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Detention should be last resort, LIV tells inquiry

Detention should be last resort, LIV tells inquiry

By Karin Derkley

Courts Criminal Procedure 


Detention should be a measure of last resort, but instead an increasing number of Victorians are being detained before they have even been found guilty of a crime, LIV president Tania Wolff told the Parliamentary Inquiry into Victoria’s Criminal Justice System.

The ongoing inquiry is being conducted by the Legislative Council Legal and Social Issues Committee, chaired by Member of the Victorian Legislative Council Fiona Patten, to look at the factors influencing Victoria’s growing remand and prison populations and strategies to reduce rates of criminal recidivism.

Ms Wolff told the inquiry that the prison population has grown by 80 per cent in the past decade, of which 44 per cent of men and 55 per cent of women are still waiting for a hearing. "In other words, people who have not been found guilty or been sentenced by a court for their alleged offending. This should be a concern for us all."

That number will continue to grow unless significant changes are implemented, Ms Wolff said.

Many of those detained on remand are people with substance abuse issues, the homeless, the unemployed, those with cognitive impairments and mental health issues and a disproportionately high number of First Nations people, she said.

LIV Criminal Law Section chair Mel Walker told the inquiry that the single greatest contributor to the increase in the prison population was the changes in bail laws as a result of the 2017 Bourke Street massacre.

“Our bail laws as they stand now are being used as a punitive crime prevention and neglect the fundamental rights, which are enshrined within the act.”

"There's a destabilising effect of somebody going into custody and it creates a toxic recipe for criminalising those who are in poverty. The refusal of bail or the inability to provide properly funded bail programs increases the criminogenic causes of offending in the first place."

Among the concerning changes in recent years was the removal of discretion by decision makers in sentencing, including being able to take into account previous good character or rehabilitation undertaken during a period of bail, Ms Walker said.

"Originally there was the consideration of youth, or whether or not somebody had no prior convictions and the rehabilitation they had. All of that's gone, and it's removed that discretion significantly from the decision makers to take those things into account."

Detention should be a measure of last resort, Ms Wolff said, “whether it be through decriminalising low level offences or providing more sentencing options, including pathways to diversion, or treating addiction like the health issue it is."

The fact that almost one in two prisoners will return within two years should incentivise change, Ms Wolff said. "Prisons are not making us safer. And their spiralling cost may well mean that we may have to choose between prisons and hospital beds.

Ms Wolff said the time was ripe to look at which kinds of offending need to go through the court system as criminal justice processes, as a way of reducing the backlog.

The LIV is trying to make the diversion program more accessible to this end, she said. "One of the big barriers at the moment in relation to diversion, which is really quite a simple legislative amendment is that sometimes diversions are not being approved because it requires prosecutorial consent in relation to it," she said.

If there have been silver linings to COVID-19, "it's our preparedness to seriously look at innovative solutions. The time to act is now to reduce those being churned through the criminal justice system and returning again and again".

More support needs to be offered to people on bail to prevent them reoffending Ms Wolff said. "A lot of people offend on bail because they can't access supports, because they don't have stable and secure housing, because they don’t have access to some of the treatment solutions that they really need. When you have to wait six months to get into a drug and alcohol rehabilitation centre, or unless you have a lot of money, you can't get into any of them because there is such an issue in terms of the private as against publicly available beds.”

Lawyers should also receive trauma-informed training as part of their education as a criminal law practitioner, Ms Wolff told the inquiry.

"Anywhere you are dealing with human conflict or issues, you require that. We need to have that awareness. There is underlying trauma in so many people that come before the criminal justice system, and unless we have an understanding of that and of intergenerational trauma and its impacts, we're not going to be able to be good advocates.”

Others who have addressed the inquiry include the Sentencing Advisory Council, Jesuit Social Services, the Crime Statistics Agency. RMIT’s Centre for Innovative Justice and Smart Justice for Young People. The Committee will also hear from individuals about their personal experiences with the justice system.

Recordings and transcripts of the hearings are available on the Parliamentary Inquiry into Victoria’s Criminal Justice System website.

The final report is due by 28 February 2022.

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