A Principled Approach to Sentencing Reform

(Speech to forum organised by International Commission of Jurists (Victoria), 18 June 2013)

Introduction

I thank the International Commission of Jurists (Victoria) for organising this forum and welcome the opportunity to take part.

My presentation will outline the key tenets of the Government’s approach to sentencing and my views on some of the propositions about sentencing that have been raised publicly in recent times.

In doing so, I will make reference to relevant research, including research that identifies matters that could benefit from further examination in a Victorian context.

Government’s sentencing philosophy

The core of the Government’s approach is stronger and more effective sentencing that will better protect the community.

This means sentencing that is stronger and more effective in who is sentenced to what, including longer sentences where needed and jail instead of community based sentences where needed.

It also means sentencing that is stronger and more effective in the range of sentencing options available, particularly in community based sentencing. This gives judges and magistrates more scope to target conditions towards both the offender and the offence, in order to better protect the community and channel offenders away from re-offending through conditions promoting deterrence, incapacitation and/or rehabilitation.

Stronger and more effective sentencing does not mean locking up every offender and throwing away the key, but it does mean being prepared to lock up offenders where that is needed, and to lock them up for long enough to effectively protect the community through incapacitation and through deterring other offending by the offender or by others.

The importance of community safety in decisions about imprisonment is, of course, widely recognised. For example, the Sentencing Advisory Council in its March 2012 Review of the Adult Parole System¹ recommended that there should be a new general principle that “Community safety should be the paramount consideration in all decisions relating to the granting of parole”.

Deterrence

It is generally accepted that expectations are crucial to the deterrent effect of sentencing, and that those expectations have at least three elements – certainty of consequences, speed of consequences and impact of consequences.

A key part of certainty of consequences is certainty of being caught, and that is why the Government is putting more police on the streets, introducing PSOs at railway stations, and supporting the greater use of CCTV. Indeed at the end of May, Victoria Police attributed much of the reported increase in crime rates to increased policing and reporting². Certainty and consistency of sentence for like offences is also vital.

Speed of consequences is important because it drives home in the would-be offender’s mind the cause and effect between offending and sanction, and because it helps reinforce certainty of consequences – it helps stop the would-be offender figuring that any punishment is a long time away and who knows what might turn up in the meantime that will avoid the sanction.

This is a key benefit that will flow from the work being done in conjunction by the Government and the courts to reduce the time taken to resolve criminal matters, such as the enormously successful Venne reforms to criminal appeals in the Supreme Court, the reforms to jury directions that commenced on 1 July and the pilot in the County Court of next day post-committal mentions.

Impact of consequences is of course important because it is the expected unpleasantness and other effects of those consequences in the mind of the would-be offender that prompts the would-be offender to hold off from the law-breaking they were inclined to, and reinforces in all citizens the view that it is right and proper to obey the law.

For each of these elements to work, messaging is crucial. It would be of little benefit if the justice system speedily and with certainty imposed strong sanctions on offenders, but would-be offenders were unaware of it until too late.

The Sentencing Advisory Council has made these points well in its paper on deterrence, stating that:

A consistent finding in deterrence research is that increases in the certainty of apprehension and punishment demonstrate a significant deterrent effect.”³

The SAC’s paper refers to the judgement of Maxwell P and Redlich JA in Winch v The Queen where their Honours state:

[The prevalence of glassing offences and the community’s concern] alone heighten the importance of general deterrence as a sentencing objective. They also highlight the urgent need for sentencing decisions in cases such as this to be communicated to those most likely to commit this kind of offence”.⁴

The paper also refers to a speech by the Chief Justice, Hon. Marilyn Warren, in which Her Honour states that:

“…deterrence within the community will not be achieved unless knowledge of the sentences is conveyed to the community”.⁵

Incapacitation

As well as general and specific deterrence, another crucial and often overlooked objective of sentencing is incapacitation – to remove the offender from where they can cause further harm, even if they were minded to. The most obvious form of incapacitation is imprisonment. If you are behind bars, you cannot be on the streets re-offending. Other forms of at least partial incapacitation can include CCO conditions such as curfews, no-go zones, non-association conditions and alcohol exclusion orders. Electronic monitoring can also incapacitate as well as deter.

