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OF NEW SOUTH WALES Periodic Detention Revisited STOP PRESS I~ . ~ ~l ~ . t , ~ . ~ le. .: .• lo ! ;;;:::· JUDICIAL COMMISSION 11:: ll:liff::: OF NEW SOUTH WALES Periodic Detention Revisited STOP PRESS Prior to publication, a copy of this monograph was made available to the New South Wales Department of Corrective Services, a key agency responsible for administering the periodic detention scheme. On 26 May 1998 the Periodic Detention of Prisoners Amendment Bill 1998 was introduced into the New South Wales Parliament. It proposes to amend the Periodic Detention ofPrisoners Act 1981 (NSW) ("the Act'') in a number of ways consistent with the tenor of this monograph. The main reforms seek to - • introduce criteria for determining suitability for periodic detention m suitability reports prepared by probation and parole officers; • require offenders to sign an undertaking prior to sentencing that they will comply with the requirements of the Act and Regulations; • require courts to set a minimum and additional term or a fixed term of imprisonment before making an order for periodic detention; • transfer the responsibility for cancelling periodic detention orders from the courts to the Parole Board; • require prompt lodgment of formal leave applications. Time missed as a result of late reporting is to be aggregated and served as part of an additional detention period; • lift the restriction on ordering periodic detention for sentences of less than three months imprisonment. Periodic Detention Revisited Ivan Potas BA LLM (ANU) Research Director Judicial Commission ofNew South Wales Natalie Marsic BA LLB (UNSW) LLM (Tiibingen) Research ()jjicer Judicial Commission ofNew South Wales Stephen Cumines BA (Hons) (Syd) Principal Research ()jjicer Judicial Commission ofNew South Wales :.i!L:;· Judicial Commission of New South Wales Published in Sydney by - Judicial Commission of New South Wales Level 5, 301 George Street Sydney NSW 2000 GPO Box 3634 Sydney NSW 2001 I J National Library of Australia ISBN 0 7313 5601 2 ©Judicial Commission of New South Wales 1998 This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under, the C<tpyright Act 1986 (Cth) no part of it may in any form or by any means (electronic, mechanical, micro-copying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquiries should be addressed to the publisher. Cover design - Lynda Christie Typeset in Galliard 12/16pt by Rebecca Young and Katie Walker-Smith Index - Caroline Colton Production editor - Helen Deans Printer - Bloxham & Chambers Pty Ltd Contents Table of Cases vii Table ofStatutes viii Acknowledgements x Executive Summary xi 1 Introduction ( 1) Generally 1 (2) The legislative scheme 3 (a) Leave of absence 4 (b) Cancellation of orders 6 (c) Widening the scope 6 2 Purpose of Periodic Detention as a Sentencing Option (1) Aims 9 (2) Costs, financial benefits and the work programme 10 3 Attitudes to Periodic Detention (1) Media 13 (2) Judiciary 17 ( 3) Legislature 20 (4} New South Wales Law Reform Commission 20 4 Net-widening ( 1) Generally 21 (2) Introduction of home detention in New South Wales 24 ( 3) Use of periodic detention as a sentencing option 26 (4) Political climate 27 ( 5) Conclusion 28 5 Stage II - Non-residential Stage of Programme 31 6 Non-attendance ( 1) Generally 35 (2) The two approaches to non-attendance 36 (a) Suitability of offenders 36 (b) Administrative action 38 ( 3) Conclusion 39 7 Cancellation orders ( 1) Generally 41 (2) Ambiguity in the legislation 41 v Periodic Detention Revisited ( 3) Modes of cancellation 42 (a) Cancellation upon subsequent offence 42 (b) Cancellation of orders ex parte 43 (c) Other concerns and possible reforms 44 (4) Re-sentencing upon cancellation 45 ( 5) The appeal process 46 8 Use of Periodic Detention by the Courts ( 1) Generally 49 (2) Statistical 49 (a) Frequency 50 (b) Prior record 52 (c) Age of offender 52 (d) Types of offences 53 (3) Case law 56 (a) Sexual offences 56 (b) Dangerous driving occasioning death 58 (c) Drug offences 59 (d) Armed robbery 61 9 Conclusion 63 References 67 Index 71 List offigures 1 Sentences imposed in the higher courts 1992-1996 50 2 Sentences imposed in the Local Courts 1992-1996 51 3 Prior record and sentences imposed in the higher courts 1992-1996 52 4 Periodic detention orders by offence type (higher courts 1992-1996) 54 5 Periodic detention orders by offence type (Local Courts 1992-1996) 56 List oftables 1 Costs per day per prisoner/detainee 