Ace Donovan spent three months in prison charged with serious drug offences, only to avoid a jail sentence when she finally reached court.
That might seem unfair to some, but her story isn't that unusual.
For decades, Australia's prisons have been filling up with people who haven't actually been sentenced to jail. Many are yet to face trial, meaning they're still legally innocent. In some cases, they're charged with offences that wouldn't necessarily result in prison time if they were later convicted.
Figures released by the Australia Bureau of Statistics on Friday reveal a record 36.6 per cent of the Australian prison population was unsentenced at the end of the last financial year.
When Donovan entered Silverwater prison in mid-2020, it was like waking up in an alien world. One day she was working at her job of more than 15 years, paying her bills, and partying with friends. Then "all of a sudden you have to live off your wits".
Days earlier, she had awoken to an early morning police raid on her home, which resulted in her being charged with a long list of drug offences. The most serious charge — large commercial supply of a prohibited drug — carried a maximum sentence of life in prison.
"I admitted straight away that I had drugs in the house because I am a drug user, I have been using drugs all my life," she says, "I had lots of stuff, but it was for me".
Only a small fraction of drug possession charges result in a custodial sentence, and at 46 years old, Donovan had no criminal record. She was adamant that she was not guilty of the most serious commercial supply charges.
She spent three months in a cell awaiting a court hearing before some of the charges were dismissed, leading to her release under strict bail conditions.
Almost two years after her arrest, the magistrate accepted the defence case that Donovan held the majority of the drugs found in her house for her own use. She was convicted of multiple counts of possession of a prohibited drug, one count of supply of an indictable amount of a prohibited drug (a lower offence than large commercial supply) and one count of dealing with the suspected proceeds of crime.
The most severe punishment she received was a two-year community corrections order, in August last year.
Her lawyer Nicholas Stewart, who is also the vice president of Australian Lawyers for Human Rights, says he is pleased Donovan was eventually able to get a fair trial, which took her circumstances into consideration.
"Ace was clearly someone who had a drug addiction and was a poly-drug user … and was a person with no criminal history, so I wondered why police officers didn't recognise their personal circumstances and the fact that, if they were given police bail, they would be better off in a rehabilitation centre and getting the support they needed," he says.
"We eventually got her bail, but her time in jail was long and harmful."
Now 48 and back in the community, the scars from Donovan's time behind bars remain. "It was confronting, it was a different world, and I had to learn those rules very quickly," she says.
"I'm angry, and I'm also really angry for the other people in there. Because I'm privileged, I had money [for legal representation], I got out, but they're not going to."
The shifting demographics inside prisons
The number of people held in Australia's prisons has been steadily climbing for decades, well faster than the rate of population growth. Between 2003 and 2018, the Productivity Commission found Australia had the third fastest growing prison population in the OECD, behind Türkiye and Colombia.
Australia has had more than 40,000 people behind bars for several years, up from less than 20,000 in the mid 1990s. The total figure has fluctuated through the pandemic and it is difficult to know if growth in prison populations is slowing, as courts have continued to work through backlogs worsened by lockdowns and public health restrictions in some states.
While the prison population is at its lowest since 2017, ABS head of crime and justice statistics William Milne notes that the aftermath of COVID-related restrictions "may still be impacting criminal activity and the justice system".
But most of the increase in people behind bars over the past three decades is the result of a change to how prison is used.
"We are not in the midst of a crime wave," says Lorana Bartels, a professor of criminology at the Australian National University, "we have falling or stable crime rates for most offence types".
Instead, the number of people who, like Ace Donovan, are put behind bars without a sentence has been growing.
Unsentenced prisoners on remand made up about 12 per cent of prisoners in 1993. In the ABS figures released yesterday, that number is now 36.6 per cent — more than one in three prisoners.
"We need to remember that the person before the court has not been convicted yet," Bartels says. "They are presumed to be innocent, and a lot of these offences are not offences where if they were convicted, they would necessarily go to jail."
Here's another way to look at it: controlling for population growth, the share of Australians who are currently serving a prison sentence has gone up by about 13 per cent since 1994.
The rate of prisoners on remand, who are either yet to be found guilty or yet to be sentenced, has gone up by more than 400 per cent in the same period.
Former judge Ian Gray, who served as the Victorian Chief Magistrate for more than a decade until 2012, says that's "a huge number of people in custody and detention".
"Some of these people would be pleading not guilty. Some would be acquitted. Many would not receive a sentence of imprisonment for more minor offending, but will have served time on remand by the time their case is finalised," says Gray, who is a patron of Justice Reform Initiative.
"That's a distortion of what ordinary sentencing principles would call for."
On top of the personal cost to those on remand, he says there's a significant financial cost. Productivity Commission data shows that operating prisons cost state and territory governments more than $4.4 billion in 2021-22, excluding capital costs.
That figure is up by 66 per cent in real terms since 2012-13.
