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New report recommends pregnant women be allowed to give birth before beginning prison sentence

Dechlan Brennan -

Pregnant women in Victoria could request a delay in their sentence to be allowed to give birth outside of prison, in a series of reforms outlined in a new report released on Tuesday. 

Reforming Sentence Deferrals in Victoria by the Sentencing Advisory Council makes 10 recommendations to change the way courts decide whether to defer (delay) sentencing an offender convicted of a custodial sentence. 

The proposed reforms would allow parents, as well as carers of newborns or dependent children, the chance to request for time to reduce the impact of their custodial sentence on their children, including by making caring arrangements.

There are an estimated 7,000 children in Victoria with parents currently incarcerated, and connection to culture has been highlighted as a means to minimise both trauma and recidivism. 

Nationwide, 85 per cent of incarcerated women reported having been pregnant in their life, with more than half having at least one dependent child. 

The ongoing coronial inquest into the death in custody of Yamatji, Noongar, Wongi and Pitjantjatjara woman Heather Calgaret has heard her mental health deteriorated after having her child removed from her at birth, having entered Dame Phyllis Frost prison six months pregnant. 

Dr Chay Brown and Deirdre Howard-Wagner noted in The Conversation that Indigenous women are Australia’s fastest-growing prison population, “constituting 37 per cent of the female prison population, despite making up only two per cent of Australia’s total population".

“The incarceration of First Nations women is interwoven with the experience of domestic, family, sexual and other forms of violence against women,” they wrote. 

“A high number of First Nations women spend time in custody unsentenced for domestic violence incidents that would never result in a custodial sentence.”

Data also shows Indigenous women are more likely to be charged and imprisoned for minor offences than non-Indigenous women. 

The Victoria Aboriginal Legal Service’s (VALS) submission to the 2022 Inquiry into Children of Imprisoned Parents recommended the judiciary “should examine the possibility of a reasonable suspension of pre-trial detention or the execution of a prison sentence and their possible replacement with community sanctions or measures.”

“Where a custodial sentence is being contemplated, the rights and best interests of any affected children should be taken into consideration and alternatives to detention be used as far as possible and appropriate, especially in the case of a parent who is a primary caregiver,” the VALS submission said. 


Heather Calgaret's health deteriorated after her child was taken from her in prison (Image: Victorian Aboriginal Legal Service) 


In Victoria, sentence deferral can be ordered under the Sentencing Act, with the court deciding the length of delay in incarceration (for a period not exceeding 12 months), eligibility and reasons for. 

Currently, five purposes exist under the act; four are directly focussed on rehabilitation. 

The Sentencing Advisory Council proposes five new sentence deferrals, to be used in a wider range of circumstances. 

These include both offenders and victims participating in a restorative justice process; if it would be in the best interest of an offenders unborn or dependent child; for an offender to receive medically necessary treatment, including surgery; any reason relating to an Indigenous person’s cultural background or responsibilities; and for young adult offenders, especially if a deferral would allow them to access rehabilitation programs. 

The council’s director, Professor Marilyn McMahon, said “sentence deferral can give parents with newborn or dependent children the opportunity to develop important attachments” in appropriate cases.

“If prison is inevitable, sentence deferral can also enable parents to make caring arrangements for their children and settle them into their new environment first,” Dr McMahon said. 

Currently, deferral is only available in the Magistrates’ Court and County Court in Victoria, but the report has recommended allowing it in the Supreme Court, where 17 per cent of the sentences imposed are non-custodial. 

The Sentencing Advisory Council notes sentencing would still apply after the deferral period - which they have also recommended be extended to 18 months in specific circumstances - but that, in many cases, deferral provides a chance for an offender to tackle behaviour that led to offending. 


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