Sentencing Trends & Issues No 30 — Common Offences and the Use of Imprisonment in the District and Supreme Courts in 2002

Sentencing trends header with details

NUMBER 30 – MARCH 2004


Common Offences and the Use of Imprisonment in the District and Supreme Courts in 2002


Jason Keane

Research Officer

Patrizia Poletti

Senior Research Officer (Special Projects)


Hugh Donnelly

Manager, Research and Sentencing

Introduction

This paper analyses sentencing in the NSW District and Supreme Courts in 2002, with particular emphasis on the 20 most common offences.1 This paper will address the following questions:

  • Has the use of imprisonment increased in 2002 and more generally in recent years?
  • Are prison sentences longer?
  • What proportion of cases attract “special circumstances”,2 that is, how frequently is the non-parole period less than 75% of the full term of the sentence (sometimes referred to as the head sentence)?
  • Overall, what is the most common ratio between the non-parole period and the full term of sentence?
  • What are the 20 most common offences sentenced and what are the median sentences for those offences?

The current paper may also be read in conjunction with the Judicial Commission’s earlier research on higher court sentencing3 and the recently published analysis of the 20 most common offences sentenced by the Local Courts.4 Together, these papers provide an overview of the workload and sentencing practices of the courts exercising criminal jurisdiction in New South Wales.

The use of imprisonment

Figure 1 shows the distribution of sentencing options for all 2,801 offenders sentenced by higher courts in 2002.

Figure 1: Distribution of sentence types for offenders sentenced in the higher courts, 2002

Distribution of sentence types for offenders sentenced in the higher courts, 2002

In 2002, the District and Supreme Courts sentenced 1,949 convicted offenders to terms of full-time imprisonment. This equates to 69.6% of all offenders convicted in the year. This proportion has risen substantially in recent years — the Judicial Commission’s JIRS statistics indicate the rate has risen from 59.8% in 1996 and from approximately 48% in 1990–1993.5This finding supports figures released by the NSW Bureau of Crime Statistics which show that the rate of imprisonment has risen from 63.1% in 1998 to 68.5% in 2002.6 Further research by the Australian Bureau of Statistics shows that the national prison population has increased by nearly 50% from 1993 to 2003.7 NSW Corrective Services figures also indicate that the inmate population has increased by approximately 17% — from 7,485 in 1992 to 8,780 in 2001.8

This increase in the use of full-time imprisonment has occurred despite the introduction of suspended sentences in 2000. In 2002, suspended sentences accounted for 12.2% of sentenced offenders. In JCE, the Court of Criminal Appeal held that a sentence of imprisonment that is suspended is nonetheless a sentence of imprisonment.9  If those offenders who received a suspended sentence are added to those who received periodic detention or home detention, the actual rate of imprisonment reaches approximately 88% of sentenced offenders.

The Judicial Commission has recently published a study analysing the use of suspended sentences. The study raised the issue of whether the introduction of suspended sentences has resulted in “sentence escalation”, that is, whether suspended sentences are being imposed in lieu of other less punitive non-custodial sanctions.10

Length of prison sentences

While imprisonment is being used more often than in the past, the lengths of prison sentences have not increased. The median term of full-time imprisonment imposed on all offenders by the District and Supreme Courts in 2002 was 40 months. This figure can be further broken down into a median of 36 months for non-consecutive sentences and 54 months for sentences in cases involving cumulation.11 The median non-parole period in non-consecutive cases was 18 months.

The Judicial Commission’s JIRS statistics indicate that, for non-consecutive cases in higher courts, the median full term was 36 months and the median non-parole period was 18 months in each year since 1996. The findings of the present study confirm this stable trend. This generally accords with NSW Bureau of Crime Statistics and Research findings that the mean non-parole period imposed in higher courts in the 1998–2003 period has remained quite constant.12

Since the decision in Pearce v The Queen13 the Judicial Commission’s JIRS database has included consecutive sentences in order to more accurately reflect the number of offenders sentenced to imprisonment. The use of consecutive sentences increased from approximately 5% in 2000 to 11% in 2002. In addition, the length of sentence for the principal offence has also increased where sentences were consecutive or partly consecutive. In 2002, the median full term of imprisonment imposed for the principal offence was 54 months, much higher than the 36-month median for principal offences in the absence of consecutive sentence. This has increased from 48 months in each of the years 1999 to 2001.

