Reimagining Sentencing Options For Criminalized

Introduction

Feminist literature has considered the issue of interaction between law and the social institution of motherhood. Among the various areas of discourse within this field, the concept of incarceration of mothers is also considered. The overarching argument on female incarceration is that there should be a development of an anti-oppressive orientation to criminalised women, which focuses on the building of social work responses, decarceration and restorative justice. This argument proceeds from the premise that there are spill-over effects of incarceration of mothers, which are not only impactful for the mothers but also their children. There is therefore an emphasis in the feminist literature for decarceration, or alternatives to incarceration, so that criminalised mothers can be reunited with their children and the spill-over effects of incarceration of mothers can be avoided. Earlier, this objective was achieved in the New South Wales through the option of the suspended sentences. Suspended sentences were used in case of maternal incarceration and provided relief to criminalised women by allowing them to stay with their children. These sentences were also thought to be useful in reducing recidivism, reducing the statistics of maternal incarceration and allowing the courts to provide rehabilitation options for criminalised mothers. In other words, one may note that this option was in conformity with the feminist approach to maternal incarceration.

Recently, three new sentencing options in New South Wales (NSW) have replaced suspended sentences and bonds, effective from 24 September 2018. These are Intensive Corrections Orders, Community Corrections Orders, and Conditional Release Orders. This brief essay critically analyses the ways in which these advantage and disadvantage criminalised women with children and whether these options are consistent with a feminist approach to the needs of these women.

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Intensive Corrections Orders:

Intensive Corrections Order is the more serious of the three options that can be served within the community. This allows courts to specify the most serious conditions, including incarceration for the offender. Intensive Corrections Orders may be applied in cases which involve one offence punishable by imprisonment less than 2 years, or multiple offences punishable by total imprisonment of no more than 3 years. Therefore, for offences that are more serious in nature and punishable by imprisonment of more than that prescribed for the making of the order, this provision will not be applicable. Intensive Corrections Order is the more serious of the three options that can be served within the community. This allows courts to specify the most serious conditions, including incarceration for the offender. Intensive Corrections Orders may be applied in cases which involve one offence punishable by imprisonment less than 2 years, or multiple offences punishable by total imprisonment of no more than 3 years. Therefore, for offences that are more serious in nature and punishable by imprisonment of more than that prescribed for the making of the order, this provision will not be applicable.

Intensive Corrections Orders were already applicable under the Crimes (Sentencing Procedure) Act 1999, Section 7(1); however, the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 has restructured and amended the earlier provisions that were prescribed in Part 5 of the Act and replaced this with a new Part 5. The focus under the new provisions is on community safety and ensuring accountability of the offender. The new Part 5 provides discretion to the sentencing court to tailor the particular conditions to be imposed. As per the new scheme, offenders who have received the order, will be subject to Community Corrections Officers’ supervision, and may be further subjected to home detention and electronic monitoring.

The impact of the order on criminalised mothers can be both positive as well as negative. The positive is that if the criminalised mother has committed a less serious offence, or multiple offences for which the punishment does not exceed 3 years in total, then she can hope to not be incarcerated and receive an order that allows her to remain with her children while serving her sentence in the community. The disadvantage is that even in such situations, she may be made subject to curfews, home detention, or electronic monitoring as part of the conditions within the order. This may be a little harsh for a mother raising her children as it subjects her, and by default her children to more restrictions on their freedoms and liberty of movement. Nevertheless, if the order does not involve incarceration, then it is advantageous to the criminalised mother. On the other hand, the court may also provide incarceration condition as part of the order, in which case, the criminalised mother may be subject to the disadvantages of incarceration and spill-over effects for herself and her children that the feminist approach emphasises against. Short term prison sentences have been found to be especially damaging to criminalised mothers from the Aboriginal community, with effects ranging from losing rental property, removal of children due to loss of residence, and possible recourse to drugs, alcohol and reoffending. Similar impacts may be faced by other criminalised mothers as well. Therefore, the replacement of suspended sentences with Intensive Corrections Orders, may actually put criminalised mothers at a severe disadvantage if they are subjected to incarceration condition under the order.

Community Corrections Order:

This is less onerous in nature and may also allow charges to be dismissed. It has replaced Community Service Orders and Good Behaviour Bonds that were allowed under Crimes (Sentencing Procedure) Act 1999, Section 9. A Community Corrections Order can be imposed by the court for up to 3 years. The order will also include conditions requiring the offender to appear before the Court when called and also a condition to not reoffend. Curfew can also be imposed under this order, and community service work can be prescribed. On the whole, Community Corrections Order does not put a criminalised mother to a significant disadvantage because she is allowed to continue living with her children, does not have to lose her home, and continue to work and support her children. The onerous aspects of this order is that it may prescribe curfew. However, considering that the woman is still able to live with her children, the curfew condition may not be significantly harsh, especially if the purpose of the condition is to ensure that the woman does not fall into reoffending or recourse to drugs or alcohol.

Conditional Release Orders:

It is less onerous and like the Community Corrections Order, it may also see charges being dismissed. Conditional Release Order is made in cases where the offender is a first time offender, the offence itself is not serious and the offender does not present any risk to the community. For a criminalised mother, this presents an opportunity to improve on her behaviour while staying with her children.

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Bibliography
Books/ Articles

  • Bartels Lorana, ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Criminal Law Journal 113.
  • Boyd Susan B, ‘Motherhood and law: constructing and challenging normativity’, in Vanessa Munro (ed.), The Ashgate Research Companion to Feminist Legal Theory (2016) 267.
  • Chadwick Kathryn and Becky Clarke, ‘From ‘troubled’women to failing institutions: The necessary narrative shift for the decarceration of women post-Corston’ in Linda Moore, Phil Scraton and Azrini Wahidin (eds.), Women’s Imprisonment and the Case for Abolition (Routledge, 2017) 61.
  • Corston J, The Corston Report: a review of women with particular vulnerabilities in the criminal justice system (London: Home Office, 2007).
  • Human Rights Law Centre and Change the Record Coalition, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment (Melbourne: Human Rights Law Centre, 2017).
  • Lulham Rohan, Don Weatherburn and Lorana Bartels, ‘The Recidivism of Offenders Given Suspended Sentences: A Comparison with Full-time Imprisonment’ (Crime and Justice Bulletin no 136, NSW Bureau of Crime Statistics and Research, 2009).
  • Hagan J and H Foster, ‘Children of the American prison generation: Student and school spillover effects of incarcerating mothers’ (2012) 46 Law & Society Review 37
  • Willison Judith S and Patricia O’Brien, ‘A feminist call for transforming the criminal justice system’ (2017) 32(1) Affilia 37.
  • Regina v Mills [1999] 3 S.C.R. 668
  • Crimes (Sentencing Procedure Act) 1999 (NSW)
  • Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
  • ‘Sentencing Reform’ at
  • ‘Update on NSW Sentencing Laws’ at

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