Published: 29 November 2017

Legislative Council Wednesday 22 November 2017

Ms FORREST (Murchison ) - Mr President, the addition of alternative sentencing options outside the prison setting are preferable, regardless of what else you do.  There has been lots of discussion about whether we should remove the option for suspended sentences as well as introduce other options.  That is definitely a backward step and until you introduce other options and see how they fit into the current options a court has in determining a sentence for someone, we do not know whether they are necessary or not.

I support the Government's approach in wanting to bring in other sentencing options.  That is a predominant positive, but I have real concerns about then phasing out suspended sentences.  There will be further discussion in the Committee stage about that should we get there.

I want to read a reasonably long article, Mr President, and then read some small sections from a research article that describes why community-based restorative justice practices are preferable.  It was an article published in The Conversation on 23 April 2015 and is one of several following up its series 'State of Imprisonment', which provides snapshots of imprisonment trends in each state and territory.  The intention of the article is to provide a basis for informed public discussion of the cost and consequence of imprisonment and the alternatives.

I will read most of the article, because I do not want to take bits out of context.  It talks about the national and the international scene and where things have had impacts. It states -

Prison populations in Australia are increasing rapidly.  This is usually said to be driven by increases in crime.  Digging deeper though, in Australia and internationally, the link is far less clear.  The extent of a country's use of imprisonment seems, in fact, to be more a matter of policy choice than a necessity.

Victoria's prison system has experienced particularly striking overcrowding in the past two years.  More people are being sentenced to prison.  More people are being remanded in custody rather than being granted bail.  At the same time more people are being refused parole and therefore serving their full sentence in prison.

Governments argue that crime rates are increasing, that communities are fearful and more offenders must therefore be sent to prison.  Some horrific high-profile crimes by people on parole have also led to the closing off of parole.

It is always a challenge when those sorts of things happen, in any circumstance - whether it is even someone who escapes from custody.  Those cases already attract attention; we are not doing good enough in this area.  When you think about all the positives of people who do not do the wrong thing, do not breach their parole or break out of prison, you have to look at the whole picture.

The article goes on -

In fact, crime rates are not increasing in any uniform way.  The latest figures for Victoria, where imprisonment rates have risen sharply, show increases in some offences (including some but not all violent offences) and decreases in some offences, while most remain stable.

The increased use of imprisonment was not simply a response to increased crime.  And the time lag between offending and sentencing rules out the argument that recent increases in the prison population have - for example, by deterrence - led to any stabilisation of the crime rate.

So crime rates are not driving the increasing use of incarceration.  This conclusion is borne out by looking outside Australia.

The global picture of crime and imprisonment

The use of imprisonment around the world varies enormously. 

For instance, the US famously imprisons more of its population than almost any other country (698 prisoners per 100,000 population). Scandinavian countries use prison at about one-tenth of that rate (e.g. Denmark 67/100,000, Sweden 57/100,000) with the UK at 144/100,000.  The latest ABS data puts Australia's imprisonment rate at 190/100,000 but rising fast.

At the same time we see that crime rates vary around the world - but not really in a way that correlates with imprisonment rates.  For example, crime rates increased significantly throughout the developed world from about the 1970s to the 1990s. But, in that period, Michael Tonry shows imprisonment rates increased significantly in the USA and the Netherlands, remained stable in Canada and Norway, zigzagged in France and fell sharply in Finland and Japan.

In fact, there is no obvious relationship between imprisonment rates and crime rates.  Research by Tapio Lappi-Seppala shows, for example, that some countries' imprisonment rates move in line with crime rates (such as the USA, Denmark, Germany and Japan), while in other countries they move in opposite directions (such as in the UK, Italy, the Netherlands and New Zealand).

Looking just at Scandinavian countries, much can be learnt about the politics of imprisonment from Finland's experience.  In the 1960s the government decided to reduce the rate of imprisonment to bring Finland more into line with the other Scandinavian countries.

Between 1960 and 1990 the Finnish imprisonment rate fell from 165/100,000 to 60/100,000.  This was achieved by, for instance, reducing the offences for which imprisonment was an available sentence, shortening sentences, increasing early release schemes, introducing community service sentences and severely restricting the availability of prison terms for young offenders. 

