Written by Bill Doogue. Partner, Doogue O’Brien George Criminal Defence Lawyers.
In “news” over the last 24 hours, the Herald Sun posted an article in which it is alleged that Victoria’s “Top Prosecutor” has called for urgent legal reforms as figures show thousands of criminals are escaping gaol time.
As I read, the alarm bells started ringing. And I thought to myself, here we go.
I mean, here we go again. Far too frequently in the print media we hear the beating of drums in oversimplified articles about sentencing.
Let’s, firstly, get some figures correct. There are 6219 prisoners in prison as of 30th June 2015. That amounts to a 68% increase in prisoners since 2005.
Read those statistics again.
That is an increase of 68% in the prisoners in our gaols in a ten year period.
This number is not a reflection of an increase in crime, it is a direct consequence of sentencing practices putting more people in gaol. The untold misery and sadness that imprisonment causes for our communities is difficult to explain to anyone who doesn’t have an open mind. But, let me give it a shot, because I do believe common sense prevails mostly.
It does not make us safer having people in gaol, because when they return to the community they have been treated appallingly and brutalised by the prison system. People who go to gaol are more likely to re-offend because when they are released (and, yes folks, they have to be released) they have less social connection, no housing, no jobs, their mental illnesses are worse and, to our great shame, no rehabilitation has actually occurred.
The idea that suddenly there are thousands of people escaping gaol time is absurd given that sort of percentage of increase.
Let’s look at it again: 68% in ten years.
Twice as many Community Corrections Orders (“CCOs”) have been ordered than the previous year. A CCO is said by the courts to be a hard penalty. It seems that way to me and it must seem that way to the Courts as well.
The reason why so many more CCOs have been imposed is that suspended gaol terms were abolished. Those who looked at the submissions about why suspended sentences should never have been abolished would be well aware of the valuable role they play in the criminal justice system. There are many crimes that deserve public condemnation by the imposition of a period of imprisonment but there is nothing gained by the person serving it immediately.
There are endless examples of suspended sentences that have been handed to people, for example, who perhaps committed a crime thirty years ago and are now dying of cancer. Sometimes, it could seem wrong to place them on a good behaviour bond; but a suspended sentence of gaol both condemned them and hung something over their head. There are countless instances that illustrate importance of sentencing discretion, such as where the offender is a mother looking after a number of children by herself and the victim says they don’t want them actually imprisoned.
Suspended sentences worked and most lawyers in the system saw their utility and efficacy.
There are crimes that seem to deserve gaol, but then the person’s circumstances are such that imprisoning the offender would further punish the victims of the crime. The complexity of sentencing is endless and coming up with examples is not very hard.
As defence lawyers, we have all been in court and made submissions for CCOs and not had them opposed by the prosecution. Strange now, for them to bleat and complain afterwards, in my opinion.
There is also this strange notion that a CCO is in some way an easy ride. An idea that is contradicted by the top crown prosecutor stating that breaches are rife. He says, and I quote, “They’re going to have to get rid of them because the breaches (of CCOs) are going to swamp the County Court”.
If the system is going to be so swamped by breaches of CCOs isn’t it then going to be more swamped by putting those people in gaol?
He is also quoted as saying “what you are getting now is a little bit of prison and a little bit of CCO. The whole law-and-order exercise has been a fraud by politicians”.
I do not understand how the CCO is a fraud by politicians. I must be misunderstanding what he means by that because, of course, CCOs are imposed by the Courts. It was introduced by the previous government as a beefed up version of a community based order. I fail to see how that can be considered to be fraud. Unless what he means is a wider attack on the fact that the whole law and order stand by politicians is fraudulent and not based on underlying evidence. Now that is an analysis I can agree with. That is a proposition that leads inexorably to the fact that imprisoning people willy-nilly does not help the community and does not help the budget of the state.
It seems that we have come to a point in our sentencing discussion where we are about embark on an Americanisation of our justice system. That is there will be longer penalties, less judicial independence and that will be pushed for by a number of organisations such as private gaols and some parts of the media. The unfortunate reality is that if you look at the United States they are now trying to pull back from their absurd sentencing regimes. Surely we are smarter here and will not follow such a ludicrous path.