The importance of incapacitation has of course been brought home to us all in recent times in the context of offenders who would not have been able to commit crimes had their parole been cancelled and had they been returned to jail. It has been observed that eventually even the most serious offenders are released from jail, but this does not change the simple fact that the longer a serious offender is incarcerated the longer and more effectively the community will be protected from the risk of the offender re-offending while incarcerated.

Each of the Government’s sentencing reforms has been developed with all the considerations I have mentioned in mind: deterrence (both general and specific), rehabilitation and incapacitation.

Statutory minimum sentences

Take statutory minimum sentences, which will apply to relevant offences committed on or after 1 July. These statutory minimum sentences are not mandatory sentences, but they send a very clear message – “If you deliberately inflict gross violence, you can expect to go to jail for at least four years.” This reinforces both the certainty and severity of the consequences of inflicting gross violence in the minds of would-be offenders, and also means that violent offenders are off the streets for at least four years.

The legislation provides for exceptions from the statutory minimum, but these are confined to genuinely exceptional circumstances. The norm will be a four year minimum non-parole period for assaults involving gross violence.

In structuring statutory minimum sentences in this way, we believe we have struck the right balance in what the former Chief Justice of the NSW Supreme Court, Jim Spigelman, has described as the “tension between the principle of individualised justice and the principle of consistency”.⁶

I should add that another less appreciated but also important element of the legislation commencing on 1 July is the realignment of the definition of “serious injury” so that it better fits the ordinary meaning of those words. This will help build the credibility of sentencing and help show more clearly the sanctions that attach to those who inflict genuinely serious injuries on their victims.

Abolition of suspended sentences

The Government’s suspended sentences reforms are also directed at reinforcing the certainty and severity of consequences, as well as ending the confusing and counterproductive messaging of the current regime.

There is a huge disconnect between theory and reality about suspended sentences. The legal system treats them as the next most serious sanction to actual imprisonment. Many, although not all, of the judiciary feel they are an appropriate sentence for an offender who has committed a crime with a seriousness falling just short of deserving actual jail, and that a suspended sentence provides a strong final warning.

However, the public and offenders think that an offender who gets a suspended sentence has “got away with it”. The offender walks out of court completely free to taunt their victim on the footpath outside the court.

Baseline sentences

Another Government sentencing reform underway is the introduction of baseline sentences. Baseline sentences are conceptually one of the most far reaching of the Government’s reforms. They involve Parliament specifying on behalf of the community not just the maximum sentence available for an offence, but Parliament’s expectation as to the median sentence for that offence. In effect, the baseline sentence specified by Parliament will take the place of current sentencing practice in setting the median or norm for sentencing for that offence.

Baseline sentences are therefore about promoting greater certainty as well as ensuring that the level of sanction applying to different offences is in line with the sentencing levels set by Parliament on behalf of the community. They also aim to overcome the difficulties and uncertainties that we have seen in recent times in seeking judicially led changes to current sentencing practices.

Community correction orders

The Government’s CCO reforms are also about ensuring community based sentencing sends a very clear message – if you cause harm to others, you will have to work to make up for it and your freedoms may be restricted.

CCOs allow a far wider range of conditions to be attached to a community based sentence – targeted to the offender and the offence. The orders can also last longer and impose more hours of community based service than previously – up to 600 hours.

Conditions that can be imposed include curfews, no-go zones, non-association requirements and alcohol exclusion requirements. CCOs can also include judicial monitoring obligations, as well as conditions requiring the offender to undertake treatment for drug, alcohol or other problems.

Having outlined the key principles and elements of the Government’s sentencing reforms, let me make some comments and state my views on a number of issues that have been raised in recent discussions about sentencing reforms.

Prison numbers

The Government accepts that stronger and more effective sentences require more prison places. So do the failures of the previous government over 11 years to tackle rising levels of serious crimes requiring jail, or to provide additional prison places in line with rising population.

The Victorian Auditor-General has pointed out that the former government was advised on three separate occasions that it needed to increase prison places. The current Government is providing extra prison places to meet all these sources of need.

Effectiveness of imprisonment

Of course, a crucial question in any discussion about sentencing is how effective is prison in achieving the objectives of sentencing?

I am aware of little argument against the propositions that prison always achieves incapacitation and usually contributes to general deterrence. The area of most controversy is whether, when and to what extent prison achieves specific deterrence.

