So We Ve Covered an Awful Lot of Ground This Evening, Lots of Ideas Are out on the Table

Lisa Ward: So we’ve covered an awful lot of ground this evening, lots of ideas are out on the table, and now it’s your turn to explore any of the ideas that you’ve heard, further this evening. We have some roving mikes available, so please put your hand up if you’d like to ask a question or make a comment. I ask that you identify who you are and where you’re from, try to stay to topic, the topic of tonight’s forum, and please note that (1:15:44) can’t discuss any particular cases that may be at present in the justice system (1:15:49).

We’ve got our first question here.

Margaret Markovic: Good evening. My name’s Margaret Markovic. I am the President and Education Consultant for a victims’ group called Road Trauma Families Victoria. Road Trauma doesn’t discriminate, and I would guarantee there are people in this room who are part of the ripple effect of road trauma.

I would like to thank Carmel so much, and endorse wholeheartedly the things that you have brought to the attention of our audience this evening, in particular the idea of victims – and I hate the word “victim” – to be included in further projects, models, discussion. I did actually ask for that many years ago. My son was killed by a repeat offender. I wanted to be able to sit down with judge, magistrate, someone in the judiciary, to talk about how we can improve the communication and education for people who are left behind as victims. A lot of the sentencing that occurs in the court (1:17:15) doesn’t always give the outline to a victim’s family as to why, from a 20-year mandated sentence, the perpetrator may get off with a two-year sentence for killing two people, for example.

The police do a fabulous job, but again, coming back to the fact that victims do have a lot to offer, and if we’re really serious about improving the system and getting a model, as Carmel said, together, that is cohesive and involving all major parties and stakeholders – I don’t have a victim mentality, I’m not interested in that; I’m interested in improving and being involved in making sure that victims can be supported in the best way possible.

Lisa Ward: Thanks, Margaret. So really, you’re endorsing Carmel’s comments …

Margaret Markovic: Oh, yes.

Lisa Ward: … around the importance of process …

Margaret Markovic: Yes.

Lisa Ward: … and inclusion, and ensuring that victims are well and truly at the table …

Margaret Markovic: Yes.

Lisa Ward: … in the justice system processes.

Margaret Markovic: So I’m glad it’s been raised tonight, because I have tried …

Lisa Ward: Great.

Margaret Markovic: … to do that. And there are victims who are not heard from, because by the time you get through the criminal justice system, the investigative process, and the prison system as it is, and parole and so on, people just cannot get out of their dark corner to speak.

Lisa Ward: Yeah. Absolutely.

Margaret Markovic: So please, thank you, all of you, keep that in mind. Thank you for listening.

Lisa Ward: Thanks for your contribution.

I’ve got a question here that’s been lodged by a Twitter for Arie Freiburg – does the Victorian government falsely justify its sweeping parole crackdown by portraying prisoners as broadly of a high-risk category? That’s a question from Smart Justice.

Carmel Arthur: Glad you got that one, Arie.

Lisa Ward: You can defer it.

Arie Freiberg: I can’t, I can’t answer for the Victorian Government, so I might decline that. But I think the question raises some very important issues as to how parole decisions are made, and it’s quite clear, like imprisonment rates, that we can set the bar where we want to. And if you’re going to increase the level of, or decrease the level of risk or the calculation of risk, then fewer people will be released. It’s again a decision, a policy decision, that has to be made, in the same way that those decisions were made in the United States.

I think in California, over 50% of the prisoners coming into prison were for breaches of parole. In some states, they abolished parole altogether because it was not seen to be truth in sentencing, it was seen to be a danger to release people.

In fact, a review that the Sentencing Advisory Council conducted and published in 2012 prior to the … [microphone noise] I don't know where that’s coming from.

Lisa Ward: We’ll just talk through it (1:20:33).

Arie Freiberg: Some of it … our basic, our basic principle that we recommended … [microphone noise] I feel like I’m shaving in the morning.

One of the basic principles was, are we better off releasing people on parole or keeping them in after the expiration of their sentence? What was the balance that was required to provide community safety? And we said that was an important question, but we did believe in the value of parole.

On the other hand, reading the Callinan Report, I read there that basically, he did not believe in parole – believed that parole was a privilege - and in fact wanted to reverse the onus of proof so that a prisoner had to prove that they were not a negligible, they were at negligible risk of reoffending, which set the bar very high.

I do believe parole is important; I do believe we are better off – I think there’s evidence to show it – to have people return to the community under supervision. Now we’ve got two, well, one ex-member, and other members of the Parole Board – they may speak about that – but I think the Callinan Report really misunderstood what parole was about. And having seen what’s happened in the United States, where they abolished parole, they now have things called re-entry courts – that is, they’ve now created mechanisms to maintain supervision of people after release. I don’t think we need to learn that lesson again – we’ve had a very good parole system. I think the balance will be righted after we’ve got through this particular trauma, after Jill Meagher.

