nc.or::t"\f1Wn MI\JU W I/"\ I .li:J I J.L,U U.L V .LW .LU!\l
".
.
Views on Periodic Detention of Prisoners in N,S, W,
A study of attitudes of Judges and Magistrates
NEW SOUTH WALES DEPARTMENT OF CORRECTIVE SERVICES
1111111111111111111111111111111111111111111111111111111111111111
Page
A,
SUMMARY OF FINDINGS
8,
lvETHODDLDGY
c.
> '
3
1.
Nature of ·Study
4
2.
Description of Respondents
4
(a)
1\iumbor of respondents
4
(b)
Court of current sitting
4
(c)
Years of experience
5
RESULTS
3.
4,
Utilization of Periodic Detention
6
(a)
1\llmber of respondents who have sentenced to Periodic Detention
6
(b)
Types of cases in which Periodic Detention is utilized
6
(c)
Reasons for not sentencing to Periodic Detention
7
(d)
Attitudes to utilization of Periodic Detention
7
'
Usefulness of Periodic Detention
9
Views on usefulness of Periodic Detention as a sentencing measure
5.
Amendments to Periodic Detention of Prisoners Act (1970)
I.
II.
General
(a]
Number of respondents desiring amendments
10
(b)
Nature of amendments suggested
11
(c)
Reasons for amendments
12
Specific
(a)
(b)
D.
1D
APPENDICES
Amendments to length of sentence imposed by way of Periodic Detention 13
Amendments concerning residential nature of Periodic Detention
14
16
A,
SUMivV\RY OF FINDINGS
1.
Of the 75 respondents, 21 (2Bio) have sentenced offenders to Periodic Detention.
2.
Periodj,c Detention has been applied most Frequently by respondents in driving
offences; particularly when alcohol was involved.
3.
For the 54 respondents who had not sentenced offenders to Periodic Detention,
51 refrained from inability rather than disinclination to usB the Act and 46 stated
that they would usB this measure iF given the opportunity.
·4.
5.·
Two respondents felt that Periodic Detention was not a useful sentencing measure.
Almost half the respondents advocated amendments to the Act-specifically:
> •
That Section 3('1) -specifying sentence length between 3 and 12 months
inclusive - be widened .
. (i:i.)
5,
That Section 3(2)0 - disqualifying oFfenders with previous prison sentences
greater than one month - be abolished or provisions widened.
(iii)
That remission provisions be incorporated.
(iv)
That the jurisdiction of the Act be extended to all courts.
Over two thirds of the respondents advocated the introduction oF a non-residential
Periodic Detention programme in addition to the present s:::herne: only three
respondents suggested that such a programme be substituted For the present scheme.
8,
MoTHODOLOGY
1.
~ure
of
s~y
Q.Jes tio,nnaires designed to elicit objective appraisals of Periodic Detention were
distributed ty mail on 28th fl,ugust, 1973 to District Court Judges, Supreme Court
Judges and Stipendiary Magistrates of the Petty Sessions Branch. Confidential
replies were received by mail during the following three months from individual
respondents. Judges of the District Court, Sydney, collaborated in furnishing a
joint submission which was forwarded by J,H, Staunton, Chief Judge, on 4th December,
1973.
> •
(a)
~Vn~£ of respondent~
Total number of questionnaires issued:
149
Total number of questionnaires completed:
75
The respondents represented a 50,3')1, sample of all judges and stipendiary
magistrates.
(b)
Ccurt of current sitting
Nature of court
Total judges/
ma!')is!rates
Number of
respondents
Petty Sessions
88
57
District Court
26
9
Supreme Court
35
9
-
')/, of judges/
magistrates for
that aroup
64.8
'
34.6
25.7
An excellent response was obtained from almost two-thirds of all stipendiary
magistrates si tb.ng in Courts of Petty Sessions.
Proportionally fewer responses were obtained from individual District Court
Judges although a joint sutmission was also received from Sydney District
Court Judges. It is assumed that the individual respondents were not represented
in the joint submission.
It is encouraging to note that just over one-quarter of all Supreme Court
Judges responded to the survey, despite their very limited capacity to make use
of the provisions of the Periodic Detention of Prisoners Act.
'
.
-----
y ears of
ex per2;ence
-
'/o
1\\..lmber of
respondents
of all
r.:;:~2!2 dents
-
Under 5 years
24
32. 0
5 years and under
10 y ears
28
37. 3
10 yea rs and over
21
28. 0
Not st a ted
Total
--2
75
.
-
2. 7
• 100. 0
---The average Bench experience of all respondents was 6.9 years.
The sample covers a broad distribution of judges and magistrates in terms of
experience.
C.
RESULTS
(a)
Number of respond:;nts who have sentence:;!_ to Periodic Dptention
Of the 75 respondents, 21 (28%) have sentenced offenders to Periodio Detention.
Of these twenty-one, 15 (71.4%) were sitting in Courts of Petty Sessions and
6 (28.6~£) were sitting in District Courts.
