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VIC

Nov 30, 2010

Baillieu legislation no free kick to offenders ... it will mean more crime

The Baillieu government’s plans also throw a gauntlet down to the judiciary in Victoria.

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Victoria’s new Premier Ted Baillieu is hitting the ground running, and one of the first pieces of legislation he wants to introduce is the abolition of suspended sentences and to introduce what he terms baseline minimum sentences.

The consequences of this action will not be what Baillieu blithely predicts them to be — lower crime rates.  Instead the courts will be clogged with more trials, judges and magistrates will find ways to prevent cruelty, and if prison numbers in Victoria increase, so will crime rates.

Baillieu’s policy is to abolish suspended sentences because he thinks they are a free kick for offenders. Instead he would rather see offenders locked up.  His party plans also to take Victoria down the American road of mandatory minimum terms of imprisonment, such as 20 years for murder or 10 years for commercial drug trafficking.

Both these polices will result in their being less capacity for the DPP and defence lawyers to cut deals that benefit the community.  Why would a person accused of a crime agree to plead to a charge on the basis that if he or she is convicted they face certain jail because the courts hands are tied behind their back by a bunch of law-and-order zealots and their mates in the victims-of-crime lobby?  Why not simply go to trial and see if a jury convicts you.  This is exactly what happens in the US where similar laws have been part of the legal landscape for many years.

The Baillieu government’s plans also throw a gauntlet down to the judiciary in Victoria.  What Baillieu and his would-be Attorney-General Robert Clark are saying to the courts is this — we expect you to send someone to jail for a long period of time even through to do so would be cruel and unjust.  Take a young offender who is a small part player in a drug trafficking exercise.  He is charged with trafficking a commercial quantity of drugs and faces a minimum of 10 years in jail under the Baillieu plans.  This young person has no prior convictions, is battling an addiction to drugs and has simply been duped into participating in a criminal enterprise.

How can a judge whose ethical and moral compass demands that he or she accord justice, mete out a sentence that will destroy that young person’s life?  Or what about the woman who faces years of abuse from her partner and murders him — should she have to go to jail for 20 years? Courts must and will find ways to prevent cruel outcomes.

Finally, and from the perspective of the Herald Sun, police, the DPP Jeremy Rapke and the victims-of-crime lobby the most important flaw in the Baillieu plan is that crime rates will not be reduced by sending more people to jail.  In fact there is a direct correlation between increased prison numbers and rising crime.  There is a wealth of data from the US and Canada that supports this thesis.

One reason is because the cost of incarceration and building new prisons means there is less money available for preventative programs such as those dealing with youth at risk or behavioral counseling facilities.  Another reason is simply that jailing people, particularly for lengthy periods, increases the chances of them re-offending within two years of release.

As recently as September this year an article in the prestigious Cardozo Law Review in the US noted that the “claim of crime reduction has been contested as well, with most researchers finding no deterrent effect from mandatory sentencing laws”.

Baillieu’s plans on sentencing a sad testament to what happens when you allow populism and ignorance to underpin public policy.

*Greg Barns is a barrister and a director of the Australian Lawyers Alliance.

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14 comments

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14 thoughts on “Baillieu legislation no free kick to offenders … it will mean more crime

  1. Glenn

    What a load of idealistic rubbish – could it be that this will mean less work for the lawyers ?

    “Both these polices will result in their being less capacity for the DPP and defence lawyers to cut deals that benefit the community”

    Deals that benefit the community ? Not even humourous – I’d like to see how you try to spin that one.

    “Cruel outcomes” ? What about the victims ?

    “Take a young offender who is a small part player in a drug trafficking exercise. He is charged with trafficking a commercial quantity of drugs and faces a minimum of 10 years in jail under the Baillieu plans”

    Of course you’d let nhim out on a bond to hone his craft because let’s face it, there’s no punishment is there and of course if he’s stuck he can always put on “remorse” that works eh ?

    ” This young person has no prior convictions”

    Ok so the first time is a freebie ?

    ” is battling an addiction to drugs and has simply been duped into participating in a criminal enterprise.”

    Nice defence.

    Sorry but the time of bludgers like you getting scum off and back onto tthe streets may be over, you’ll have to find another way to scab a living at the expense of public safety.

  2. juzzy

    Greg,
    Great piece, it’s a shame things like common sense and facts apparently don’t matter to the mandatory sentencing lobby. Higher sentences for rape have seen more pleas of Not Guilty, and therefore fewer convictions. Police know this, however supporting mand-sent and other “tough on crime” measures is the only way they can secure more funding for more police to *prevent* crime.

