DEFINITION AND OPERATION
8.1 A court may impose a sentence of imprisonment of not less than three months and not more than three years and order that the sentence be served by way of periodic detention.1 Periodic detention of less than three months may be ordered for certain offences.2 Periodic detention requires an offender to remain in custody for two days of each week for the duration of the sentence. The detainee reports to a detention centre by 7 pm on a specified day of the week (usually a Friday) and remains under the legal custody of the centre until 4.30 pm two days later. Some centres also run midweek programs where attendance is required from Wednesday evening to Friday afternoon. There are currently 11 periodic detention centres in New South Wales, of which only one operates solely for women.3
8.2 Periodic detention has been available in New South Wales since 1971, but is not currently used in other any Australian jurisdiction.4 Periodic detention schemes also operate, for example, in New Zealand, Belgium, West Germany and Holland.5
PURPOSE
8.3 Periodic detention is designed to meet the community’s demand for custodial punishment which provides a deterrent not only to the offender but to others who might be tempted to offend.6 It provides the court with a sentencing option which, while rigorous, is not as drastic as full time imprisonment.7 The advantages of periodic detention are that:
- it registers disapproval of the offender’s activities without all of the negative effects of full-time imprisonment;
- the offender’s debt to the community can still be paid without having to give up employment;8
- domestic relations can largely be maintained; and
- it is less costly to the community than full time imprisonment.9
8.4 There is also a benefit to the community through periodic detainees performing community projects, such as roadside rubbish removal, the clean up and maintenance of schools and other public buildings and facilities. The Department of Corrective Services estimates this value of this work at $2 million each year.10 These figures would seem to allay previous concerns that the periodic detention scheme did not provide any meaningful work for offenders.11
LENIENCY
8.5 This type of sentence involves an element of leniency on the part of the sentencing judge. The sentencer must therefore be careful to avoid handing down an order for periodic detention where the seriousness of the crime demands a more punitive order. In this respect periodic detention has not been considered appropriate for sex offences,12 but is suitable for driving offences,13 assault,14 and some drug related offences.15 The Court of Appeal has been careful to distinguish between the eligibility of a particular person for periodic detention, and the suitability of periodic detention as a punishment for the particular crime committed by that person.16
8.6 It is a misconception, however, to regard periodic detention as a “soft option”, despite occasional media criticism to that effect.17 It is a sentence that represents a significant dislocation of ordinary life of the typical working person. The offender is deprived of his or her liberty by having to reside in prison, and is forced to undertake work in the community.18
EVALUATION
8.7 Overall the Commission considers periodic detention to be a valuable sentencing option, and there is no reason why it should not continue in some form. Some aspects of the operation of periodic detention have proved problematic and various amendments have been made to the legislation from time to time to improve its operation.19 In the Commission’s view, there remain several entrenched problems with periodic detention.
Non-attendance
8.8 There are genuine reasons why detainees fail to attend periodic detention centres, for example illness.20 There are, however, also those detainees who choose simply not to attend and even, in some cases, have someone attend in their place. Since the inception of the scheme many attempts have been made to reduce absentee rates.
8.9 Refining the screening process for suitable offenders is the first step in reducing these rates. The Periodic Detention of Prisoners Act 1981 requires that the court must be satisfied that the offender is suitable to serve the term of the imprisonment in this way on the basis of a report about that offender from the Department of Corrective Services.21 The report should reveal that there is accommodation at a prison for the offender to serve the sentence by way of periodic detention; and travel to and from that centre will not impose hardship or undue inconvenience. The intention behind this requirement is apparent. However, a 1994 Department of Corrective Services study into attendance patterns indicated that screening only had a small effect on the proportion of periodic detainees who attended as required.22
8.10 Further, in order to ensure that the person turning up to the periodic detention centre is in fact the person who was actually sentenced to the order, a Bill introduced into Parliament in 1995 (the “1995 Bill”) proposed that identifying particulars such as photographs and fingerprints be taken before the court makes an order for periodic detention.23
8.11 Non-attendance can be dealt with in several ways under the Periodic Detention of Prisoners Act 1981. Section 21 of the Act provides that a sentence can be extended by one week for each detention period that a detainee fails to attend. In addition the sentence can be extended by one additional week (up to a maximum of two extra weeks) for each detention period where a detainee has failed to report without leave of absence.24 The 1995 Bill proposes to increase this maximum period from two to six weeks25 The 1994 Department of Corrective Services Report into attendance patterns found that dealing more strictly with non-attendance did not necessarily increase the proportion of detainees who attended as required. Thus the threat of extended detention may not increase the level of attendance of most detainees.26
8.12 Non-attendance can also result in orders for periodic detention being cancelled.27 Orders can also be cancelled in other circumstances. These include where a periodic detainee is subsequently convicted of an offence,28 where cancellation is requested on the application of a detainee or the Commissioner,29 or where it appears to the court that there is good reason for cancelling an order.30 The cancellation powers of the court pursuant to s 25 are, however, somewhat ambiguous and need to be clarified.31 In particular, it is not clear whether an application by the Commissioner or the detainee to cancel the order can be granted because “it appears to the court that there is good reason for doing so.” The Commission suggests that s 25 of the Act be amended to make it clear that the power of the court extends to this situation.