A Finnish commentator argues that this was possible because of the political will to change.  This was itself made possible by social and political consensus in a political system not driven by short electoral cycles and in which governments look for and accept expert independent advice on alternative forms of punishments.

What a wonderful model.  That is my utopia, I must say.  Back to the article -

But it was also achievable because at the time Finland had no tabloid press; crime was not a 'hot button' issue used to sell newspapers.

Three really important factors here:  political will, political climate and no tabloid press -

While Finland was cutting its prison rates enormously compared to the rest of Scandinavia, the trends and rates of recorded crime were similar across all of these countries.  From 1950 to 2010 crime rates in Sweden, Denmark, Norway and Finland rose uniformly and in parallel up to about 1990 and then levelled off or declined.  Prison rates in Sweden, Denmark and Norway, however, were similar and stable, while the Finnish prison rates dropped dramatically.

If crime rates do not explain it what is happening?  

Analyses by many commentators link the differential use of imprisonment to broader political frameworks and levels of social inequality.  They point out that neoliberal countries - such as the USA and Australia - tend to have higher imprisonment rates, while social democracies such as Scandinavian countries have low imprisonment rates. 

Related explanations focus on whether a country has inclusionary or exclusionary politics.  It is argued that neoliberal societies have the highest prison rates, because they have social and economic policies that lead to 'exclusionary cultural attitudes' towards deviant fellow citizens.  By contrast, European corporatist societies ('coordinated market economies') and Scandinavian social democratic societies are said to:

 see offenders as needing resocialisation, which is the responsibility of the community as a whole.

 Links can also be made between a country's welfare system and rates of imprisonment: reduced welfare correlates with increased imprisonment.  The association between increasingly punitive policies and the winding back of the welfare state in the USA and the UK is often noted.  The USA has the highest levels of income inequality of Western countries, the Scandinavian countries the lowest.  Scandinavia also ranks highest on social expenditure within Europe.

The final part says -

Imprisonment is a political choice. 

The form of democracy may also be important to political and community attitudes to punishment.  Some commentators … make the comparison of confrontational two-party democracies, such as the USA and Australia, with more consensus-driven democracies such as Scandinavian countries.

Majoritarian two-party systems, it is argued, tend to give rise to adversarial and punitive law-and-order politics.  By contrast consensus-based models of decision making are said to prioritise compromise, making oppositional correctional politics unlikely.

Clearly, the extent of the use of imprisonment is a policy choice by governments.  Looking around the world it is now widely recognised that there is no direct relationship between crime rates and imprisonment rates.  There is a clearer connection between rates of imprisonment and levels of social inequality. 

If crime rates don't demand increased use of imprisonment, we must immediately reconsider our headlong rush to hyper-incarceration.  If we were to learn from the international comparison we would be investing much more in schools, families and communities, and much less in prisons.

There are lots of references attached to that article. I encourage others to read it if they are interested.  I think it is a whole policy platform that parties take and particularly in our adversarial democracies we have here, we tend to see these political approaches being taken.

I now refer to a study published in Crime and Justice, a bulletin from the New South Wales Bureau of Crime, Statistics and Research.  Titled, 'Intensive correction orders versus short prison sentence - A comparison of re-offending', the study looks at community treatment orders and the effect on reoffending. 

Surely all of us want people to be integrated back into society and not be in prison.  Some people need to be in prison and there are some who will be in prison, but overall we need to do what we can to make sure if they find themselves in prison, that they do not return, but preferably we can avoid them getting there in the first place.

Just to describe what this study was about -

In 2010, the NSW Government abolished sentences of periodic detention and replaced them with a new sentencing option known as an Intensive Correction Order (ICO).  Like periodic detention, an ICO is an alternative to a full-time custodial sentence and can only be issued if the court has already decided to impose a prison sentence of no more than 2 years in length and determined that the sentence should not be suspended.  An ICO is served in its entirety in the community and includes supervision and monitoring by community corrections.