    In Victoria as you know we have mandatory licence disqualifications for drink-driving. This, combined with a hopelessly loopholed Road Safety Act has led to an industry of lawyers who practice almost solely in the field (a friend of mine, when the Act was introduced in 1986, opined that it would buy him a nice retirement farm, and he was more than right), and reams of case law on what should be a simple piece of road safety legislation. Judges and Magistrates, faced with an apparently “good” accused person, will find a way to acquit, leading to an OPP appeal, when, if they had an option for sentencing, probably would have convicted (or the accused would have pleaded guilty at the first opportunity to obtain a discounted sentence).

    Mandatory sentencing not only doesn’t work, it removes the independence of the judiciary.

  3. Sarah

    Hi Greg,

    I do think it needs to be managed too, but I can’t see the below possibly positive elements were considered when you wrote this and they possibly need to be acknowledged

    – deterrence to commit crime when there is surety of a sentence
    – less time for recidivism if more time is spent in jail

    That being said of course there needs to be some flexiblity for scenarious you mentioned

  4. Gavin Moodie

    Higher penalties do not necessarily deter crime because there is only a modest chance of being caught. The calculus is:

    perceived likelihood and size of benefit from committing a crime – perceived likelihood and size of punishment from committing the crime.

    Furthermore, many offenders do not think very far ahead, so the calculus becomes:

    certain immediate gain – possible future loss.

    Locking people up for a long time is an incredibly expensive way of reducing recidivism.

    Indeed, Barns might have emphasised more that reducing suspended sentences and increasing goal time will require more goal beds which will cost much more in recurrent expenditure. Prisons will fill so more expensive prisons will have to be built. And of course more prisoners’ and their families’ lives will be made miserable for longer.

  5. Jackon Taylor

    I do love your recidivism argument Sarah. Why don’t we just jail people permanently? It would eliminate all chances of reoffending. Case closed.

  6. Liz45

    A few months ago I watched a documentary on Norway’s judicial system. Nobody is jailed for longer than 20 years; the jail is an island (sort of like Garden Island, Sydney for example) and nobody is locked up. There are about 6 detainees to a ‘house’ where they do their own washing, cooking etc. A man who’s been convicted of murder is in shared housing(I’d say that there’d be a different place for people who were dangerous or mentally ill or both?). Norway has the lowest murder rate in the world? So they must be doing something right.

    In NSW 80% of people in jail are on medication for mental illnesses. Almost all inmates didn’t finish the HSC, some not even Year 10. The percentage of inmates with a drug and/or alcohol problem is very high. There are no adequate programs for rehabilitation, nor is their adequate support for inmates upon release.

    @GLENN – Of course you’d let nhim out on a bond to hone his craft because let’s face it, there’s no punishment is there and of course if he’s stuck he can always put on “remorse” that works eh ?

    The “punishment” is losing your liberty. What type of “punishment” do you have in mind? Daily floggings perhaps?Hearing that door slam would be enough punishment for me, I can assure you. Warders don’t have the legal right to “punish” inmates, even though we all know it goes on. Nor are inmates to bash each other, but we know that goes on too! They are crimes, or do you think it’s OK?

    The best and cheapest course of action, is prevention. It’s not locking up young people without bail, when they’re probably going to come out either without a conviction, or with a non-custodial sentence – and very angry and resentful. This is counter productive, and I’d suggest, against the rights of children in particular.
    In South Australia some years ago, a program started for mothers and babies after they left hospital. A nurse would visit on a weekly, fortnightly, monthly basis for the first six months, gradually to become the first few years. The idea being, that it’s been proven, that spending a dollar a day? at the beginning of a child’s life has a better outcome than having to spend $10 a day down the track (or whatever it costs to provide this service v/s the cost of detention, court costs, magistrates etc and maybe a life of crime). This brought about less abuse of kids; less babies ending up back in hospital; it enabled early insight into domestic violence or post natal depression situations, all of which impact on babies/kids/families.

    There’s an over representation of aboriginal people of all ages in jails. It’s well known, that racism plays a bit part in this, as it does with youth from poorer backgrounds. Rich kids get off, or get more lenient sentences. Look at the white collar criminals of the past – particularly those who can buy good(expensive) legal representation?

    Look at the disparity in monies spent on drug and alcohol rehabilitation centres; adequate mental health care/programs etc for young people. In NSW the govt takes care of mentally ill people by locking them up in Long Bay – the prison system looks after them – it must be cheaper that way! After nearly 15 yrs of a Labor govt, the only real inroads into these issues, has been building more jails – just like the US does! There’s a new one to be opened in Nowra very soon. How much did it cost? How many people will be in there, and how many of them will be people with a mental illness? It’s a disgrace!People in the legal profession/govt etc in the US are now canvassing, that locking up people who are addicted to drugs isn’t working – it costs heaps and only creates criminals!