There is also the issue of how prison contributes to the sentencing objectives of punishment and denunciation. However, arguably these are better regarded not as objectives in themselves but as attempted means to achieving specific and general deterrence.

Sentences and re-offending

I look first at the issue of specific deterrence, and the statistical evidence regarding the link between sentences and re-offending.

The specific deterrence effects of imprisonment are a subject of many learned studies and much debate, and it seems to me the overall take-out from the research to date is that the specific deterrence effects of prison are likely to depend on the offence and the offender.

The recent Sentencing Advisory Council report⁷ on reoffending following sentencing in the Magistrates Court has attracted considerable public debate. The report found those who had received custodial sentences had slightly higher re-offending rates than those given non-custodial sentences.

However, as the report itself pointed out at page 24, those who received the more serious sentences may well have committed more serious crimes and as far as I can make out from a not very clear description, the ‘subsample matching’ in the report was not able to match for seriousness of offence beyond broad bands.

Thus the key issue the report’s evidence was not able to address was the flow of cause and effect – did custodial sentences cause offenders to be more likely to re-offend, or did they receive custodial sentences because they were more likely to re-offend in the first place.

Another crucial limitation of the report in that it looked only at sentencing that can be imposed in the Magistrates’ Court, that is, up to two years’ imprisonment. In that respect, the SAC report is in same genre as recent UK studies about the effects of short term imprisonment, rather than about the effects of imprisonment more generally.

There has also been an April 2011 SAC report on deterrence, which relied on research that “indicates that increases in the severity of penalties, such as increasing the length of terms of imprisonment, do not produce a corresponding increase in deterrence”⁸. One may quibble about what a ‘corresponding increase’ would look like, but more substantively, there are recent studies and published statistics that point to a striking correlation between longer penalties and lower rates of reoffending.

For example, the UK Ministry of Justice produces data on the effect of various sentences on reoffending rates. Their 2011 publication shows that, consistently over the 10-year period to 2009, the frequency rate of re-offending for those discharged from custody falls as the length of their custodial sentence increases⁹. In the 2009 cohort, offenders with a sentence length of less than one year had a frequency of re-conviction rate (re-convictions per 100 offenders) that was more than 500% higher than the rate of those offenders who had served a custodial sentence of 4 years or more.¹⁰

Furthermore, the UK Ministry of Justice compendium on reoffending statistics indicates that comparable adult prisoners had a lower offending rate the longer their custodial sentences.¹¹ The report states that in 2008 those sentenced to 2-4 years had a reoffending rate 7.2% lower than those sentenced to 1-2 years, who in turn had a reoffending rate 4.4% lower than those sentenced to less than 12 months. The offenders whose penalties were matched were comparable in a number of important respects, including latest offence type, number of previous criminal offences, age, gender and ethnicity.

Further UK Ministry of Justice re-offending statistics recently issued show that in the 12 months to June 2011, the rate of reoffending within a year of being released from prison is lower when as the length of the custodial sentence is higher. For those who served a prison sentence of less than one year the rate of re-offending within a year was 58%, whereas for those serving a prison sentence of 4-10 years the rate was significantly lower at 31%.¹²

Perhaps in consequence of this and similar research, there does not seem much dispute in the UK about prison being the most appropriate option for serious offending.

There have also been some US studies which have produced interesting results. A recent US study that specifically sought to determine the deterrent effect of crime (isolated from the incapacitation effect) found that the average add-on gun law¹³ as applied in many US states results in a roughly 5% decline in gun robberies within the first three years.¹⁴

A similar but older study found that California’s sentence enhancements reforms¹⁵ had an 8% deterrent effect after 3 years and concluded that severity and not just certainty of offence has an impact on criminal behaviour.¹⁶

Another academic study from the UK found that prison was particularly effective in reducing crime when targeted at serious and repeat offenders. The econometric analysis concluded that an increase of just one month in the average sentence length for burglaries – from 15.4 to 16.4 months – would reduce burglaries in the following year by 4,800, out of an annual total of 962,700 (almost 0.5 % per year). For fraud, an increase in sentences from 9.7 to 10.7 months would result in a reduction of 4,700 offences a year, out of 242,400 (almost 1.9% per year).¹⁷

No doubt each of these studies will also have critics and responses, but it is important for us in Victoria to be aware of this recent overseas research, and to make sure that where relevant it is taken into account in Australian discussion and research about sentencing.

