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Politicians and legal community go head to head on crime

Politicians and legal community go head to head on crime

By Karin Derkley

Courts Criminal Procedure Sentencing Young Persons 


The judiciary and their sentencing practices came in for criticism at the Politics of Crime forum at the Melbourne Press Club on Wednesday, with both Attorney-General Martin Pakula and shadow Attorney-General John Pesutto reaffirming their tough on sentencing rhetoric in the lead up to the November election.

Mr Pesutto said there was a disconnect between the judiciary and the community and argued that sentencing "hasn't reflected community expectations as well as it could."

"It's not about whether you are tough or soft on crime. The tenor of reform must be to restore the credibility and authority of the system." Without credibility, the objectives of rehabilitation, diversion and personal reform would not work, he said. 

Mr Pakula said the government had listened to the community's concerns regarding street violence and other serious violent crime - pointing to changes in laws on home invasions and carjacking and the implementation of the Hon Paul Coghlan's recommendations re bail changes.

"I've heard clearly that the community has certain expectations about the bail system which weren't being realised," Mr Pakula said. The public was unhappy that people who reoffend can still get bail, and that people charged with serious violent offences were still getting bail and in some cases reoffending.

"The government has the responsibility to protect the community and to reflect community expectations," he said.

However the Hon Lex Lasry, former Supreme Court judge said the tough-on-sentencing discourse was the government saying to judges "we don't trust you".

"Which is a bit unfair given the rate of appeal in Victoria is only about 3 per cent, and only half of those was to increase the sentence," he added.

Mr Lasry said the community did not understand the detail in a particular sentencing exercise "and that is why judges are there to do it."

"Sentencing is always meant to be individualised, it's always about the particular case, it's about moral culpability, about matters of remorse and matters of rehabilitation, and sentences are tailored to deal with particular cases - one size does not fit all."

Whether mandatory sentencing has any effect on making the community safe is very much contested, he said, "because it assumes a rational choice is made before an offence is committed by the offender."

LIV president Belinda Wilson said studies had shown that the tough on crime approach is not a deterrent. "If that was the case we wouldn't have our prisons bursting at the seams, we wouldn't have $2.3 million a day of taxpayer funded money being spent on our prison system, we wouldn't see 43.6 per cent of prisoners returning to prison within two years of being released."

The legal profession was advocating for a change in the debate, she said. "It's not about who can be toughest on crime. Let's look at the root causes of crime, let's look at solutions that include health and wellbeing investing in education, prevention, the parole system, rehabilitation."

However Mr Pesutto said that levels of reoffending, especially by people on community programs, showed that something is going wrong "not just across prison programs but across a whole range of areas - rehabilitation, diversion, education and training".

"What I want to do is to look at shifting focus from outputs to outcomes - how can we help programs be more effective?"

Mr Pesutto also criticised delays in the courts: "Victoria has for some time had the second highest number of judges yet our cases are costing more and taking longer."

"There's a lot we can do on delays. We have to crack down on adjournments, we can do a lot more on committals to take some out of the system where it's not necessary. And we can look at locating some administrative-type hearings closer to correctional facilities."

Mr Lasry said the courts were well aware of the problem of delays. "Obviously the time between charge and trial needs to be reduced and I can tell you that the courts are doing everything to reduce that time."

Mandatory sentencing meant there was no incentive for offenders to plead guilty, further serving to clog up the courts, he added.

Ms Wilson said the key to addressing delays was to increase legal aid funding to reduce the number of people who were forced to represent themselves in court because they could not afford representation.

"We need additional VLA funding - $390 million Australia-wide - so poeple can be represented to streamline the courts."

The bail reforms had also put enormous pressure on courts and on practitioners, she said. "Our bail system is a classic example of disconnect between new laws and their implications and resourcing…there has not been significant funding coming through for the proper operation.

"Our Magistrates' Court has effectively been turned into 24 hour 7 day a week operation. How is that good for our magistrates and our practitioners? VLA does not have sufficient funding to assist those that have to appear. We now have a system where there is a higher presumption of going to prison rather than getting bail - and people are being held in remand for excessive periods even for very low level offences."

"This is causing further delays to our court system that is already at breaking point."

Mr Pakula said he understood the bail recommendations were not popular among segments of the legal community and have caused issues for practitioners. But it was too "easy to forget how visceral community reaction has been in regards to bail."

However Mr Lasry said it was important to understand the social issues that are behind the commission of crime. "Until we spend more time and resources understanding why people do the things that put them in prison, the numbers will continue to increase."

He pointed to young offenders, who take the view they have nothing to live for. "These youth are committing offences because they don't see any future and they just don't care. They'll be locked up, they'll serve their sentence, they'll be released on parole and they will reoffend," he said.

The drug ice, or methamphetamine, had a big role in exacerbating crime, he said.

"Not many things have shocked me over the last 10 years, but I have been absolutely stunned at the prevalence of ice in our community."

"It's extraordinarily depressing. Somewhere along the line, we need to tap all the resources of experts to know how to tackle that situation."

Mr Lasry also argued that judges were entitled to speak their minds outside of court, despite acknowledging that a tweet earlier this year aimed at Peter Dutton was not his "best move".

"People will have a better respect for the judiciary and understand the way the judiciary work better if the judiciary itself is out there explaining the work that we do," he said.

"That may offend some people's idea of independence, and it might offend some people's idea of whether judges should only ever be heard in court. I hold the view that judges should not only be heard in court but are entitled to be heard elsewhere."

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