The heat is on state Attorney-General John Rau and his reforms to sentencing laws following a couple of sentencing stories in the media recently. Both stories involved the granting of home detention instead of imprisonment. One case involved a driving offence that resulted in death. Another concerned a person who allegedly committed fraud and whose sentence is a home detention order. I will not dwell further on those matters, as one at least appears sub judice, however they serve to illustrate how divided the community is about such penalties.

When Mr Rau unveiled these sentencing amendments, which passed relatively recently, I welcomed the greater flexibility granted to judges and magistrates in the sentencing process. I also reflected on the exploding prison population in this state and the under-investment in jails. I concluded, however, by remarking that the Attorney-General and State Government’s biggest task would be selling the message to the community. Given recent press it seems that remains a big hurdle.

The reason for this, in part, is that we have had a “law and order” government for so long it is difficult to change the rhetoric overnight. It is also difficult for a government to have set a particular law and order agenda for over a decade to then do a U-turn and expect the community will just come along for the ride. As I have earlier remarked, who can forget the immortal words uttered by this government of “rack ’em, pack ’em and stack ’em”. Evidently it hopes that we will, in favour of “unracking, unpacking, and unstacking”, and letting criminals serve time at home.

The other aspect that is difficult to ignore is how hard it is to convince a disbelieving public that imprisonment in your lounge room is really punishment that fits the crime – or indeed punishment at all.

Here we need to try to be as dispassionate as possible. We know that sending a non-violent criminal to jail costs lots of money but doesn’t necessarily achieve much, except punishment. No doubt many victims and grieving relatives of victims would think that justification alone, however that is only one aspect to be addressed by the sentencing process. There are others: deterrence, the prospect of rehabilitation, and the fact that in sentencing the need for punishment is balanced by the need for mercy.

And there is the ever-present problem of increasing prison populations which means we either have to build new prisons or take a different approach to sentencing.

At the Law Council’s 2015 symposium into incarceration rates of Aboriginal and Torres Strait Islander people, one of the things that stayed with me was the number of judges who complained about a lack of flexibility allowed under our respective sentencing Acts. Judges would likely use far more tailored sentencing options if they were available. When the choice comes down to “jail or no jail”, one can understand judges’ frustration. To be able to craft different types of sentences, including different types of incarceration, would be welcome.

A far wider range of incarceration and penalty options would not only introduce much needed flexibility to our courts, it would also likely be met with a deal more enthusiasm from the public.

The difficulty at the moment is that choices remain very limited. Traditionally sentences either involve fines, disqualification of driver’s licenses, bonds and imprisonment – either suspended or immediate. It leaves little room to allow flexibility for the sentencing judge or magistrate.

Now it’s go to real jail or the “lounge room jail”. I can well understand why the public might struggle with that as a good penalty option. The public may respond more positively if we had different types of jails: facilities that are not jails but incarceration centres, such as those now available for some bail applicants, or if we had a greater range of inventive penalty options. Looking at some sentences handed down in the US there is a degree of imagination in many, often squarely addressed at having the offender truly account for what they have done to the victim and victim’s family. These options are simply unavailable to judges in Australia.

I defend the Attorney-General’s stance with regard to our current attempt to change the mix of our sentencing laws. You can’t complain about rising prison populations in one breath and deride attempts to alter the sentencing mix in the other. By saying that, I make no comment on individual cases. One thing about sentencing that is very clear to me is that if you don’t know all the facts it is best to reserve comment. I can also reliably assure you that our media often does not give the full picture, so don’t rely on everything you read, hear, or watch, either.

However, I am equally of the view that a sceptical public nurtured on a law and order platform by this and other governments is going to be very, very hard to persuade. Why when it was a good thing to “rack ’em, pack ’em and stack ’em” a few years ago has it become less of a good thing now? It is like disciplining someone in one way for a decade and then trying to start over, but in the opposite direction. There would be at least some confusion, at worst downright rejection. And it seems to me that that is what we are seeing from the public right now.

Expect to hear of a fair few more “lounge room criminals” being discussed in the media. Our government cannot say its past approach was right; it cannot say it was wrong. It is caught in an awkward balancing act of simultaneously trying to alter our sentencing practices whilst still talking tough on violent crime.

While we well know that our importation of the law and order agenda from the US has not succeeded and that we must try something else, the current reaction in the media demonstrates just how difficult such change will be. For my part, I don’t think our options are yet wide enough, and our infrastructure remains woefully inadequate. A far wider range of incarceration and penalty options would not only introduce much needed flexibility to our courts, it would also likely be met with a deal more enthusiasm from the public.

Added to that is a perceived unnecessary degree of complexity in our Sentencing Act. In writing this article I asked for opinions of other criminal lawyers and this is what one had to say, with such honestly that I have quoted in full:

“Instead of slimming down the system and making it intelligible and explicable to the public they just make it more and more complicated, which I think leads to the problems they are having with negative press as to home detention sentences. If we can’t explain it to clients and the judges can’t apply it, how on earth can the public understand it after being fed the tough on crime bullshit for so long?”

One can never remove the underlying expectation that if you do the crime you do the time. What we need to figure out is where and in what circumstances. Just locking people up in their lounge rooms probably won’t cut it.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.

Disclosure: Morry Bailes is a member of the Liberal Party.