Ms PATTEN (Northern Metropolitan) — I rise to speak on the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016. Given the contributions of Ms Pennicuik and Mr Rich-Phillips, I will not restate the purposes of this bill — they have already been canvassed in this house — but I have to wonder what the Attorney-General was thinking when he introduced this bill or what he was thinking when he dreamt up this entirely ridiculous piece of legislation. I cannot help thinking that this is something we might have seen from the previous government, and I note that the coalition will of course be supporting this bill. I do support some measures of this bill, but I strongly oppose the establishment of more mandatory sentencing. We already have a mandatory sentencing regime in Victoria that limits judicial officers’ ability to combine a community correction order (CCO) with a term of imprisonment.
I think this is just another Herald Sun bill. I feel like I am constantly seeing Herald Sun bills introduced in this Parliament. There was the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014, the Sentencing Amendment (Baseline Sentences) Bill 2014, the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016 and the Crimes Amendment (Carjacking and Home Invasion) Bill 2016. This is the fifth bill we have seen in the last few years in this Parliament to introduce mandatory sentencing. We know that there is no evidence to show that mandatory sentencing makes our community safer — absolutely no evidence anywhere. If there was, no doubt we would have heard it in the second-reading speech and no doubt we would have heard it in the debate here. I have not seen any evidence to say that this bill will make Victoria and our community a safer place.
I would like to thank, as Ms Pennicuik did, Liberty Victoria and the Law Institute of Victoria for their submissions on this bill. I am presuming that the minister did not get a chance to read those submissions, because I think they were very eloquent and substantive in their arguments against this bill. No doubt custodial sentences should be imposed for the most serious criminal offences on the Victorian statute book, and they are — they already are. The court is doing a very fine job on custodial sentences for serious crimes. We have a Director of Public Prosecutions who will appeal any inadequate sentence. We have seen this occurring already, and I will speak about that a little later. We have certainly seen the Director of Public Prosecutions going to the Court of Appeal to review the sentencing of offenders — this has happened. People are already being punished for serious crimes. We do not need this bill.
The Premier put up a press release about this: ‘Tightening community correction orders to keep Victorians safe’. What was really curious was that press release disappeared from the website soon after it was put up. I am not quite sure where it went or why it disappeared, but in it the Premier described a CCO as a slap on the wrist. It is anything but, and in fact Mr Rich-Phillips and the previous government, when they introduced CCOs, knew that it was not a slap on the wrist. It is a serious way of providing a broad range of punishments to apply to a variety of crimes and of ensuring that the outcome of that is that we have a safer community, that we have less recidivism and that we ensure that a combination of CCOs and jail terms provides the appropriate punishment for certain crimes.
CCOs are not a ‘slap on the wrist’. I certainly note that in the first Court of Appeal guideline on CCOs, which was the Boulton v. The Queen judgement, it is stated that:
A CCO is intrinsically punitive and, depending on the length of the order and the nature and extent of the conditions imposed, it is capable of being highly punitive.
The judgement also states:
The mandatory conditions, which are attached to each CCO by force of section 45(1), affect an offender’s liberty and autonomy.
It also makes the point that:
… the conditions which may be attached to a CCO are variously coercive, restrictive and/or prohibitive. When a condition of that kind is attached to a CCO, the offender’s life will be regulated — for the duration of the order — by the obligation to comply with the condition.
CCOs can include 600 hours of community work, non-association conditions, exclusion conditions, curfew conditions, residence conditions and treatment conditions. They can almost be a quasi home detention, as it were.
I think CCOs were working. We allow our courts to make these decisions, and so we should. We should not be interfering with that process. In the Boulton case the Court of Appeal also noted that the CCO is a flexible sentencing option. It enables those punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of reoffending by promoting the offender’s rehabilitation.
In Victoria we are seeing a 40 per cent recidivism rate. Using these types of tools to help address recidivism should be encouraged, which is not what this bill is doing. It is actually discouraging and reducing the ability of the courts to use CCOs. The combination of imprisonment and CCOs actually makes a lot of sense, because we are talking about rehabilitation. When we look at where we have gone with a lot of our parole restrictions, we see that we are now letting people out of jail with no community orders and no controls or restrictions. They are just coming straight out of jail. Obviously this is causing greater recidivism, and it is certainly putting our community at more risk.