Of the 1,949 offenders sentenced to imprisonment by higher courts in 2002, only 26 (1.3%) were sentenced to terms of six months or less. The Sentencing Council of NSW is presently looking at the question of whether prison sentences of six months or less should be abolished. The present study shows that the higher courts do not contribute significantly to the number of prisoners sentenced to imprisonment for six months or less. The bulk of such sentences are imposed by the Local Courts — in 2002 3,955 offenders were imprisoned for terms of six months or less. This represents 3.8% of all offenders sentenced (or 55.8% of offenders sentenced to full-time imprisonment) in the Local Courts in 2002.14

The proliferation of “special circumstances”

Prior to its amendment in 2003, s 44 of the Crimes (Sentencing Procedure) Act 1999 required a court, when imposing a sentence of imprisonment, to first set the full term of the sentence and then set a non-parole period of not less than 75% of the full term “unless the court decides that there are special circumstances for it being less”.15

In his Second Reading Speech introducing the Crimes (Sentencing Procedure) Bill, the Attorney General said: “In the ordinary course of events, the non-parole period will be three-quarters of the term of sentence unless the court decides there are special circumstances, in which case it can impose a lesser non-parole period.”16

The present study found that this is not the case and it is indeed something of a rarity for a sentence to reflect the statutory norm. Of all sentences of imprisonment imposed by the District and Supreme Courts in 2002,17 only 12.9% of sentences included a non-parole period of 75% or more of the full term, including 2.9% of fixed term sentences.18 It would appear, therefore, that “special circumstances” must have been found in up to 87.1% of cases where imprisonment was ordered.

A further finding is that departure from the statutory norm was not only frequent but also quite pronounced:19

  • the most common non-parole period/full term ratio was 50%, which occurred in almost a quarter of cases (23.7%)
  • more than half of those imprisoned (52.0%) had a non-parole period/full term ratio of 50% or less
  • over two-thirds of those imprisoned (69.5%) had a non-parole period/full term ratio of 60% or less
  • 84.7% of those imprisoned had a non-parole period/full term ratio of 66.7% or less.

A finding of “special circumstances” also appears to have been far more common in 2002 than it was in earlier years. According to earlier Judicial Commission research, only 47% of cases sentenced in the District and Supreme Courts in 1992 departed from the equivalent statutory ratio under the earlier Sentencing Act 1989.20 It should be noted that cases where sentences were cumulated or imposed consecutively — a circumstance accepted as being “special”21 — have been excluded from this aspect of the study.22

The increased proportion of cases attracting special circumstances may simply reflect the Court of Criminal Appeal’s interpretation of the meaning of special circumstances as expounded in the five-judge bench decision ofR v Simpson.23

In that case, the court held that it was not possible to definitively list what could or could not constitute special circumstances. Spigelman CJ said “the case law does not justify a restrictive approach to the scope of considerations relevant to the determination by a court of what constitutes special circumstances in a particular case”.24 The court held that a “wide range” of considerations are capable of constituting special circumstances25 and that it would be rare for a subjective factor to be inherently incapable of constituting a special circumstance.26 A finding of special circumstances under s 44(2) does not have to be based primarily or exclusively on a finding that it is desirable for an offender to be supervised on parole for an extended period.27 Although technically the statutory proportion of 75% constitutes a “fetter or constraint” upon the sentencing discretion28 it no longer seems to inhibit the discretionary nature of the sentencing exercise.

The findings of this study illustrate the “open”29 nature of special circumstances and may indicate that the “special circumstances” provision is perhaps being utilised far more than was anticipated by Parliament. However, the mere prevalence of special circumstances does not necessarily mean that non-parole periods are too low or inadequate. The question of whether the non-parole period is proportionate to the gravity of the crime is a separate matter and one that requires a different inquiry.30

It is not known whether this trend will continue with the introduction of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. That Act altered the sentencing procedure so that for offences committed after 1 February 2003, the non-parole period is determined first, followed by the balance of the sentence. The Attorney General in his Second Reading Speech did, however, refer to the “existing presumptive ratio” of 75% being maintained notwithstanding the amendment to s 44(1).31

Volume of offenders

The Judicial Commission’s JIRS database shows that the total number of offenders sentenced in higher courts has declined from a peak of over 4,000 per annum in the early 1990s to its present figure of 2,801 in 2002. This figure has been quite steady since 1996. Much of the decline seen since the early 1990s was attributed to legislative changes that allowed more matters to be heard summarily.32

The 20 most common principal offences sentenced in the higher courts in 2002 are shown in Table 1. These 20 offences accounted for 1,846 offenders or 65.9% of all offenders sentenced in the year. By way of comparison, the 1900–1997 study recorded that the 20 most common principal offences accounted for just 57.2% of all cases.

Comparing the top 20 offences: then and now

The 20 most common offences in 2002 included:

  • 5 offences relating to supply, importation and distribution of prohibited drugs
  • 5 offences against the person including murder, sexual assault, and other assaults and wounding offences
  • 4 robbery offences
  • 2 break and enter offences
  • 2 dangerous driving offences
  • 1 fraud offence
  • 1 weapons offence.

Despite changes and amendments to legislation in the intervening years, the 20 most common offences in 2002 were generally similar to those observed in the 1990–1997 period, in particular, the presence of armed robbery, supply drugs, and break and enter among the single most common offences.

