COMMENT by BOB BEADMAN
Part Two.
I suspect that statistics will confirm many of our trivial convictions referred to in Part One would not result in a custodial sentence interstate.
Yet all too often a light sentence that defies logic is handed down in a serious case. That fails to pass the pub test. We are told that we were unaware of all the mitigating circumstances. Perhaps so. But when the Director of Public Prosecutions appeals a sentence as “manifestly inadequate” (Sunday Territorian May 2024), something is clearly wrong.
Whatever, the perceptions of soft sentencing renew the crescendo for mandatory sentencing.
Mix in the controversial (excessive) use of bail provisions, and you can really get an argument going.
So, on the one hand there is a view that the courts are too harsh. The social reformers, a few academics, and the unaffected in the suburbs of our major capital cities subscribe to this view, I suspect.
And on the other hand, the victims of repeated break-ins, or home invasions, regularly by repeat offenders on bail, believe the courts are too lenient. The victims of crime are screaming at the politicians to extend mandatory sentencing. There is no doubt that the police are frustrated at arresting the same offender multiple times.
I repeat. In a nutshell, social reformers are appalled by mandatory sentencing, but the victims of crime are disgusted by soft penalties, and bail, handed out by the courts.
How do you begin to reconcile those opposite, deeply held views?
Parliaments are in the middle, and it is quite easy to see how the Legislatures arrive at mandatory sentencing.
The cost of incarceration – a couple more copy and pastes from Google: “Australia spends more than $5 billion per year, which amounts to over $330 per prisoner per day.”
“The Department of Communities and Justice have today revealed in NSW Budget Estimate hearings that the per day cost of keeping a person under 18 in prison is $2700, totalling an annual cost per child of $985,500 and with 212 young people presently in custody in NSW, the State is currently spending $208m per year on young people in prison. The Department also disclosed that of the 212 children in custody, 129 are First Nations young people. “
Now governments, and their treasuries are funny things. They can produce money out of a hat to meet the ever-expanding costs of imprisonment, and hospitalisation.
If an unfortunate is sentenced by a court to prison, or hospitalised by a doctor, government just meets the cost of prison on hospital. It is non-discretional. It cannot be denied or deferred until next year or the one after. There seems to be a bottomless impress account. In other words, not programmed, therefore not “expenditure”.
It is extremely difficult to get approval to SPEND money in anticipation of a SAVING later. Like immunisation programs to save hospital costs. Or diversion programs to save gaol costs. Try asking for $10,000 now to fund a program that will save you $100,000 next financial year, and you strike the closed minds of money managers. People who deal in numbers that add up and balance NOW do not think like that.
Not only are the costs of incarceration draining our finances, but the ineffectiveness of this practice as a deterrent is obvious.
A series of eye-opening reports published in March 2024 by the Justice Reform Initiative (which includes four former high court justices, three former police ministers and four former state premiers) said that gaoling people was deeply misguided: “The assumption is dangerously wrong. The idea that by dispatching men, women, and children to prison we are preventing them from committing further crime is deeply misguided. Instead, gaol is too often a training ground for violence, populated by a ready network of future co-conspirators.”
It is imperative that we change but what are the alternatives? I will outline the obvious examples.
Aboriginal Customary Law was reported on 40 years ago by the Australian Law Reform Commission, focussing on the states’ justice processes. It resulted in various efforts around the country to adopt different structures, or to co-opt senior Indigenous authority figures, into judicial proceedings. More study, and more work is needed.
Restorative Justice work has been done in various locations around the country, but the approach has not got a decent foothold despite success. It makes so much sense to make the offender face the victim (and vice versa).
Justice Reinvestment is another thoughtful attempt to divert people from the penal system. (The Australian Law Reform Commission said a justice reinvestment approach to criminal justice reform involves a redirection of money from prisons to fund and rebuild human resources and physical infrastructure in areas most affected by high levels of incarceration.)
Family Responsibilities Commission is a spectacular example of justice reinvestment developed by an extraordinary man in North Queensland, Noel Pearson.
It directly addresses the concerns I expressed earlier in this paper about the Australian government processing huge payments fortnightly then looking away. He convinced both the Queensland and Australian Governments to legislate to create the commission.
The ultimate tool available to the commission is a Community Income Management (CIM) order. Commissioners can determine what proportion of welfare payments is managed on the person’s behalf.
It also overcomes the fatal flaw in the former Basics Card approach (in various guises) where ALL residents in a remote locality were put on the card. It had the effect of penalising those community members who led an exemplary life and left no incentive for those who did not to improve their ways. The Basics Card also saw the development of ingenious ways to navigate around it.
Justice Reform Initiative says jailing is failing. The Northern Territory News on 23 May 2024, in an article clairvoyant in its timing, posted a story titled: “CLP forced to backflip after repeated digs at NT Deputy Chief Minister Chansey Paech over ‘Jailing is Failing’ T-shirt.”
What generated this latest heat is a Justice Reform Initiative Group. At the risk of being repetitive I want to stress that this is a serious group of professionals. It is chaired by one of my former Federal ministers, includes several more, along with a who’s who of politics, the legal profession and Indigenous leadership. (In other words this is not a group of contrarians likely to show up at every protest demonstration.)
The group has said: “The evidence is very clear that jailing is failing as a deterrent, it is failing to reduce crime, and it is ineffective at addressing the drivers of criminal justice involvement.” Governments cannot simply dismiss these people.
All these alternatives lend themselves for adoption as easy cultural fits into Indigenous cultural practices. They are bound to produce better outcomes than Correctional Services.
Internationally, the jury is in! Through the adoption of more modern thinking like this Norway has been able to reduce the re-offending rate from 70% to 20%.
NEXT: Other obvious anomalies with the administration of the law.
Norway is an entirely different country. To equate the Norwegian situation with that of central Australia or any place where there is a racial situation so obvious would be to ignore the obvious. At the same time, prisons in Australia do not correct as a general rule given the recidivism rates, not just for Aboriginals, it is well understood, even notably where taxpayer resources have been allocated based on noble ideas and unfortunately by political manipulation.
“A cultural fit” is not an easy articulation with the need to ensure violent and predatory criminal behaviour is disincentivised by unpleasant consequence.
Ask yourself, who is handing out the light sentences for rapes, assaults, property crimes that devastate the victim? Would they be so charitable if it was their own that suffered? That to me is the pub test.
As a “cultural fit” if whites are accorded the same status as Aboriginals amongst themselves, do we get to give the perp a sound flogging, put a spear in the thigh, the sciatic nerve or worst of all, the femoral artery?