Surge in remand population results in unfair prison sentences

By Adam Thorn|05 February 2020
Prison sentence

Victorian judges are handing down tough retrospective prison terms rather than more appropriate community correction orders because an increasing number of defendants are on remand, a Sentencing Advisory Council investigation suggests.

New analysis reveals a 640 per cent increase in the use of time-served sentences – terms of imprisonment equal to the days the offender has spent in jail before trial – over the past seven years. At the same time, the state’s prison population rose 33 per cent across five years but almost all of that increase 92 per cent was due to more people being held in custody awaiting judgement.

The statutory body claims these figures “strongly suggest” a correlation, leading to fears judges are discounting softer punishments because harsher penalties were already imposed.

Arie Freiberg, the Sentencing Advisory Council chair, told Lawyers Weekly the increase in remand numbers has other consequences, such as reducing prisoners access to rehabilitation services.

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“There’s also anecdotal evidence that because of the delays in getting a trial and the hardships of being in custody, some offenders might say, ‘Look, I’ll plead guilty because I just want to get out,’” Mr Freiberg said.

The Sentencing Advisory Council (SAC) was established in 1991 in Victoria to provide feedback on the effectiveness of sanctions imposed on offenders.

Its new report, Time Served Prison Sentences in Victoria, reveals the number of prison sentences imposed rose from 5,800 in 2013-14 to 9,300 in 2017-18. However, despite the increase, the number of people technically serving a prison sentence has only increased by 150, due to the surge in the remand population and time-served sentences.

“We observed that [time-served] might be disproportionate because the sentence that’s imposed may well be longer than the sentence you would have got if you had not been in custody,” Mr Freiberg said. “You might have received a community correction order.”

The tightening of bail laws in Victoria comes after a string of high-profile murders committed by those already on parole, such as Adrian Bayley, or those with a chequered criminal history, such as Bourke St killer James Gargasoulas.

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However, in Victoria, the legal principle of parsimony applies, which ensures criminals receive the least severe sentencing option to achieve the purposes of the punishment.

The SAC’s report points out further unintended consequences of a growing remand population.

For instance, defendants in custody before a trial have less access to rehabilitation services because they’re considered innocent until proven guilty, and less time to plan for their release because of that date’s uncertainty.

There’s also the fear some innocent defendants might plead guilty on remand to avoid a longer potential stay in custody.

“And if an offender comes before the court again, as many of them do, there’s a chance a judge could look at their record and say, ‘Oh, you’ve already been given a prison sentence, so I’ll have to take that into account.’” Mr Freiberg said. “Whereas, had you been given a community correction order, they would get a lesser sanction and maybe another chance.

“When you play around in one part of the system, it appears somewhere else, and it may have unfortunate outcomes.”

Surge in remand population results in unfair prison sentences
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