It is of interest to note that drug offences were as common in higher courts in 2002 as they were in earlier years, whereas the Commission’s recent analysis of Local Court sentencing found only one drug offence among the 20 most common offences in 2002 compared to four drug offences in 1992.33

There were, however, some noticeable differences between the 2002 top 20 offences compared to the 1990–1997 period. For example, non-violent property offences such as receiving, larceny, motor vehicle theft, obtain by deception and defraud by false representation appeared in the earlier lists, while in 2002 the only non-violent property offence among the top 20 was defrauding the Commonwealth. Again, this may be attributed to the effect of the Criminal Procedure (Indictable Offences) Act 1995 which allowed many of these offences to be dealt with summarily.

Table 1: Most common offences sentenced by NSW higher courts in 2002

Rank Offence Legislation

No of cases

% of cases

1 Robbery — armed or in company Crimes Act 1900, s 97(1)

380

13.6

2 Supply drug — less than commercial quantity Drug Misuse and Trafficking Act 1985, s 25(1)

260

9.3

3 Break, enter and commit serious indictable offence Crimes Act 1900, s 112(1)

169

6.0

4 Malicious wounding/infliction of GBH Crimes Act 1900, s 35(1)

121

4.3

5 Robbery or steal from person Crimes Act 1900, s 94

114

4.1

6 Ongoing supply of prohibited drug Drug Misuse and Trafficking Act 1985, s 25A

111

4.0

7 Aggravated break, enter and commit serious indictable offence Crimes Act 1900, s 112(2)

105

3.7

8 Assault occasioning ABH Crimes Act 1900, s 59(1)

76

2.7

9 Aggravated robbery or steal from person Crimes Act 1900, s 95

58

2.1

10 Use/possess weapon with intent Crimes Act 1900, s 33B(1)

56

2.0

11 Aggravated robbery — armed or in company Crimes Act 1900, s 97(2)

52

1.9

12 Aggravated sexual assault Crimes Act 1900, s 61J

50

1.8

13 Dangerous driving occasioning death Crimes Act 1900, s 52A(1)

48

1.7

14 Import drug — commercial quantity Customs Act 1901 (Cth), s 233B

40

1.4

15 Import drug (not cannabis) — traffickable quantity Customs Act 1901 (Cth), s 233B

39

1.4

16 Murder Crimes Act 1900, s 19A

38

1.4

17 Dangerous driving occasioning GBH Crimes Act 1900, s 52A(3)

36

1.3

18 Supply drug — commercial quantity34 Drug Misuse and Trafficking Act 1985, s 25(2)

32

1.1

19 Malicious wounding/infliction of GBH with intent Crimes Act 1900, s 33

31

1.1

20 Defraud the Commonwealth Crimes Act 1914 (Cth), s 29D (rep)

30

1.1

Total for top 20 offences

1,846

65.9

All remaining offences

955

34.1

TOTAL

2,801

100.0



PENALTIES FOR THE 20 MOST COMMON OFFENCES

The following analysis provides information on the sentencing patterns for each of the 20 most common offences: see Table 2 for a full listing of penalty types by offence. As almost 70% of all sentences were sentences of full-time imprisonment the analysis is largely concerned with imprisonment information.

The NPP/full term ratio refers to the ratio between the non-parole period and the full term of the sentence, with particular reference to the ratio of three-quarters (75%) which is the specified statutory ratio in the absence of special circumstances,35 and the ratio of 50% or less which contains a surprisingly high proportion of those sentenced to imprisonment. The following statistics for the NPP/full term ratio exclude all cases where consecutive or partly consecutive sentences were imposed, while fixed terms are included and recorded as a ratio of 100%. Also excluded are terms of six months or less, because there is no power to set a non-parole period for such sentences.36

The distribution of sentences figure shows the proportion of sentences which fall within the middle 60% range of sentences. The lower limit of this range was set at the third percentile and the upper limit at the eighth percentile. The higher the proportion of sentences that fall within this range, the more concentrated and consistent was the distribution of sentences.


1 Robbery/assault with intent to rob — armed or in company
Crimes Act 1900, s 97(1). Maximum penalty: 20 years imprisonment

No of offenders: 380

Number imprisoned: 317 offenders (83.4%)

Median full term: 4 years

Distribution of sentences: 63.1% of full terms were in the range of 3–5 years

Consecutive sentences: 54 instances (17.0% of those imprisoned). Median full term 5 years

Non-consecutive sentences: 263 instances (83.0% of those imprisoned). Median full term 3 years 6 months, median NPP 21 months

NPP/full term ratio: NPP 50% or less in 60.9% of cases; NPP 75% or more in 6.1% of cases

Comments: The proportion of armed/in company robbery offenders actually imprisoned has risen substantially, from around 70% in the earlier study period to a present level of 83.4%. The introduction of the Henryguideline judgment in 199937 has no doubt contributed to this increase.38


2 Supply/knowingly take part in supply of prohibited drug — less than commercial quantity
Drug Misuse and Trafficking Act 1985, s 25(1). Maximum penalty: 15 years imprisonment/2,000 pu (or 10 years/2,000 pu for cannabis offence)Number of offenders: 260Number imprisoned: 110 offenders (42.3%)Median full term: 2 yearsDistribution of sentences: 66.4% of full terms were in the range of 18 months to 3 yearsConsecutive sentences: 11 instances (10.0% of those imprisoned). Median full term 3 years

