TYPES OF PENALTIES
-No conviction recorded
-Caution
-Fine
-Bond
-Suspended sentence
-Probation
-Criminal Infringement
Notice
-Penalty units
-Community Service Order
-Home detention
-Periodic detention
-Forfeiture of assets
-Imprisonment
-Diversionary programs
EVALUATE the
effectiveness of
different types of
penalties, including
diversionary programs
TYPES OF PENALTIES
-No conviction recorded
-Caution
-Fine
-Bond
-Suspended sentence
-Probation
-Criminal Infringement
Notice
-Penalty units
-Community Service Order
-Home detention
-Periodic detention
-Forfeiture of assets
-Imprisonment
-Diversionary programs
TYPES OF PENALTIES
-No conviction recorded
Description
Under s. 10 of the Crimes (Sentencing Procedure)
Act 1999.
This section allows a Court that finds a defendant
guilty of an offence, BUT to discharge the defendant
without recording a conviction.
Because there is no conviction, there is no criminal
record.
In deciding whether to give a person a ‘section 10’, the
Court must consider the following issues:
The age, character, record, health and mental
condition of the offender; and
If the offence was trivial.
EVALUATION
Effective: Law Society (2009): Nonconviction orders are very useful for
- Young people
- Disadvantaged people
- People with an intellectual disability and
- People with mental health problems.
TYPES OF PENALTIES
-Caution
Description
Police have the power to caution young offenders in
relation to non-violent and less serious offences.
EVALUATION
Effective: For young people, reoffending
rate decreases from 68%  42% (BOCSAR,
2006)
Adults also can be cautioned for minor drug offences.
A caution is informally recorded on the person’s
record.
Ineffective: Indigenous young people are
twice as likely to be sent to court (rather
than Warned or Cautioned) than nonindigenous juveniles (Noetic Review, 2010)
TYPES OF PENALTIES
-Fines (including penalty
units)
Description
EVALUATION
This is the most common type of penalty. It
involves paying money to the state. Generally, a
person has 28 days to pay a fine. If they don’t,
they risk jail time. Usually, the judge will look
at whether or not the offender is actually able
to pay the fine.
Effective: Fines are a cost-effective, prompt and
appropriate way of punishing AND creating a general
deterrent for crimes that are not serious enough to
deserve a criminal record.
Fines work in ‘penalty units’ because of
inflation (money is worth less over time, so
passing a law that sets the fine at $500 will
eventually be nothing to most people). At the
moment, 1 penalty unit equals $110, so a 5
penalty unit fine will be $550.
Fines are usually given for strict liability and
regulatory offences like speeding.
Ineffective: Higher fines (especially for driving
offences) DO NOT deter people from committing
driving offences (like speeding) (BOCSAR, 2007)
Ineffective: For disadvantaged people who can’t
pay them
BUT since 2008, ‘Work and Development
Orders’ are available to “pay off” a fine through
community service.
Ineffective: For young people who don’t have the
ability to pay. Also, there is NO rehabilitation value
(which is against the whole point of the juvenile
justice system). (Hot Topics 73: Young People and
Crime).
TYPES OF PENALTIES
-Bond
Description
These are sometimes called “good behaviour bonds”.
Basically, the offender has to sign an agreement that
they will stay out of legal trouble for anything up to 5
years. If he re-offends during that time, he has to face a
magistrate or judge and may either get a warning or
could be re-sentenced (giving him a more serious
penalty).
EVALUATION
Effective: 89% of bonds are successfully
completed (Judicial Commission of NSW,
2006).
Ineffective: Over the last 10 years, breaches
of bonds are enforced more frequently AND
the conditions have become stricter
(meaning that more people are failing to
fulfill the requirements of their bonds,
leading to further punishment) (NSW Law
Society (2009))
TYPES OF PENALTIES
-Suspended sentence
Description
A suspended sentence is a
prison sentence that is not
put into immediate effect
(their prison sentence is
‘suspended’).
These let the offender know
just how serious their
crime was, and the
consequences of reoffending, but at the same
time giving them with an
opportunity to avoid the
consequences.
EVALUATION
Effective: Suspended sentences are an effective method of deterring
and denunciating offenders (AIC, 2009).
Effective: 75% of offenders given a suspended sentence didn’t commit
another crime during the suspension of their sentence (NSW
Sentencing Council 2011)
Effective: 81% of judges believed that they were a good option in some
cases (NSW Sentencing Council 2011)
Ineffective: They’re not always used appropriately (BOCSAR, 2010)
Ineffective: Suspended sentences have no greater deterrent effect than
Bonds (BOCSAR, 2008)
Ineffective: The failure to consistently prosecute breaches of
suspended sentences reduced their effectiveness as a deterrent.
