“Community Safety” to be introduced as paramount sentencing consideration

Posted by Justin Wong on 12 October 2017

Yesterday, significant sentencing reforms were introduced into the NSW Parliament. Part of the ‘Safety First” justice reforms, the reforms include abolishing suspended jail sentences and home detention orders, replacing these with a more expansive Intensive Correction Order.

The New Intensive Corrections Order (ICO)

An ICO can be imposed if a court determines that an offender must be sentenced to imprisonment, but then decides that the sentence can be served in the community under conditions.

Under the new reforms, these conditions can include home detention, electronic monitoring, community service, rehabilitation programs and treatment, and abstaining from alcohol or drugs.

Community Safety Paramount – the new Section 66

Significantly, the new laws propose a new section 66, which states that “community safety must be the paramount consideration when a sentencing court is deciding whether to make an ICO”.

What this effectively means that if a court is weighing up any alternatives to full-time custody, they will have to take into account this consideration.

Interestingly, section 66(2) explicitly states that when considering community safety, the court is to assess whether serving a full-time jail sentence is more likely to address the offenders’ risk of re-offending. 

Risk of Re-offending

For most offenders, it is difficult to conceive of a case where sentencing an offender to prison is more likely to address their risk of re-offending.

In a timely release today, the NSW Bureau of Crime Statistics and Research found an overwhelming 11%-31% reduction in the odds of re-offending of offenders who served an ICO compared with offenders who received a full-time prison sentence.

Earlier research by the Bureau found that 20.4% of adults who received a penalty other than prison were re-convicted of another offence within 12 months. This is compared to a staggering 41% of those who received a prison sentence.

How will this work?

If the final bill passes in this form, it will be interesting to see how the courts interpret this “paramount consideration’ of community safety with other established sentencing principles, including section 3A of the Crimes (Sentencing Procedure) Act 1999.

However, just as uncertain is how the ‘risk of re-offending’ will be taken into account under section 66(2), and what evidence courts will accept in making this assessment.

Justin Wong