated that it had no specific view on this proposal: Law Society of NSW, Submission (19 July 1996) at 29.
54. Department of Corrective Services Submission (15 July 1996) at 20.
55. Periodic Detention of Prisoners Act 1981 (NSW) s 24(1).
56. Periodic Detention of Prisoners Act 1981 (NSW) s 24(2).
57. Attorney General’s Sentencing Review 1994 at 28.
58. See further at paras 6.29-6.31.
59. Periodic Detention of Prisoners Regulation 1995 (NSW) cl 46.
60. Periodic Detention of Prisoners Act 1981 (NSW) s 25(5). As amended by the Periodic Detention of Prisoners Amendment Act 1996 (NSW) Sch 1 [17], this section permits the Commissioner of Corrective Services simply to send a copy of the certificate by post to the offender’s last known address.
61. Legal Aid Commission of NSW, Submission (18 July 1996) at 7; Law Society of NSW, Submission (19 July 1996) at 30, Legal Aid Commission of NSW, Submission (27 September 1996) at 1-3.
62. See Legal Aid Commission of NSW, Submission (18 July 1996) at 7; Law Society of NSW, Submission (19 July 1996) at 30; Legal Aid Commission of NSW, Submission (27 September 1996) at 2. These arguments were recently raised in Powick v Commissioner of Corrective Services (NSW CA, No 40730/95, 19 September 1996, unreported).
63. See Justices Act 1902 (NSW) s 122(1A).
64. Legal Aid Commission of NSW, Submission (18 July 1996) at 7; Law Society of NSW, Submission (19 July 1996) at 30.
65. Community Service Orders Act 1979 (NSW) s 23-25.
66. See Legal Aid Commission of NSW, Submission (27 September 1996) at 2.
67. Periodic Detention of Prisoners Act 1981 (NSW) s 27.
68. Office of the Director of Public Prosecutions, Consultation (19 August 1996); Forbes Chambers, Consultation (13 August 1996).
69. See R v Sadebath (1992) 16 MVR 138 (NSW CCA) at 141-142 per Allen J.
70. Forbes Chambers, Consultation (13 August 1996).
71. Office of the Director of Public Prosecutions, Consultation (19 August 1996). Although the court has a discretion to set a minimum term, if the unexpired portion is less than six months, the offender must spend the entire term in full-time custody: Periodic Detention of Prisoners Act 1981 (NSW) s 27(4). Section 27(4) has been amended recently by the Periodic Detention of Prisoners Amendment Act 1996 Sch 1 [21] to give the court an additional power to make any order, such as a community service order, it considers appropriate. This provision does not appear to extend the power of the court to impose a term of imprisonment shorter than the unexpired portion of the periodic detention order where the court considers this to be appropriate.
72. R v Somerville (1995) 36 NSWLR 184; R v Mikas (1996) 85 A Crim R 34 (NSW CCA) at 36-37 per Hunt CJ at CL.
73. The Periodic Detention of Prisoners Amendment Bill 1995 originally included a provision that sought simply to declare the existing law in relation to rights of appeal following cancellation. In particular, it sought to remove any doubt as to whether there is a right of appeal to the District Court from cancellation by a Local Court: see Periodic Detention of Prisoners Amendment Bill 1995 Sch 1 [23] and Explanatory Note at 8. The Bill was later amended and this provision has been removed from the Periodic Detention of Prisoners Amendment Act 1996 for further redrafting: see New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 6 June 1996 at 2704.
74. See R v Mikas at 37 per Hunt CJ at CL. The Criminal Appeal Act 1912 (NSW) s 5 gives the Court of Criminal Appeal jurisdiction to grant leave to appeal against a sentence passed following a conviction on indictment. “Sentence” is defined in s 2 of that Act to include an order made by the court of trial. Under s 24 of the Periodic Detention of Prisoners Act 1981 (NSW), a periodic detention order must be cancelled if the periodic detainee is subsequently convicted of another offence. The jurisdictional problem arises where the court that cancels the order on conviction for another offence is not the same court that made the periodic detention order. This does not then amount to an order made by the court of trial that imposed the periodic detention order and so does not come within the definition of “sentence” so as to permit the Court of Criminal Appeal to hear an appeal from the cancellation.
75. Periodic Detention of Prisoners Act 1981 (NSW) s 27(4).
76. Indeed, there has been some dispute in the past as to the scope of the powers to appeal deemed to exist under s 26 of the Community Service Orders Act 1979 (NSW): see R v Gaudry (1987) 8 NSWLR 503.
