Sentencing Trends No 20 — Sentencing Female Offenders in New South Wales

Sentencing Female Offenders in New South Wales

Patrizia Poletti, Project Officer

Introduction

This issue of Sentencing Trends analyses the types of offences committed by women and the sentences being imposed upon them. It demonstrates how sentencing has changed over time, with particular attention being given to the use of imprisonment as a sanction against women.

The Data

The data upon which this analysis is based were derived from court statistics collected from the Local Courts and higher courts¹ of New South Wales for the period 1995 – 1999.² The statistics depict trial and sentence cases that resulted in a recognised sentencing outcome (eg, imprisonment, fine, recognizance, etc) for a principal offence. The “principal offence” is the offence attracting the severest penalty in a group of offences for which an offender has been convicted. The remaining secondary offences were removed from the data, as were cases that resulted in the imposition of a cumulative sentence.

Overview

Over the study period, a total of 449,837 cases were examined. Most of these matters were finalised in the Local Courts (437,433 or 97.2%) and most involved male offenders. Women accounted for 16.2% of cases overall (or 72,958 records), but accounted for fewer cases in the higher courts (9.0%). However, as Figure 1 shows, since 1995 the proportion of female offenders to male offenders has increased from 15.7% in 1995 to 16.8% in 1998, although this seems to have stabilised during 1999 to approximately 16.7%.

Figure 1
Percentage of females dealt with by year (1995-1999)

In terms of raw numbers, there was an overall increase in the number of sentencing matters that the courts have dealt with, from 88,992 in 1995 to 96,964 in 1998 (an increase of almost 9%). Most notably, matters involving women have increased at a faster rate than for men (16.3% compared with 7.6% for males).

Nature of Offences

Principal offences were grouped according to the Australian Standard Offence Classification (ASOC).³ The results are presented in Table 1, which compares the frequency of offences for males and females and shows the pattern in the frequency of offences relating to females by sentence year.

Table 1
Frequency of offences for males and females and frequency of offences for females by offence (1995-1999)

The most common offence category was road traffic and motor vehicle regulatory offences,⁴ accounting for over one-third (35.2%) of all offences dealt with by the courts. It was the most common offence category for males (36.3%) and a close second for females (29.6%). On the other hand, females were more likely than males to be sentenced for offences relating to property (32.1% compared with 20.0% for males), particularly theft⁵ (21.5% compared with 10.3% for males) and deception⁶ (6.5% compared with 2.6% of males) offences. Offences against public order⁷ was another category of offence where proportionately more females were dealt with by the courts (8.0% compared with 7.2% of males).

Trend data

Since 1995 there has been a noticeable drop in the proportion of female offenders sentenced for property offences (from 35.7% in 1995 to 28.2% in 1999). However, there has been an increase in the proportion of women convicted of public order offences⁸ (from 8.0% in 1995 to 9.9% in 1999), offences against justice procedures, government security and government operations⁹ (from 5.2% in 1995 to 6.7% in 1999) and driving licence offences¹⁰ (from 4.3% in 1995 to 7.7% in 1999).

Sentencing Outcomes and Patterns

Figure 2 shows the distribution of penalties for males and females over the study period. The majority of offenders (58.1% of males and 54.9% of females) were ordered to pay a fine for their principal offence. Females were less likely than males to receive a full-time prison term (4.2% compared with 8.6% of males). To a lesser extent, females were also less likely to use other alternatives to imprisonment, such as periodic detention and community service orders. Consequently, proportionately more women than men were placed on a recognizance to be of good behaviour, including s 556A¹¹ recognizances or dismissals, which do not require a conviction to be recorded even though the offence may be proven.

Figure 2
Distribution of penalties for males and females (1995–1999)

Full-time Imprisonment

When examined by year of sentence (see Figure 3), it was found that there was an increase in the use of imprisonment during 1998 for both males and females, but otherwise the rates have been fairly stable over the study period.

Figure 3
Percentage of full-time imprisonment for males and females (1995-1999)

Figure 4 shows the trends in the use of imprisonment for the male and female offenders sentenced by the different courts during the study period. As expected, imprisonment was imposed at a greater rate by the higher courts (60.3%) than by the Local Courts (6.4%). However, it should be noted that the Local Courts imposed the majority (97.2%) of sentences upon convicted offenders.

Figure 4
Percentage of full-time imprisonment for males and females by jurisdiction (1995-1999)

In the higher courts, the use of imprisonment increased in 1996 for males and females, perhaps partly because of the impact of the Criminal Procedure Amendment (Indictable Offences) Act 1995, which commenced on 1 September 1995.¹²

A recent study by the Judicial Commission¹³ found that there were significant increases in the number and severity of offences dealt with by the Local Courts. This shift in the practice of the courts has also affected the type and number of matters dealt with by the District Court.¹⁴ District Courts are now dealing with more serious cases, partly explaining the increase in the use of imprisonment by that court since 1995.