TYPES OF PENALTIES
-Probation
Description
These are like a Bond, but with extra conditions (e.g.
the offender has to report to a probation officer at
certain times). Controlled by the NSW Probation
Service.
EVALUATION
Effective: Probation is an important
sentencing alternative for the courts.
TYPES OF PENALTIES
-Criminal Infringement
Notice
Description
AKA: ‘On-the-spot fines’
Introduced through the Crimes Legislation
Amendment (Penalty Notice Offences) Act 2002 to
all police operations in NSW in 2007.
The notices provide police with an easy, additional
way to deal with minor incidents of offensive
conduct, shoplifting, etc.
EVALUATION
Effective: CINs increase the ‘resource
efficiency’ of police (freeing them from the
paperwork usually involved)
Ineffective: There is a risk of ‘net widening’
(more people than usual will be dragged
into the CJS) (NSW Ombudsman, 2009)
Ineffective: The risks are greater for poorer
sections of the community, including
Aboriginal people (NSW Ombudsman,
2009)
TYPES OF PENALTIES
-Community Service Order
Description
Orders that require offenders to be involved in
community service for a maximum of 500 hours.
Offenders may also be required by the courts to
undergo mandatory alcohol or drug-testing, or to
attend counseling programs.
The type of service can includes painting, cleaning
and repairing services for pensioners or community
groups, as well as rubbish removal.
EVALUATION
Effective: Much higher likelihood of
rehabilitating criminal offenders, because it
punishes them through restrictions on their
time and liberty, as well as encouraging them
to reform their behaviour (AIC 2009)
Effective: CSOs are also cost-effective for the
authorities (AIC 2009)
TYPES OF PENALTIES
-Home detention
Description
Home detention allows suitable offenders to serve
prison sentences of 18 months or less in their own
homes.
A way to punish less serious offenders by depriving
them of their liberty, while still allowing them to
maintain family and community ties and
employment.
Home detention conditions are strict. As well as being
confined to their
home (unless doing approved activities) other
conditions include:
- electronic monitoring
- accepting home visits at any time from a
Corrective Services officer
- accepting regular drug and alcohol testing
EVALUATION
Effective: It keeps less serious offenders
out of fulltime imprisonment, which means
keeping them away from the influence of
hardened criminals (Corrective Services
NSW, 2011)
Effective: The majority do not reoffend
within two years of release (Corrective
Services NSW, 2011)
Effective: Home detention is cost-effective
when compared to fulltime imprisonment
(Corrective Services NSW, 2011)
Ineffective: There are a number of barriers
to accessing home detention. The main
barrier is that Home Detention is not
available in all areas of NSW (Corrective
Services NSW, 2011)
TYPES OF PENALTIES
-Periodic detention
Description
EVALUATION
This is when you are
imprisoned for a certain
amount of time each week
(usually it is weekend
detention, but it can be
during the week if your job
is weekend work).
Ineffective: So ineffective that periodic detention was removed in NSW
in 2010.
WHY? Lack of resources; lack of rehabilitation
(NSW Sentencing Council 2008)
It is NO
LONGER a
sentencing
option (since
October
2010).
The Crimes (Sentencing Legislation) Amendment
(Intensive Correction Orders) Act 2010
Replaced in 2010 by Intensive Correction Orders:
This is a NEW(ish) sentencing option in NSW (only for offenders
facing less than 2 years possible imprisonment) where the offender gets
conditions placed on him. For example:
MANDATORY/COMPULSORY participation in rehabilitation
programs
Strict curfews and association restrictions
24/7 electronic monitoring
Community service work
TYPES OF PENALTIES
-Forfeiture of assets
Description
“Confiscation” under the Proceeds of Crime Act 2002
(Cth) and Confiscation of Proceeds of Crime Act
1989 (NSW) (COPOCA).
Serves a number of purposes.
Tries to deter crime by reducing its profitability,
Lowers offenders’ ability to finance further criminal
activity.
Reimburses (“pays back”) the state for the costs of
fighting crime.
EVALUATION
Difficult to evaluate…
The extent to which criminals are deterred
from committing further crime is hard to
measure because there are usually OTHER
penalties involved that might be causing the
deterrent effect (AIC 2010)
TYPES OF PENALTIES
-Imprisonment
Description
Following the Crimes (Sentencing Procedures) Act 1999 (NSW), judges have to use
imprisonment as a last resort after ALL other options have been found to be inappropriate.