Sentences and crime rates

In addition to the debate about the link between sentences and reoffending, there is debate about the broader link between sentences and crime rates, which goes to issues of general and specific deterrence and of incapacitation.

In 2012 the SAC published a report on incapacitation, which cited studies in favour of the proposition that increases in the rates of imprisonment in the US in the 1980s and 1990s did not lead to a reduction in crime.¹⁸

However, other experience can be said to point to different conclusions.¹⁹ In the UK, Michael Howard succeeded Ken Clarke as Justice Secretary in 1993. Howard implemented tougher and longer sentences. There was a rapid increase in prison numbers and a significant decline in crime rates. According to the British Crime Survey (which records more crimes than the police) – “crimes” fell from 19 million in 1995 to 10.7 million in 2009, while in the same period the prison population almost doubled.²⁰

Other countries can also be pointed to. In Denmark from 2005 prison numbers dropped and crime increased, and similarly in Canada from 2000. In Italy from 1962 to 1995 its government introduced 8 official pardons, in one case reducing the prison population by 35%. A major rise in crime followed. There was the opposite effect in the Netherlands after tougher jail sentences were introduced.

In fact some of the SAC’s own statistics show a similar coincidence of rising imprisonment rates and falling crime rates, although that conclusion is not drawn explicitly by the authors. The most recent report on imprisonment rates from the SAC shows higher imprisonment rates correlate with lower rates of crime over the report’s 10-year period. The overall crime rate decreased 22.7% from 9,076 offences per 100,000 adults in 2001–02 to 7,020 offences per 100,000 adults in 2011–12²¹, while in that time the prison rate rose 18.8%, from 94.2 prisoners per 100,000 adults in 2002 to 111.7 prisoners per 100,000 adults in 2012.²²

Of course, none of this necessarily establishes cause and effect. Crime may have fallen independently of the prison policies. Other factors may be operating – arguably greater economic prosperity, more efficient policing or better technology, such as car immobilisers, home security and CCTV.
However, the correlation between levels of incarceration and levels of crime certainly warrants close analysis given the common claim that imprisonment does not lead to a reduction in the crime rate.

This again demonstrates that there is a wide range of developing international research and experience that may prove helpful to local researchers in studying these issues.

Community costs and benefits

Following on from the question of the effectiveness of imprisonment is whether the costs of stronger and more effective sentencing outweigh its benefits to the community

This issue raises a crucial additional question – what is the cost of crime to the community, and how does the value of crime prevented by imprisonment compare with the costs of imprisonment?

The value of crime prevented is a matter often overlooked in discussions about sentencing. The economic and measurable costs of crime to victims and the State are enormous enough, and added to those are the almost incalculable lifelong grief and trauma caused to victims of crime.

There have been a number of studies on the incapacitation effects of imprisonment, including a paper by SAC published last year.²³ However, many such reports have not taken into account the costs of crime to the community, and therefore fail to account adequately for the benefits of incapacitation. Overseas, particularly in the UK, there have been some important attempts to more accurately estimate the net economic benefit to the community of the incapacitation effect.

From a purely economic perspective alone, a UK report by criminologist Professor Ken Pease OBE has challenged the “received wisdom that prison is expensive” by arguing that the costs of prison can be offset by the savings associated with crime avoided.²⁴

His research identifies that the number of crimes committed by offenders is typically much larger than the number for which they are eventually convicted. Prof Pease argues therefore that the substantial economic costs associated with each offence avoided as a result of imprisonment, that would otherwise have to be borne by individuals, businesses and the public sector, can easily outweigh the cost of imprisonment.²⁵

For example, Professor Pease notes research that estimates that as many as 136 burglaries are committed per conviction for burglary and also estimates that a single theft (on average) is estimated to cost £1,000 and a serious wounding £21,000. This is a stark illustration of the number of potential future crimes, and their cost, that can potentially be prevented by imprisonment.