Non-consecutive sentences: 99 instances (90.0% of those imprisoned). Median full term 2 years, median NPP 12 months

NPP/full term ratio: NPP 50% or less in 54.6% of cases; NPP 75% or more in 19.6% of cases

Comments: This offence has maintained a prominent position among the 20 most common offences. In 2002, this offence recorded the second lowest rate of imprisonment for any of the 20 most common offences sentenced. It has corresponding high rates of non-custodial dispositions, including the highest rate of suspended sentences (26.2%) among the 20 offences listed.


3 Break, enter and commit serious indictable offence
Crimes Act 1900, s 112(1). Maximum penalty: 14 years imprisonment

Number of offenders: 16939

Number imprisoned: 138 offenders (81.7%)

Median full term: 3 years

Distribution of sentences: 70.3% of full terms were in the range of 2–4 years

Consecutive sentences: 20 instances (14.5% of those imprisoned). Median full term 3 years

Non-consecutive sentences: 118 instances (85.5% of those imprisoned). Median full term 3 years, median NPP 18 months

NPP/full term ratio: NPP 50% or less in 52.67% of cases; NPP 75% or more in 18.1% of cases

Comments: Section 112(1) was introduced in the 1994–1997 period and immediately recorded a higher rate of imprisonment (approximately 77%) than the “old” offence under s 112 (approximately 63%). There was a higher rate of imprisonment again in 2002, although the median full term and NPP were the same in 2002 as in the 1994–1997 period.40 This offence is also now subject to a guideline judgment of sorts, albeit one that does not specify a particular sentencing range for a “typical offence”.41


4 Malicious wounding or infliction of grievous bodily harm
Crimes Act 1900, s 35(1)(a) and (b). Maximum penalty: 7 years imprisonment

Number of offenders: 121

Number imprisoned: 83 offenders (68.6%)

Median full term: 3 years

Distribution of sentences: 69.9% of full terms were in the range of 2–4 years

Consecutive sentences: 10 instances (12.0% of those imprisoned). Median full term 3 years 7.5 months

Non-consecutive sentences: 73 instances (88.0% of those imprisoned). Median full term 3 years, median NPP 15 months

NPP/full term ratio: NPP 50% or less in 56.2% of cases; NPP 75% or more in 11.0% of cases


5 Robbery or stealing from person
Crimes Act 1900, s 94. Maximum penalty: 14 years imprisonment

Number of offenders: 114

Number imprisoned: 84 offenders (73.7%)

Median full term: 2 years 6 months

Distribution of sentences: 65.5% of full terms were in the range of 2 years to 3 years 4 months

Consecutive sentences: 7 instances (8.3% of those imprisoned). Median full term 3 years

Non-consecutive sentences: 77 instances (91.7% of those imprisoned). Median full term 2 years 6 months, median NPP 12 months

NPP/full term ratio: NPP 50% or less in 70.1% of cases; NPP 75% or more in 5.2% of cases


6 Ongoing supply of prohibited drug
Drug Misuse and Trafficking Act 1985, s 25A. Maximum penalty: 20 years imprisonment/3,500 pu

Number of offenders: 111

Number imprisoned: 85 offenders (76.6%)

Median full term: 3 years

Distribution of sentences: 81.2% of full terms were in the range of 2–4 years

Consecutive sentences: 10 instances (11.8% of those imprisoned). Median full term 3 years 3 months

Non-consecutive sentences: 75 instances (88.2% of those imprisoned). Median full term 3 years, median NPP 18 months

NPP/full term ratio: NPP 50% or less in 64.0% of cases; NPP 75% or more in 10.7% of cases


7 Aggravated break, enter and commit serious indictable offence
Crimes Act 1900, s 112(2). Maximum penalty: 20 years

Number of offenders: 105

Number imprisoned: 73 offenders (69.5%)

Median full term: 3 years 6 months

Distribution of sentences: 71.2% of full terms were in the range of 2–5 years

Consecutive sentences: 7 instances (9.6% of those imprisoned). Median full term 4 years

Non-consecutive sentences: 66 instances (90.4% of those imprisoned). Median full term 3 years 4 months, median NPP 19 months

NPP/full term ratio: NPP 50% or less in 56.1% of cases; NPP 75% or more in 7.6% of cases

Comments: A lower rate of imprisonment than for non-aggravated offences under s 112(1), although the median sentences were higher.