Lisa Ward: Just one brief comment on that – I think, as you’ve said, Arie, the risk and the definition of risk is yet one more policy lever that is in play to actually help governments regulate parole numbers and prison numbers, ultimately. Certainly the Callinan Report’s conception of minimal risk is something that as an ex-Parole Board member, I think is an impossible conception of risk within the criminal justice system, particularly within Victoria. I think it’s highly problematic. And its application is a good example of government using risk as a policy lever to regulate numbers.

Other comments from the floor? Over here. Joe, can you … you might be okay without a mike, I don't know. See how you go.

Male Speaker: Just while we’re going there, Lisa, my understanding is that the government has rejected the test of negligible risk.

Lisa Ward: Yes. Yes, indeed. But I still, I think it’s still grappling with the conception of that, as I understand it.

Male Speaker: They are.

Female Speaker: Yeah, I don't think … it’s just been too difficult for this. I mean, I certainly wouldn’t want to be in a position where I had to guarantee that somebody was never going to do something naughty again. I can’t even guarantee that with my gorgeous 16-year-old son. So, you know, really, it was too difficult indeed.

Lisa Ward: Thank you. Yes?

Amanda Lorinc-Bottari: My name is Amanda Lorinc-Bottari. I’m a leading Community Corrections Officer at Frankston Community Correctional Services. My question is in relation to the increase in the prison population, and increasingly prisons at their capacity, is it anticipated that there’ll be a greater uptake in Community Corrections Orders with the electronic monitoring condition attached?

Lisa Ward: Actually, the Sentencing Advisory Council’s done some recent work analysing the use of those conditions. Professor Freiberg might be the best person (1:24:17).

Arie Freiberg: Yeah, I am … again, I … you could see the trends, which were not positive in terms of the shift away from suspended sentences, going to imprisonment rather than CCOs. The evidence elsewhere is that the electronic monitoring will only have a marginal role to play in the use of CCOs.

Lisa Ward: Other questions over here. Emma?

Emma: Ah, Michelle?

Michelle: I’ll just speak loudly. My name’s Michelle (1:24:54) from (1:24:55). I was just wanting to know what you see improve the uptake (1:25:03). Why is there that stark difference between (1:25:07)?

Male Speaker: Got to ask someone who actually does it for a living.

David Fanning: I don’t have this problem, because I have an excellent Community Corrections Office that’s attached to the NJC. But I can say, some of – think I turned it off – that some of my colleagues wrestle with being confident that if they do place people on Community Corrections Orders, that they will in fact then receive the service from Community Corrections. That’s not to say a negative reflection upon the staff at Community Corrections, but simply their capacity and availability to be able to follow through to properly supervise and provide the services that those persons potentially on Community Corrections Orders should receive.

Male Speaker: Could I add to that – Michelle, was it? – yeah, that for the first time in ten years, there has been an application to the Court of Appeal under the Sentencing Act for a guideline judgement. I won’t try to explain all of that, but basically a judgement by the higher courts as to how a particular sanctions might be, sanction might be used. This is unprecedented in Victoria – in fact, a guideline in terms of a sanction is not known elsewhere in the world – but the OPP, after three cases where some ten-year CCOs were imposed, which is possible in the higher courts, wanted to get some guidance for other judges for the OPP, for magistrates, as to how this order would be used. That’s in the process of being heard. There’ll be a hearing in July, but the statutory parties, as they’re known under the Sentencing Act, the OPP, Victoria Legal Aid, and the Sentencing Advisory Council, have all been working to provide some empirical information. And some of that’s been published, and some will be published in the near future. And the Council and others are working on providing some guidance as to what a guideline judgement might look like.

So that may influence judicial behaviour in the future, should the Court of Appeal with a bench of five decide to hear the case and accept the submission to hand down a guideline judgement. So that might be one way of doing it.

Lisa Ward: I’ve got a question here that’s been tweeted, and I think it’s directed particularly at Professor Brown. Does justice reinvestment cross over the territory that might be covered by a social impact bond? And it might be worth actually helping us understand what a social impact bond is in responding that.

David Brown: Yes, it does, is the simple answer. They’re allied. A social impact bond is essentially narrower. It’s often, it’s some form of agreement, usually with a social entrepreneur, an NGO, to run some kind of program.

For example, one in Peterborough, which is often discussed in the English context, involves a mentoring scheme where a church-run organisation mentors released prisoners, and then the deal is that if at the end of an assessment period of two or three years, that it can be shown that recidivism rates have dropped significantly, then the particular funding agency – if it be … in this case, local government, using money devolved from central government – then reimburses the social entrepreneur, or in this case the NGO.