But imprisonment is being increasingly used
Since 2002, Australia’s rate of imprisonment increased by 11%.
This is baffling, given how ineffective it is.
In the end, though, only 9% of people convicted of crimes are imprisoned.
TYPES OF PENALTIES
-Imprisonment
EVALUATION
Ineffective: Does not work well as a deterrent:
NOT A SPECIFIC deterrent (for the offender)
Offenders who received a prison sentence are slightly MORE likely to re-offend than
those who received a non-custodial (non-prison) penalty
‘The Effect of Prison on Adult Re-offending’, BOCSAR, 2010
NOT EVEN A GENERAL deterrent (for the society)
Crime levels are not affected by the severity of sentences
Crime and Justice - A Review of Research
TYPES OF PENALTIES
-Imprisonment
EVALUATION
Ineffective: For young offenders (called a ‘control order’)…
It costs $541 per day to keep a juvenile offender in detention. 48% of the budget of the NSW
Department of Juvenile Justice is spent keeping juvenile offenders in custody…
… BUT NO LINK HAS BEEN FOUND between young people getting prison sentences and a
drop in reoffending.
The specific deterrent effect of custodial penalties on juvenile re-offending (2009)
TYPES OF PENALTIES
-Imprisonment
EVALUATION
Ineffective: For ABORIGINAL offenders
The main group being imprisoned more frequently are Aboriginal people.
In the article ‘Locking Out Rehabilitation’ – SMH (2009), the following was written:
“Nearly 20 years after a Royal Commission into black deaths in custody recommended jail be
used as a last resort, the proportion (percentage) of indigenous prisoners has doubled.
The number of Aboriginal women behind Australian bars has tripled and the number of
black juveniles in custody is climbing...”
“About a quarter of Australia’s prisoners are indigenous (in 2007)”, which is surprising
given that only 2% of our actual population is indigenous!
TYPES OF PENALTIES
-Diversionary programs
Description
EVALUATION
1. MERIT program: The Magistrate’s Early Referral
Effective: Reoffending within 12 months
into Treatment Programme is the most widely spread dropped from 49% to 35%. (BOCSAR,
diversionary option used by the Local Court. It aims to 2009)
break the cycle of drug abuse and crime. To achieve
this, the program addresses the underlying health,
mental health and social welfare issues that lead to
people ending up in the CJS.
TYPES OF PENALTIES
-Diversionary programs
Description
EVALUATION
2. YOUTH JUSTICE
CONFERENCING: Involves the
families and victims face to face
with the young offender where they
can explain the impact that the
crime has had on them. The young
person must admit their
responsibility for the offence.
Ineffective: The way that Youth Justice Conferencing works in NSW is NO
MORE EFFECTIVE THAN THE CHILDREN’S COURT in reducing reoffending Youth Justice Conferencing vs Children’s Court: A comparison of reoffending, BOCSAR (2012)
Effective:
1. TIME: If the POLICE refer a young person to YJC, their case is over much
more quickly than court
(YJC vs Children’s Court: A comparison of time to finalisation, BOCSAR 2012)
It finishes with an ‘outcome plan’,
which the offender has to agree to.
This might include paying back
the victim (e.g. working for them),
apologising, going to counselling,
etc.
If the offender doesn’t follow the
outcome plan, the young person
can end up facing court instead.
YJC is more about rehabilitation
and ‘restorative justice’ rather
than simply punishing the young
offender
2.
MONEY: YJC is more cost effective than the Children’s Court
(YJC vs Children’s Court: A comparison of cost-effectiveness, BOCSAR 2012)
3.
VICTIM SATISFACTION: 88% of victims said they would recommend YJC
to other victims
(Participant Satisfaction with YJC, BOCSAR 2012)
4.
PUBLIC SUPPORT: 87% of people surveyed agreed that the victim should
have this chance to talk to the offender about how the crime affected their
life
(Restorative Justice Initiatives: Public Support and Opinion in NSW, BOCSAR)
Ineffective: Youth Justice Conferencing is underused (only 5% of young
offenders) and police often don’t use it as way of diverting young people away
from the court system (they wait until the judge sends the young person to YJC
- WHICH DEFEATS THE PURPOSE of having a diversionary program (Noetic
Review (2010))
TYPES OF PENALTIES
-Diversionary programs
Description
3. FORUM SENTENCING: Like YJC, but for 18-24
year old offenders.
EVALUATION
Ineffective: Offenders dealt with under the
Forum Sentencing Scheme are no less likely
to re-offend (BOCSAR (2009))