Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016

Ms. PENNICUIK (Southern Metropolitan) — I have to say on this particular bill, the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016, I could not disagree more with what Mr Rich-Phillips has had to say, because I am actually not sure why we are here with this bill at all. I do not see the need for this bill. I cannot see where there has been any clamour by anybody in the community or the courts for this bill or that there is any problem with the operation of the community correction orders (CCOs), as described by Mr Rich-Phillips in any case. He represents the Liberal coalition, which brought in the current CCO regime a few years ago, which the Greens at the time did support, although we made some criticisms about the regime.

Basically the Greens did not support the abolition of suspended sentences because suspended sentences do have a place in the sentencing regime for particular cases with particular circumstances. Nor did we support the abolition of home detention, which also accompanied the introduction of this CCO regime. Home detention also provides for particular sentencing options that suit particular cases and the circumstances of those cases and the offenders. I made the point at the time that home detention was most often used at the end of a sentence rather than at a beginning of a sentence, but there were those options.

I raised the point at the time, which has some resonance now that amongst the very last people to be sentenced to home detention in Victoria was the now Senator Derryn Hinch. He had spent a lot of time as a media commentator railing against things such as suspended sentences and home detention but was sentenced to home detention, given the particular circumstances that applied to him. At the time he was not very well. He was not being sentenced for a serious violent offence or anything like that, so he was the perfect person to be sentenced to home detention. He would not necessarily have been able to fulfil the requirements of a community correction order due to his ill health and it would not have been good for him to have been in prison either due to his ill health, so he was sentenced to home detention — the very thing he had railed against for years. He was not a conscientious objector in that regard. He did not say, 'Look, I'm against home detention; please send me to prison'. He accepted the decision the court made at the time, which was about the particular circumstances that applied to him as the offender, his offence and all the relevant circumstances of the case.

That is the context in which the current community correction order regime was brought into being in the Sentencing Act 1991. The former coalition government introduced that regime in 2012, as I said, while at the same time it abolished suspended sentences and home detention. A community correction order is a non-custodial order to which are attached certain mandatory conditions that are laid down in the legislation. In addition a sentencing court can attach to a CCO a range of conditions which may be prohibitive, coercive, rehabilitative or intrusive. One of the criticisms we had at the time about that legislation was that there had to be certain conditions applying to the CCOs, whereas we thought that the conditions that should apply to a CCO should be completely at the discretion of the court.

In September 2014 the previous government also changed the Sentencing Act to encourage the use of CCOs. Those changes involved the requirement that a court must not impose a jail term unless it considered that the purpose of the sentencing could not be met by a CCO with conditions. In September 2015 research by the Sentencing Advisory Council showed that there had been an increase in the number of CCOs imposed since the abolition of suspended sentences. That was to be expected because that was the point — abolishing suspended sentences and bringing in CCOs — so we would expect to see a rise in their use. The number of CCOs handed down in the County and Supreme courts had risen from 17.5 per cent to 25 per cent. In the Magistrates Court the number had increased from 7 per cent to nearly 11 per cent.

Professor Arie Freiberg said at the time that CCOs were not a 'soft option' since more conditions such as curfews and drug and alcohol treatment orders could be imposed on offenders who are sentenced to a CCO. He was quoted as saying:

The point is community correction orders are mostly replacing suspended sentences where there were no conditions and people do not go to jail and were never supervised …

So CCOs are more severe than what they replaced. The benefits of CCOs also include where a person is required to do community work.

On 22 December 2014 the Court of Appeal, as Mr Rich-Phillips referred to, issued its first guideline judgement on the use of CCOs at the request of the Office of Public Prosecutions (OPP) in the cases of Boulton v. The Queen, Clements v. The Queen and Fitzgerald v. The Queen. The three sentence appeals were lodged against lengthy CCOs, whereby the appellants received an eight-year tenure and a five-year CCO. Submissions were made not only by the appellants' lawyers and the OPP but also by legal representatives for the Attorney-General, Victoria Legal Aid (VLA) and the Sentencing Advisory Council. The OPP welcomed the guideline judgement, as did the VLA and the Sentencing Advisory Council. The Court of Appeal accepted that in its guideline judgement when it said:

The overarching principles which govern the CCO regime are proportionality and suitability.

