Laws introduced into the Victorian State parliament earlier this month purportedly aim to address what the Victorian Attorney-General Robert Clark calls the current “appallingly inadequate” average sentences for a range of offences including murder, large scale drug trafficking, culpable driving and some sex offences. The new laws will change the way in which those convicted of these crimes are sentenced.
Under the new legislation, "baseline" penalties will be set for relevant offences. The baseline sentence, as dictated by parliament, is what parliament intends the median sentence for that particular offence to be. For example, the current median sentence for culpable driving is just over five and a half years, which under the new legislation will increase to nine years.
While baseline sentences are not mandatory penalties, their introduction involves a considerable change in the sentencing process. In order for the median sentence to rise to the baseline as intended, half of the sentences imposed for the particular offence will need to be below the baseline figure and half will need to be above. The new laws also change the way in which the non-parole period is set for the relevant baseline offences.
If judges are to act in accordance with parliament’s intention, they will be required to consider whether a case should fall above or below the baseline sentence. This will most likely be done by taking into account aggravating and mitigating factors.
While the Attorney-General has insisted that this will not involve a "two-step" process — sentencing to the baseline, and then dialling the sentence up or down — it is difficult to see how it can be approached in any other way. The result will be a much harsher sentencing regime, because the baseline penalty for all relevant offences being substantially increased from what is the current median sentence.
The explanatory memoranda accompanying the Bill and comments made by the Attorney-General make it clear that the introduction of these new laws is simply the next phase in the government’s tough on crime agenda.
Since elected in November 2010, the Victorian State Government have introduced a raft of reforms it says will protect the community and which reflect the community’s expectations of the criminal justice system and sentencing outcomes. These include changes to the parole system, the abolition of suspended sentences and home detention and the introduction of mandatory minimum sentences for offences committed in circumstances of gross violence.
Protection of the community is one of the core sentencing principles. It is unclear how any of the reforms introduced achieve this goal. Clark argues that it simply comes down to a matter of incapacitation. That is, that when convicted offenders are behind bars, they aren’t on the streets offending .
However, the reality is more complicated than this — practically all offenders are released from custody at some stage and returned to the community.
Clark wrote in the Herald Sun that if Adrian Bayley had been kept behind bars Jill Meagher would still be alive today. He should know better. It is not disputed that the system failed in the case of Adrian Bayley. But the stark and uncomfortable reality is that he would have been released at some point, even if he had not been granted parole and released when he was.
It is well documented that prison makes some offenders more likely to reoffend, and that prisoners are more likely to suffer mental health and substance abuse issues than the general population.
Thus, the questions we and government must ask are: Why are people committing these offences in the first place? What can be done to prevent people from offending? And what state are offenders in when released back into the community, after serving time in custody?
A number of organisations and government bodies have warned of the dangers of baseline sentencing, including the Victorian Law Reform Commission, the Law Institute of Victoria, the Criminal Bar Association and the Sentencing Advisory Council, not to mention some of the state's most senior judges.
They suggest that the introduction of the legislation will involve increases to the already burgeoning prison population, delays in the justice system as less people plead guilty and lengthier plea hearings. The delays will increase the trauma for already vulnerable victims, who must wait for longer for matters to be resolved.
Data released by the ABS in March shows that Victoria recorded the highest growth in prisoner population in Australia, growing by more than 14 percent between December 2012 and December 2013. The Productivity Commission’s January report revealed that spending on prisons also increased to $625 million in 2012-3.
Clark and other members of the government have continually commented that the government does not apologise for being tough on crime. But what does tough on crime mean?
Does it mean passing legislation that is confusing and unworkable? Does it mean frightening the community into believing that the streets are more dangerous than ever before? Does it mean filling the prisons until there is no room left and prisoners are left in prison vans waiting outside court because there is no room in the cells? Does it mean misrepresenting the effect that incapacitation has on crime rates and the role it plays in protecting the community?
If the government is going to introduce legislation which it says responds to a direct need, it should provide evidence to support its claims. Policy should reflect reality and aim to address identified problems. The stakes are too high when it comes to criminal justice and sentencing policy.
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