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Rehabilitation (NSW)

Section 3A of the Crimes (Sentencing Procedures) Act 1999 sets out the purposes for which a sentence can be imposed in New South Wales. These purposes are punishment, deterrence, community protection, rehabilitation of the offender, to make the offender accountable for their actions, to denounce the conduct of the offender and to recognise the harm done to the victim and to the community. Which sentencing purpose is prioritised in a particular matter depends on the circumstances of the offender and of the offending. This article examines the role that the principle of rehabilitation plays in sentencing.

What is rehabilitation?

A sentence imposed for the purpose of rehabilitation is one that focusses on the treatment and re-education of the offender with the goal of enabling them to live a crime-free life. Such a sentence may include conditions that the offender participate in programs such as drug and alcohol rehab, mental health treatment, anger management or anything else the court considers necessary for their rehabilitation. Offenders can also be sentenced to imprisonment in the interests of their rehabilitation

A sentence imposed for the purpose of rehabilitating the offender should address the causes and contributing factors that led to the offending. It should encourage the offender to learn from their mistakes and resume life as a positive and contributing member of society.

Young offenders

Rehabilitation is particularly important when sentencing young offenders. When a young offender aged between 10 and 18 is dealt with for criminal offences, they may be dealt with under the Young Offenders Act 1997 or under the Children (Criminal Proceedings) Act 1987. That act provides that a young person who has committed an offence may be given a warning, a caution or directed to take part in a Youth Justice Conference rather then be dealt with by a court. This is because the law recognises that young people make mistakes and that their rehabilitation can often be best achieved by keeping them out of the criminal justice system.

When a young person is sentenced by the court, they are dealt with under the Children (Criminal Proceedings) Act. Section 5 of that act provides that children who commit offences should be guided and assisted while being held responsible for their actions and that it is desirable for a child, wherever possible, to be allowed to remain in their home and continue their education. Children are sentenced to detention only when all other sentencing options have been considered and found to be inappropriate.

Older offenders

Rehabilitation can also be a priority when dealing with an older offender, even when the person has a significant criminal history. In the 1992 decision of Bamaga v Trenerry, Martin J stated:

‘If those with a bad record feel that there is no benefit from attempts at rehabilitation then why should they bother? It is in the interests of the community that rehabilitation be encouraged.’

A stronger argument can be made for a sentence that prioritises rehabilitation where the offender has taken steps to change their lifestyle, for example by taking steps to address drug or alcohol issues. Where there is evidence that an offender has taken steps towards rehabilitation, this may reduce the need to impose a sentence for the purpose of specific deterrence.

Proportionality

When a court imposes a sentence for the purpose of rehabilitation, it must not impose a more severe sentence than what is need to fit the seriousness of the crime. The court must decide on the appropriate senesce based on what fits the gravity of the crime, not based on the extent of the offender’s need for rehabilitation. This is known as the principle of proportionality.

Who can be rehabilitated?

Rehabilitative sentences are not just for offenders who have specific physical or mental illnesses. The sentencing purpose of rehabilitation applies to anyone who lapses into wrongdoing, even when this cannot be attributed to a specific problem, such as a drug addiction.

However, there are some circumstances where the principle of rehabilitation will not be relevant. Where an offender has been given numerous prior opportunities to rehabilitate themselves yet continues to come back before the court for similar offending. Rehabilitation is unlikely to be prioritised where the offender has failed to comply with previous sentencing orders.

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