(b)
Offences for which Feriodic Detention was_l_p£osed
Offences for which Periodic Detention was imposed by these twenty-one judges
and magistrates comprised:
> •
Driving offences, including drinking-driving .•••••.•.•.••.•••. 17 cases
Crimes of dishonesty (larceny, receiving, misappropriation) ...•
8
Drug offences ...••••••.••••.•..•• ~ ............................. .
4 cases
Carnal knovJledge ..•• , ......................................... .
2 cases
cases
••••·•••••••••••••••••••e•·~··••••···~·····
2
cases
Abortion .•••..•.••. ~ •.. ~~ •.• , . , •.•...•.•.. ~ •.••.••.......•.••..
1
case
Conspiracy •...••.•..••...•..•
1
case
Break, enter, steal
a ••••••• , ••••••••••••••••••••••••
Indecent exposure ..•.• , .••••..•••.
a . . . . . . . . . . . . . . . . . . . . , •••••••
Infringement of prison regulations (non-internee) .....••••••• ,
1 case
1
case
Total ..•.••• 37 cases
Almost half of the cases in which Periodic Detention was imposed by respondents
comprised driving offences and ten out of the seventeen cases involved alcohol.
The following reasons were given by 54 respondents who had not sentenced
of.fende:rs to Periodic Detention:
Reason
> •
~umber
o!_Respondsnts
Act not extended to court of past or current
sitting
41
No opportunity to use the Act because of
special nature of cases dealt with
10
Other measures seemed more appropriate
2
Periodic Detention not a useful measure
1
Total
54
Thus, 51 out of thr 54 respondents who had not used Periodic Detention as a
sentencing measure refrained through inability, :rather than disinclination to
use the Act.
(d)
Attitudes to utilization of Periodic Detention
Of the 54 respondents who had not used Periodic Detention:
46 asserted that they would use it if given the opportunity,
7 made no comment, and
1 stated that he would not use Periodic Detention.
The majority of respondents appear to favour the utilization of the Periodic
Detention of Prisoners Act, with a total of 67 :respondents who have used it or
would use it if given the opportunity.
Types of cases in which respondents would use Periodic Detention if given
the opportunity include:
Number
Type of c =
(i)
;
.
respOOdents
mentiCiri:rngcase1.
Offence specified
Driving/traffic offences
33
Larcenies and minor stealing
10
Assaults and malicious injury
4
Drug offences
2
Maintenance confinees
1
minor sex offences, drinking & good order offences
Other:
(ii)
3
Offender-type specified
Hoodlum types
2
Young offenders
2
First offenders
2
'Non-criminal' types
4
Any deserving types
4
~~round factors specified
(iii)
To avoid economic hardship
14
Good employment/study record
5
Good security risk
2
Compassionate factors
1
Other factors mentioned in considering imposition of Periodic Detention comprise:
severity of case, prospects of reform, danger to community if allowed weekend
detention only, desirability of compensation to be paid by offender and severity
of case requi1•ing gaol term but lengthy detention unwarranted.
1.
Many respondents mentioned more than one type of case.
4.
Usefulness of Periodic Oatantion
All but three respondents stated that Periodic Oetentj_on was useful or of limited
use. Replies were categorized according to VJhether respondents had actually
sentenced offenders to Periodic Detention (P.O.).
Ath'tude towards usefulness
----
Seen as useful
;
.
1
L::e~
seo
having
PmD ..
I
1\!~mber not
havinq ust,;:Lf .o.
Total
resp~ents
14
38
52
Seen as not 'useful
-
2
2
Seen as limited in use
7
13
20
No c omment
-
'i
1
-
Total
21
_L
54
-
I
75
f=our main reasons were given for the usefulness of Periodic Detention.
•.·
v
I.
To preserve family cohesion and eliminate unnecessary economic hardship on
the offender's family (35 respondents1)
II.
To provide an effective individual deterrent (22 respondents)
III.
To allow flexibility in sentencing (21 respondents)
IV.
To allow the offender to retain his employment ( 15 respondents)
Secondary reasons
wer-e: - -to
retain community contact, to produce less cost to
society, to act as a warning and reminder to the offender, to provide for rehabilitation, to act as a community deterrent, to be a humane sentence allowing the
offender to retain his dignity, to allow the offender to pay compensation to the
victim,
1.
Msnv resoondents mentioned more than one reason.
Factors specified by the twenty respondents who stated that Periodic Detention is
limited in its use are:
\•
I.
The general restrictions in terms of sex, background etc. on offender to be
sentenced.
II.
The length of sentence which may be imposed.
III.
The laek of aeeommodation available.
IV.
The deterrent effect of Periodic Detention is limited.
Other reasons include its restriction to certain courts, lack of research into its
effects, the sharp contrast between Periodic Detention and gaol and difficulties
'
associated
with the administration of the programme.
.
" ..
~
--
Amendments to Periodic Detention of Prisoners Act
(a)
Number of responden~-E~~~ amenp~
Number having
used P.O.
