Are NSW Courts Getting Tougher or Softer? The Facts

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Many people seem to think that our courts are too lenient on those who are guilty of crimes.

Radio shock-jocks and tabloid newspapers frequently cite hand-chosen cases where guilty defendants “get off lightly” – using these to make sweeping generalisations about our courts becoming “soft on crime”.

But results from a recent study by the Bureau of Crime Statistics and Research have confirmed what criminal defence lawyers have been saying for years – that the opposite is true.

The comprehensive study, released in March, suggests that the public perception of a lenient judiciary is inaccurate, and that NSW courts have become significantly tougher over the years.

The study looked at sentencing trends over the past 20 years, finding that:

  • Courts have become less likely to grant bail,
  • More guilty people are sent to prison, and
  • Average prison sentences for most offences have increased.

This is directly at odds with public perceptions of a judiciary that has become “too soft”.

Harder and harder to get bail

In both the local and higher courts, magistrates and judges have become less and less likely over the years to grant bail – and this was even before the new Bail Act came into effect last year and revised this year.

In 1994, 26% of defendants in higher courts were refused bail, but this had almost doubled to 50% by 2012.

This means that even under the old bail laws, in place until mid-way through last year, bail was becoming harder and harder for defendants to achieve.

The situation was mirrored in local courts, where the proportion of those refused bail was 4.7% in 1994, rising to 8.8% in 2013.

More people sent to prison

The use of imprisonment by higher courts has increased significantly in 10 of the 15 major categories of offences over the past 20 years.

Understandably, the incarceration rate for murder has remained stable – as all defendants who were convicted received prison sentences.

The study found that the offence-category with the greatest increase was “fraud, deception and related offences”, where 32.7% of people convicted in 1994 received a prison sentence, rising to 77% in 2013 – a whopping 44.9% increase.

And 80.6% of defendants found guilty of “possessing prohibited weapons and explosives” are now sent to prison, compared to 42.8% in 1994.

In local court cases, the type of offence which had the highest increase was “unlawful entry with intent/burglary, break and enter”. In 1994, 33.8% were imprisoned, increasing to 49.7% in 2013.

The only significant downward trend in the local court was for those being sent to prison for drug offences, which fell from 4.4% to 2.7%.

Longer prison sentences

Not only has the proportion of those sent to prison increased, the average length of prison sentences has also gotten longer.

For all but one category of offence, the average sentence was either stable or increased.

The only significant exception was for: “robbery, extortion and related offences”; which showed a decrease.

What do the results suggest?

NSW prisons have been filling to bursting point, even though crime rates have consistently been dropping.

BOCSAR suggests two explanations for this:

  1. The type of offences committed are now of a more serious nature than those in the past; and / or
  2. People who commit less serious offences are being sent to prison, and for longer.

A criminal defence lawyer’s perspective

Experienced criminal lawyers have observed criminal laws and the rules relating to criminal proceedings change dramatically over the past fifteen years or so.

Among many other things, we have seen:

  • the expansion of offence-types, with more and more conduct being considered criminal,
  • significant increases in maximum penalties for criminal offences, and the introduction and expansion of standard non-parole periods,
  • substantial increases in powers of police and other law enforcement agencies, including the lowering of thresholds for arrests and searches, and the removal of accountability for civil rights incursions,
  • increasing numbers of offences and situations attracting “presumptions against bail”, and a corresponding reduction in applicants being granted bail,
  • reversal of the onus of proof for many offences, so the defendant is required to prove their innocence rather than the prosecution having to prove their guilt,
  • encroachment on a range of civil rights, including the right to silence and presumption of innocence,
  • introduction of laws restricting criminal defence lawyers from accessing or using various types of information, especially for sexual offence allegations, and
  • laws against certain types of questions being asked, and styles of questioning being employed, in the courtroom.

But more than this, those of us who have actually been in the courts on a daily basis for several years have observed that magistrates and judges are becoming tougher and tougher on defendants, and that cases are becoming increasingly difficult to defend due to a range of factors – including relaxations on prosecution proof (including the reversal of the onus of proof), dilution of the right to silence, reluctance of courts to throw-out illegally obtained evidence, concerns about adverse publicity (especially in publicised cases) and restrictions on the defence’s ability to access and use information that may be vital to establishing innocence.

This is quite the opposite of what police, shock-jocks and tabloid newspapers would like people to believe – but it appears that the true situation, reflected by the latest BOSCAR report, does not create hysteria and sell newspapers to the same extent as media misrepresentations.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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