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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 3

8, lvETHODDLDGY 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 c. RESULTS 3. 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 4, Usefulness of Periodic Detention 9 Views on usefulness of Periodic Detention as a sentencing measure 5. Amendments to Periodic Detention of Prisoners Act (1970) 1D I. General (a] Number of respondents desiring amendments 10 (b) Nature of amendments suggested 11 (c) Reasons for amendments 12 II. Specific (a) Amendments to length of imposed by way of Periodic Detention 13 (b) Amendments concerning residential nature of Periodic Detention 14

D. APPENDICES 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. Two respondents felt that Periodic Detention was not a useful sentencing measure.

5.· 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.) That Section 3(2)0 - disqualifying oFfenders with previous 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.

5, 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

- ')/, of judges/ Total judges/ Number of magistrates for Nature of court ma!')is!rates respondents that aroup

Petty Sessions 88 57 64.8 ' District Court 26 9 34.6

Supreme Court 35 9 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 1\\..lmber- of '/o of all respondents dents ex per2;ence - r.:;:~2!2 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 sta ted --2 - 2. 7 . • Total 75 100. 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 cases

Drug offences ...••••••.••••.•..•• ~ ...... 4 cases Carnal knovJledge ..•• , ...... 2 cases

Break, enter, steal ••••·•••••••••••••••••••e•·~··••••···~····· 2 cases

Abortion .•••..•.••. ~ •.. ~~ •.• , . , •.•...•.•.. ~ •.••.••...... •.••.. 1 case

Conspiracy •...••.•..••...•..• a ••••••• , •••••••••••••••••••••••• 1 case

Indecent exposure ..•.• , .••••..•••. a ...... , ••••••• 1 case Infringement of prison regulations (non-internee) .....••••••• , 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 respOOdents Type of c= mentiCiri:rngcase1. (i) Offence specified Driving/traffic offences 33 Larcenies and minor stealing 10 Assaults and malicious injury 4 Drug offences 2 Maintenance confinees 1

; . Other: minor sex offences, drinking & good order offences 3 (ii) Offender-type specified Hoodlum types 2 Young offenders 2 First offenders 2 'Non-criminal' types 4 Any deserving types 4

(iii) ~~round factors specified 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.). L::e~ having 1\!~mber not I Total Ath'tude ---- towards usefulness seo PmD .. havinq ust,;:Lf .o. resp~ents Seen as useful 14 38 52 Seen as not 'useful - 2 2

; . 1 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.

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)

v 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 rehabilit­ ation, 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 Number not Total Comments used P.O. having used P.Ds respondents

AmendmBnts advocated 16 20 36 ' No amendments advocated 4 31 35 No comment - 1 3 4 Total 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 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 Service etc. That detention ccmrnence at 8 a.m. on Saturday morning. That 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) - The present length of sentence is too long. widen length of Widening would bring it more within the range of sentence to be sentences imposed by summary courts. imposed. 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) - To permit mere use of Periodic Detention for second > • abolish previous offendcors. imprisonment of To provide greater flexibility for courts. one month or more To include persons who, by lapse of time, reform etc. .as disqualification may be suitable - - - Remission To encourage better behaviour. To provide an attitude mere conducive to reform. Remission applies to other gaol sentences. -- Extended In country courts it would have a deterrent effect on jurisdiction -1 the w:ole community. . Other To allow the judge the better to meet the whole case. amendments - II. Specific

(a) Amendments to length of sentence imposed by :!!,BY of Periodic Detention

Number lNumber not having used having used Total Comment P .0. ___l'..: D. respondents

Variation in sentence length advocated 12 22 34

No variation in sentence length advocated 9 37 > ' ~Jo comment - 4

21 -~-54 Total 75 _L I - I 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 2 Reduce minimum to 6 wGeks ! 2 Reduce minimum to 1 month 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 8

> ' (b) ~~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.

- -~ -bber jNumber not T I having used having used! Total I --Substitute P .D, P ,0, ..,!respondents Non-residential programme as I substitute advocated 1 2 3

Not advocated 20 45 I 65 No comment - • 7 7 ------I Total 21 54 75 Over two-thirds of the respondents suggested that a non-residential programme be introduced in addition to the present scheme. - -- - - ~umber INumber not Total Addition- _""''"" P.O. '"""f"""__ P,O, '"""__ r~spondents > • Non-residential programma as addition advocated 16 36 52

Not advocated 5 10 15

No comment - 8 8

Total 21 54 75 APPENDIX 1. Submission of Judges, Qist~ Court §Ldnez

11 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. > • 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 11 words "6 months •

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 only who appears in a higher Court for the first time; or a man who has had the benefit of a recog­ nizance or . (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 employ­ ment 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.

4 1 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'

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 imprison­ ment. 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 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 f be reduced. 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>

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 Sentence Maximum sentence -~ 1. Assault female 2 months HeLc 6 months HaL"' Malic. injury 12 months H.LII

2. Carry cutting instrument 2 months H.L, 6 months 1-L.La

3. Drive P,C,A, 2 months H.L. Each Disqualified driver 6 months Helu

4, P,C,A, 3 months Holu 6 months Ho;La ' . , Disqualified driver 6 months Hall! Breach recog, 3 months H.L.

5. ,Disqualified driver 1 month H,L. 6 months H .. Lc

6. Breach of recog. 9 months Hole 9 months H.L,

7, Disqualified driver 1 month H,l, 6 months Halt

8. ·Unseemly words 7 days H,L. 3 months H.Lo

9. Malicious injury 1 month H,U. 12 months H.L. Trespass 3 months H.L.

10. Unseemly words 21 days H,L, Each' Offensive behaviour 3 months Hr. La

11. Disqualified driver 1 month H.L, 6, months HIILCl

12. P,C,A, Each Disqualified driver 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 1s 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 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. Submission b.); one res2ondent

11 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 whose personal standards are not sufficient to make him comply with the standards of society:

(a) ~.,·hen he is under pressure, 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 the regular offenders, for whom custodial treatment is the only answer, to ensure that they do not offend. Long terms of imprisonment are imposed in the public interest, and to :i.mpress on them the failure of their ventures, either economically, or socially, or to allow them to mature, 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. Other comments

'I. I would sentGnce to Pe

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.