Comments
AmendmBnts advocated
No amendments
advocated
No comment
Total
-
Number not
having used P.Ds
Total
respondents
16
20
36
4
31
35
1
3
4
2•]
54
75
'
Respondents were e·Jenly divided in their attitude towards the desirability of
amendment.
Of those respondents who had used Periodic Detention as a sentencing measure,
almost BO)i, advocated amendments.
Four areas of amendment were advocated most frequently:
(1)
That the ~revisions of Section 3(1) specifying the length of sentence
of Periodic Detention as not less than three months or more than
twelve mor.ths be widened.
(2)
That Section3(2 )( c )limiting Periodic Detention to offenders who had
not previously served a term of imprisonment for more than one month
be abolished or its provisions widened.
(3)
That remission provisions for good behaviour be incorporated into the
Act.
(4)
That the jurisdiction of the Act be extended to all District and
Petty Sessions Courts.
> •
Other amendments which were suggested comprised:
- That Section 3(2)(a), limiting Periodic Detention to males, be abolished.
That more flexible provisions be made for the date of commencement of
sentence.
That the court be empowered to enforce conditions such as remaining in
current employment, submission to supervision by the Adult Probation Service
etc.
That detention ccmrnence at 8 a.m. on Saturday morning.
That parole be added as a condition of the Periodic Detention order.
That a portion of the sentence be suspended after an initial term of
successful Periodic Detention.
That the Act be repealed.
Thst greater sanctions be available for breaches without resort to a
court order.
That the age limit for Periodic Detention be reduced to 16 years.
That non-compliance result in full tirne imprisonment of lesser duration
than the balance of the Periodic Detention order,
That counselling be provided for offenders sentenced to Periodic Detention,
(c)
Reasons for amendments
Amendment
Reasons given
-
Section 3( 1)
widen length of
sentence to be
imposed.
The present length of sentence is too long.
Widening would bring it more within the range of
sentences imposed by summary courts.
It would provide greater flexibility.
In some cases a short term would achieve the objectives
and thereafter the value decreases.
It would rr;ake greater use of punishment by detention
than loss of income by fine
--r--
> •
Section 3(2)(c)
abolish previous
imprisonment of
one month or more
.as disqualification
Remission
Extended
jurisdiction
Other
amendments
-
To permit mere use of Periodic Detention for second
offendcors.
To provide greater flexibility for courts.
To include persons who, by lapse of time, reform etc.
may be suitable
-
-
To encourage better behaviour.
To provide an attitude mere conducive to reform.
Remission applies to other gaol sentences.
-1
--
In country courts it would have a deterrent effect on
the w:ole community.
.
To allow the judge the better to meet the whole case.
-
II. Specific
(a)
Amendments to length of sentence imposed by :!!,BY of Periodic Detention
l
Number
Number not
Total
having used having used
respondents
P .0.
___l'..: D.
Comment
Variation in sentence length
advocated
No variation in sentence length
advocated
9
> '
~Jo
-
comment
Total
22
34
-~- I
37
12
_L
21
54
I -
4
75
Of the 34 respondents who advocated variation in sentence length, 30 advocated
a change in the mininum sentence and 8 advocated a change in the maximum
sentence.
fhanges in minimum sentence
r-...umber advocating change
Reduce minimum to 2 months
Reduce minimum to 6 wGeks
Reduce minimum to 1 month
2
!
2
15
Reduce minimum (nature unspecified)
6
Abolish minimum
6
Total
30
Reduce maximum to 6 months
2
Increase maximum to 18 months
1
Increase maximum to 2 years
3
Extend maximum
1
Leave to discretion of court
Total
> '
(b)
8
~~nts co..ocernin_g the residential nature D~£i.£dic Detention
Only three respondents suggested that a non-residential weekend detention
programme be substituted for the present scheme.
-
I
I
-~
Substitute
-Non-residential programme as
substitute advocated
Not advocated
No comment
I
--
Total
---
-bber jNumber not T
Total
having used having used!
P .D,
P ,0,
!respondents
..,
I
1
2
20
45
-
•7
7
21
54
75
-
I
3
65
Over two-thirds of the respondents suggested that a non-residential
programme be introduced in addition to the present scheme.
--
-
Number not
""''"" '"""f""" '"""
16
36
52
Not advocated
5
10
15
No comment
-
8
8
Total
21
54
75
Non-residential programma as
addition advocated
P.O.
__
Total
__ r~spondents
-
_
-
P,O,
Addition
> •
I-
~umber
APPENDIX 1.
Submission of Judges,
Qist~
Court §Ldnez
Their Honours the Judges of this Court have received from the Commissioner of Corrective
Services a questionnaire seeking information relative to the operation of the Periodic Detention
of Prisoners Jl.ct, 1970. In particular, individual Judges were requested to suggest, should
they see fit, possible amendments to the legislation to accord with their individual views.