I think that is a very important point, and it is probably the fundamental point that was made by the Court of Appeal in its guideline judgement. I have seen no evidence that that is not the case, and the government has presented no evidence, certainly not in the second-reading speech or in any other written matter that I have seen on this bill, that shows that this is not the case. So if it is not the case, why do we have the bill before us?

The court concluded that a CCO has punitive elements, including the mandatory conditions which I mentioned before, the fact that contravention of a CCO is an offence punishable by imprisonment and the range and nature of optional conditions which can be coercive, restrictive or prohibitive. The court emphasised the capacity of the CCO to be a punitive sanction, both when imposed as a sentence in its own right and when imposed in combination with imprisonment.

It accepted the submission from Victoria Legal Aid that a non-parole period and a CCO should be treated as alternatives and provided matters to consider when determining the length of a CCO, including difficulties with compliance with conditions and considerations specific to young offenders. The court also stressed the need for the provision of pre-sentence reports and other expert evidence so that a sentencing court could impose a CCO that was tailored to the rehabilitative needs of offenders. The court also said that CCOs could replace a range of medium jail terms, and it called for a re-examination of imprisonment as the only appropriate punishment for serious offences.

In April of this year it was reported that the chief Crown prosecutor, Gavin Silbert, QC, said that CCOs do not work and that immediate law reform was needed. He made the comments after it was shown that the number of CCOs given to offenders in 2015 had more than doubled on the previous year — 30 000 as compared to 13 300 — following the guideline judgement by the Court of Appeal. Mr Silbert said that they needed to be dispensed with as the breaches of CCOs could swamp the courts. He said that in every plea of guilty, defence counsel stands up and cites the ruling by the Court of Appeal saying that you do not have to go to jail even in homicides — and judges are listening.

However, Professor Arie Freiberg, as I mentioned, said in March 2016 that the claims that there were 30 000 CCOs imposed in 2015 was wrong. He said that Sentencing Advisory Council statistics show that for sentences in their own right there were only about 10 500 CCOs imposed by the Magistrates Court — around 11 per cent of sentences. Fewer than 400 CCOs were imposed in the County and Supreme courts.

There has been a growing use of CCOs in combination with imprisonment, and I think that is a good thing. I think that sort of flexibility in sentencing is good. Those figures are an increase on the previous year, but the increases have generally come at the expense of suspended sentences and, as I said, home detention, while imprisonment has increased.

In June 2016 a report by the Sentencing Advisory Council found that Victoria's first guideline judgement had resulted in courts imposing more imprisonment sentences combined with a CCO. Also in 2015 there was an increase in the use of a CCO as a sentence in its own right, particularly in the Magistrates Court, where an additional 2760 offenders received a CCO.

Professor Freiberg also said that the guideline judgement was not a get-out-of-jail-free card, as some have suggested. The Premier himself has suggested that CCOs are a slap on the wrist, which is completely inaccurate. In terms of comments like the one Mr Rich-Phillips made before about undermining public confidence in the judicial system, it is those types of comments which do that and which are not accurate about this regime of community correction orders. They are not a slap on the wrist. At the moment they can be the length of an imprisonment sentence or they can be, as I have said, part imprisonment and part CCO.

But sadly, this bill is going to reduce the length of a CCO to a maximum of five years and, in terms of a combined CCO, to a maximum of one year instead of two years. I have heard no evidence as to what this is meant to achieve in terms of the rehabilitation of prisoners. One of the principles of sentencing — that I thought was a bipartisan, tripartisan or multipartisan agreed principle — is that if there is no need for a person to be in jail they should not be in jail and if there are other alternatives such as community correction orders with conditions, and also with community service et cetera attached to them, that gives much more of a chance of rehabilitation of the offender, particularly if they are first-time offenders or young offenders. That is the path to making the community safer, not putting more and more people in prison, which will be the effect of this bill. That is not an effect we need.

