We must reduce the number of passengers leaving court in the prison van and there is a lawful and immediate remedy. It is not an answer to simply suspend the custodial sentence to another day. It is to apply existing law and describe the community order for what it can be—a direct alternative to custody.
Tackling the reluctance
Sadly, the concept of a community order at custody level is underused and misunderstood, particularly by the lay bench. There is a desperate need for lawyers to tackle the practical misconceptions and illegal shortcuts with clear representations in the courtroom so that the law is properly applied. We can do this.
The main problem is to combat the fast but flawed process that can so easily happen, which is the over-simplification of the primary legal duty to ‘follow the sentencing guidelines’ (s 59 of the Sentencing Act 2020 (SA 2020)). Magistrates are trained to meticulously consider the list of harm and culpability factors in the specific offence guideline, and