Howevsr, on consideration, a substantial number of Judges felt that the better course might be
to attempt to obtain the views of the ,Judges generally and, after discussion and consideration
of the problems involved, to have these conveyed to you. To this end, the Sentencing Committee
~f •the Judges of this Court communicated with all the Judges suggested amendments to the Act
and invited agreement or ·disagreement or comment as to whether these or other amendments were
considered desirable.
11
> •
There is a feeling among a substantial number of Judges that the provisions of the Act are
too limiting to permit an extensive or even regular application and, thus, the opportunity to
consider amejldments to the Act has been welcomed and has lead to detailed discussion among
members of this Bench.
The amendments suggested as a basis of consideration and discussion were as follows:1.
The limitation and availability to an individual in that he should only have served one
month imprisonment on a prior occasion should be extended to a period of either three or
six months.
2.
The minimum three months sentence should remain and the maximum of twelve months for such
a sentence should be increased to the upper limit of either eighteen months or two years
imprisonment.
3.
The sentencing Judge should be empowered to specify a non-parole period in accordance with
the provisions of the Parole of Prisoners Act.
4.
The system of remissions as_Jn__ the case of an ordinary sentence of imprisonment should be
applicable.
Following receipt of the views expressed both orally and in writing by a number of Judges,·
the Sentencing Committee then met and resolved that the following proposed amendment to the Act
be sought.
1.
That s.32(c) should be amended by deleting the words "1 month" and inserting in lieu
thereof the words "6 months".
2.
That the Act be amended to provide that a term of imprisonment should be not less than 3
months nor more than 2 years.
3,, That the sentencing Judge should be empowered to specify a non-parole period in accordance
with the provisions of the Parole of Prisonm"s Act, and such non-parole period to be served
by way of Periodic Detention,
> •
4.
A system' of remissions for good bP.haviours as in the case of an ordinary sentence shou.ld be
applicable.
The .Se~tencing Committee by reason of its Committee discussion and submissions of other
Judges arrived at this decision on the basis of the day to day problems encountered in sentencing
and, it is felt, an understanding of the reasons behind the desired amendments. It is considered
advisable that the reasoning behind the suggested amendments should be briefly dealt with.
1.
Section. 32(c) to be amended to delete the words "1 month" and insert in lieu thereof the
words "6 months 11 •
The individual offender in respect of whom the sentence of Periodic Detention is applied
appeal"S mainly to be either a first offender; or a person with Childrens Court convictions only
who appears in a higher Court for the first time; or a man who has had the benefit of a recognizance or suspended sentence. (The statistics in this regard are set out on page 4 of the
Statistical Report 1973). It is seldom, if ever, that a candidate for this sentence has served
a sentence of one month. He must, of course, in all respects be considered by the sentencing
Judge as worthy of the order that the sentence of imprisonment be served by way of Periodic
Detention. It is found on many occasions that an offender otherwise suitable for this type of
detention has previously been sentenced to a period of up to six months and served the effective
part of that sentence subject to remission for good behaviour. However, his conduct since the
sentence and to the time of the commission of the offence for which he then appears, may
demonstrate that he is a person in whom some confidence may be placed. Alternatively, as
envisaged in the thought behind the legislation initially, he may have settled into an emoloyment
or family situation which it is undesirable to disturb. Further, the previous sentence may
have been for a type of offence entirely different in nature, such that the offence for which he
is then being dealt does not represent a lapse into previous dishonest behaviour. For example,
the previous offence may have been one involving the driving of motor vehicles, whereas the
offence for which he appears may be or.e of dishonesty or vice versa.
The above examples are not intended to be exhaustive of the variety of circumstances which
occur in individual cases and appear, from time to time, to justify e sentence of Periodic
Qetention yet the limitation intervenes to disqualify the offender. In passing, it should be
me~,tioned that a familiar scene is the young man of eighteen who has served a sentence of more
than one month and has then entered on an apprenticeship or other source of education and employment who, subject to pressures, commits a further crime and is frequently felt to be an ideal
;type for thj.s type of sentence where, of course, a sentence ~s necessary.
In suggesting a previous sentence of six months it has been felt that some limitation of this
nature must,necessarily apply, bearing in mind the objects sought to be achieved by the legislature
when this· 1\ct was first introduced.
2.
\-
That the 1\ct be amended to provide that the term of imprisonment should be not less than three
months nor more than two years,
The Statistical Report in respect of Periodic Detention in New South Wales 1973 at page 4
discloses that there is a marked trend towar'ds longer sentences -"71% of the adult population
have been sentenced to nine months or over". The experience of .Judges of this jurisdiction appears
to confirm that sentences will continue to be in the order of nine to twelve months (this
submission, it should be pointed out, is concerned primarily with sentencing in the criminal
jurisdiction at first instance rather than in appeals from Magistrates). The reason for sentence
of that order appears to the Committee to ··be fairly clear on the following basis.
