John Nicholson is a New South Wales District Court judge. He is also a courageous individual because he is one of the very few judicial officers in this country who is prepared to go public on just how dishonest and counter-productive is our community’s obsession with using jail as a primary weapon in sentencing.

Judge Nicholson’s extraordinary, excoriating attack on how courts sentence offenders is to be found in the otherwise rather sober pages of a trade publication, the June 2008 edition of the Criminal Law Journal.

The current sentencing model, Nicholson argues, is fundamentally flawed because “the imposed sentence is viewed as the end result.” The sentencing judge sends someone to jail hoping that the end result is the greater protection of the community. But this notion is simply bizarre, Nicholson says:

The sentencing judge does his or her best, hoping the imposed sentence provides an end result that benefits society through greater protection of the community. Yet a moment’s thought will reveal this notion’s bizarreness.

Sending people to jail is recognised as counter-productive to rehabilitation, and recidivism rates for ex-prisoners are high. True, custody offers temporary protection to the community from all offenders for the time each may be in prison, but the long term impact of the imposed sentence is forgotten or ignored.

So why do judges and magistrates and prosecutors each and every day of the year work from this seriously broken and illogical model? Because we live in an era where victims, the media, politicians and the community thinks that jail is the only solution.

It is not only Nicholson who understands just how ridiculous a system it is. Even a senior corrections official in New South Wales, quoted by Nicholson, has lamented the absurdity.

Catriona McComish, a senior member of the New South Wales Department of Corrective Services said in 2005 that there is little understanding in the community “that the majority of prisoners will be returned to the community within two years of sentence, usually with an increased risk of further offending.”

Judge Nicholson provides the framework for a new sentencing model for Australia. One in which, as he puts it, we recognise that liberty is an inalienable right that should be interfered with to the minimum extent the law requires.

A sentencing regime that was intellectually honest and which made for a better society would be a system which placed rehabilitation of the offender on equal footing with community protection.

It is time that courts inquired of prosecutors, and the defence for that matter, what is the impact of jail time for an offender. We should have available to the court in sentencing hearings detailed statistics that show what type of punishment has the greatest long term benefit for offenders.

Courts should be calling for evidence “on the question of whether the general and specific deterrence, retribution, just deserts, incarceration and isolation are the most effective methods of securing a safer community,” Nicholson says.

John Nicholson’s remarks are refreshingly honest and on the money.

Peter Fray

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