NSW Government announces criminal law reforms

The NSW AG today announced a number of wide-ranging reforms to the criminal justice system. While the legislation has not yet been released, it is clear that these reforms will have a major impact on the practice of criminal law in NSW.

The AG has described these reforms as ‘tougher and smarter’. We’ve all been down the tough-on-crime road before, so the hope would be that there is some emphasis of the ‘smarter’ bit. In this respect, at least for some of the proposals, I am cautiously optimistic (at this very early stage).

It is worth noting that these reforms come in the context of broadly declining crime rates, excessive delays in the court system (also here), and a prison system that is near capacity.

The reforms cover five areas, three of which will have an immediate impact on practitioners – being early guilty pleas, sentencing, and parole. This post will briefly detail these three and give a bit of background to the first two.

The remaining two areas – changes to prison management and the post sentence management of high risk offenders – are also major changes to the criminal justice system.

In future posts, we will bring you detailed analysis on these proposals from a range of contributors – so watch this space!

Early guilty pleas

There are a number of initiatives proposed to encourage accused persons to enter guilty pleas at the earliest opportunity.

  • Early disclosure of evidence by Police.
  • Abolition of committals – senior prosecutors to review evidence and confirm the charges that will proceed as early as possible.
  • Mandatory criminal case conferencing between senior prosecutors and the defence.
  • Flexible Local Court case management.
  • Statutory sentence discounts for guilty pleas.

These reforms come off the back of an extensive review conducted by the NSW Law Reform Commission (NSWLRC) in 2013. The final report of the NSWLRC can be found here, and the NSW Young Lawyers submissions are here.

Abolishing committals and shifting pre-trial reviews to the ODPP seems like a sensible reform, and the Young Lawyers Criminal Law Committee advocated for this approach in its submission to the NSWLRC (as did a number of other stakeholders). However, this approach will only be effective if adequate resourcing is provided to the ODPP.

Similarly, introducing case management may enable quicker resolution of Local Court matters. As noted above, there is a severe backlog in the court system currently and there is a definite need for more effective case management. However, I agree with the remarks made by the Committee in its 2013 submission that

providing adequate legal advice early in the process is essential to achieving appropriate guilty pleas. This kind of early investment has the potential to achieve the resource-saving outcomes envisaged.

In this respect, it is encouraging to see both NSW and Commonwealth governments committing to funding CLCs – but only after a hard-fought campaign to reverse funding cuts at the federal level.

These reforms build on changes to pre-trial disclosure obligations made in 2013, it is not clear whether these reforms have been complied with nor had the impact desired.

Sentencing Changes

The AG has also announced a number of changes to the existing alternatives to full-time imprisonment.

  • Suspended sentences are to be abolished.
  • Intensive Correction Orders (ICO) are to be strengthened
    • Supervision will be mandatory.
    • Offenders will be required to participate in programs that target the causes of their behaviour, such as alcohol or drug misuse, or mental health issues.
    • Community safety will be the Court’s paramount consideration.
    • Corrections Officers will have authority to impose fast and more certain penalties.
    • Serious breaches will be dealt with by the State Parole Authority (SPA) who can remand the offender in prison.
  • The changes will introduce two new orders: ‘Community Corrections Orders’ (CCO) to replace Community Service Orders and section 9 Bonds, and ‘Conditional Release Orders’ (CRO) which replace section 10 Bonds.
    • The CROs will allow the court to impose supervision, non-association requirements and place restrictions

These reforms also come off the back of a review, this time by the Sentencing Council. (Report here; NSW Young Lawyers submissions here).

The CCOs are a Victorian invention and seem to give courts south of the border a good deal more flexibility and oversight over those serving their sentences in the community.

For more background on these changes, have a look at the NSWLRC’s Report 139​which reviews ICOs in Chapter 9 and proposes new community detention order in Chapter 11.​

Parole changes

The SPA will have broader powers to consider, and reconsider, offenders for parole.

  • The SPA will be able to consider a broader range of factors
    • One factor includes whether a convicted killer has disclosed the location of the remains of the victim. – seemingly inspired by the Leveson case.
  • The SPA will have the power to breach a parolee if there are ‘concerns about community safety’ even if the parolee has not breached their parole.
  • Authority to the Corrective Service Victims Register to notify victims when an offender is being considered for parole.
  • A beefed up Community Corrections will have a greater role in supervising parolees.

Conclusion

There is little doubt that there does need to be a rethink about the way the criminal justice system does business – and so these reforms may well prove to be timely. It is difficult to overstate the impact that these changes will have. Some of the proposals are certainly well considered and seem to be evidenced based. However, it is imperative that the changes reflect an appropriate balancing between the interests of victims, the accused, and the wider public.

The author is the submission coordinator for the NSW Young Lawyers Criminal Law Committee however the views expressed here are his own

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