1\s the offender is one who falls within the category of individua1s to whom this form of
sentence is available, it is likely that the sentencing .Judge will deal with him by way of
recognizance with or without a fine, and supervision of the Probation and Parole Service. It
will be appreciated that Periodic Detention may only be considered after the Judge has determined
that a prison sentence must be imposed. Thus, it follows the offence being dealt with is a
serious offence and a significant term of imprisonment is necessary.
Further experience has shown
that in the serious type of offence the sentence must in some cases be one of up to two years
imprisonment. Unfortunately, of course, once the sentence is determined beyond twelve months
then an otherwise qualified individual is denied the benefit of Periodic Detention. Because he
is a man who, in many cases, has had little conflict with the law, his employment and family
background is often good. In this type of case the power to sentence to a period beyond twelve
months and up to two years together with the power to fix a non-pm"ole period appropriate to the
term, to be served by way of Periodic Detention would, in the view of the Judges of this
jurisdiction, be a justifiable and desirable extension of the provisions of this Act. The view
of Judges appears to be that in any sentence within the above category a twelve months non-parole
period would be the maximum specified.
' It will, of course, be appreciated that the adoption of recommendations 1 and 2 above would
considerably enlarge the category of offenders to whom the provisions of the Act may apply.
From the pDint of view of the sentencing Judge the availability of further avenues of sentence,
at< the time CiJf sentence, is felt to be very desirable and forms the basis of this submission,
It further appears that the adoptiDn of the second recomrrendation would necessarily invDlve
the adDption Df recommendations 3 and 4, For the sake Df clarity it is not suggested that an
individual· should at any time serve a sentence of PeriDdic Detention Df beyond twelve months,
3.
That the sentencing Judge be empowered to specify a non-parole period in accordance with the
provisions of the Parole or. Prisoners Act, and such non-parole period to be served by way of
Periodio Detention,
The advantage of supervision Df an offender after oDnviction has been well demonstrated.
Yet in the case of Periodic Detention it is felt the absence of supervision at times other than
the week-end is a severe draw-back. Further, that the absence of supervision after termination
of the term of Periodic Detention is also an unc:!esirable feature of the legislation. Again this
aspect has been dealt within the Statistical Report 1973 at page 7. The Commissioner of
Corrective Service has, in conferenoe, conveyed tD Judges of this Court the view that a sentence
of nine to twGlve mDnths Periodic Detention is a severe sentence. It is understood that this
view is accepted by the Commissioner and is formed after considering the views of persons who
have been subjeot to such a sentence. It is felt that the power to fix a sentence of up to two
years with the power to fix a
non~pa_role
period to be served by way of Periodic Detention would
serve two purpcses. Firstly, in the case of, say, a twelve months sentence, the fixing of a six
months non-parole period to be served by Periodic Detention wculd deal witil the aspect of the
severity of such a sentence all of which otherwise is to be served by way of Periodic Detention
and secondly would enable, after release, the supervision of the offender subject to parole
provlSlons. Necessarily, officers would require to be available to collect sufficient data
during the non-parole period to enable the Parole Eoard to deal with the question of parole at
the expiration of the time specifietl. It wGuld be necessary that in the event of breach of
parole leading to revocation, the balance of the term be served by way of ordinary imprisonment.
Whether recommendation 2 above is favoured or not the power to fix a non-parole period is sought
in respect of the present provisions of a sentence of up to twelve months imprisonment for the
reasons stated above. On the question of appropriate amendment to the Act, it may well be that
such provision would require also amendment of the Parole of Prisoners Act.
41
A system of remissions for good behaviour as in the case of an ordinary sentence should be
•applicable.
Apparently this question has been the subject of consideration and recommendation as
disclosed in, the Statistical Report, page 5, Obviously, this is a question of policy which will
be determined by the Government and it is included in this submission as it is felt necessary
should the availability of this type of sentence as suggested be extended, then the system of
remissions fQr good·behavious should necessarily follow. The existing provisions of the Periodic
Detention •of Prisoners Act appear to provide for such remissions in the event of cancellation of
the order imposing a sentence of Periodic Detention and any adoption of these recommendations
would, therefore, require an extension of ·these provisions to provide for remissions to be
available where parole is revo'<ed and the balance of the sentence ordered to be served and to
extend the provisions to the term served by way of Periodic Detention.
No attempt has been made in this submission to coal with the technical aspects of amendments
to any statute that may result from an adoption of these recommendations but rather a broad
approach has been adopted with a view to conveying to the Minister the views of a significant
number of Judges of this jurisdiction with regard to possible amendments.
There is some opinion among Judges that the limitation of the availability of this sentence
to pe.rticular Courts at times operates to the disadvantage of offenders who otherwise would be
suitable subjects for such a sentence. This situation does arise from time to time where an
offender is dealt with at, say, a country Court but is nevertheless a resident in Sydney. Some
exception might be considered appropl"iate to be incorporated in the legislation to cover this
type of situation. It is also the view of the Judges that administrative steps should be taken
to have available to the Judge at each relevant Court information as to the availability of
accommodation for Periodic Detention.