Proposal 23
Section 25 of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to make clear that, on application by the Commissioner or detainee, the court has power to cancel the order “if it appears to the court that there is good reason for doing so”.
8.13 The effect of cancellation in any of these circumstances is that the unexpired portion of the sentence is required to be served by way of full-time imprisonment.32 The court may also make directions as to the minimum and additional term of the sentence to which the order related or make a parole order in respect of the person concerned. The 1995 Bill enables the court to make such other orders (for example community service orders) as it considers appropriate in the circumstances.33
Stage II detention
8.14 Attendance required pursuant to an order for periodic detention can be varied to what is known as “Stage II” periodic detention, a non residential phase of the sentence. The offender is allowed to sleep at home but is required to attend at the designated work site on the two days from 8 am to 4 pm. To be eligible for Stage II, a detainee must have completed a significant portion of the sentence (usually a minimum of three months or a third of the sentence, whichever is greater), have a good attendance record and have demonstrated acceptable behaviour during that time. Entry into this stage is seen as an incentive to offenders to comply with the periodic detention order. It also frees up accommodation resources for new detainees.
8.15 Stage II was first introduced as a pilot program at Malabar Periodic Detention Centre in mid-1978. The decision to place an offender on Stage II is an administrative one over which judicial officers have no control. In the Commission’s view, Stage II has no statutory base. In particular, it cannot generally be supported by s 11 of the Periodic Detention of Prisoners Act 1981 (NSW).
8.16 Once Stage II is reached, a periodic detention order essentially changes into a community service order as the offender is no longer required to remain overnight at the detention centre. This position has been criticised on the basis that the sentence becomes less punitive and is not what was intended by the sentencer.34 Justice Dunford35 has suggested to the Commission that this is why many judges are reluctant to impose sentences of periodic detention. He believes that periodic detention should remain as such for its whole term.
8.17 The Attorney General’s Sentencing Review conducted in 1994 suggested the possibility that periodic detention should be subject to a court determination of minimum and additional terms in the same way as for other sentences of imprisonment. The Review suggested that it was more appropriate for the sentencing court to specify when the detainee should be eligible for Stage II.36 The Department of Corrective Services is opposed to this proposal.37 The existing administrative arrangements for detainees to progress from Stage I to Stage II periodic detention allow for such progression to be based on behaviour and performance, whereas experience has shown that court orders tend to be viewed as a right.
8.18 The Commission is not convinced that Stage II is necessary for the success of the periodic detention scheme. Persons are sentenced to periodic detention on the basis that it curtails their liberty by detaining them for part of the week as well as making them perform community service work. If a court wanted to impose a community service order it would do so at the sentencing hearing. Without the detention component there is little point in making an order for periodic detention, and further, it is not consistent with the concept of truth in sentencing. The Commission’s view is that Stage II should be abolished. A sentence of periodic detention should require the offender to serve the sentence in a detention centre for the necessary days per week.
Periodic detention sentences of three months or less
8.19 Currently a court may impose a sentence of imprisonment of not less than 3 months and not more than 3 years and order that the sentence be served by way of periodic detention.38 Periodic detention may be ordered for less than 3 months for certain offences.39 The Commission is not persuaded that the availability of periodic detention for a short period should be limited to defined offences, but considers that periodic detention should be generally available. A restriction on short sentences could be accommodated by a provision that a sentencer must provide reasons justifying a periodic detention order of less than a stated duration.40 This will allow sentencers the ability to impose periodic detention for a short period in any case in which it is clearly appropriate to do so, notwithstanding the administrative awkwardness of short sentences.
QUESTIONS ARISING IN CHAPTER 8
1. Should periodic detention be retained as a sentencing option in New South Wales?
2. What strategies should be adopted to deal with non-attendance?
3. When should breach of a periodic detention order result in full-time imprisonment?
4. Should Stage II of the Periodic Detention scheme be abolished?
5. Should periodic detention be generally available for periods of less than three months?
FOOTNOTES
1. Periodic Detention of Prisoners Act 1981 s 5.
2. For example, an offence against the Summary Offences Act 1988 and a domestic violence offence within the meaning of the Crimes Act 1900.
3. The first sentencing of a woman to periodic detention occurred in 1978. Research into women periodic detainees reveals that transportation problems are the key factor in women’s poor attendance rates at the only female detention centre at Merinda. Further, many female detainees are wholly responsible for young children, and if no alternative care arrangements can be made, this precludes them from being suitable for a periodic detention order: D Harvey, Women in Periodic Detention in New South Wales, unpublished paper dated 28 November 1991, held at the Judicial Commission of New South Wales.
