Our Convict History
As machines replaced manual labour, some of the unemployed people that could did move to the cities. As the cities became overcrowded, many didn’t and couldn’t get a job. Sometimes people stole things to survive. A minor crime, such as stealing something more than 1 shilling (about a day’s wages for the working person) was an offence punishable by transportation. In 1783 the American War of Independence ended, and America refused to accept any more convicts from England. Prisons in England were so full that prisoners were kept on ships that could not go to sea anymore but could still float in the harbour. Transporting prisoners to NSW became the solution.
From the start of 1788, when the First Fleet of convicts arrived at Botany Bay, over 165,000 convicts were transported to Australia over the next 80 years. The most common reason for transportation to Australia was theft. Even stealing a handkerchief was regarded as a transportable offence.
As some of these convicts had been carpenters, farmers, cooks and servants, they were often employed according to their skills. Convict labour was used to build roads, bridges, courthouses, hospitals and other public structures. Surprisingly, Australia’s first police force was made up entirely of criminals! This was a result of reduced rations hitting the colony hard, which led to a rise in crime. Governor Phillip created the Night Watch, in which he employed 12 of the best behaved convicts.
One convict that arrived in 1799 was George Crossley. Mr Crossley was an attorney and a convict. In 1796, this attorney forged a will. Crossley’s defence was that he placed a fly in the mouth of the dead testator before tracing the signature of the dead testator’s hand, so the fact that there was life in the body could not be denied. However, it was not this act, but rather a charge of professional malpractice that resulted in Crossley being sent to Australia. Later on Mr Crossley started practising law in Sydney, even helping the government at the time.
The law today reflects the change in societal views towards imprisonment.
Under Section 5 of the Crimes (Sentencing Procedure) Act: “a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”.
Thus, petty theft, which could get you sent halfway around the world in the old days, would hardly warrant the deprivation of your liberty. It is reasonable to deduce that we are a society that has adopted a less tough on crime approach relative to the English 200 years ago. This is partly as a result of the impact of technology and will be made clear as we consider the alternatives to imprisonment.
Alternatives to hard time
Imprisonment is the most severe sentence an Australian court can impose, and as stated above, is only to be used when “no penalty other than imprisonment is appropriate”. Thus, it is a sentence of last resort. Why is this so? Consider the purposes of sentencing a criminal offender, which are set out in Section 3A of the Crimes Sentencing Procedure Act. One of these purposes, is “to promote the rehabilitation of the offender”. Locking up an individual in an environment where they may be subjected to harm, torment and worse hardly seems effective towards promoting that individual’s rehabilitation. For this reason, an alternative custodial sentence is the Intensive Correction Order.
Intensive Correction Order (ICO)
Under Section 7 of the Crimes (Sentencing Procedure) Act, instead of imposing a sentence of imprisonment, a court sentence of 2 or less years which can have a variety of conditions imposed which include:
The offender must also complete a minimum of 32 hours of community service work per month and participate in activities designed to address their offending behaviour. Breaching an ICO may result in the completion of the sentence in prison. This leads us to the non-custodial alternatives.
Community Correction Orders (CCO)
A relatively recent addition to the sentencing options (since the 24th September 2018), this is a non-custodial alternative to full-time imprisonment available under Section 8 of the Crimes (Sentencing Procedure) Act. This punishment is less severe than imprisonment or an ICO but, is still more severe than a Conditional Release Order which we will discuss below. A person sentenced with a CCO is required to appear in court if called upon during the duration of the CCO, which must be less than 3 years. Furthermore, the offender is not to additional offences during the duration of the CCO. Additional conditions can be added to a CCO. Such conditions include:
Conditional Release Order (CRO)
Available under Section 9 of the Crimes (Sentencing Procedure) Act, this penalty can be imposed with or without the offender receiving a conviction on their record, and thus for obvious reasons, is vastly preferable to any of the offences previously discussed. A CRO is one of the most lenient penalties a Magistrate or Judge can impose for any criminal or traffic offence in NSW. Unlike a Section10 outcome, which is regarded as the holy grail among criminal lawyers, a CRO has conditions that you are required to comply with over a specified period of time.
It should be noted that this penalty is generally only available to less serious offences (using the word trivial may offend a Magistrate or Judge). Factors that can improve your ability to obtain this outcome include:
Section 10 of the Crimes (Sentencing Procedure) Act states “Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders- a) an order directing that the relevant charge be dismissed”. This outcome is highly desirable, given that the lack of a criminal record assists in seeking employment and even travelling. However, this outcome is also difficult to obtain.
In recent years, crime rates in Australia have fallen, yet our prisons are overcrowded to the detriment of the taxpayer. For example, the number of prisoners rose by 40% in 5 years, from 2012 to 2017. Corrective services experience increased difficulty to meet basic human needs such as food, healthcare, access to urgent medical attention. To receive an urgent medical report for use in their court cases, some prisoners have to wait around 6 months. This kind of wait time is unacceptable for people suffering severe mental health issues. Yet somehow these prisoners that risk being institutionalised, are told they are being rehabilitated. Is it any wonder that more than 50% of prisoners return to prison in NSW? Every other state and Territory in Australia has prisoners returning to prison at rates higher than 40%, except for WA and SA. Compare that to Norway’s recidivism rate, which is just over 20%.
Scandinavian Jails and their much better recidivism rates
Norway’s maximum-security prison, Halden, gives each inmate a private room with a fridge, television and a desk. Inmates have access to a kitchen, and a metal and woodworking workshop. Halden has been reported to have no security fence because no inmate has ever tried to escape the facility. This is something completely different to other prison systems around the world. In the USA, approximately 75% of its prisoners commit criminal offences within five years of their release. In Halden, the facility attempts to prepare their inmates for a life outside of incarceration. The staggering difference in rates of recidivism warrants the entire world seeing and focusing on how to keep prisoners out of returning to prison. The Norway focus seems to be based on rehabilitation, instead of punishment severity, and the statistics are proof to their success.
If you have been charged or convicted of a criminal offence, contact Rep-Revive Criminal Lawyers for a free consultation.