Finally, I should like to convey the views of some Judges.
(a)
that there should be no limitation on the power to impose Periodic Detention under
sub-section (1) of Section 3 of the Act; and
(b)
that the power to impose a fine under sub-section (3) of Section 3 of the Act should
include a power to order payment by instalments,"
Yours faithfully,
> •
J.H. STAUNTON
CHIE!:..;J~
,,
APPENDIX 2.
"I suggest tl}at consideration be given to making the following amendments to the Act:
1.
The minimum period of sentence to Periodic Detention be abolished.
2.
The prohibition against sentencing a person to Periodic Detention, where that person has
served one months continuous imprisonment ouGht to be deleted or modified.
3 .• Provision ougrt to be made for a Court to impcse a sentence of imprisonment and determine
> '
that a proportion of'that sentence be commenced immediately by way oF Periodic Detention.
The cxecutjon of the i:alance of the sentence ought to be suspended conditional upon the
prisoner; responding to the sentence of Periodic Detention. If the dffender does not respond
to the term of Periodic Detention he is to be brought back before the sentencing Court for
decision as to whether or not he serves the balance of the sentence by continuous imprisonment. If the ac!ministration considers he has adequately responded to Periodic Detention then
the offender should be released to serve the balance of the sentence as a suspended sentence.
I think the e.dministrative authority should be parmi tted to require him to accept supervision
from Parole Officers during the period if it thinks fit. During the period of the Periodic
Detel'ltion the authority ought to be able to determine the necessity for supervlslon. The
authority to decide supervision being given to the Administration ought to counter possible
problems of staffing such a parole service.
The first two propositions are directed towards Courts of Petty Sessions but the third
would have application to all Courts.
I am of the opinion that the present Statute limits the use of Periodic Detention in Courts
of Petty Sessions and I will set out some of my reasons very briefly.
The maximum sentences that may be imposed by Courts of Petty Sessions are usually 3 months,
6 months or 12 months (apart from the Prisons Act and a few others). In sentencing to Periodic
Detention it must be remembered _that circumstances can arise where the prisoner may be required
to serve the balance of the term by.continuous imprisonment. Applying the correct principles of
sentencing, it follows that the Courts will reserve the maximum sentence for the worst possible
case of that type of offence. It is not often that the Court will decide to inflict even half
the maximum sentence. The Court then takes into account mitigating factors, such as the defendanth
previous good character, and decides whether the sentence it has considered appropriate ought to
be reduced.
f
In cases v1here previous character does not tend to mitigate in a defendants favour
it is more often than not because he has prior convictions or has served a Prison sentence. If
these propositions are correct then it follows that in few cases carrying a maximum sentence of
three or six months; will the Court arrive at a figure of three months. Unless it does arrive
at this figure it is at present precluded from even considering Periodic Detention. In the
cases where it arrived at a figure.exceeding three months very often it will find that the
offender has served a senter:ce of imprisonmEnt of more than one month.
iV:ost offences where 12
months imprisonment can be imposed are under the Crimes Act 1900. The Court's summary or consent
indictable jurisdiction under that act is severely limited by the provisions in relation to
vc;lue of the property fraudulently etc. dealt with.
At first glance, it Seems reasonable to propose that a person who has served a continuous
period of imprisonment in the past would be unlikely to respond to Periodic Detention. If that
:;;entence did,not deter him then how will Periodic Detention, which is a more lenient way of
dealing with him, possibly deter of rehabilitate hiro? I have asked the question and I cannot
answer it. BJt there is another view that may be taken. A person who could be classified as a
criminal in t_:he past and who has served terms of' imprisonment might for several years manage to
stay out of trouble. Some attempt to rehabilitate himself is apparent. My e><perience as an
instructing officer with the Public Defenders and in Courts of Patty Sessions, is that Magistrates
just as much as Judges, will always look carefully at such a man before committing him back into
the prison system. A further r:hance just might complete his rehabilataticn. I am sure that the
fact that Periodic Detention could be awarded would be very useful to the Court, particularly
if some further period of sentence could be suspended. Even if the previous sentence of one
month were increased to three or six months, the Courts could make greater use of the provisions
of the present Act.
Periodic Detention became available at my Court in early July this year. I have quickly
taken out some figures, which I trust are accurate, and they may show just what USB I could have
made of Periodic Detention up to today, 1 'lth September, 1973. In that period I have sentenced
only 12 offenders to Gaol.
Details are:
Offence
1.
Assault female
Sentence
2 months HeLc
6 months HaL"'
12 months H.LII
6 months 1-L.La
Malic. injury
'
.
Maximum sentence
-~
2.
Carry cutting instrument
2 months H.L,
3.
Drive P,C,A,
Disqualified driver
2 months H.L.
4,
P,C,A,
, Disqualified driver
Breach recog,
3 months Holu
,Disqualified driver
1 month H,L.
6 months H.. Lc
5.
Each
6 months
Helu
6 months Ho;La
6 months Hall!
3 months
H.L.