Jail terms with parole periods for more serious offences are imposed by the court, but there is also a need for CCOs or for a variety of tools for the court to use to ensure community safety, which is why we are here. Further restricting the ability of the court to provide CCOs with jail terms enables a much more successful model of a punitive arrangement as well as a rehabilitation outcome.
In the Law Institute of Victoria’s letter to the Attorney-General, which no doubt it shared with all of us, it observed that incarceration alone fails to adequately address the rehabilitative needs of offenders and that upon release they may pose a far greater risk to the community due to the harmful effects of incarceration compared to the benefit of a CCO. We know that people who go to jail are probably far more likely to go back to jail. If we can provide for a variety in our punishment and in our sentencing, this will help us address those causal factors that underpin reoffending.
This is not just the Law Institute of Victoria speaking. We see this time and time again. There is a multitude of studies into recidivism both here and in other jurisdictions, and we know there is strong evidence that shows a multifaceted treatment-based approach is a far more effective way of reducing recidivism than just incarcerating people. As I mentioned before, with the parole reforms and the parole changes that have occurred in recent times we are looking at offenders who serve their whole jail sentence and are then released into the community without any supervision. CCOs combined with a sentence is a very important way to ensure some supervision on release.
Liberty Victoria sent through a very substantial submission on this bill. It noted right from the start that this reform goes against all research and advice from the Sentencing Advisory Council. It goes against the Sentencing Advisory Council, so why are we doing it? Is it because the Herald Sun has told us to do it? This is not being hard on crime; this is being soft on crime, because it is going to create more criminals and is not going to make us safer. Liberty Victoria also talks about removing the discretion from the judicial officer to impose a sentence that is appropriate having regard to the circumstances of the particular defence. We cannot do that in this bill. We cannot look at every single circumstance. We are creating a regulation that does not allow us to be discriminatory; it does not allow the courts to be discriminatory.
Liberty Victoria also notes that it may be inconsistent with our international obligations, particularly Australia’s obligations, with respect to the prohibition against arbitrary detention as contained in article 9 of the International Covenant on Civil and Political Rights (ICCPR) and the right to a fair trial and the provision that prison sentences must in effect be subject to appeal as per article 14 of the ICCPR.
It also is an expensive way to deal out punishment — $100 000 a year to keep someone incarcerated. CCOs provided a very effective way of regulating and controlling a prisoner on release. There was the likelihood of them being able to get back into the community, get back with their families, find jobs and get treatment for the underlying causes that put them in jail and into our prison system in the first place. CCOs are a great tool to reduce recidivism. By restricting them further we are going to in all likelihood increase recidivism — if that is possible, when we already have a 40 per cent recidivism rate in this community.
This bill undermines the community’s confidence in our judicial system. I for one actually think that we should have that separation of powers from the courts. We should allow courts to put up appropriate punishments and make appropriate decisions. We should not be interfering with that in here.
I cannot support this bill, and I do not feel that it should even be here. We know that CCOs have been working well. We know that the Court of Appeal has been setting the guidelines for how they are addressed and how they are dealt with. We have seen that the Court of Appeal has recently provided considerable guiding precedent on when it is inappropriate for courts to sentence an offender to a CCO. We have seen this, and what this bill is doing is not helping in any way.
As I have mentioned, there is strong evidence to demonstrate that a multifaceted treatment-based approach is far more effective than traditional punitive sentencing practices, which is where we are going again. This is soft on crime; it is going to create more crime. This is not being hard on crime. This is not actually making a tough decision and being responsive to what the courts are doing. This is not saying ‘look at the evidence’. The evidence is telling us that continuing down this path of incarceration and building up our prison populations is not a successful solution. The evidence is telling us this. But we continue to go soft on crime in this manner. This is not hard on crime. If you want to be tough on crime, then respect the intelligence of our community and make a case for change. Explain what actually works instead of using these simple ‘tough on crime’ headlines by increasing penalties that will do nothing to improve the safety of the community in Victoria.
I have been to the jails. I have seen the people in the jails. I understand that we are setting significant penalties for people who commit significant, serious, category 1 crimes. We are doing that already. The courts are doing that already. They do not need us telling them what to do. For that reason I cannot support this bill.