4. Queensland is the only other Australian State or Territory to have attempted a periodic detention scheme. The main reason for the failure of the scheme was the drunkenness of offenders, who would use the weekend detention period as a sobering up time. This created risks and problems for administrators, and offered those offenders on the program no real possibility of rehabilitation. The Commission has found no evidence suggesting this problem occurs to the same degree in New South Wales.
5. In New Zealand periodic detention caters for adults and youths. In Holland weekend imprisonment is available only for sentences of two weeks or less, the majority of which are for drunken driving. In Belgium weekend imprisonment is an option for any offender who has a job and receives a sentence of two months or less. In West Germany courts can order the detention of young offenders aged 14-20 for between one and four weekends. See A Gorta, Periodic Detention in NSW: Trends and Issues 1971-1991, Department of Corrective Services Research Bulletin No 16, August 1991.
6. R v Anderson (1987) 32 A Crim R 146 at 154.
7. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 22 November 1995 at 3753.
8. Employment is an objective of periodic detention, no doubt arising from the notion that if offenders are employed they are less likely to return to crime. See A Critical Review of Periodic Detention in New South Wales, Monograph Series No 5 (1992), Judicial Commission of New South Wales, at 15.
9. For the period 1 July 1991 to 30 June 1992 the cost of full-time imprisonment per inmate per day by security classification was: maximum-$120.47; medium-$112.23; minimum-$95.90; and of periodic detention-$31.51. Separate costings for periodic detention from 1 July 1992 are unavailable, as the program is now integrated with the correctional centres concerned and no longer separately funded. See New South Wales, Department of Corrective Services, Annual Report 1993-94.
10. New South Wales, Department of Corrective Services, Annual Report 1993-94 at 6.
11. R Bray and J Chan, Community Service Orders and Periodic Detention as Sentencing Options: A Survey of Judicial Officers in New South Wales (Monograph Series No 3, Judicial Commission of New South Wales, April 1991) at 56.
12. R v Burchell (1987) 34 A Crim R. 148 at 151.
13. R Bray and J Chan, Community Service Orders and Periodic Detention as Sentencing Options: A Survey of Judicial Officers in New South Wales, at 42-48.
14. R v Sayin (NSW CCA, No 60360/94, 6 December 1994, unreported).
15. R v Niga (NSW CCA, No 60845/93, 13 April 1994, unreported).
16. See R v Dodd (1991) 57 A Crim R 349.
17. For example, see “200 Weekend Jail Shirkers Go Scot Free” Sydney Morning Herald, 13 August 1990, at 3; “Moment of tragedy” Daily Telegraph Mirror, 20 September 1995, at 24.
18. See comments of Kirby P in R v Niga (NSW CCA, No 60845/93, 13 April 1994, unreported) at 8.
19. The Periodic Detention of Prisoners Amendment Bill 1995 (NSW) (the “1995 Bill”) is the most recent proposed change.
20. See the reasons provided by the appellant in R v Mikas (NSW CCA, No 60479/95, 15 December 1995, unreported). This case also reveals some of the administrative problems that can arise within the Department of Corrective Services in respect of recording absences.
21. Periodic Detention of Prisoners Act 1981, s 5.
22. B Thompson, Attendance Patterns of Periodic Detainees (New South Wales Department of Corrective Services, Research Publication No 28, May 1994) at 28.
23. Periodic Detention of Prisoners Amendment Bill 1995 (NSW) Sch 1[1].
24. See Periodic Detention of Prisoners Act 1981 s 20.
25. Periodic Detention of Prisoners Amendment Bill 1995 Sch 1[12].
26. B Thompson, Attendance Patterns of Periodic Detainees at 28.
27. Periodic Detention of Prisoners Act 1981 s 25(3A).
28. Periodic Detention of Prisoners Act 1981 s 24.
29. Periodic Detention of Prisoners Act 1981 s 25(1)(a).
30. Periodic Detention of Prisoners Act 1981 s 25(1)(b).
31. R v Roome (NSW CCA, No 60636/95, 15 December 1995, unreported) at 3-4 per Hunt CJ at CL.
32. Periodic Detention of Prisoners Act 1981 s 26(2) and (3).
33. Periodic Detention of Prisoners Amendment Bill 1995 Sch 1[21].
34. For example see R v Hallocoglu (1992) 29 NSWLR 67 at 74.
35. Justice J R Dunford, Submission (7 August 1995).
36. Attorney General’s Sentencing Review at 25.
37. Department of Corrective Services, Submission (4 September 1995) at 23.
38. Periodic Detention of Prisoners Act 1981 s 5.
39. For example, an offence against the Summary Offences Act 1988, or a domestic violence offence within the meaning of the Crimes Act 1900.
40. See para 3.26-3.34.
