The latest data from the NSW Bureau of Crime Statistics (BOCSAR) shows a 30% rise since 2014 in the number of people refused bail and then later found not guilty. More than 200 people, including 21 children, have since then been forced to wait in gaol on remand for, at times, over a year before being acquitted. Tracy McLeod Howe, from Child Abuse Prevention Services has stated “that incarceration only perpetuates an underlying problem” for young people. It is well established now, that when it comes to young offenders, the best method of preventing the cycle of recidivism; being in and out of the criminal justice system, or in and out of gaol, is to focus on rehabilitation rather than punishment. Young offenders are the most open to having rehabilitation techniques work as they are still on their way to full development of the brain.


As outlined in the Sentencing Bench Book, ‘the principle of giving special consideration to the youth of an offender has been long accepted. In R v C (unrep, 12/10/89, NSWCCA), Gleeson CJ accepted a submission that “in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.”’ The point is reiterated “that considerations of punishment and general deterrence should be regarded as subordinate to affording the opportunity and encouragement for rehabilitation, the significance of this factor diminishes as an offender approaches adulthood: R v Hearne (2001) 124 A Crim R 451.


Relevant to the penalty of imprisonment, is the issue of unlawful arrest. The prevailing proposition is that arrest without a warrant is a last resort. It was stated in Donaldson v Broomby [1982]:

An arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. (our emphasis)

It is further illustrated that it was Parliament’s intention to have arrest as a last resort in the following extract from the Attorney General’s introduction to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’), in the Second Reading Speech:

Clauses 107 and 108 make it clear that nothing in the part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution or summons or another alternative to arrest. Arrest is a measure of last resort. The part clarifies that police have the power to discontinue arrest at any time. (our emphasis)

To read more about police powers of arrest, have a look at our blog post.


The way arrest is considered as a measure of last resort reflects the seriousness of having one’s liberty taken away and being held in custody. The issue is this view of imprisonment does not seem to be upheld whilst young offenders are held in custody, waiting for extended periods of time for their matter to be finalised. The same BOCSAR stats show that out of the 204 people who had been refused bail in 2018, stays stretched past 500 days for some adults in the District Court. The 21 children found not guilty in 2018 waited for an average of 124 days. In the Local Court, bail-refused defendants had a median waiting time of 114.5 days, before being found not guilty of all charges. This is three weeks longer than in 2014. Not only is a person’s liberty taken away, but other consequences arise from being held on remand such as losing their job or housing. When a person is bail refused this can even increase the risk of receiving a custodial penalty if their bail status at the time of sentencing is interpreted by the Court as a signal of their level of criminality.


A separate report from the NSW Auditor-General, released last month, showed that the remand population has increased from one in four prisoners in 2012, to one in three, following changes to the Bail Act in 2014. The report also showed the number of people sentenced to time served, after being held on remand, increased from 472 in 2013/14 to 781 in 2017/18, a rise of 65% over five years. The NSW Auditor-General concluded that it is “reasonable to assume that some fraction of people sentenced to time-served spend longer in prison on remand than the duration of the prison sentence they would have received had they not been remanded.”

Bail Act Amendments

The amendments made to the Bail Act, in short, created a new requirement that bail for certain serious offences be refused unless the accused shows cause as to why detention is not justified. It also requires the bail authority to consider additional matters in applying the unacceptable risk test. If someone is charged with a ‘show cause’ offence, for example an offence that is punishable by imprisonment for life, they must show cause as to why their detention is not justified. Show cause offences are outlined in the legislation here. If they satisfy the ‘show cause’ test, then they must also prove there is no unacceptable risk that bail will be breached. If there are concerns about any risk, then the accused must suggest bail conditions which will be enough to mitigate such a risk. Matters which are considered by the Court are listed here.

Although it is necessary to have high standards for releasing suspects of serious crimes into society on bail, it is a matter of fact that statistically there will be a higher number of people in custody on remand than before these amendments. The affect being had on children currently is a matter which needs more addressing, with particular emphasis on rehabilitation.

To learn about other recent reforms like the new early amendment guilty plea scheme, check out our article.

Get In Touch!

"*" indicates required fields