    If you just want governments to lock people up and throw them and the key away, say so, but people like GREG, I believe, are more interested in long term justice systems that are that – just!
    Sadly, the crimes of violence including sexual violence against women are not decreasing. What we need to do is have people in govt who put policies in place in the schools etc that educate the youth about positive relationships etc. I suggest, that they’re not any in NSW, and I’d suggest that Victoria is no different/better! NSW had the best Minister for Juvenile Justice. Father Chris(kids off the streets program – for years) and others thought he was the one – to get positive alternate programs that would really help the youth – the NSW caucus said no, and so he was forced to resign. Fr Chris resigned in protest. That’s the sort of narrow thinking that Baillieu is uttering – it doesn’t work!

    As responsible adults, we all have a collective responsibility to kids – and not just our own. There’s a saying, ‘it takes a community to raise a child’! I’d go further, it takes a community to ensure, that kids don’t end up in jail – we don’t have this positive emphasis as yet, and the new Premier elect of Victoria is not solving the problem – he’s just appealing to the cowboys who don’t or can’t be bothered to look at real solutions. They should go and speak to the authorities in countries like Norway – they must be doing something right!

  7. Glenn

    Research shows 100% of crims in jail do not re offend.

  8. Rena Zurawel

    Unfortunately, Australian prison system cannot send any surplus to unknown lands.
    What is going to happen, is the necessity of new prisons to be built and help prison builders’ contracts. It will cost the taxpayers lots of money thrown into the dustbin.
    That money would be better spent on improving education system so our young people do not have to face jail.
    How can, any politician with a sound mind offer prison solution for our community? Hidden agenda?
    This is not the way to represent the community.
    Let’s face it. Kids in Australia are treated like unwanted orphans or failed pregnancy..
    If you want your child to take up sport or develop his/her talents in music, participate in afterschool activities, maths competition, or develop interests in arts, theatre, hobby groups, etc. you have to be hefty rich.
    We pay the price for the total neglect of our children. They will pay the price for that neglect in prison.
    But some politicians will be quite happy to have more people in prison. It is a good business and a job creation scheme for prison employees.
    People like Baillieu should not be allowed to touch the law and meddle with it.
    Imagine Japan, with its population and Baillieu’ ideas. Japan has one of the lowest crime rate in the world. But they also have very high education standards. They know how to keep their children busy and out of trouble.

  9. Gavin Moodie

    Of course offenders in goal commit crimes: they are charged with having contraband (mostly drugs), assault and attempting to escape.

  10. Glenn

    “Of course offenders in goal commit crimes: they are charged with having contraband (mostly drugs), assault and attempting to escape.”

    But not against the general public.

  11. Glenn

    “The “punishment” is losing your liberty”

    Thats what I meant.

    “The best and cheapest course of action, is prevention. It’s not locking up young people without bail, when they’re probably going to come out either without a conviction, or with a non-custodial sentence – and very angry and resentful.”

    The “system” can’t put insulation into a roof without stuffing it up, performing the miracle of preventing people from committing crimes is a mere fantasy.

    The best we can do is get the people who can’t live in society off the street and away from decent people , thats all we can do. there will be some who will be ok later, crimes of theft for instance, it’s only money BUT violent crimes, bashings, rape, pedophilia and so on , just lock them up and we will all have better lives.

  12. Gavin Moodie

    Good: so we are to have 2 classes of people – the ‘general public’ and others.

    There are many people incarcerated on remand: they have not been convicted of a crime and so are as much members of the ‘general public’ as anyone else. Prison warders and people visiting prisoners are also members of the ‘general public’ and yet vulnerable to crimes committed in goal.

    Locking offenders up permanently is a deceptively simple solution for those unwilling or too afraid to reflect on the complexity of the several issues involved in crime and community perception of security.

  13. Glenn

    No ones saying to lock them up permanently but for white collar crime, as punishment for a while, and for violent crime to keep them off the streets until someone can demonstrate that they will not reoffend, not let them out and and “see how it goes”, it might be your family in the wrong place at the wrong time next time.

    “Locking offenders up permanently is a deceptively simple solution for those unwilling or too afraid to reflect on the complexity of the several issues involved in crime and community perception of security.”

    And you can take that theory and put it back in the text book where it belongs, we’re talking about reality here.

  14. Norman Hanscombe

    An issue which is tabu in most influential circles is the question of why criminal acts have come to be seen as more acceptable among those who commit them. Much of what has been happening for some time now was predicted by those who looked at what our evolved propensities were, rather than ‘thinking’ solely in terms of how much better the planet would be if things were better.

    It would be better if it were better; but many of the well-intentioned ‘improvements’ ignored the underlying realities of human nature. Ironically, although the ‘improvers’ in the main felt they understood Darwin’s Theory of Evolution, they were unwitting Lamarckians, and we are now reaping the fruits of the seeds they so unwittingly sowed.

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