LEGISLATIVE FRAMEWORK FOR THE USE OF IMPRISONMENT
Imprisonment is the most common sentence prescribed by statute for serious offences, usually expressed in terms of a maximum finite period that can be imposed. There are two indefinite sentences of imprisonment. One is life imprisonment, which is the mandatory penalty for murder (s172 of the Crimes Act 1961) and the maximum penalty for a number of offences including manslaughter (s177 of the Crimes Act), for dealing in class A drugs (s6(2) of the Misuse of Drugs Act 1975), for treason (s74 of the Crimes Act), and for hijacking an aircraft (s3 of the Aviation Crimes Act 1972). The other is preventive detention, which is mainly for repeat sexual and violent offenders (s75 of the Criminal Justice Act 1985). The longest maximum finite term of imprisonment is one of 20 years for sexual violation. Within the maxima, lesser terms of imprisonment may be imposed, unless a minimum sentence is expressly provided for (s72 of the Criminal Justice Act). Currently there are no such minimum periods specified in legislation.
Where an offender is convicted of an offence punishable by imprisonment the court may impose a non-custodial sentence such as a fine, reparation, or a community-based sentence instead, although some community-based sentences - community programme and community service - require the consent of the offender. There is also a custodial sentence of corrective training for offenders aged 16 to 19 years who are convicted of an offence punishable by 3 or more months' imprisonment. It is for a fixed period of 3 months (s68 Criminal Justice Act).
The courts also have a number of dispositions available to them which do not involve the imposition of any sentence. Unless a minimum or mandatory penalty is prescribed for the offence a court, instead of passing sentence, may convict and discharge the offender (s20 Criminal Justice Act), or discharge without conviction any offender who is found guilty or pleads guilty to an offence (s19 Criminal Justice Act). Also, instead of passing sentence a court may, following the entry of a conviction, order an offender to come up for sentence if called upon within a specified period, not exceeding one year from the date of conviction (s21). Such an order may be combined with an order for costs or restitution. No other conditions may be imposed.
By virtue of section 21A of the Criminal Justice Act, inserted in 1993, a prison sentence of between 6 months and 2 years may be suspended for a period not exceeding 2 years. Such an order can only be made if the court would otherwise have sentenced the offender to imprisonment. The length of the suspended sentence should be the same as the length of the prison sentence that would otherwise have been imposed. If the offender is convicted of a further offence during the period of suspension, there is a presumption that the suspended sentence should be activated. However, if the court determines that it would be unjust to do so, it may substitute a lesser term of imprisonment, or cancel the suspended sentence and, if appropriate, replace it with any other non-custodial sentence that could have been imposed for the original offence. (footnote 26) The power to suspend sentences was clearly designed to effect a reduction in the numbers being sent to prison. The suspended sentence may be imposed concurrently with either any one kind of community-based sentence or the combination of the sentences of periodic detention and supervision (s13(4)). A suspended sentence may not be cumulative on any other sentence, and no other sentence may be cumulative on it. (footnote 27)
The use of imprisonment is governed by the presumptions contained in sections 5, 6 and 7 of the Criminal Justice Act 1985. These are:
- that violent offenders are to be imprisoned except in special circumstances [violent offenders are those convicted of an offence punishable by 2 or more years imprisonment and who either (i) used serious violence against, or caused serious danger to the safety of, another person, or (ii) used violence or caused danger and have a previous conviction within the previous 2 years for a similar offence punishable by 2 or more years imprisonment] (s5);
- that people convicted of property offences punishable by 7 years imprisonment or less should not be imprisoned, except in special circumstances (s6);
- that the courts should have regard to the desirability of keeping offenders in the community, and that any term of imprisonment should be as short as is consonant with promoting the safety of the community (s7).
In addition, prison may not be imposed upon those aged under 16 years unless it is for a purely indictable offence (footnote 28) (s8); imprisonment cannot be imposed where a person has not been legally represented except where they have refused representation (s10); and custodial sentences may be imposed where the court is satisfied that the offender is unlikely to comply with other sentences (s9). It should be noted that the legislation specifies that section 9 applies even to section 6 offences.
Legislation also contains a presumption either in favour of or against imprisonment in a number of specific instances, namely:
- under section 5A of the Criminal Justice Act, where an offender is convicted of a violent offence carrying a maximum term of imprisonment of 2 years or more, which was committed while the offender was on bail or remanded at large for an earlier violent offence, the court must impose a custodial sentence unless there are special circumstances;
- under the Crimes Act 1961, an offender convicted of sexual violation must be sentenced to imprisonment unless, having regard to the particular circumstances of the offence or of the offender, the court is of the opinion that the offender should not be so sentenced (s128B);
- where an offender is convicted of a second offence within 2 years of possession of a knife or offensive weapon or disabling substance either in a public place or in any circumstances which prima facie show an intention to use it, the court must impose a full-time custodial sentence unless there are special circumstances (s202BA Crimes Act);
- under the Misuse of Drugs Act 1975, where a person is convicted of dealing with a Class A controlled drug the court must impose a custodial offence unless, having regard to the particular circumstances of the offence or of the offender, including the age of the offender if he or she is under 20 years of age, the court is of the opinion that there should not be such a sentence (s6(4));
- where a person is convicted of possession or use of only a Class C drug the court must not impose a custodial sentence unless, by reason of the offender's previous convictions or any exceptional circumstances, the court considers otherwise (Misuse of Drugs Act, s7(2)).
