Chief Justice Tom Bathurst … believes the notion longer prison terms deter crime is “fiction”.THE Chief Justice has made a thinly veiled call for the state government to change sentencing laws, saying the notion that longer prison terms deter crime is ”fiction”.
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The impact of an individual’s sentence on the likelihood that someone else will commit a similar crime in the future – known as ”general deterrence” – is one of the factors judges have to consider when sentencing a criminal.

But Chief Justice Tom Bathurst said there was no ”persuasive evidence that it works”.

Therefore, it was important to reconsider whether deterrence should continue to have a role in sentencing, he told the NSW Legal Aid criminal law conference yesterday.

Assuming that most criminals conducted ”a rational assessment of their planned illegal behaviour”, weighing up potential gain with potential penalties, bore ”little resemblance to reality”, he said.

However, white collar criminals – such as tax evaders, drug traffickers and insider traders – were the exception and ”far more likely to weigh up the risks and benefits of being caught [and jailed]”, he said.

”But it cannot be, I suggest, [a real deterrent] across the board in the crimes which are impulsive, crimes which come out of the cycle of poverty and abuse and generally … the less serious crimes.”

Chief Justice Bathurst said his comments did not mean he had a relaxed attitude towards crime, but warned ”political fear of being soft on crime should not immobilise our society from correcting or removing ineffective policies”. A review, under way, should consider if general deterrence worked, and if it found it didn’t, it should consider ”whether it is appropriate to have a system founded on what is proving to be a false assumption”.

”I think it may be time to trust in the well-informed public to prefer a criminal justice system that honestly and transparently seeks to reduce crime and protect communities,” he said.

Sentencing was one of the hardest things judges did, and involved conflicting sets of considerations such as the history of the offender and the impact on the victim, he said.

Research had shown that the fear of being caught was a powerful deterrent, but the fear of longer jail terms had little or no deterrent effect, he said.

The effect had been shown to be ”at most marginal if not entirely negligible” compared to the cost of keeping people in prison for longer.

Evidence suggested public money was better spent on policing or alternative sentences and community-based crime prevention schemes, rather than keeping people in prison for longer.

The issue is one of a series of questions in a current investigation into the state’s complex sentencing laws by the NSW Law Reform Commission, which is asking if deterrence is ”a valid purpose of sentencing” and should be considered in all cases.

In its submission, the Office of the Director of Public Prosecutions suggests that deterrence should not be relevant to the sentencing of young offenders, but argues that abolishing the consideration across the board could be ”counterproductive”.

The Bar Association and Law Society suggest deterrence should remain available to judges on a case-by-case basis.

Even the Police Association’s submission calls for ”further review of the purposes of sentencing” in light of the evidence that ”higher sentences do not deter offenders”.

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