8 Assault occasioning actual bodily harm
Crimes Act 1900, s 59(1). Maximum penalty: 5 years imprisonment

Number of offenders: 76

Number imprisoned: 29 offenders (38.2%)

Median full term: 20 months

Distribution of sentences: 65.5% of full terms were in the range of 12 months to 2 years 6 months

Consecutive sentences: 2 instances (6.9% of those imprisoned). Full terms 2 and 4 years

Non-consecutive sentences: 27 instances (93.1% of those imprisoned). Median full term 18 months, median NPP 9 months

NPP/full term ratio: NPP 50% or less in 62.5% of cases; NPP 75% or more in 16.7% of cases

Comments: The lowest imprisonment rate of any of the 20 offences listed, and the highest rate of both s 9 bonds (22.4%) and CSOs (9.2%), and the third highest rate of s 12 suspended sentences (19.7%).


9 Aggravated robbery or stealing from person
Crimes Act 1900, s 95. Maximum penalty: 20 years imprisonment

Number of offenders: 58

Number imprisoned: 49 offenders (84.5%)

Median full term: 3 years 6 months

Distribution of sentences: 67.3% of full terms were in the range of 2 years 6 months to 5 years

Consecutive sentences: 10 instances (20.4% of those imprisoned). Median full term 4 years

Non-consecutive sentences: 39 instances (79.6% of those imprisoned). Median full term 3 years 2 months, median NPP 18 months

NPP/full term ratio: NPP 50% or less in 56.4% of cases; NPP 75% or more in 5.1% of cases


10 Use or possess weapon, or threaten, with intent to commit indictable offence or resist arrest
Crimes Act 1900, s 33B. Maximum penalty: 12 years imprisonment

Number of offenders: 56

Number imprisoned: 42 offenders (75.0%)

Median full term: 2 years 11.5 months

Distribution of sentences: 71.4% of full terms were in the range of 2–4 years

Consecutive sentences: 3 instances (7.1% of those imprisoned). Median full term 2 years

Non-consecutive sentences: 39 instances (92.9% of those imprisoned). Median full term 3 years, median NPP 15 months

NPP/full term ratio: NPP 50% or less in 74.4% of cases; NPP 75% or more in 7.7% of cases


11 Aggravated robbery/assault with intent to rob — armed or in company
Crimes Act 1900, s 97(2). Maximum penalty: 25 years imprisonment

Number of offenders: 52

Number imprisoned: 51 offenders (98.1%)

Median full term: 5 years

Distribution of sentences: 64.7% of full terms were in the range of 4 years to 7 years 6 months

Consecutive sentences: 12 instances (23.5% of those imprisoned). Median full term 5 years 3 months

Non-consecutive sentences: 39 instances (76.5% of those imprisoned). Median full term 5 years, median NPP 3 years

NPP/full term ratio: NPP 50% or less in 30.8% of cases; NPP 75% or more in 12.8% of cases

Comments: Excluding murder and import commercial quantity of prohibited drug, this offence showed the highest rate of imprisonment and one of the more severe median full terms. As expected, both these figures were higher than the figures recorded for the non-aggravated offence.


12 Aggravated sexual assault
Crimes Act 1900, s 61J. Maximum penalty: 20 years imprisonment

Number of offenders: 50

Number imprisoned: 47 offenders (94.0%)

Median full term: 6 years

Distribution of sentences: 66.0% of full terms were in the range of 4–11 years

Consecutive sentences: 14 instances (29.8% of those imprisoned). Median full term 11 years

Non-consecutive sentences: 33 instances (70.2% of those imprisoned). Median full term 5 years, median NPP 3 years 3 months

NPP/full term ratio: NPP 50% or less in 21.2% of cases; NPP 75% or more in 12.1% of cases

Comments: Among the most serious offences in the top 20, with an accordingly high rate of imprisonment and high median sentence. Note also the quite high proportion of consecutive sentences and the high median in those cases, and the quite low proportion of cases where the NPP/full term ratio was 50% or below.


13 Dangerous driving occasioning death
Crimes Act 1900, s 52A(1). Maximum penalty: 10 years imprisonment

Number of offenders: 48

Number imprisoned: 32 offenders (66.7%)

Median full term: 3 years 1.5 months

Distribution of sentences: 71.9% of full terms were in the range of 2 years 6 months to 4 years

Consecutive sentences: 1 instance (3.1% of those imprisoned). Full term 6 years

Non-consecutive sentences: 31 instances (96.9% of those imprisoned). Median full term 3 years, median NPP 18 months

NPP/full term ratio: NPP 50% or less in 64.5% of cases; NPP 75% or more in 3.2% of cases

Comments: This offence is subject to two guideline judgments42 which require a custodial sentence to be imposed unless the offender “has a low level of culpability”.43 One-third of all offenders convicted of this offence avoided a full-time custodial punishment. When custodial sentences were imposed, the median full term reflects the 3-year starting point suggested by the guideline judgments. Special circumstances were obviously found in the majority of these cases, as only one offender received a NPP equal to or greater than 75% of the full term.