77. See para 6.29.
78. R v Mikas at 47-48 per Hunt CJ at CL.
79. The Department of Corrective Services does in fact have a policy of crediting time spent in full-time custody during the actual detention period (that is, generally, the weekend) to the periodic detention order, but does not give credit for the time spent in custody between detention periods. It does not appear that the Department’s existing policy has any legislative base: see R v Mikas at 47 per Hunt CJ at CL.
80. Periodic Detention of Prisoners Act 1981 (NSW) s 21(1).
81. For example, in R v Mikas, the defendant had served several months in full-time custody while awaiting the hearing of his appeal against cancellation of the periodic detention order.
82. See R v Sadebath (1992) 16 MVR 138 at 141-2 per Allen J.
83. See R v Mikas at 47 per Hunt CJ at CL.
84. See DP 33 at paras 8.14-8.18.
85. From 1 January 1996 to 30 June 1996, approximately 548 periodic detainees applied for progression to Stage II. Of these, approximately 168 applications were refused: Department of Corrective Services, Submission (12 December 1996) at 2.
86. See Charter of the Periodic Detention Review Committee in Department of Corrective Services, Submission (12 December 1996) at 4-5.
87. DP 33 at paras 8.15-8.18.
88. See Law Society of NSW, Submission (19 July 1996) at 29 and 32; Legal Aid Commission of NSW, Submission (18 July 1996) at 12-13; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 24; Department of Corrective Services, Submission (15 July 1996) at 20-21, (12 December 1996) at 1-2; N J H Milson, Submission (3 July 1996) at 8; M L Sides and Bar Association, Submission (24 June 1996) at 58; Forbes Chambers, Consultation (8 August 1996). In support of abolition of Stage II were W D T Ward, Submission (25 July 1996) at 16; J L Swanson, Submission (1 July 1996) at 2; N R Cowdery, Submission (17 June 1996) at 11; Confidential, Submission (22 May 1996) at 36.
89. Legal Aid Commission of NSW, Submission (18 July 1996) at 12; M L Sides and Bar Association, Submission (24 June 1996) at 59-60. The Department of Corrective Services did not oppose greater clarification of the legislative base for Stage II, although it believed that this would simply be a declaration of the existing law rather than an amendment to it: Department of Corrective Services, Consultation (26 July 1996); Department of Corrective Services, Submission (12 December 1996) at 2. There are indications that when the Periodic Detention of Prisoners Act 1981 was introduced, Parliament acknowledged the existence of the Stage II program in the legislation: see New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 27 November 1980 at 3902. However, subsequent decisions have suggested that there is no clear legislative basis for Stage II: see for example R v Hallocoglu (1992) 29 NSWLR 67 at 74.
90. The Department of Corrective Services has provided comparative figures for attendance rates of periodic detainees on Stage I and Stage II as evidence that Stage II is an incentive to attend: see Department of Corrective Services, Submission (12 December 1996) Table 1. According to these figures, the rate of attendance in Stage II is certainly significantly higher than the rate of attendance in Stage I: for example, in January 1995, 59.8% of periodic detainees on Stage I attended, compared with 95.3% of periodic detainees on Stage II who attended. However, given that regular attendance in Stage I is an important factor in the determination of progression to Stage II, it seems likely that the higher rate of attendance in Stage II is attributable to the fact that Stage II consists mostly of those offenders who have attended regularly in Stage I.
91. Information supplied by S D’Silva (19 August 1996).
92. As at 30 June 1996, there were 1,117 periodic detainees on Stage I and 401 periodic detainees on Stage II. If Stage II were discontinued, those 401 periodic detainees would have to be accommodated in periodic detention centres: see Department of Corrective Services, Submission (15 July 1996) at 20; (12 December 1996) at 1.
93. Legal Aid Commission of NSW, Submission (18 July 1996) at 12-13; Law Society of NSW, Submission (19 July 1996) at 32.
94. Views from members of the judiciary to this effect have been expressed in several cases, for example R v Potter (1994) 72 A Crim R 108 (NSW CCA) at 115, and R v Randall (NSW CCA, No 60826/93, 19 April 1994, unreported) at 6. The Senior Public Defender also referred to the reluctance of the judiciary to impose orders of periodic detention because they consider that Stage II involves an unacceptable degree of leniency: see M L Sides and Bar Association, Submission (24 June 1996) at 60.
95. M L Sides and Bar Association, Submission (24 June 1996) at 60.
96. See para 6.40.