Professor Pease estimated that if every successful conviction represented 5.9 offences committed by the offender, then the costs of imprisonment would be the same as the costs of crime prevented.²⁶ Professor Pease summed up his conclusions strikingly as follows:

The debate about imprisonment costs and effects has been distorted by the received wisdom that prison is expensive, community sanctions are as effective as custody in protecting the public, and that dissent from these convenient fictions marks someone out as a penal sadist.²⁷

The long term Italian study I mentioned earlier, published in February 2012, examined the effect of several Italian collective pardons over 33 years and concluded that the marginal social cost of releasing criminals is considerably higher than the marginal cost of imprisonment.²⁸

In Australia, the Australian Institute of Criminology published a paper assessing the costs of crime to the community in 2005.²⁹ The paper estimates costs for a range of offences as well as costs imposed on the criminal justice system. At the time the overall cost of crime in Australia amounted to nearly $36 billion per year, equivalent to 4.1 percent of national gross domestic product.³⁰

A Victorian study has found that the cost of crime in Victoria was $9.8 billion in the 2009-2010 financial year, equivalent to $1, 678 per Victorian and 3.4% of Gross State Product. These include not only the direct costs of crimes committed but the costs that flow through to the justice system, security industry, insurance market and victim support agencies.³¹

The take out from all these studies is that while imprisonment does come at a cost, so does crime, and putting potentially recidivist offenders behind bars can therefore provide huge savings in economic cost and trauma to the community. These costs need to be factored into any analysis of the appropriateness of incarceration.

Tackling the causes of crime

It is sometimes argued that instead of stronger sanctions for offenders, a better way to reduce crime would be to tackle the causes of crime.

The short response to this proposition is that stronger and more effective sentencing and taking other measures to prevent crime are not mutually exclusive. It is not a matter of “either/or” but “both”. This is particularly so given that a reduction in crime flowing from successfully tackling its causes will be lagged, requiring other measures to continue until the reduction in crime has actually occurred.

I should also make the point that it is particularly important to tackle not just the problems in people’s lives that lead to them committing crime, but to tackle the causes of the problems that cause crime. For example, if someone is homeless and can’t see a positive future, that may cause crime. If you give that person a home and give them hope, that may stop them offending, but even better is to work out what leads people to become homeless and lacking in hope in the first place, and to act to remove or counter-act that cause.

Much of the work done within government on tackling the problems that cause crime, and tackling the causes of those problems, falls outside my portfolio areas, but within my portfolio, the Government has strongly supported the work of programs such as CISP, the ARC list, the drug court list and new model conferencing within the Children’s Court.

I should also make the further point that properly targeted sentencing can itself operate to help offset the effects of factors tending to cause crime. Diversion, CCO programs, even prison programs can help build respect for others and point offenders to ways in which they can resolve problems and achieve positive outcomes without needing to resort to crime.

Sentences and community expectations

Another topical issue is whether or not there is actually a divergence between the sentences being handed down in our courts under the current law and the sentences the community wants to see.

My view in short is that, although there may be many instances where members of the community aware of all the facts would be in agreement with the sentence imposed, there are also a significant number of instances where that is not the case, where the community wants stronger and more effective sentencing than the law currently achieves, and where the community is justified in wanting this.

It may be correct to argue that there is greater convergence of views when people have more information and that there are many cases where the court’s view and average public view are similar. However, it is appropriate to judge the system more by the divergences of view than by the similarities, just as one judges an airline’s safety more by its crashes than by its safe arrivals.

Again, this is an area replete with research. I am aware of research by Austin Lovegrove, but on my reading, his methodology was open to the strong risk that participants were led towards particular outcomes by the information they were given.

The often-quoted study on the attitudes of Tasmanian jurors is a more promising approach. While this study points to convergence between juror views and sentences in many instances, it also found significant differences in view. For example, for sexual, violent and drug offences the study shows a roughly even split between those jurors who thought that the final sentence should have been less severe and those who thought it should be more severe (excluding those jurors who had already agreed that the judge’s sentence was ‘very appropriate’).³² However, I have recently approved a similar study being undertaken in Victoria and look forward to the outcomes.

There has also been public debate about the sentencing survey conducted in Victoria in 2011. More than 18,500 Victorians chose to take part in the survey. Some commentators have been critical of the survey on the basis that participants were self-selecting. However, I note that the UK sentencing council has conducted similar self-selecting surveys which have not attracted similar criticism.

