Better sentencing options focuses on the appropriate consequences for offenders who commit crimes, and how best the community can be served through sentencing. In particular, it considers whether some individuals, who would otherwise be sentenced to imprisonment, could be punished and rehabilitated in other ways.
The Criminal Law (Sentencing) Act 1988 has been completely reviewed after nearly 30 years of operation.
The Sentencing Bill 2016 passed Parliament on 6 July 2017. The Bill makes a number of changes to how criminal offenders are sentenced in court, including new sentencing principles and new sentencing options.
New sentencing principles
The Bill changes the factors that a court must consider when making sentencing decisions. It introduces a new primary consideration in sentencing, being the protection of the safety of the community, together with a series of secondary considerations that a court must take into account.
The primary consideration is new. The secondary considerations reflect the current law, but systematise it and make it transparent.
While sometimes there is no alternative to a prison sentence, there are circumstances where people can be more effectively rehabilitated in other ways. To address this, courts will be able to impose 2 additional types of sentence: community-based orders and intensive correction orders.
Community and sector feedback was sought on the reform in two parts.
Part 1 reconsidered issues such as the fundamental purposes of sentencing, and the universal factors to be taken into account in sentencing. Feedback closed in March 2016.
Part 2 of the consultation proposed further enhancements to the sentencing principles and options available to a court. Feedback closed on Friday 9 September 2016.
The Statutes Amendment (Home Detention) Act 2016 has been passed by Parliament.
The changes provide greater flexibility in the use of home detention, presenting an alternative sentencing option for low-risk and non-violent offenders. It allows courts to order that a period of imprisonment be served on home detention in place of a prison sentence.
- a court will have the ability to order that a period of imprisonment be served on home detention in place of a custodial sentence
- a home detention order will be a valid sentencing option where a court has determined that a sentence of imprisonment must be imposed and there does not exist good reason to suspend that sentence, but the offender is considered to be a suitable candidate to serve the period of imprisonment on home detention
- the paramount consideration of a court in determining whether to make such an order must be the safety of the community
- a home detention order is intended to be a sentencing option for an offender who has been individually assessed as posing a low risk of causing harm to the community or of reoffending.
These amendments draw on the experience of the home detention program already implemented and operated by the Department for Correctional Services.
The Act will also amend the Correctional Services Act 1982 to expand the current home detention program and removes the requirement for prisoners to serve 50 percent of a non-parole period (or total sentence where no non-parole period is fixed) before being eligible for release on home detention, as well as removing the limitation that prisoners can only spend a maximum period of 12 months on home detention. All other eligibility criteria for release on home detention under the Correctional Services Act 1982 will remain - with life sentenced prisoners, sex offenders and terrorist offenders remaining ineligible.
In June 2015 the Attorney-General released a discussion paper on Better sentencing options: creating the best outcomes for our community (PDF 519KB) including extensive community consultation.
The government asked the community to provide feedback on whether some individuals, who would otherwise be sentenced to imprisonment, could be punished and rehabilitated in other ways following a proper risk assessment.
The discussion paper on better sentencing options continued the government’s conversation with the community about criminal justice sector reform and in particular, what the appropriate consequences are for offenders who commit crimes and how best the community can be served through sentencing. Feedback was due on 29 August 2015.
The discussion paper emphasised that community protection must remain the primary objective and that community safety is enhanced when the rate at which people commit crimes is reduced.
The government asked all South Australians to consider that the community could be better served by allowing some offenders to serve their sentence in the community, allowing an offender to work towards rehabilitation, reintegration and becoming a productive member of society, at the same time as being punished.
Community advisory panel and key partner workshop (2015)
As part of community consultation on the discussion paper, in August 2015 the Attorney-General engaged democracyCo to broaden the democratic engagement, and add a deliberative element, to the consultation.
DemocracyCo facilitated a community advisory panel involving 19 individual community members who came together over two evening to deliberate over:
“What is important to you about how we rehabilitate offenders outside prison to enhance community safety?”
The panel was asked to consider that community safety is enhanced when offenders are rehabilitated and do not reoffend, and community based sentences and rehabilitation programs can reduce reoffending.
DemocracyCo also facilitated a key partner workshop over one day involving 30 representatives from government and non-government organisations with an interest in the treatment of offenders in the community.
These key partners were asked:
“What needs to be considered and done to successfully supervise and rehabilitate offenders outside of prison to reduce re-offending and enhance community safety?”
The key partner workshop focused on options discussed in the discussion paper including home detention. Participants were asked to consider the best approach and how to overcome hurdles to success to help transform the criminal justice system in South Australia.
The reports of the deliberations of the key partners and the panel prepared by democracyCo are available here.