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Children refused bail and held in prison for months, then found not guilty

The 21 children found not guilty in 2018 waited for an average of 124 days, BOCSAR deputy director Jackie Fitzgerald said.

“It’s certainly a very long wait, and half the cases take longer than that [median wait of four months],” she said. “It’s a problem.”

In the Local Court, bail-refused defendants found not guilty of all charges had a median waiting time of 114.5 days, three weeks longer than in 2014.

Bail refusal imposes “substantial personal costs on a defendant”, Ms Fitzgerald said.

“Detained defendants are separated from their families and may lose their job or housing,” she said. “Bail refusal in and of itself may increase the risk of a custodial penalty if bail status at the time of sentencing is interpreted by the court as a signal of their level of criminality.

“It’s not a positive experience in any case. It should be a last resort.”

Prison is a very expensive option for the state and there are “inefficiencies” as well as a cost for the growing remand population that is borne by the taxpayer, Ms Fitzgerald said.

“More people are being remanded and caught up in that remand system that have committed offences that aren’t as serious as you might have expected,” she said. “It suggests that the front end of the criminal justice system isn’t necessarily marrying up with the back end – there’s not a great alignment between bail refusal and what someone is ultimately sentenced to, if anything.”

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.

“We’re certainly remanding more people now than before, and there’s a problem in bringing a punishment up before the court has arbitrated on a particular matter,” Ms Fitzgerald said.

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 per cent 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”.

Sally Rawsthorne is a Crime Reporter for The Sydney Morning Herald.

Nigel Gladstone is The Sydney Morning Herald’s data journalist.

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