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Legal Information Access Centre (LIAC) - Hot Topics |
Sentencing of offenders is in the hands of both the Parliament where laws are passed prescribing a range of penalties and the Courts where judges have the role of applying sentencing principles and sentencing factors to the particular circumstances of the crime and the offender.
Issues such as deterrence, rehabilitation, protection of the community, offender accountability and recognising the harm to a victim guide the application of judicial discretion to the facts of the case and the circumstances of the offender. Judges make a decision about sentencing an offender by looking at a range of factors such as the seriousness of the offence; the criminal history of the offender; their age; and other characteristics such as disability to determine an appropriate sentence within the range prescribed by legislation.
In 2005, in NSW Local Courts, the average length of imprisonment for sexual assault was 7.1 months. In the higher courts, the average length of imprisonment for sexual offences is 36.4 months.42 It’s important to remember when considering these statistics that ‘the number of proven sexual assault charges is less than five per cent of the total number of sexual assault victims’.[43]
There are a variety of options for treatment of sex offenders, and they are usually based on the individual psychology of the offender. On the evidence available at the moment, cognitive behavioural approaches seem to be more effective than intervention approaches. It is also important to develop treatment to prevent offenders from relapsing into offending. The treatment is largely the same for offenders who have assaulted children or adults. These programs usually only target convicted offenders.
Good practice for treatment programs include challenging beliefs that support offending, developing empathy and preventing relapse into offending.[44] Group therapy has been shown to be more effective than individual therapy.
One example of a program for sex offenders is Cedar Cottage. This is a pre-trial diversion program run by the NSW Department of Health, which aims to protect children and prevent further child sexual assault in families. Certain types of child sexual assault offenders can be sent into this two-year program as an alternative to the criminal justice system. The offender is sent into the program after charges have been filed but before there has been a conviction. During their time in the program, the offender must follow the conditions of Cedar Cottage. If he breaches these, he will be sent back to the courts for sentencing.
The program is an incentive for offenders, because they will not be imprisoned if they complete the program. It also means that children are not required to give evidence in court. The program aims to lift the secrecy around abusive conduct and change the balance of power within the family.
The program is open to non-violent offenders who are parents or step-parents of the child victims, who do not have previous convictions for a sexual assault offence. Support services are available to children, siblings and non-offending parents during the process. The goals of the program are to protect children, prevent further child sexual assault and to increase responsibility on the part of the perpetrator.
As part of the program, the offender must agree to:
> move out of the home where his children live;
> not live in any place where there are children under 16;
> not contact the victim or other children;
> not act violently towards anyone;
> attend all therapy sessions.
The principles of the treatment are:
> the offender taking responsibility for the sexual assault, including pleading guilty;
> maintaining the safety of the child victim;
> repairing the mother-child bond;
> assistance to all family members.[45]
The Department of Corrective Services has a specialist Sexual Offender Program, which runs custodial treatment programs and community based treatment programs for sex offenders. The programs are available for low, moderate or high-risk offenders, and for offenders with literacy problems. The program requires the offenders to take responsibility for their behaviour, identify their offending cycle, examine victims’ issues and develop a plan to prevent relapsing into offending.
The Department also offers programs to challenge denial around offending and to prevent relapses. Community based programs include treatment programs and community maintenance programs. The programs have been shown to target attitudes condoning sexual violence. Preliminary statistics show that for offenders who complete the program, the risks of reoffending are much lower.[46]
CASE STUDY
Between 2000 and 2002, there were a series of sexual assaults in Western Sydney. These rapes were described in racialised terms by the media and the courts, and ignited a debate about the relationship between sexual assault and race.
The Western Sydney sexual assaults occurred in 2000, and were committed by small groups of men from Lebanese Muslim backgrounds. The victims were from Anglo-Australian backgrounds. The offenders in these assaults were alleged to have made a series of racial remarks towards their victims.
The Ashfield sexual assaults occurred from 2001-2002, and were committed by a group of five men from Pakistani backgrounds. The victims were from Anglo-Australian backgrounds. These men committed a series of indecent and sexual assaults, and videotaped some of them. These assaults received a large amount of media attention, due to the fact that the men claimed that they occurred as a result of the clash between Australian and Pakistani cultures, and that they believed the victims were consenting because they were engaging in behaviour they claimed Pakistani women would not participate in.
These cases were extraordinary because of the focus on the perpetrators of the sexual assaults. Historically, in sexual assault cases, the victims’ behaviour has been blamed for the assault. In these particular cases, the culture and religion of the perpetrators was directly blamed for the sexual assaults. Arab and Muslim communities were accused in the media of being inherently violent and disrespectful towards women. This focus on race and culture contributed to an increasing climate of vilification and harassment of Arab and Muslim communities in Sydney.
In the media and government commentary following the sexual assaults, the links between crime and ethnicity were emphasised. This ignores the more complex causes of sexual assault. This approach also takes the responsibility for sexual assault away from the individual perpetrators and places it on ‘their culture’.
This media and government reporting were also misleading in terms of the trends around sexual assault. The majority of sexual assaults in NSW are not reported, and the perpetrators are known to the victims. In fact, Western Sydney suburbs are not even in the top ten Local Government Areas for New South Wales for recorded criminal incidents.[47] The media reporting created a climate of fear, where Anglo-Australian women were being warned of the ‘gangs’ of Arab/Muslim men who would attempt to sexually assault them.
Following these trials, the NSW government introduced the Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001. This legislation created a new category of offence called ‘aggravated sexual assault in company’. It increased the maximum offence for some sexual offences to life imprisonment.
[42] NSW Local Court: Average length of imprisonment (months), by principal offence, 2001 to 2005: http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_lc_mean0105.
NSW Higher Court: Average length of imprisonment (months), by principle offence, 2000 to 2005: http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_hc_mean0105.
[43] Some important facts about sexual assault in NSW: http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_facts_sexual_assault.
[44] For more information see ‘Sexual violence offenders: Prevention and intervention approaches’ D Chung, P J O’Leary and T Hand, Australian Centre for the Study of Sexual Assault, Issues No. 5 June 2006, available at http://www.aifs.gov.au/acssa/pubs/issue/i5.html.
[45] For more information on Cedar Cottage, see http://www.wsahs.nsw.gov.au/services/cedarcottage/index.htm.
[46] Programs for Sex Offenders: http://www.dcs.nsw.gov.au/offender_management/offender_services_and_programs/Strategic%20Summary%20Sex%20Offender%20Program%20Nov%202005.pdf.
[47] Bureau of Crime Statistics and Research: NSW Recorded Crime Statistics January 2005 to December 2005: http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_lgaranks_sexualassault05.