It goes on to describe some of the eligibility around that -

ICOs have three mandatory conditions with which an offender must comply; (1) completion of a minimum of 32 hours of work supervised by CSNSW, (2) participation in programs as directed by CSNSW and (3) drug testing and alcohol testing on work and program sites (and home if non-consumption of alcohol is imposed by the Court as an additional condition).  The sentencing court may also impose additional conditions around employment, alcohol use, electronic monitoring and random home visits.

That encompasses some of the things the Government is looking at in this bill as to home detention, monitoring, community correction orders.  Looking at what the current study was about, it says -

NSW is currently experiencing unprecedented growth in imprisonment numbers; reaching an all-time high of 13,092 offenders in June 2017.  This rise in prison numbers, combined with strong evidence that prison exerts little or no deterrent effect (for a review Nagin, Cullen and Jonson, 2009) has increased the urgency to find effective alternatives to imprisonment.  A large number of prisoners currently in custody have been sentenced to terms of less than 2 years in duration and could therefore be eligible and potentially suitable for an ICO.

That is what they were looking at, people in that category.  The study eligibility criteria say -

The group of interest in this study consisted of all adult offenders who received an ICO as a principal penalty in a NSW court between 1 October 2010 and 30 September 2012.  These offenders were compared with offenders who received a principal penalty of a short (less than two years) prison sentence during the same period.

It is a dense report but it is interesting reading.  Under the discussion section of the paper, it says -

The aim of this study was to examine whether the risk of re-offending was lower among offenders placed on ICOs than comparable offenders given a short prison sentence of less than 2 years.  In order to deal with issues of selection bias, a variety of statistical methodologies were employed, including inverse propensity score weighting (with doubly robust estimation as a variation) and bivariate probit model with an instrumental variable.  A wide range of factors likely to have influenced penalty choice and/or re-offending were included in the propensity score model and the outcome regression model.  These analyses showed that, after controlling for other factors, offenders who received an ICO had significantly lower rates of re-offending than offenders who received a short prison sentence.

This is the whole purpose of what the Government is trying to do.  If you can keep them out of prison in the first place, the risk of reoffending is less and that is what this study has found.  It goes on -

Using IPTW to weigh offenders, we found a 31 per cent reduction in the odds of re-offending for those who received an ICO as their principal penalty compared with the short prison group (27 per cent reduction with trimmed stabilised IPTW).

The report goes on -

Even larger reductions in reoffending were observed when the prison group was restricted to offenders serving a fixed prison term of 6 months or less; that is, those who received no supervision or treatment post release.  In this supplementary analysis we found reductions in the odds of re-offending, in favour of the ICO group, of between 25 and 43 per cent for offenders in all risk categories and between 33 and 35 per cent for offenders in the medium to high LSI-R risk categories.

It goes on -

The results presented above further strengthen the evidence base suggesting that supervision combined with rehabilitation programs can have a significant impact on reoffending rates, and further, that programs targeting offenders at high risk of re-offending produce larger reduction in re-offending than those targeting offenders at medium or low risk.

I prefer my decision-making to be evidence-based, robust and solid, and it is clear we need to offer more sentencing options for the courts.  We need to do what we can to keep people out of prison.  Sometimes even a short prison stay is the worst you can do for these people - it does not actually deter them from reoffending.  It would appear it possibly increases their risk of reoffending and that becomes a revolving door.  That does not help the cost of running the prison, the lives of those individuals and their families and it does not help society.  It is clear that we need to focus more on preventing crime and the reasons people commit crime.  For some it is not always a conscious decision, but for some it is born out of the circumstances they live in.  You cannot look at things in isolation, you need to look at the whole picture.  It is like health, you cannot just look at the hospitals, you look at all the preventive health.

I support the introduction of the home detention provisions in the bill.  The community correction orders are an important addition.  They will probably help in rehabilitating people and reduce reoffending, but I cannot support the removal of suspended sentences as an option the court should have at the moment, and possibly forever.  Once you have limited the options, you limit the rehabilitative options available to that individual, and that is not okay.

We will discuss this further in the Committee stage, but as far as the competing amendments, I will listen to both sides of the argument.  I certainly believe if we end up with another disallowable instrument or a piece of legislation in the future to phase out suspended sentences, it will need to have a robust evidence base to support it, otherwise you will not be getting my support.  I make that quite clear now.  I support the bill into the Committee stage.