14 Import prohibited drug — commercial quantity
Customs Act 1901 (Cth), s 233B. Maximum penalty: life imprisonment/7,500 pu

Number of offenders: 40

Number imprisoned: 40 offenders (100.0%)

Median full term: 10 years 6 months

Distribution of sentences: 62.5% of full terms were in the range of 7–15 years

Consecutive sentences: 4 instances (10.0% of those imprisoned). Median full term 12 years 6 months

Non-consecutive sentences: 36 instances (90.0% of those imprisoned). Median full term 10 years 6 months, median NPP 6 years 9 months

NPP/full term ratio: NPP 50% or less in 8.3% of cases; NPP 66.7% or more in 30.6% of cases; NPP 75% or more in 5.6% of cases

Comments: The equal highest rate of imprisonment and the highest median full term of any offence apart from murder. There were few instances of a NPP/full term ratio of 50% or below, with a ratio of 66.7% being most common. This reflects the different sentencing regime for Commonwealth offenders.


15 Import prohibited drug — traffickable quantity, drug other than cannabis
Customs Act 1901 (Cth), s 233B. Maximum penalty: 25 years imprisonment/5,000 pu

Number of offenders: 39

Number imprisoned: 38 offenders (97.4%)

Median full term: 6 years

Distribution of sentences: 73.7% of full terms were in the range of 4 years 6 months to 7 years 6 months

Consecutive sentences: 1 instance (2.6% of those imprisoned). Full term 5 years

Non-consecutive sentences: 37 instances (97.4% of those imprisoned). Median full term 6 years, median NPP 3 years 6 months

NPP/full term ratio: NPP 50% or less in 8.3% of cases; NPP 66.7% or more in 27.8% of cases; NPP 75% or more in no cases

Comments: The high rate of imprisonment is similar to that for the previous offence, although the median sentences are lower. There was also a distinctive pattern of distribution in the NPP/full term ratio with 66.7% being a common ratio applied in more than a quarter of cases. This again reflects the different sentencing regime for Commonwealth offenders. This offence was also subject to a guideline judgment44 which recommends a range of full terms from 5–10 years depending on the amount of drug involved. This guideline was over-ruled by the High Court45 which heavily criticised the emphasis on drug amount in determining an appropriate sentence.


16 Murder
Crimes Act 1900, s 19A. Maximum penalty: life imprisonment

Number of offenders: 38

Number imprisoned: 38 offenders (100.0%)

Median full term: 18 years 6 months

Distribution of sentences: 68.4% of full terms were in the range of 16–25 years. Six natural life sentences imposed

Consecutive sentences: 3 instances (7.9% of those imprisoned). Median full term 19 years

Non-consecutive sentences: 35 instances (92.1% of those imprisoned). Median full term 18 years, median NPP 14 years

NPP/full term ratio: Lowest ratio of 60.0%; NPP 75% or more in 77.1% of cases, including 6 life sentences

Comments: As may be expected, this was the most severely sentenced of all offences. All offenders were imprisoned and the shortest full term imposed was 14 years. Of note also is the NPP/full term ratio which was the highest of any of the offences listed.


17 Dangerous driving occasioning grievous bodily harm
Crimes Act 1900, s 52A(3). Maximum penalty: 7 years imprisonment

Number of offenders: 36

Number imprisoned: 20 offenders (55.6%)

Median full term: 2 years

Distribution of sentences: 65.0% of full terms were in the range of 21 months to 3 years

Consecutive sentences: none

Non-consecutive sentences: 20 instances (100% of those imprisoned). Median full term 2 years, median NPP 14 months

NPP/full term ratio: NPP 50% or less in 55.0% of cases; NPP 75% or more in 25.0% of cases

Comments: This offence featured a relatively low rate of imprisonment, the highest rate of periodic detention (22.2%) and a relatively high proportion of s 12 suspended sentences (19.4%). As was the case for dangerous driving causing death, imprisonment was ordered, the median full term was in accordance with the 2-year period suggested by the guideline judgment of Whyte.


18 Supply/knowingly take part in supply of prohibited drug — commercial quantity46
Drug Misuse and Trafficking Act 1985, s 25(2). Maximum penalty: 20 years imprisonment/3,500 pu (or 15 years/3,500 pu for cannabis offences)

Number of offenders: 32

Number imprisoned: 29 offenders (90.6%)

Median full term: 4 years 6 months

Distribution of sentences: 72.4% of full terms were in the range of 3–6 years

Consecutive sentences: 3 instances (10.3% of those imprisoned). Median full term 5 years 6 months

Non-consecutive sentences: 26 instances (89.7% of those imprisoned). Median full term 4 years 6 months, median NPP 3 years

NPP/full term ratio: NPP 50% or less in 34.6% of cases; NPP 75% or more in 19.2% of cases

Comments: As may be expected, the rate of imprisonment and the median term of imprisonment were substantially higher than for offences under s 25(1).