The Victorian survey showed that participants generally supported strong sentences in the scenarios presented, but also showed clear differentiation in approach between different types of scenario, and also showed strong views about aggravating and mitigating factors. Respondents were most likely to increase their sentences if the crime severely affected victims or if the crime was premeditated or involved a continuing attack against an incapacitated victim. They were most likely to reduce sentences if the offender did not have a criminal record, pleaded guilty straight away, helped police to arrest co-offenders, expressed genuine remorse or had completed a rehabilitation program.

Sentencing and judicial discretion

A further current issue is whether the Government’s sentencing reforms undesirably restrict judicial discretion.

Needless to say, my answer to such a proposition is “no”. The role of Parliament on behalf of the community is to determine the law in relation to sentencing, and the role of the judiciary is to apply that law to particular cases. So there is no infringement of principle in Parliament determining the degree of specificity it will include in sentencing laws.

However, it is a valid and important topic for community and Parliamentary debate as to what scope Parliament should provide for judicial discretion in various contexts in order to allow for variability in individual cases.

This is partly a matter of resolving the tension cited by Chief Justice Spigelman between certainty and individualised justice, and partly a matter of ensuring that sentencing levels are in accordance with the expectations of Parliament acting on behalf of the community.

The Government’s view is that we are opposed to mandatory custodial sentencing, but we seek to achieve greater certainty and clarity of sentencing in circumstances where we consider it has been lacking, and we seek to achieve stronger sentencing where we consider current law and practice are not resulting in adequate sentences.

Our baseline sentencing reforms will, in effect, replace the role of current sentencing practice in setting the norm or median for sentences with the baseline specified by statute. However, the consideration and application of aggravating and mitigating factors in particular cases will remain a matter for the sentencing judge and the Court of Appeal.

Our gross violence reform sets a minimum non-parole period for a carefully defined class of offending that is gross both in its violence and its culpability, but also provides for truly exceptional circumstances where the minimum does not apply, and leaves other elements of sentencing to the judge.

Our abolition of suspended sentences leaves it open to the court, if it thinks appropriate, to impose a non-custodial sentence with minimal conditions. However, such a sentence needs to be justified on the facts of the case, rather than nominally being a jail term while in reality being no immediate sanction at all.

Recent US sentencing changes

It has also been argued in recent times that Republican governments in various US States have been looking at reducing custodial sentences, so the Victorian government should also reduce custodial sentences.

The short answer to the proposition that we should follow the United States is that there is a huge difference between US and Victorian sentencing practice. The US overall has more than six times the incarceration rate of Victoria (in 2010, 730 per 100,000 in US and 109 per 100,000 in Victoria).³³ Those who urge that Victoria learn from US practice probably don’t have in mind a six-fold increase in Victorian incarceration rates.

In the US, ¾ of offenders are imprisoned, compared to 1/5 in Australia.³⁴ Texas (which has been particularly cited as successfully embracing justice reinvestment) is the US state with the 5th highest incarceration rate in the US, according to latest available statistics.³⁵

Conversely, Victoria has the lowest incarceration rate of all Australian States (second only to the ACT nationwide) and by far one of the lowest incarceration rates when compared with similar jurisdictions overseas.³⁶

This means that only a small proportion of those charged with a crime end up in prison – and this is even without taking into account unreported crimes. In Victoria, only 8% of those dealt with by Victoria Police received a custodial sentence according to a 2007 SAC report, despite 56% being charged and found guilty.³⁷

So for these reasons, it is not surprising that there are those in the US looking to better target sentencing than has been done in the US to date, and it is not inconsistent with Victoria looking to better target sentencing from the other direction.

Justice reinvestment

US developments are often cited in particular in support of the argument that imprisonment levels should be reduced and that that savings should be applied to programs directed to the areas where there are the highest levels of offending.³⁸ This is often referred to as “justice reinvestment”.

However, again, the disparity between US and Victorian approaches to sentencing shows that it is difficult to rely on US experience to support changes to a completely different approach to sentencing in Victoria. In any event, a recent US study has pointed out that all the states in the US where the justice reinvestment approach has been applied, prisons may have closed but correctional service budgets have continued to grow.³⁹

In contrast to the US debate, current debate in the UK has focussed around the relative merits of community based sentencing versus short term imprisonment. There appears to be greater acceptance in UK that longer term prison for serious offending is the most appropriate of the available options.

