Two in five prisoners in NSW jails haven’t been convicted of a crime
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The state’s jails are filling up at record rates, with strict bail laws leading to 40 per cent of the prison population yet to be found guilty of a crime.
Experts say a decade of bail reforms has led to vulnerable people serving time they otherwise might not have for minor crimes, contributing to a cycle of poverty, homelessness and incarceration.
Two out of every five NSW prisoners have been refused bail and are awaiting trial, marking an eight-year high.
In national trends, the number of unsentenced people in custody has almost doubled to 16,000 in the past decade.
Major changes in NSW last year included a provision requiring judges to refuse bail if a person has entered a guilty plea or is convicted of a crime for which they “will” serve a prison sentence.
There were 560 more prisoners on remand in the quarter after the bail reforms were introduced in 2022, compared with the same quarter in 2021.
It follows reforms in 2013 when the presumption of bail was revoked, requiring instead that courts assess bail risk and a “show cause” test that puts the onus on people charged with the most serious offences to justify why they should be given bail.
La Trobe University senior lecturer in crime, justice and legal studies Emma Russell said low-level offenders were now being refused bail and likely sentenced with “time served”, instead of being charged and released.
“All these people … are now getting sucked into the prison [system],” Russell said.
The state’s bail laws disproportionately affect Indigenous Australians, the homeless and women.
In NSW, the number of Indigenous adults held in custody on remand rose by 21.7 per cent from December 2020 to December 2022, while the number of Indigenous women in prison has risen by 12.4 per cent since 2021.
Law Council of Australia president Luke Murphy said the housing crisis was exacerbating the number of bail refusals across the country, with courts unlikely to grant bail to homeless persons charged with an offence without an address.
“Lack of safe and stable accommodation contributes to and exacerbates poor justice outcomes,” Murphy said.
“It can increase the likelihood of a person being denied bail and instead being placed on remand, it can prevent a person from escaping domestic or family violence, and it can increase the risk of recidivism among recently released prisoners.”
Research from La Trobe University has shown homelessness was also the most significant barrier for women who were seeking bail.
The number of Australians refused bail or awaiting sentencing in prison has reached record highs. Credit: File Image
A spokesperson for NSW Attorney-General Michael Daley said bail decisions were made independently of the government, but added that the laws were “among the strongest in Australia and put community safety front and centre”.
Addie Kirst’s partner spent five months in custody after he was refused bail while awaiting a hearing in Sydney.
She asked for her partner to remain nameless.
Kirst said during that time he should have been in drug and rehabilitation treatment. He has longstanding substance abuse issues and was charged with stalking, intimidating and threatening a stranger while in a substance-induced psychosis in June last year.
“It was so important for him that he got treatment [to] address the underlying cause of the behaviour,” she said. “You can lock him up as many times as you want, but when he comes out, he starts drinking again. It’s just going to happen again and again.”
When taken into custody previously, he lost his accommodation and employment.
Kirst eventually found a private lawyer and got a new hearing. He was released on bail in November to a nine-month rehabilitation program.
Kirst said he is “thriving” in recovery, but it should have happened sooner.
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