19 Malicious wounding, shooting or infliction of grievous bodily harm with intent
Crimes Act 1900, s 33. Maximum penalty: 25 years

Number of offenders: 31

Number imprisoned: 30 offenders (96.8%)

Median full term: 5 years

Distribution of sentences: 60.0% of full terms were in the range of 4 years to 7 years 6 months

Consecutive sentences: 6 instances (20.0% of those imprisoned). Median full term 7 years 9 months

Non-consecutive sentences: 24 instances (80.0% of those imprisoned). Median full term 5 years, median NPP 2 years 9 months

NPP/full term ratio: NPP 50% or less in 33.3% of cases; NPP 75% or more in 8.3% of cases

Comments: Very high rate of imprisonment, although few offenders received NPPs of 75% or more of the full term.


20 Defraud the Commonwealth
Crimes Act 1914 (Cth), s 29D (repealed). Maximum penalty 10 years imprisonment/1,000 pu

Number of offenders: 30

Number imprisoned: 16 offenders (53.3%)

Median full term: 2 years 7 months

Distribution of sentences: 62.5% of full terms were in the range of 2 years to 3 years 4 months

Consecutive sentences: 3 instances (18.8% of those imprisoned). Median full term 2 years 1 month

Non-consecutive sentences: 13 instances (81.3% of those imprisoned). Median full term 2 years 8 months, median NPP 16 months

NPP/full term ratio: NPP 50% or less in 61.5% of cases; NPP 66.7% or more in 23.1% of cases; NPP 75% or more in 7.7% of cases

Comments: A relatively low rate of imprisonment, with a NPP/full term ratio of 40% occurring in nearly a quarter of those imprisoned (23.4%). Note again the different sentencing regime for Commonwealth offenders.


All remaining offences

Number of offenders: 955

Number imprisoned: 598 offenders (62.6%)

Median full term: 3 years

Distribution of sentences: 66.2% of full terms were in the range of 2–6 years

Consecutive sentences: 129 instances (21.6% of those imprisoned). Median full term 4 years 6 months

Non-consecutive sentences: 469 instances (78.4% of those imprisoned). Median full term 3 years, median NPP 18 months

NPP/full term ratio: NPP 50% or less in 52.5% of cases; NPP 75% or more in 14.6% of cases.

Table 2: Most common offences sentenced in NSW higher courts 2002 — by penalty type

Penalty Type (%)

Rank

Offence description

s 10 dismissal

s 10 good behaviour bond

Rising of the court

Fine

s 9 good behaviour bond

Community service order

s 12 suspended sentence

Periodic detention

Home detention

Prison

1

Robbery — armed or in company

0.8

2.1

8.2

5.5

83.4

2

Supply drug— less than commercial quantity

1.2

0.4

8.5

8.1

26.2

13.5

42.3

3

Break, enter and commit serious indictable offence

0.6

4.7

1.2

10.7

1.2

81.7

4

Malicious wounding/infliction of GBH

0.8

5.8

5.0

16.5

3.3

68.6

5

Robbery or steal from person

3.5

1.8

14.9

5.3

0.9

73.7

6

Ongoing supply of prohibited drug

4.5

1.8

9.0

6.3

1.8

76.6

7

Aggravated break, enter and commit serious indictable offence

3.8

3.8

12.4

9.5

1.0

69.5

8

Assault occasioning ABH

2.6

2.6

22.4

9.2

19.7

5.3

38.2

9

Aggravated robbery or steal from person

1.7

8.6

5.2

84.5

10

Use/possess weapon with intent

7.1

1.8

12.5

3.6

75.0

11

Aggravated robbery — armed or in company

1.9

98.1

12

Aggravated sexual assault

2.0

4.0

94.0

13

Dangerous driving occasioning death

2.1

6.3

10.4

12.5

2.1

66.7

14

Import drug — commercial quantity

100.0

15

Import drug (not cannabis) — traffickable quantity

2.6

97.4

16

Murder

100.0

17

Dangerous driving occasioning GBH

2.8

19.4

22.2

55.6

18

Supply drug — commercial quantity

3.1

3.1

3.1

90.6

19

Malicious wounding/infliction of GBH with intent

3.2

96.8

20

Defraud the Commonwealth

3.3

26.7

16.7

53.3

All remaining offences

0.8

1.5

0.2

0.8

12.6

3.2

12.4

5.5

0.3

62.6

TOTAL

0.4

0.7

0.1

0.3

7.1

3.1

12.2

6.1

0.3

69.6

SHADED NUMBERS INDICATE THAT FOR THAT PARTICULAR OFFENCE, THE SHADED PENALTY TYPE IS NOTICABLY OVERUSED COMPARED TO THE TOTAL FIGURE.


CONCLUSION

The data for 2002 in this study revealed:

  • There has been a gradual increase in the use of imprisonment in the past decade.
  • For non-consecutive cases, the median full term was 36 months and the median non-parole period was 18 months in each year since 1996. This could be attributed to the increased use of imprisonment for offences which previously attracted alternatives to imprisonment. In other words, more offenders are being imprisoned for short periods, which may be having the statistical effect of stabilising the median sentence. Another factor that may affect median sentence levels for each offence is the increased frequency of judges finding special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances were found in 87.1% of cases.
  • The degree of departure from the 75% statutory norm was significant. Sentences were most commonly structured so that the non-parole period was 50% of the full term of sentence.
  • The 20 most commonly sentenced offences in the District and Supreme Courts have not changed greatly over the past decade.