10 2 Applications for the cancellation of periodic detention orders 1993-1997 42 3 Age of offender and sentences imposed in the higher courts and Local Courts 1992-1996 53 4 Periodic detention orders by offence type (higher courts 1992-1996) 54 5 Periodic detention orders by offence type (Local Courts 1992-1996) 55 VI Table of Cases Nolan v Department of Corrective Services (unreported, 17 July 1992, NSW Sup Ct, CL Div): 5 R v Bang (unreported, 1September1992, NSW CCA): 22, 23, 58 R v B$1.rbara (unreported, 24 February 1997, NSW CCA): 60 R v Biddle (unreported, 6 March 1997, NSW CCA): 43 R v Burnett (1996) 85 A Crim R 76: 19, 59, 60 R v Chung (unreported, 15 December 1995, NSW CCA): 18, 23 R v Curtis (unreported, 22 April 1993, NSW CCA):l9, 59 R v Dargan (unreported, 2 April 1997, NSW CCA): 46 R v Dodd (1991) 57 A Crim R 349: 13 R v Duroux (unreported, 11 April 1991, NSW CCA): 22, 58 R v Falzon (unreported, 20 February 1992, NSW CCA): 26 R v Hallocoglu (1992) 29 NSWLR 67; 63 A Crim R 287; 18 MVR 275: 17, 18, 19, 22, 23 R v Huttenberger (unreported, 3 March 1993, NSW CCA): 18 R v Johnson (unreported, 16 May 1997, NSW CCA):58 R v King (unreported, 2 April 1997, NSW CCA): 56, 57 R v Lattouf (unreported, 12 December 1996, NSW CCA): 61 R v Leonard (unreported, 9May1997, NSW CCA): 18 R v Lloyd (unreported, 17 June 1997, NSW CCA): 43 R v Mikas (1996) 85 A Crim R 34: 26, 47 R v Milsom (unreported, 10 December 1997, NSW CCA): 25 R v Morris (unreported, 14 July 1995, NSW CCA): 9 R v Musumeci (unreported, 30 October 1997, NSW CCA): 19 R v Niga (unreported, 13 April 1994, NSW CCA): 19, 59 R v O'Grady (unreported, 13May1997, NSW CCA): 57 R v Ozer (unreported, 9 November 1993, NSW CCA): 60 R v Pangallo (unreported, 13 August 1991, NSW CCA): 18, 22, 26 R v Randall (unreported, 19 April 1994, NSW CCA):l7, 31 R v Readman (1990) 47 A Crim R 181: 61 R v Roberts (1994) 73 A Crim R 306: 61 R v Roome (1995) 84ACrimR1: 41 R v Sadebath (1992) 16 MVR 138: 27, 58 R v Sharpe (unreported, 2 7 September 1994, NSW CCA): 61 R v Smith (unreported, 27 August 1997, NSW CCA): 22, 23 R v Sommerville (1995) 36 NSWLR 184; 77 A Crim R 122: 27, 46, 47 R v Tidswell (unreported, 3 April 1997, NSW CCA): 18 R v Tsokos (unreported, 19 June 1995, NSW CCA): 25 R v Wotherspoon (unreported, 4 December 1992, NSW CCA): 16, 58 Wilson v Department of Corrective Services (1997) 93 A Crim R 301: 19, 27, 43, 47 I1, I V! I Table of Statutes New South Wales Crimes Act 1900: 51 Crimes (Dangerous Driving Offences) Amendment Act 1994: 13, 59 Crimes (Home Invasion) Amendment Act 1994: 13 Criminal Appeal Act 1912 s 2: 47 s 5(1): 47 Fines Act 1996 s 89(1): 7 s 90(2): 7 Home Detention Act 1996: 37, 49, 64 s 4(1): 22 s 4(2): 24 s 5(1): 24, 27 s 6: 25, 28 s 7: 28 s 16: 45 Justices Act 1902: 47 s 122(1A): 43 Justices (Fine Default) Amendment Act 1994 Sch 2: 7 Periodic Detention of Prisoners Act 1981: 3, 7, 14, 22, 36, 37, 46, 49, 64 s 5(1): 3, 18, 21, 24, 36, 49 s SAA: 5, 38 s 5A(l): 49 s SC: 7 s 9: 4 s 10(1): 31 s 10(2)-(3): 7, 11 s 11: 31 s 20: xiv, 4, 5, 15, 45 s 20(1): 35 s 20(2): 35 s 20(3): 15 s 20(6): 45 s 20A: 5 s 20A(l): 35 s 20A(2): 35 s21:5,38 s 21(3): 6, 14 s 21(5): 15 s 24: 47 s 24( 1): xv, 6, 42, 43, 46 s 24(2): 46 s 24(3): 46 s 25: 47 s 25(1): xiv, 41, 42 s 25(3A): 38 V! !! Table of Statutes s 25(3A)-(3D): 6 s 25(5): 6 s 26: 7 s 27(1): 45, 47 s 27(4): 46 s 34: 44 s 34(1): 5 Periodic Detention of Prisoners Act 1970: 3, 4 s 25(1): 6 Periodic Detention of Prisoners Amendment Act 1996: 4, 6 Sch 1: 5, 6, 14 Periodic Detention of Prisoners (Amendment) Act 1992: 4 Sch 1: 4, 5, 7 Periodic Detention of Prisoners (Amendment) Act 1991: 4 Periodic Detention of Prisoners Regulation 1995 cl 9(2): 44 cl 46: 43 Sentencing Act 1989 Pt2:45,46 Pt 3 Div4: 45 s 24: 46 Sentencing Legislation Amendment Act 1997 Sch 5: 7, 11 Summary Offences Act 1988: 42 Traffic (Negligent Driving Offences) Amendment Act 1994: 13, 59 Australian Capital Territory Periodic Detention Act 1995 s6(1): 38 !X Acknowledgements The authors wish to thank the officers from the Periodic Detention Administration of the New South Wales Department of Corrective Services who assisted or otherwise provided support for this publication. Disclaimer The views expressed in this monograph are the views of the individual authors and do not represent any official views of the Judicial Commission ofNew South Wales, nor are they necessarily shared by the members of the staff of the Commission.
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