Under the Criminal Justice Act a prison sentence of 12 months or less may be combined with a cumulative sentence of periodic detention (s39), community service (s30), supervision (s47), or a community programme (s55), provided that any such community-based sentence must be completed within 12 months from its commencement. Section 8A directs that a mixed sentence must not be imposed if the court would not have imposed a sentence of imprisonment in the first place and that the total duration of the combined sentences must not exceed the term of imprisonment that would otherwise have been imposed for that offence. The purpose of this power to combine community-based sentences and short terms of imprisonment, introduced in 1993, was to shorten the length of imprisonment terms being imposed by the courts.
Provisions regarding parole and final release dates (subject to the inmate not having committed an offence against discipline as defined in the Penal Institutions Act 1954) are set out in Part VI of the Criminal Justice Act. In summary:
- offenders sentenced to a term of imprisonment of 12 months or less are not eligible for parole but must be released after serving one half of their sentence (s90(1)(a));
- offenders convicted of offences other than serious violent offences (footnote 29) and sentenced to prison terms of more than 12 months are eligible for parole after serving one-third of their sentence (s89(3)) and must be released after the expiry of two-thirds of the sentence (s90(1)(b));
- offenders sentenced for a serious violent offence are not eligible for parole unless sentenced to a term of 15 years or more when they are eligible for parole after 10 years (s89(7) and s89(4));
- offenders sentenced for a serious violent offence are to be released after two thirds of the sentence has been served unless a longer minimum period is imposed, (footnote 30) such minimum period not to exceed ten years or a period ending 3 months before the sentence expiry date, whichever is the lesser (s90(1)(d) and s80);
- corrective trainees serve 2 months of a 3 month sentence(s90(1)(c));
- those receiving life sentences and preventive detention are eligible for release on parole after 10 years imprisonment unless an extended minimum non-parole period has been imposed, (footnote 31) in which case the offender is eligible for parole after the period specified in the order (s80(1) and s89(1));
- the Parole Board may, following application from the Chief Executive of the Department of Corrections, order the postponement of an offender's release until 3 months before the end of the nominal sentence. The Parole Board may only make the order if satisfied that the inmate, if released, would be likely to commit a specified offence between the normal date of release and the applicable release date. The specified offences include murder, attempted murder, serious sexual offences, and serious wounding offences. An order must be reviewed every 6 months, and the Board may revoke the order and impose conditions to which the offender is subject on release (section 105);
- an offender sentenced to a term of imprisonment of ten years or more for a drug dealing offence may be required by the court to serve a minimum period not exceeding 7 years. Where the offender is sentenced to a term of less than 10 years for a drug dealing offence, the court may specify a non-parole period not exceeding seven-tenths of the term (s47 Misuse of Drugs Amendment Act 1978).
There are also provisions for the early release of inmates for special reasons such as the birth of a child, undertaking an educational course, or a serious illness (s94 Criminal Justice Act).
Offenders serving a sentence of imprisonment of more than 12 months, not being an indeterminate sentence or a sentence in respect of a serious violent offence, who are eligible for release on parole may be released to home detention (s103 Criminal Justice Act). A Criminal Justice Amendment Bill currently before the House provides for home detention as a way of serving all or part of a sentence of up to 2 years, and for release to home detention 3 months before the parole eligibility date for offenders who are serving sentences of 2 years or more for an offence other than a serious violent offence.
Children (aged under 14) and young people (aged 14 to 16 inclusive) who offend are dealt with under the provisions of the Children, Young Persons, and Their Families Act 1989. Some of the sentences which can be imposed in the Youth Court once a charge against a young offender has been proved differ from those which can be imposed in the District or High Court. The Youth Court cannot impose the Criminal Justice Act community-based sentences, or custodial sentences. These can only be imposed in the District or High Court. Young offenders can be transferred to the District Court for sentencing once a case has been proved in the Youth Court. For certain offences, young offenders may, after a preliminary hearing in the Youth Court, be tried in the District Court or High Court. If a case is finalised in the District or High Court then any of the full range of penalties available to these courts can be imposed on the young person.
The bulk of the cases involving offending by young people are dealt with under the Children, Young Persons, and Their Families Act by means other than formal court proceedings (e.g. family group conferences).
The Statutes Amendment Bill (No 2) which became law on 3 June 1998 included a provision which allows the court to make no order with respect to a suspended sentence upon the reappearance of an offender within the activation period.
Purely indictable offences are typically the more serious criminal offences under the Crimes Act 1961 and the Misuse of Drugs Act 1975. Section 8(2) of the Criminal Justice Act provides that a purely indictable offence is any indictable offence within the meaning of section 2 of the Summary Proceedings Act 1957, other than an offence for which, by virtue of section 6 of that Act, proceedings may be taken in a summary way.
A serious violent offence is defined in section 2 of the Criminal Justice Act as being an offence against specified provisions in the Crimes Act 1961 in respect of which a sentence of more than 2 years imprisonment is imposed. The provisions are:
section 128 (sexual violation)
section 171 (manslaughter)
section 173 (attempt to murder)
section 188(1) (wounding with intent to cause grievous bodily harm)
section 188(2) (wounding with intent to injure)
section 189(1) (injuring with intent to cause grievous bodily harm)
section 189(2) (injuring with intent to injure)
section 198A (using a firearm against a law enforcement officer, etc)
section 198B (commission of crime with a firearm)
section 234 (robbery)
section 235 (aggravated robbery).