ENDNOTES

The following analysis includes all offenders sentenced in the NSW District and Supreme Courts in the 2002 calendar year as recorded by the Judicial Commission’s Judicial Information Research System (JIRS). The term “offence” refers to the principal offence for which each offender was sentenced, that is, the offence which attracted the highest penalty. When an offender was convicted and sentenced for more than one offence, those offences which received lesser penalties were omitted from the analysis.

Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 provides that the non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides that there are special circumstances for it being less, in which case the court must give reasons for that decision.

J Hickey and S Cumines, “Common Offences in the Higher Courts 1990–1997” (1998) 18 Sentencing Trends, Judicial Commission of NSW. For earlier analysis, see also V Roby, “Common Offences in the Higher Courts” (1994) 6 Sentencing Trends, Judicial Commission of NSW.

J Keane and P Poletti, “Common Offences in the Local Courts 2002” (2003) 28 Sentencing Trends & Issues, Judicial Commission of NSW.

Hickey and Cumines, op cit n 3, p 3.

NSW Bureau of Crime Statistics and Research, “Average length of imprisonment (months), by principal offence, NSW Higher Courts 1998 to 2002”. Accessed February 2003. Available url: <http://www.lawlink.nsw.gov.au/bocsar1.nsf/pages/courtstatsindex>.

Australian Bureau of Statistics, Prisoners in Australia, June 2003, cat no 4517.0, 2004.

NSW Department of Corrective Services, Annual Report2001–2002, Statistical supplement, pp 12–13.

R v JCE (2000) 120 A Crim R 18 at [15].

10  G Brignell and P Poletti, “Suspended Sentences in NSW” (2003) 29 Sentencing Trends & Issues, Judicial Commission of NSW.

11  Note this figure is still for the principal offence only and does not reflect the aggregate sentence for multiple offences.

12  Op cit n 6.

13  (1998) 194 CLR 610.

14  Keane and Poletti, op cit n 4, p 11.

15  s 44(2).

16  The Hon R J Debus, New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 28 October 1999, p 2326.

17  n=1613 (excludes cumulative sentences and sentences of six months or less where there is no power to set a non-parole period: Crimes (Sentencing Procedure) Act 1999, s 46).

18  That is, those where the NPP/full term ratio is 100%, including life sentences.

19  These figures only include non-consecutive sentences.

20  I MacKinnell, D Spears and R Tackach, Special Circumstances under the Sentencing Act 1989, 1993, Monograph No 7, Judicial Commission of NSW.

21 R v Clissold [2002] NSWCCA 356.

22  See n 1; on the question of totality and consecutive sentences see Pearce v The Queen (1998) 194 CLR 610.

23  (2001) 53 NSWLR 704.

24  Ibid at [69], Mason P, Grove J and Newman AJ agreeing, Sully J agreeing on this point.

25  Ibid at [88].

26  Ibid at [60].

27  Ibid at [48] and [52].

28  Ibid per Spigelman CJ.

29  Ibid at [51].

30 Power v The Queen (1974) 131 CLR 623; see also Spigelman CJ in R v Simpson (2001) 53 NSWLR 704.

31  The Hon R J Debus, New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 23 October 2002, p 5813 et seq.

32  Hickey and Cumines, op cit n 3, pp 1–2, citing District Court of NSW Annual Review 1996, at p 36. See also K Ellson and P Poletti “Sentencing Offenders in the Local Courts: Effects of the Criminal Procedure (Indictable Offences) Act 1995” (2000) 19 Sentencing Trends, Judicial Commission of NSW.

33  Keane and Poletti, op cit n 4, p 3.

34  Does not include large commercial quantity offences.

35 Crimes (Sentencing Procedure) Act 1999, s 44(2).

36 Crimes (Sentencing Procedure) Act 1999, s 46.

37 R v Henry (1999) 46 NSWLR 346.

38  See also L Barnes and P Poletti, “Sentencing Trends for Armed Robbery and Robbery in Company: The Impact of the Guideline in R v Henry” (2003) 26 Sentencing Trends & Issues, Judicial Commission of NSW. The Judicial Commission is also presently undertaking a more detailed study of armed robbery sentences to determine the extent to which the guideline is being applied and its impact on sentences imposed.

39  For 158 offenders (93.5%), the serious indictable offence committed was stealing, while 11 offenders (6.5%) committed other offences.

40  Hickey and Cumines, op cit n 3, p 7.

41 Re Attorney General’s Application (No1); R v Ponfield (1999) 48 NSWLR 327.

42 R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252.

43 R v Whyte (2002) 55 NSWLR 252.

44 R v Wong; R v Leung (1999) 48 NSWLR 340.

45 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584.

46  Does not include commercial quantities.


ISSN 1036 4722

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.