The time prisoners are spending on remand is also creeping up, with the latest figures showing the majority of unsentenced prisoners spend at least 3.5 months in prison, up from 2.8 months in 2005.
Meanwhile, about one in five people on remand end up spending less than a month in prison, a phenomenon Dan Nicholson, the executive director of criminal law at Victoria Legal Aid, says is particularly concerning.
"A short period in prison is long enough to disrupt your housing, education, employment, or medical treatment, but it's not long enough for any meaningful rehabilitation or reintegration support to be put in place," he says.
"Most corrections systems don't even start reintegration planning until four weeks into your sentence. So if you're going in and out a couple of weeks at a time, there's just no way that's going to help you deal with the cause of the offending."
These short stints can have severe implications for women with children, he says, as even short-term imprisonment can lead to the involvement of child protection authorities which "can last for a very long time".
What's behind the numbers
Former magistrates, lawyers and criminal law scholars all say a tightening of bail laws, often as a political response to high-profile crimes, is responsible for much of the rise in remand.
Specifically, Bartels points to the gradual expansion of so-called "show cause" offences.
"It's a new reverse onus," she says, "where previously the prosecution would have to justify why someone should be remanded in custody, there's now an increasing suite of offences where the person who is before the court has to show cause why they should be granted bail".
These offences differ between states and territories, but may include crimes punishable by life in prison, certain sexual assault charges, some firearm offences, commercial supply of illegal drugs or offences committed while on bail or parole.
Show cause offences were first introduced in New South Wales in 2015, spurred in part by the Lindt Cafe siege the year prior. Queensland introduced similar rules in 2017 focused on domestic violence offences, after the high-profile murder of Teresa Bradford. The government has now moved to reintroduce laws making breach of bail a criminal offence for children.
Victoria has the strictest bail laws in the country, introduced in the wake of the 2017 Bourke Street attack, when a man who had recently been released on bail drove his car into pedestrians, killing six people. "The structure and the words of the Bail Act, make it much, much more difficult to demonstrate a case for bail than used to be the case," Gray says.
About five years after the change, 42.1 per cent of Victoria's prison beds are occupied by people on remand, up from 31.1 per cent in 2017. That's the fastest growth in remand numbers in the nation, even after a small dip last year.
"It was a reaction to a terrible crime, but the laws end up catching people they were never designed to capture in the first place," Bartels says. "Victoria is the most extreme example, but similar changes to laws have happened in other states and territories."
Overall, Gray says, this tightening of bail law means magistrates and judges today are less able to apply discretion on a case by case basis. "The law is intended, and clearly has been very successful, in reducing the number of people who are before the courts and are released on bail," he says. "Which is effectively a reversal of the notion that there is a presumption in favour of bail."
Sometimes, however, the reason a person is denied bail is far more innocuous. While there's no law that states you need a permanent address to be bailed, Bartels says, "some magistrates will take the view that if you can't put down a stable address it's not appropriate to bail you".
The result, Nicholson says, is people being imprisoned due to "the issues in their lives, not the offences they've committed".
Recently, he says, Victoria Legal Aid has dealt with multiple cases of people who are on bail for another offence being remanded over further offending of a minor nature, including begging, public intoxication, possession of small amounts of marijuana, and people shoplifting food or drinks from shops.
"These are clearly people who don't belong in custody, and would never get a term of imprisonment for that offending, but when you have a criminal justice system that is designed to cast the net very wide … that is what you end up with," he says.
Essentially each time someone is charged with an offence, even if it's low level, the chances of them receiving bail decrease. This is compounded when social factors are involved.
"Even if they're not at risk of committing other serious offences, if you're homeless, or suffering from a mental health condition and not getting good treatment, you look like a riskier proposition," he says.
"So all in all, we're not targeting our bail laws properly to real risk."
Moving forward
These issues have been brought into the national spotlight by the inquiry into the death of Aboriginal woman Veronica Nelson, who died in 2020 while on remand for shoplifting-related charges.
In handing down his findings, Victorian Coroner Simon McGregor described the state's bail laws as a "complete and unmitigated disaster" and highlighted their disproportionate impact on First Nations people:
"I find that the Bail Act has a discriminatory impact on First Nations people, resulting in grossly disproportionate rates of remand in custody, the most egregious of which affect alleged offenders who are Aboriginal and/or Torres Strait Islander women."
In response, Victorian Premier Daniel Andrews has vowed to reform the bail system, including a shift towards "better recognition in our bail laws of the clear difference between violent offending and non-violent offending".
While there are hopes reform will go some way to addressing the issue in Victoria, Gray says governments across Australia need to commit to resourcing housing, mental health, and drug services in the community.
"When we're not addressing the underlying drivers of crime, which are very often … the social, economic, health and housing factors, when they're not addressed systematically, there will not be a major change in what we're confronting," he says.
"If we're not reducing crime or improving community safety, then what are we doing?"
