The price we pay for filling our prisons

Sydney Morning Herald
January 06, 2006

Governments must temper calls for tougher sentences and address the causes of crime, writes Arthur Moses.

AS NSW begins to move into election mode, with a poll to be held in March next year, the law and order debate is expected to become more strident. However, politicians should reflect on their positions before engaging in this debate.

Earlier this week the Herald reported that the number of prisoners in NSW jails had increased by 7 per cent over the past year to more than 9000, which means that one in 600 NSW adults is incarcerated - a figure about which the State Government should not boast.

In part, the increase is attributable to legislative change which has limited the discretion of judicial officers in sentencing and bail applications.

The continuing increase in the NSW jail population is economically unsustainable and ineffectual. In his book, Law and Order in Australia. Rhetoric and Reality, Dr Don Weatherburn, the director of the NSW Bureau of Crime Statistics and Research, showed that a 10 per cent increase in the jail population produced about a 3 per cent decrease in serious crime; a 20 per cent decrease in serious crime would need the jail population to be increased by 67 per cent. This would cost an additional $330 million a year in detention costs, plus about $1.3 billion in new jails - money better spent on education, transport, health and the police.

Despite this, the debate over mandatory and minimum sentencing continues in NSW, and the reaction to a claimed "bad decision" by one judge is to advocate a change in the law to abolish the sentencing discretion of all judges.

In June 1999, the NSW Chief Justice, Jim Spigleman, argued sentencing discretion is essential to the fairness of the justice system. "Unless judges are able to mould the sentence to the circumstances of the individual case then, irrespective of how much legislative forethought has gone into the determination of a particular regime, there will always be the prospect of injustice. No judge of my acquaintance is prepared to tolerate becoming an instrument of injustice."

Regrettably, this view has not been taken into consideration when policies concerning criminal sentencing have been debated more recently.

While there is no doubt that law and order is seen to be a vote-winning platform, the political focus must be on preventive crime measures rather than attacking the independent sentencing discretion of the judiciary.

The recent political attacks on bail and sentencing decisions of the NSW judiciary have been regrettable because of their ill-informed and superficial nature.

The attacks appear to be made on the basis that somehow the NSW electorate will blame rising crime rates solely on judicial officers handing out allegedly lenient sentences or granting bail rather than on the failure of government to address those factors which are associated with crime, including poverty, drug abuse, lack of education opportunities, crime gangs, lack of facilities for the mentally ill and an under-resourced police force.

Cheap political strategies attacking the justice system seem odd in the face of the last elections in NSW, the Northern Territory, Victoria and Western Australia, which saw parties win government even though they had opposed the "strict" sentencing regimes of their opponents.

Yet after opposing mandatory sentencing during the campaign, the NSW Government changed its position, legislating minimum sentences for some crimes following the murder of a policeman. The then-premier, Bob Carr, said the shift was in response to demands from the "community" and presumably pressure from populist media that judges impose sentences in line with "community expectations".

The approach of the NSW Labor Government is in stark contrast to that of the Victorian Labor Government. The Victorian Attorney-General, Rob Hulls, in opening the 8th International Criminal Law Congress in 2002 said: "We should be extremely suspicious of regressive calls for minimum terms. No matter what insidious terminology is used to describe them, minimum sentences in our criminal justice system are merely mandatory sentencing by stealth - a device of politicians jostling for a law and order agenda."

These comments were published widely before the 2002 Victorian state election, which returned the Bracks Government with a thumping majority over an Opposition which had advocated minimum sentencing. The results of these state elections illustrate that the majority of Australians understand the difference between cheap reactionary law and order policies and ones which seek constructive answers to crime and its causes.

For the sake of the community and the justice system, it is to be hoped that politicians will appreciate this in the lead-up to the NSW election next year and will advocate crime prevention measures rather than judging the success of law and order policies by the number of people in NSW jails.

True protection of the community is to prevent crime in the first place.

Arthur Moses is a NSW barrister.


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