Only last week Bianca Hall at the Age wrote an article about the changes that have happened over the last five or six years in this Parliament, with the increasing number of mandatory minimum sentences, and this bill basically is a version of that. It imposes mandatory sentencing, where the court is really the best place to decide on a sentence. I have said many times in this place that the Parliament needs to provide the courts with the widest range of sentencing options and flexibility in sentencing combinations that can be used to apply to the offenders that come before them.

In that article — and this is something I have referred to many times in the Parliament as well — it says that we are looking at a 67 per cent or almost a 70 per cent rise in the prison population in the past decade despite only a 4 per cent rise in crime. We now look like spending another $1 billion or more on prisons next year. I cannot see how this is the right path to go down. The fact that this government is going down the path set by the previous government is disappointing to me.

It is in fact quite surprising to me, because I would not have thought that going down this path of more and more imprisonment, putting more people in prison and building more prisons really fits with what I understand to be the Labor philosophy of giving people a fair go, education et cetera. These are the things we need. We need to focus more on justice reinvestment in communities and making sure that people have access to education, access to rehabilitation and the other assistance they need to keep them out of the justice system. That is not only going to better for those people and for the community but it is also going to be an awful lot cheaper than the amount of money we look like spending on the prison system if we keep going in the way we have.

Of course there is also the issue of the rising number of people being held on remand. There are people who are held on remand, some of them for months, who are in fact found not to be guilty of any crime, and they have spent months in the remand centre, which we know is overcrowded. A lot of problems are being caused because of that overcrowding and because of the changes to the bail system, which as I have said before were needed to make sure serious violent offenders and people at risk of being serious violent offenders were not released on bail, but in fact they apply to all offenders. Of course there are a large number of offenders who could be released on bail who do not pose a risk to the community of a serious violent offence. This is why we have this burgeoning prison population and the number of people held on remand.

Professor Freiberg also said that:

… the Court of Appeal has affirmed that nothing in its guideline judgement suggests that a judge should impose a CCO where such a sentence would not sufficiently reflect the seriousness of the offence and the circumstances of the offender.

Occasionally, the courts get it wrong and impose a CCO when imprisonment should have been imposed. In that case, the proper course is for the Director of Public Prosecutions to bring an appeal —

to the appeal court.

We already have in place — again, as I have said many times when we have been confronted with these bills, and the last one was only a week or two ago — a system of appeals in the appeal court which can deal with a sentence that the DPP sees to be manifestly inadequate, or the other way around, too harsh as well, so it can work in both ways.

The Attorney-General, Mr Pakula, says in his second-reading speech that the government agrees that CCOs are a valuable sentencing tool but that the former government's regime has gone too far, and he is concerned about the use of CCOs in relation to serious offending where a term of imprisonment would be a more appropriate sentence given the gravity of the offence and culpability of the offender. But I would say the courts would agree with that, and the courts already have sentencing guidelines and other appeal court guidelines to assist them with sentencing, and also they have the previous sentences for particular offences to consider when considering the sentence for a particular offender that is before them.

The Attorney-General mentions that there were three rape cases for which the offenders were sentenced to CCOs. My colleague the member for Prahran in the other place, Mr Hibbins, asked questions in committee of the whole in the lower house about details of that, because it seems to me that this is one of the reasons why we have the bill, but there are no details about those cases. The Premier has apparently told reporters:

We've had far too many people committing heinous crimes, violent crimes, and getting a slap on the wrist, rather than a custodial sentence they so richly deserve.

We're essentially mandating a jail term.

I agree that is happening, but I do not agree that it should be happening. He also said:

The length of a jail term is still a matter for judges.

Yes, there is no minimum jail term being set for the offences that are listed in the bill, but it is still mandating that jail term. The Premier has made that claim — far too many people getting a slap on the wrist — but does not provide any evidence for that.