Conclusion

I thank the organisers for the opportunity to take part in this evening’s discussion. I hope my remarks have provided some insight both into the Victorian government’s sentencing reform agenda and into recent emerging research around the world that challenges how we think about sentencing in Australia.
—————-
1 Review of the Victorian Adult Parole System Report, Sentencing Advisory Council, March 2012, recommendation 1, p xv. https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/review_of_the_victorian_adult_parole_system_report.pdf
2 Steve Lillebuen, “Vic Crime Rate rise means success: Police” (news.com.au, 29 May 2013). http://www.news.com.au/breaking-news/national/assaults-lead-rising-vic-crime-rate/story-e6frfku9-1226652795760
3 Donald Ritchie, Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council, April 2011), p.2
http://www.sentencingcouncil.vic.gov.au/content/publications/does-imprisonment-deter-review-evidence
4 Above n 3, p 4, referring to Winch v The Queen [2010] VSCA 141 (17 June 2010).
5 Above n 3, p 5.
6 ‘Consistency and Sentencing’, Keynote Address to the Sentencing 2008 Conference, National Judicial College of Australia, 8 February 2008.
7 Reoffending Following Sentencing in the Magistrates’ Court of Victoria, Sentencing Advisory Council, June 2013. https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/reoffending_following_sentencing_in_the_magistrates_court_of_victoria.pdf
8 Above n 3, p 2.
9 Adult re-convictions: results from the 2009 cohort: England and Wales, UK Ministry of Justice, March 2011, Table A5 at p 33. ‘Frequency rate’ measures the number of offences the cohort committed during the one year follow up period which resulted in a conviction at court: p 45.
10 Above n 9, Figure J and pp 20-1. The rates were 281.7 compared to 50.8.
11 2011 Compendium of re-offending statistics and analysis, UK Ministry of Justice, May 2011, p 3-4. (Note that: (1) the report does identify some other relevant differences between longer and shorter custodial sentences that may have an impact on the likelihood of re-offending, including access to reintegration programs; (2) the study also showed that custodial sentences of less than 12 months were also less effective in reducing reoffending than community orders and suspended sentences – by 5-9% in 2008; (3) reoffending is defined as where an offender is convicted at court or receives a caution for an offence committed within the follow up period (12 months) and then disposed of within either the follow up period or waiting period (further 6 month period).
12 Joseph O’Leary, ‘Less time in prison, more likely to re-offend?’ Fullfact.org, 9 May 2013 available at http://fullfact.org/factchecks/probation_reoffending_rehabilitation_revolution-28916 and referring to UK re-offending statistics for 2010-2011, table 19A available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192408/proven-reoffending-jul10-jun11-tables.xls Table 19. (Note that ‘reoffending’ means any conviction, caution, reprimand or warning a person receives within a one-year follow up period.)
13 An ‘add-on gun law’ is a state law which mandates enhanced prison sentences for defendants convicted of a felony who are further found to have used or been in possession of a firearm in the commission of the felony.
14 David Abrams, Estimating the Deterrent Effect of Incarceration using Sentence Enhancements, 4(4) American Economic Journal: Applied Economics 32 (October 2012). https://www.law.upenn.edu/cf/faculty/dabrams/workingpapers/Deterrence12312011.pdf
15 ‘Sentence enhancements’ refer to increases in a basic sentence where certain factors are present that heighten the seriousness of the offence, such as the use of a gun or the fact that it is the third offence. California introduced a series of sentence enhancements that were passed by referendum in 1982 and were the subject of this study.
16 Daniel Kessler and Steven D Levitt, Using Sentence Enhancements to Distinguish Between Deterrence and Incapacitation, 42 Journal of Law and Economics 343 (April 1999), p 359.’ http://pricetheory.uchicago.edu/levitt/Papers/KesslerLevitt1999.pdf.