So it’s a more kind of micro-scheme, which is similar to justice reinvestment. But if you like, it’s got a more kind of neoliberal sort of ethos to it; it’s more financially oriented. It’s trying to stimulate a market in people, in a range of different organisations, getting into the business of trying to prevent crime or reduce recidivism. Whereas justice reinvestment has got a much broader conception of building up local neighbourhood infrastructure.

Lisa Ward: Okay, thanks. Thanks very much, David.

Got one question here.

Female Speaker: (1:29:40).

Lisa Ward: Still (1:29:50). We’ll start again. I think your voice is (1:29:53).

Female Speaker: It's okay. My question is, I suppose, in relation to alternatives to imprisonment. Do you foresee a future in Victoria that will once again have alternatives to imprisonment, as now we have got rid of home detention, which once upon a time used to be an alternative to imprisonment? Also, Intensive Corrections Order and Combined Custody and Treatment Order?

Lisa Ward: Perhaps Arie could start us off on that, given our recent research …

Arie Freiberg: Yes.

Lisa Ward: … the stats produced. It might give us some impetus.

Arie Freiberg: First of all, I want to question the use of the term “alternatives to imprisonment”. It’s quite clear to me that that language just exemplifies the false premises upon which we work in sentencing, and that is, we tend to think of everything as an alternative for imprisonment. We start with the presumption that you go to gaol, and then everything else is some weaker alternative. Fines, Community Correction Orders, community-based orders previously, are sentences which should be appropriate, proportionally appropriate, to the degree of the severity of the offence. So offences which are not serious could get a fine or an adjournment; offences which are of moderate seriousness can get a Community Correction Order. They’re not an alternative to imprisonment; they’re another sanction along the way.

What we need is a sanction which is credible and a sanction which, at the higher end, where a sentence has got a choice between imprisonment or not, needs to be credible. Now, the Community Correction Order is still finding its way in that sense, and we’re seeing that with the phase-out of suspended sentences. And I think the real crunch will come on September the 14th or the 24th, when the Magistrates' Court lose the ability to impose suspended sentences.

And then we might see whether David or his colleagues take it up in the same way as the higher courts, or whether they in fact replace suspended sentences with sentences of imprisonment, in which case we’ll be seeing an even bigger blowout in the prison numbers.

But again, I think we ought to see all the sentences as appropriately proportionate, rehabilitative, deterrent, not as alternatives to imprisonment.

Lisa Ward: I pick up, too, on that point, just following on from what David Fanning said before in response to Michelle’s question – did some research three or four years ago with magistrates, looking at their take-up of Community Corrections Orders, and certainly the issue of lack of confidence that the orders are able to be properly implemented was a significant factor.

Another one was a lack of a capacity for the system to tailor an order to risk a need. So the tendency for an order to be delivered as a one-size-fits-all approach, even though we have all this range of conditions, the mindset, the systemic shift that needs to occur within Corrections, where you get a truly tailored response on a CCO, I think is a really important issue in the board, from previous research that I’ve been involved with.

Yes, here.

Geoff: Yeah. My name’s Geoff (1:33:02). I’m currently President of (1:33:02) Victoria. Just a couple of comments. I was out at Colbinabbin, which is a football ground outside Bendigo, and I was speaking to one of the leaders of Bendigo Bank regional community banking – they are actually looking at bond opportunity in terms of community, so I think you'll find that Bendigo Bank (1:33:17) supporter of (1:33:20) some of the sanctions we’re looking at.

The second issue is, (1:33:24) political veterans across the state and the country (1:33:25) bipartisan support, they’ve taken the soft view on crime (1:33:32) guarantee that you won’t get re-elected at the moment. And even though there are some elements (1:33:36) support a view towards more effective, more effective sentencing.

So I suppose, really, when you look at current inquiries which are having some impact, it’s typically national productivity (1:33:50) which governments tend to support. It may well be that we’ve got to have that sort of (1:33:57) view that we need a national productivity inquiry into the cost of imprisonment, the whole review of the whole sentencing option, to see whether in fact there’s a better way to do it. Because I think if there was a national productivity inquiry – and obviously (1:34:13) justice at the moment – that you would then have political parties who’d then have the courage to say, “Well, there have been some significant findings, but it’s an unsustainable model based on the United States’ experience.” And then you might start to get a change in conversation.

Lisa Ward: David, do you want to … David Brown (1:34:30)?

David Brown: Okay, just quickly.

Lisa Ward: Thank you, Geoff.

David Brown: Yes, I think that’s interesting.

When I was speaking about justice reinvestment in New Zealand, there were quite a lot of what they call social entrepreneurs in the room, and several of them were willing to put quite substantial funds into, for example, within their own business sphere of influence, employing ex-prisoners. I mean, a simple measure like that which could, there could be some tax breaks involved, some kind of … so I think there is a lot that can be done through social impact bonds and stimulating, you know, the business, as well as the non-government sector.