H.L,
6.
Breach of recog.
9 months Hole
9 months
7,
Disqualified driver
1 month H,l,
6 months Halt
7 days H,L.
3 months H.Lo
8.
9.
·Unseemly words
Malicious injury
1 month H,U.
Trespass
10.
Unseemly words
Offensive behaviour
21 days H,L,
11.
Disqualified driver
1 month H.L,
12.
P,C,A,
Disqualified driver
12 months H.L.
3 months H.L.
Each'
3 months Hr. La
6, months HIILCl
Each
6 months
H~L~~
Only three sentences were 3 months or over. In case No. 4 the defendant was currently on a
suspended sentence of three months and on "breach of that Recognizance" I could not order Periodic
Detention, In case No. 6 it was again a suspended sentence. In case No. 12 the defendant had
previously served a sentence of 6 months H,L,
If the above details are correct, there has bBen little chance for me to use the provisions
of the pl'ssent statute, I could only do so by increasing the sentences I consider appropriate,
This I cannot do.
I admit that my comrnents up to this stage reflect my views as a ivlagistrate and do not take
into account the intentions of the Administration in introducing the scheme. I am mindful of
the counselling and supporti_ve asSistanco the scheme was intended to have. It may well be that
reduction of minimum periods may not be practical or considered advantageous to the prisoner.
I wish only to point out some of the difficulties a Magistrate encounters before he can even
turn his mind to the desirability of Periodic Detention in the case of a prisoner.
I did find Mrs. Dewdney's paper at the Road Safety and the Law Seminar interesting and
personaliy I feel that any scheme that can be introduced which widens the powers cf the Court,
~ifl s.o far aq how an offender may be dealt with, is progress in the right oirection.
I did direct
a question to her in regard to the minirrum period of three months and if memory serves me right
she indicated that there was some reason to note resentment in prisoners who had been ordered to
serve a fairlY, lengthy period of Periodic Detention, Perhaps there might be reason to look at the
minimum period both from the "Social Worker 1 s 11 point of view as well as the Magistrates.
I might indicate that any schema which could penni t periodic detainees to carry out work in
the comrrunity as well as receive counselling during the detention, would be most desirablsa
I am grateful for the opportunity to express my views and if I am wrong or have bver
emphasised the problems I look forward to being corrected."
<·
APPE,\JDIX 3.
Submission
bz
Supreme Court Judge
"I have your lBtter of 11th September, 1973 and I appreciate the purpose in mind in seeking
my views on Periodic Detention - you invite me to express any views on the matter in the broadest
of terms, whilst recognizing the reservattons about which I ~,,vrote to you.
I certainly hold the view that alternatives to the old fashioned system of locking an
offender behind walls and bars under unnatural conditions of confinement and stern discipline
ought at least to bG thoroughly tried.
The old fashioned syStem to my mind took insufficient account of classes of offenders and
classes of offence, and practically no account of personal hardship to an offender's family and
Pthers depenpent upon him for care or support.
I am certainly in favour of giving a complete trial over a substantial period to the system
of Periodic ()etention. Ona problom that wculd concern rne tvould be if the time during which the
Periodic Detention sentence opera_ted was too lor:g. Repeated interruption to an offender's
outside life over a long period of time could well constitute a greater punishment than if the
total detention v;as served ln a continuous stretch. For this reason I would be in favour of'
giving an offender who was a candidate for Periodic Detention the option of declining it in
favour of one continuous period of detention .
.f\s the purpose of detention has to be punishment and on some views represents an oppcrtuni ty
for an offender to pay a debt which he is presumed to owe to society by reason of his offence,
the question must arise as to the conditions which should operate during the detention periods,
Whilst deprivation of liberty is a punishment by Hself, I il!ould like to think that during the
periods oF dr.::;tention offenders were required to, perform scme non-degrd.ding work ~,,hich could be of
some value to the poor and the less fortunate members of our society. I would like to be able
to give numerous examples but I think that if the idea was acceptable there are ethers better
able to devise the kinds of work that could be cone. One obvious example would be the manufacture
of childrens toys for those with sufficient skill to perform that work.
As the concept of Periodic Detention involves the supposition that the offender is deserving
of special and milder treatment than others, it implies a good prospect of permanent reform. To
aid in achieving this prospect I would like to think that there was an opportunity for the
offender serving Periodic Detention to receive any special ccunselling that his particular needs
might require, such as psychiatric help or the advice of social workers and the like.
These observations postulate, apart from the provision of the facilities contemplated and
the cost of providing them, much versatility being given to the judge in the discretion vested
in him in prescribing the particular periods of detention and the conditions under which they
might be served.
So far as the cost of providing facilities is concerned 1 it would seem to me to be valuable
to vest in the court the power to require offenders who can afford it, to make some financial.
contribution to the costs of their detention, This could serve both as an incidental form of
punishment and as a reminder to the offender the_t he is required to accept some of the burden of
this privileged forrn of punishment which hj.s offence and his own particular position in life has
atbracted.
