Juvenile sentencing plan draws fire

Simon Lauder | ABC The World Today | 29 July 2011

Audio here

ASHLEY HALL: The Victorian Government has hit back at critics of its plan to introduce a form of mandatory sentencing for the perpetrators of violent crimes.

A retired Supreme Court judge has told The World Today the Government's plan is dangerous and could lead to unjust penalties especially for juveniles.

It comes as the former New South Wales Director of Public Prosecutions Nicholas Cowdery also weighs in, calling the plan misconceived.

The Victorian Government says it's just delivering what the people want.

Simon Lauder reports.

SIMON LAUDER: The Coalition won government in Victoria with its promise to be tough on crime.

The Attorney-General Robert Clark says he plans to keep that promise. The Government is even inviting public input on its overhaul of sentencing laws through an online survey.

ROBERT CLARK: While the advice of experts and the opinions of interest groups are important the views of all Victorians are also important and we're giving Victorians the opportunity to have their say.

SIMON LAUDER: The plan to introduce minimum jail terms of two years for 16 and 17 year olds who are convicted of violent crimes has been slammed by social justice and law groups. Now it's attracting criticism from interstate.

The former New South Wales Director of Public Prosecutions Nicholas Cowdery QC told a conference in Melbourne this morning the policy is an attempt to buy votes.

NICHOLAS COWDERY: Talking about punishing people for the wrongs that they do to us makes them feel good and it makes their voters feel good. And they think that these are going to be reflected in votes at the next election which is really all that they are interested in.

SIMON LAUDER: As a Supreme Court judge Frank Vincent QC heard evidence about some of Victoria's most heinous crimes over more than two decades until his retirement two years ago.

FRANK VINCENT: The fixing of arbitrary minimums in any situation is an extremely dangerous course to adopt.

SIMON LAUDER: Mr Vincent says courts try to balance the seriousness of an offence and the circumstances of the offender when sentencing. He says without discretion a judge is in a very difficult position.

FRANK VINCENT: In relation to young people in particular the emphasis has generally been placed upon their immaturity at that time and the prospects of rehabilitation and so forth. It's a very difficult balance to strike in any situation.

Fixing of arbitrary minimum terms has about it a very serious potential for inappropriate sentencing and unjust sentencing.

SIMON LAUDER: Would it change some, not just sentences, do you think it would change judgements?

FRANK VINCENT: It would be very difficult. It would be hard to accommodate doing something that you as a judge had felt or felt was inherently wrong and socially destructive rather than being advantageous to the community and the individual concerned.

SIMON LAUDER: The Government also plans to introduce minimum sentences of four years for adults who commit violent crimes.

The Attorney-General Robert Clark says the mandatory periods will apply to all unless there are exceptional circumstances and they're yet to be determined.

ROBERT CLARK: Clearly you don't want to put anyone behind bars. But there are circumstances where people engage in violence that is so gross both in terms of its culpability and the degree of injuries inflicted that you need to put people behind bars both for effective deterrence and for the effect of protecting the community. And that's what the Government has committed to do.

SIMON LAUDER: But wouldn't your plan remove that discretion from a judge who is best placed having heard all the evidence?

ROBERT CLARK: Well as I say the offence is going to be carefully targeted to those examples of gross violence for which effectively there is no excuse - the deliberately planned attack, the stomping on incapacitated victims, the marauding gangs.

And then there will on top of that will be the option for genuinely exception circumstances.

But we've seen in Victoria in the past when the previous government legislated to allow unspecified exceptional circumstances when they have purported to abolish suspended sentences for serious crimes, that what was intended to be the exception became the rule. And that's what we are determined to ensure does not occur with this offence.

SIMON LAUDER: And why don't you believe that children, those under 18, should have their youth, immaturity and of course their positive potential taken into account?

ROBERT CLARK: Well that is already being taken into account in the fact that juveniles will be subject to a maximum period of two years detention compared with adults who will be subject to a maximum of four years, a minimum of four years detention.

But as I've said Magistrates Court, the Children's Court is already imposing sentences of between one and two years detention in more than half of the cases of juveniles convicted of intentionally causing serious injury. And that's not even having regard to the fact that our offence will be confined to instances of gross violence.