17 Siddhartha Bandyopadhyay, Acquisitive Crime: Imprisonment, Detection and Social Factors, Civitas, August 2012, p 9, http://www.civitas.org.uk/crime/crimeanalysis2012.pdf.
18 Donald Ritchie, how much does Imprisonment Protect the Community through Incapacitation Sentencing Advisory Council, July 2012), p 13-14.
19 David Green, ‘Prison does work, Ken, and here’s the proof’, The Daily Mail, 8 December 2010 , http://www.dailymail.co.uk/debate/article-1336688/Kenneth-Clarke-prison-reform-Jail-DOES-work-heres-proof.html and see also reports at http://www.civitas.org.uk/crime/eurostatcrime.php, http://www.civitas.org.uk/crime/clarke_eurostat.pdf.
20 See also Palgrave Macmillan Social Trends, Volume 40, Issue 1, Chapter 9 Crime and Justice, available from http://www.palgrave-journals.com/st/journal/v40/n1/abs/st201013a.html
21 Victoria’s Prison Population: 2002 to 2012, Sentencing Advisory Council, May 2013, p p 14. https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/victorias_prison_population_2002_to_2012.pdf
22 Above n 21, p 1. In the time the imprisonment rate in Victoria rose from 94.2 per 100,000 to 111.7 per 100,000.
23 Above. n.18.
24 Ken Pease, Prison, Community Sentencing and Crime, Civitas, August 2010 at http://www.civitas.org.uk/crime/CommunitySentencingAug2010.pdf
25 Above n 24
26 Above n 24, p 9-10.
27 Above n 24, p 11.
28 Alessandro Barbarino and Giovanni Mastrobuoni, The Incapacitation Effect of Incarceration: Evidence from Several Italian Collective Pardons,” Institute for the Study of Labor, February 2012, p 35-6 http://ftp.iza.org/dp6360.pdf . The study also concluded that (in the absence of more cost-efficient alternatives to incarceration) reductions in prison population generate more costs than benefits, indicating that prison population might be below its optimal level in Italy. Note also that the imprisonment rate in Italy in 2008 was 97.5 per 100,000 (http://www.civitas.org.uk/crime/prison_too_manyjan2012.pdf ), which was slightly lower than Victoria’s at the time (103.4 per 100,000 according to http://www.sentencingcouncil.vic.gov.au/page/about-sentencing/sentencing-statistics/imprisonment/victorias-imprisonment-rates). The comparable US rate was 756 per 100,000 http://www.prisonstudies.org/info/downloads/wppl-8th_41.pdf .
29 Kiah Rollings, Counting the costs of crime in Australia: a 2005 update, Australian Institute of Criminology, June 2008, . http://www.aic.gov.au/publications/current%20series/rpp/81-99/rpp91.aspx (2008).
30 Above n.29, p.x.
31 Russell Smyth, Costs of Crime in Victoria: Discussion Paper 25/11, Monash University, 2011.
32 Kate Warner et al, Public judgement on sentencing: Final results from the Tasmanian Jury Sentencing Study, Australian Institute of Criminology, February 2011, p 2-3 including Figure 1.
33 International Imprisonment Rates 2012, Sentencing Advisory Council, at http://www.sentencingcouncil.vic.gov.au/page/about-sentencing/sentencing-statistics/imprisonment/international-imprisonment-rates. 730 per 100,000 versus 109 per 100,000 in Victoria.
34 Sarah Hudson, Panacea to Prison? Justice Reinvestment in Indigenous Communities, Centre for Independent Studies, January 2013), p 14. http://www.cis.org.au/images/stories/policy-monographs/pm-134.pdf
35 E. Carson & D. Golinelli Prisoners in 2012 – Advance Counts (July 2013) (US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics) , pp 8-9, Table 8, http://www.bjs.gov/content/pub/pdf/p12ac.pdf
36 Australia’s Imprisonment Rates 2011, Sentencing Advisory Council, at http://www.sentencingcouncil.vic.gov.au/page/about-sentencing/sentencing-statistics/imprisonment/australias-imprisonment-rates and http://www.sentencingcouncil.vic.gov.au/page/about-sentencing/sentencing-statistics/imprisonment/international-imprisonment-rates
37 Sentencing Snapshot No. 22: The Victorian criminal justice system 2004/05, Sentencing Advisory Council, February 2007, http://www.sentencingcouncil.vic.gov.au/content/publications/victorian-criminal-justice-system, p 2.
38 Above n 34 p 1.
39 Above n 34, p 14 citing Todd R Clear, ‘A Private-sector, Incentives-based Model for Justice Reinvestment’,