Response to the debate:


The point about it being a precedent and putting in place the process around the Education Act with the school starting age, as the member for McIntyre referred to, was that it resulted in a lot of work for a lot of people and, as I think the member for Elwick said, it provided a good amount of work on which to base the decision not to reduce the school starting age.  Woe betide another government in the future that tries to do it again, unless things substantially change.  There are benefits in a review being required.  Saying the Government can do its review without instruction - yes, of course it can.  It should, as the member for Rumney said, particularly in introducing new provisions. 

I will be supporting this amendment.  I believe this is important:  something we have seen handled badly in other areas of justice reform, ignoring quality advice and evidence.  I could read peer-researched articles until the cows come home.  I have done it a couple of times already in here on different bills for mandatory sentencing but the Government continues to ignore it.  The most recent one was the serious sexual offences against children; it relied on the Sentencing Advisory Council report.  The council was instructed to put forward a model that included mandatory sentencing, even though that was completely what they did not believe in. 

For me, it is important that if there is to be a review, we have some part in determining the terms.  If it does not go ahead, nothing is lost.  If the Government changes or this Government is re-elected and they decide the evidence is not stacking up for them, we will not bother with it - fine, suspended sentences will remain.  If the Labor Party amendment gets up, the end result will be the same.  If they do the work, hopefully there will be a broad term of the review, but this way at least we have some say in that.  It will remain to be seen if it works as it is intended.

Mrs Hiscutt - With a media release, what is it that we will want to announce that something has happened with the bill?

Ms FORREST - I can write it for you, if you like. 

Mrs Hiscutt - What you are looking for is no 'Labor this, Labor that'.

Ms FORREST - No.  When you say, 'Labor this, Labor that', you are reflecting on the whole House.  Labor only has four members, for God's sakes.  Since when did four become half of 14?

Mrs HISCUTT - We have just had notification.  I can assure you that there will be no tweets.

Ms FORREST - No Facebook rubbish?

Mrs HISCUTT - The media release will be vetted by the department and it will be assured it is respectful.

Ms FORREST - Right.  I can be assured then it will state facts.  It will state the fact that this House - making a presumption about how the House votes here - that this House has supported the retention of suspended sentences and, if this amendment is agreed, supports a review that the Parliament has input to the scope of, and the whole House strongly supports the inclusion of home detention and community corrections options for sentencing.  By the powers, I will be out there if it does not.

Ms FORREST - We seem to be having a circular discussion in that, as we should, we leave things to the judiciary to impose the most appropriate sentence.  What we are doing in this bill is providing two more sentencing options for the judiciary, which is a positive thing.  Are we losing faith in the judiciary to be able to determine the most appropriate sentence in the circumstances?  Drug offences, where we got a bit bogged down at the moment - and we are talking about serious drug offences and the manufacturing aspect of medicinal cannabis, but it is actually when it is for sale, not just cultivating it.  Surely we should rely on the court to make the most appropriate determination.  If the court deems this person will be best rehabilitated outside of prison on a drug diversion program, on a community correction order, in home detention with a range of supervision, that is what we are talking about here.  They are not limited, they can put a range of supervision requirements on that person.  It may be that every week the house is inspected for bongs and things - I do not know what they are going to do - or the ice machine - one that is not so cold. 

Surely this is what this is all about, restorative justice and giving the courts all the opportunities, not limiting it based on circumstances we do not fully understand.  Each individual comes to their life of crime or episode of crime from a range of pathways and for a variety of reasons.  For some, intergenerational behaviours lead them to that and it is difficult to break those cycles.  Putting those people back into a family where that has been part of the family fabric may not be the best place for them, but that is up to the court to decide.

The court should be able to decide the most appropriate sentence to be given to these people in terms of reducing the risk of recidivism and breaching the sentence they have been given.  I am confused by some comments made by the honourable Leader and others. Even the member for Windermere said there was a case in the paper that was a suitable case for a community correction order or home detention, and that was for a serious drug crime.


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