I thank in particular Liberty Victoria and the Law Institute of Victoria, who provide members of Parliament with feedback on these important pieces of legislation. I thank them again for doing that and for circulating that information to members of Parliament. The law institute say the amendments in the bill are necessary and will not result in a safer community for Victorians, and they are especially concerned about the effect of these proposals on young people and those with significant mental health or psychological needs. They agree that a CCO is not an appropriate sentence for some types of offending, and so do I, but there is no evidence that it is actually happening. In fact Liberty Victoria completely refute the assertion that anybody who has been charged with the most serious offences — —

Mr Rich-Phillips — Acting President, I draw your attention to the absence of a minister in the house.

The ACTING PRESIDENT (Ms Dunn) — Order! There is indeed a minister in the house. Ms Pennicuik to continue.

Ms PENNICUIK — Thank you, Mr Rich-Phillips, for your interruption. I could actually see the minister.

Liberty Victoria say in their submission that contrary to the implication in the press release that accompanied the announcement of this bill, offenders are not receiving CCOs for offences such as murder and rape. And no doubt if they did, the DPP would appeal and the Court of Appeal would resentence the offender. The government has failed to provide any real-world examples of CCOs being given in inappropriate cases. If we are going to bring in bills like this which are radically altering the statute books and imposing mandatory sentencing, then we need to have a compelling case for doing so, and there is no compelling case here.

If I could continue with the law institute, they do say that they agree it is not an appropriate sentence for some types of offending, but their members — that is, the lawyers — report that CCOs are not imposed for offences above a certain level of seriousness. Currently the common law and statute law in combination do not allow for the imposition of a CCO for very serious offending. This goes to the point I made before — that there is no need for this bill, because the courts already have their history, the common law, their sentencing guidelines and the sentencing practices to refer to.

The law institute also says incarceration does not adequately address the needs of rehabilitation of offenders, especially young offenders and those with mental health issues. The many offenders who are in prison do not receive necessary and appropriate support and rehabilitation and so, upon release, pose an even greater risk to community safety compared to if they had the benefit of a combined CCO-custodial order or simply a CCO, as is possible at the moment. This also allows those offenders — and remember that I am not talking about serious offenders, because both Liberty Victoria and the law institute take issue with the government's assertion that anyone is getting CCOs for these serious offences — to maintain connections with family, friends et cetera, which is also very beneficial in terms of rehabilitation.

Liberty Victoria also make the following statements, which I think I have made myself — that this further changes mandatory sentencing in Victoria and follows a worrying trend of this idea of mandatory sentencing. They list some of the bills that have been brought in in the last five years, including the Crimes Amendment (Gross Violence Offences) Bill 2012, the Sentencing Amendment (Emergency Workers) Bill 2014, the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014 and the Sentencing Amendment (Baseline Sentences) Bill 2014, and of course this government promised to repeal the amendments made by that act but has so far not done so, even though the Court of Appeal have said that they have signed sentences that are completely unworkable. In fact that is what I said when the bill came to the Parliament — that I could not see how the courts were going to make that workable and they would need calculators, actually, to work out the formula for sentencing, rather than using sentencing guidelines in the Sentencing Act 1991.

Also there was the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016 and the Crimes Amendment (Carjacking and Home Invasion) Bill 2016, which we debated not that long ago. The Greens opposed all but one of those bills, which was the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill.

The coalition brought in various forms of mandatory sentencing, which unfortunately has clogged up the statute books and has really made it harder and harder every year for judicial officers to use the widest possible range of sentencing options. I think that is a very disappointing and unfortunate state of affairs that has come about in terms of the various bills that have come to Parliament.

I go back to the main points as to why the Greens will not be supporting this bill. One, no evidence has been presented as to why it is needed. In fact the contrary evidence is there if you care to look. The justifications for the bill given by the government do not appear to be correct, and the bill would take away the ability of the courts to use their discretion. In fact the regime has not been in place all that long, so it probably needs more time to work its way through. From what I can see and from what I have read, when they are looking at sentencing the courts do look at proportionality and suitability as their main principles for sentencing, and they would only impose a CCO for a serious offence where there were substantial, mitigating circumstances. It would not just be a run-of-the-mill occurrence, and it is not.

With those words, I indicate that the Greens will not support this bill.