I suppose these ideas have already received consideration by yourself and your experts and
;I, fesl that ,I am probably not contributing anything new to your survey, but I felt that I would
like t.:J respond to your invitation to express my views. 11
APPENDIX 4.
11
Submission b.); one res2ondent
When sentencing any person, v1e have two basic aims.
(1) to change the defendant's attitude to acceptance of society standards,
or
(2) to ensure by detention that the opportunity to offend does not arise, until such time as
we feel that the defendant has reformed.
Periodic Detention has no application in the second aiM.
'
.
When dealing with airn ( 1) the following applies:-
At this stage we are dealing with a person
him comply with the standards of society:
(a) ~.,·hen he is under pressure,
whose personal standards
are not sufficient to make
or
(b) because of his normal attitude towards society,
that is to say, under class (a) the offence is out of character, or under class (b) the offence
is in character.
When we deal with him we do not know into which class he falls, and do not have this
indicated until such time as he returns to court after further offences.
If the person
with whom we are dealing falls within class (a), trlat is that he only breaks
down under pressure of some kind, we are hoping that the sentence, or promise of an increased
sentence for a further offence, will be sufficient to deter him in the future. Such a sentence
rr.ay be a fine, or short sentence, no longer than say six months, or possibly a recognizance,
depending on the severity of the breach. This type of person only thinks of crime at a time when
he is under pressure, and possibly a recognizance, for_him, is a bad thing, as it is a continual
reminder to him of criminal activities, even when he is not und2r pressure, and could easily have
the opposite effect to that desired, especially if there were stringent requirements of
reporting to police, or constnnt visits by probation officers, and could easily teach him to
become a member of class (b),the person who is continually thinking about criminal activities, or
who is preoCcupied by such thoughts.
A fi'le or short term of imprisonment, having the threat of a similar or increased sentence
for further broaches should only be a reminder to him when he is about to commit another offence,
and therefore would not be continually hanging over his head.
Most people expect punishment when detected for an offencs, and if they escape punishment,
loss respect fer society. Of course if the punishment is too severe 1 this has the same effect.
Periodic Detention is regarded by all as a rnore lenient punishment than a gaol sentence, and
more severe than a fine. To be effective it would therefore have to be given in instances (1)
where a fine had not proved effective, or (2) where an ordinary term of imprisonment appears
too h3:rsh, or would, because of the defendantt:; consequential loss of employment, have an effect
hot desired.
A long term of Periodic Detention could very easily have the extreme effect as described in
~"~:the. instancp of recognizances, and could easily transform a person t~rom class (a) to Class (b).
Class (b) includc:;s the type cf person whose thoughts ure predominatly cr;nt~ed round crimina~
activities of e:i.t:her dishonest, sexual, violent, or destructive nature. A reformation of this
type of p,erson can only be obtained through maturity, or a realization that the criminal activity
is uneconomical. Thesn are
answer, to ensure that they
interest, and to :i.mpress on
or to allow them to mature,
the regular offenders, for whom custodial treatment is the only
do not offend. Long terms of imprisonment are imposed in the public
them the failure of their ventures, either economically, or socially,
in the cases of violence or sexual offences.
Periodic sentences would be useless for these persons, and would only assist in covering
up other activities.
I therefore feel that Periodic Sentences would only sel"'\Je a useful purpose if imposed on
first offenders, or where a fine has not had the desired effect, and that if a lengthy sentence,
say over 4 months, were imposed, it could easily have the effect of turning a potentially
reformable person into a confirmed criminal5
I can se~e its very practical use when dealing with maintenance confinees. "
1\PPENDIX 5.
'I.
Other comments
I would sentGnce to Pe<r:Lodic Detention where ger.er'al deterrent outweighs individual deterrent
but not to the full hilt i.e. a compromise situation where the individual experiences
hardships but it is necessary for the courts to show that they mean the business of sentencing.
2.
I am unwilling to sentence to Periodic Detention as many deserving of imprisonment could not
be relied upon to be their own gsoler.
3; •Periodic Detention is applicable to very limited types of persons and offences where "loss of
facs 11 is more of a pui1ishment thsn "loss of freedom'' .
.;;."
I suggesj: the imple~tentation of the system in country lock-ups and police stations with the
addition of non-residEntial programmes to giva maximum flexibility.
5.
Not enough information is given to ssntencers as to the type, location and amount of work
done by Periodic Detainees. This gives the impression that apart from the deprivation aspect
it is more of a holiday than a sentence.
6.
If practicable the sentenci.ng authority should be infm"med of the result en the offender at
the er,d of his sentence.
7.
I suggest it be kept before the stipendiary magistrates' minds by a monthly memo indicating
the amount of accommodation available.
8.
Possibly some incentive could te given in the nature of remissions by giving a -Free weekend
after a specified period: this could assist rehabilitation and tE«>d to reduce breaches.
9.
In appropriate cases provision should be made for counselling and retraining in social
attitudes.