SIMON LAUDER: Victoria's Sentencing Advisory Council is due to deliver a report to government in September.

ASHLEY HALL: Simon Lauder.

More jails will not mean less crime

Editorial | The Age | June 11, 2011

AS EVERY politician knows, there are votes to be had in being tough on crime, or at least in being thought to be so. And it is just as much a part of the received political wisdom that there are no votes to be had in extending and modernising prisons or building new ones, because that is easily portrayed as being soft on prisoners. The problem, of course, is that policies regarded as showing ''toughness'' on crime are likely to result in an increase in the prison population, who must be properly housed, fed and, if they are not to re-offend on completion of their sentences, rehabilitated. Victoria's Baillieu government is here in a bind of its own making.

Having won office vowing to crack down on crime, the government has since been busily turning that vow into legislation. Judges will no longer be able to suspend the sentences of adults convicted of serious crimes, and 16 and 17-year-olds convicted of crimes involving gross violence face mandatory jail terms. As Attorney-General Robert Clark has said, ''We are determined to make clear that jail means jail''. And Corrections Minister Andrew McIntosh has conceded that the government's agenda means there will be more prisoners: ''Of course that [Coalition policy] meant there was clearly going to be an increase in the number of prison beds that we would have to provide.'' Why, then, did the government slip into last month's budget, without fanfare of any kind, an announcement that it will build a new men's prison, with $2 million allocated for a study of the business case for the prison? It was as if the government was hoping that this might be overlooked.

As Royce Millar, of the Age investigations unit, reports today, the government's coyness almost certainly derives from the same instinct that drove the Brumby government to keep quiet about its refusal of a Corrections Victoria plan for building a new 800-bed men's prison and a new 550-bed women's prison as public-private partnerships, at a construction cost of approximately $550 million each and an operating cost that would run into billions over decades. Simply, there are no votes in prisons. Yet the previous government was acutely aware of overcrowding in the state's 13 existing prisons, because, under pressure from Coalition criticism and media reporting, it, too, had been ''getting tough'' on crime. Victoria's incarceration rate, with 105 prisoners per 100,000 of the population, is lower than the national average of 170 per 100,000, but in the past decade the prison population has soared by almost 50 per cent, triple the rate of general population growth. Last year the cost of maintaining a prisoner in Victoria's jails was $300 a day, more than in any other state or territory except Tasmania and the ACT, and the Baillieu government's swelling of the prison population will require a huge blowout in the corrections budget.

The real cost, however, will be measured not in dollars but in the self-defeating nature of the policy itself. As ''get tough'' governments around the world have increasingly found, the consequence of relying on incarceration with mandatory terms as the answer to crime is more prisoners, not greater public safety, because the experience of jail is more likely to harden young offenders than to rehabilitate them. If courts are to respond effectively to rising crime, they need to retain the discretion in sentencing that the Baillieu government is so intent on removing from them.

Big holes in big lock-up scheme

Royce Millar | The Age | 11 June 2011

JOHN Wayne would be spitting in the dust. Texas, the home ground of American rough justice, has gone soft on crime. Twenty years ago, zero tolerance swept the US, epitomised in Republican Clayton Williams's pledge that if elected Texan governor in 1990 (he lost), he would have first time drug offenders ''bustin' rocks''.

But even in Texas things get complicated once the TV cameras have turned away and politicians find themselves governing in the real world.

The lock-'em-up policies of the 1980s and 1990s led to rising prisoner numbers and broken budgets. Rather than putting an end to crime, prisons seemed to be incubating it.

Now, reduced sentences for drug offences and a big boost to job training and rehabilitation programs for non-violent offenders are among recent Texan reforms also being reproduced in conservative states, including Louisiana and Indiana, across the US.

Like Clayton Williams, Victorian Liberal leader Ted Baillieu knew well that a simple tough-on-crime message would play well in short media grabs at polling time last year. It was a core theme used by the Coalition to launch a barrage of law and order policies, including boosting police recruitment, bail reform, and the abolition of home detention and suspended sentences. There would be literally ''zero tolerance''. ''Offenders who do the crime will do the time.''

Seven months later, honeymoon over, the Coalition is facing its own real-world dilemma: getting tough is more costly than it expected or, maybe, admitted. Possibly even imagined.