In the higher courts there was also a significant increase, in 1998, of women who were sentenced to full-time custody. The most likely explanation for this could be the increase in the seriousness of offences being committed by women (eg, armed robbery, driving licence offences, offences against good order and assault) and the accumulation of a criminal record (police programmes having been targeting repeat offenders).

In 1998 in the Local Courts there was an increase in the use of imprisonment for males and females. Although this represents only a small percentage increase, it actually indicates a substantial increase in the number of offenders being imprisoned.

When examined by offence type (see Table 2), it can be seen that for every offence, except import illicit drugs,¹⁵ proportionately more males than females received a full-time prison term. This was more likely where the principal offence was a driving offence, an offence against the person (such as dangerous/negligent acts endangering persons and acts intended to cause injury) or an offence relating to property (such as theft).

Table 2
Percentage of full-time imprisonment for males and females and percentage of full-time imprisonment for females by offence (1995-1999)

Trend data

Table 2 also shows the rate of full-time imprisonment imposed upon female offenders by sentence year and offence type. Since 1995 proportionately more females have been imprisoned for property offences (such as robbery¹⁶and theft),¹⁷ offences against the person (such as acts intended to cause injury¹⁸ and dangerous/negligent acts endangering persons)¹⁹ and driving offences.²⁰

Sentence length

Figure 5 shows the median length of prison sentences for males and females that were imposed by the Local and higher courts from 1995 to 1999. In the Local Courts, there has been no change in the median sentence of imprisonment imposed for male (4 months) and female (3 months) offenders.

Figure 5
Median sentence length in months for full-time imprisonment for males and females by jurisdiction (1995-1999)

In the higher courts, median sentences of imprisonment have become longer, especially in 1998. For males, it has increased from 36 months in the years prior to 1998 to 42 months since then. For females, it has increased from 31.5 months in 1995 to 36 months in 1998.

Factors Associated with Discrepancies between Males and Females

Why are males (8.6%) twice as likely than females (4.2%) to be given a full-time prison term? And, why do women generally receive shorter sentences than males?

The reason is not likely to be that the courts unfairly discriminate against men, but rather that men tend to commit more serious offences or have a more extensive criminal history. For example, 53.9% of females sentenced by the courts had no prior record of offending compared with 38.2% of males. As Figure 6 shows, the proportion of offenders with a criminal record increased in 1998 for males and females, but at a greater rate for females.²¹

Figure 6
Percentage of males and females with prior convictions (1995-1999)

Another factor associated with the discrepancy between males and females concerns the severity of the offence. For example, common assault and assault occasioning actual bodily harm fall into the same offence category. Naturally, the percentage of offenders imprisoned was higher for the more serious assault (12.6% for assaults occasioning actual bodily harm and 5.7% for common assault). However, females were less likely than males to commit the more serious assault of occasioning actual bodily harm (1.6% compared with 3.0% of males).

Also, the role of the offender in the commission of the offence may have contributed to differences in the penalties imposed on men and women.²²

These and other factors may be the real reasons for differences in the kinds of penalties being imposed for male and female offenders.

Conclusions

This study has shown that over the period 1995 – 1999 –

• the number of sentencing matters coming before the courts significantly increased. This rate of increase was greater for females than for males;
• the proportion of female to male offenders overall increased;
• the proportion of females who were sentenced to full-time imprisonment increased (especially in 1998); and
• the median length of prison terms has remained steady in the Local Courts but increased in the higher courts (especially in 1998).

Many factors may have contributed to the observed patterns in sentencing offenders, both generally and in relation to women, including –

• the impact of the Criminal Procedure (Indictable Offences) Act 1995 –
  • as more serious matters were being dealt with by the Local Courts, they attracted more severe penalties (the percentage of offenders imprisoned has gone up for both males and females); and
  • as more serious matters were being dealt with by the higher courts, these also attracted harsher penalties (a higher percentage were being sentenced to imprisonment and for longer terms)
• women were committing more serious offences (eg, armed robbery was up while break enter and steal and other property offences were down) which were likely to contribute to the growing size of the prison population – even though these types of offences are relatively rare they attract long prison terms;
• increases in legislative penalties (particularly Traffic Act matters)²³ ;
• the impact of guideline sentences (particularly Jurisic²⁴ in relation to dangerous driving and Henry²⁵ in relation to armed robbery); and
• increases in the crime rate (and reporting of crime) and level of police activity (which increased since 1996²⁶ and targeted repeat offenders²⁷ ).

Endnotes

ISSN 1036 4722

Published by the Judicial Commission of New South Wales

Disclaimer
This paper was prepared by officers of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officers of the Commission who prepared this report for the Commission.