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Submission — July 2011Submission to the Queensland Sentencing Advisory Council on Standard Non-Parole PeriodsUse the links below to access sections of the submission, or
Introduction1. In this submission, the Anti-Discrimination Commission Queensland will comment on some of the issues identified in the Consultation Paper, such as the primary purpose of Standard Non-Parole Period scheme, young offenders and impacts of such a scheme. 2. The Anti-Discrimination Commission Queensland (Commission) is an independent statutory authority established under the Queensland Anti-Discrimination Act 1991 (AD Act). 3. The functions of the Commission include promoting an understanding, acceptance and public discussion of human rights in Queensland, as well as inquiring into and where possible effecting conciliation of complaints of contraventions of the AD Act. Complaints that are not resolved through conciliation can be referred to the Queensland Civil and Administrative Tribunal for hearing and determination.
Purpose of Scheme & Sentencing4. If Queensland is to introduce a Standard Non-Parole Period (SNPP) scheme, the Commission is of the view that the primary purpose of the scheme should be the greater protection and safety of the community. 5. The objectives of sentencing are threefold: to punish, deter and rehabilitate. Various stakeholders will have differing views about the emphasis of each of these elements. The Commission’s view is that these elements need to be proportionate to the overall effect of achieving the objective of the protection and safety of the community. The focus of the elements in the corrections system has varied over time. 6. Over the past 25 years the Queensland Government has commissioned a number of reviews of the State’s prison system, and there have been a number of changes to the legislation relating to prisons and to management regimes. The Kennedy review in 1988 [1] resulted in extensive changes to the system, including a much greater emphasis on rehabilitation and corrections, options for diversion from custody and the introduction of a process of graduated release of prisoners. 7. By January 1999, a Commission of Inquiry reported: Customised rehabilitation, programs for special needs prisoners and post-release monitoring are issues which have taken a back seat as the system attempts to cope with the increasing numbers of prisoners being ‘processed’ through the system. [2] 8. Major changes to the way prisoners were managed and subsequently released into the community were again introduced when the current legislation was passed in 2006. Supervised parole became the only form of early release available to prisoners, replacing remission, conditional release, release to work and home detention. 9. The objective of rehabilitation is currently delivered through a combination of the programs available in prison together with the parole scheme. Programs aimed at rehabilitation and to assist prisoners to reintegrate into the community are generally undertaken closer to release on parole. 10. An SNPP scheme would have the effect of lengthening the period of imprisonment and shortening the period available for parole. Where parole provides support to reintegration and is an important part of rehabilitation, it would seem that reducing the period available for parole is likely to reduce the effectiveness of this rehabilitation. This then has the effect of placing greater emphasis on the punitive element of sentencing than the rehabilitative element. 11. There is a cogent view that the philosophy of protecting the community by reducing crime through harsher penalties simply doesn’t work. Keith Hamburger AM describes this as ‘punishing crime away’, and exemplifies the futility of addressing long term crime prevention with an emphasis on punishment by reference to South Carolina in the USA. In 1993 the population of South Carolina was similar to Queensland; however the prison population was 20,000 compared to Queensland’s prison population of 2,230. The South Carolina response to crime rates, sentencing and imprisonment was to ‘get tougher’, and by 2006 the American median imprisonment rate at risen to 50 per cent without reduction in crime rates.[3] 12. Although there was a huge increase in Queensland’s daily prison population between 1993 and 2005 with further increases predicted, the Queensland Government has this week reported that: … in recent years, with crime rates continuing to fall and the Government’s strategy of increasing investment in Probation and Parole and community supervision, the growth in prisoner numbers for both men and women has stabilised. [4] 13. Also this week, the Attorney-General is reported as commenting that Queensland's crime rates are down, and that the cost of someone going to gaol is about $200 per day approximately.[5] 14. Despite these statistics, the Queensland Government has indicated it is committed to implementing an SNPP scheme and plans to introduce legislation to establish the scheme by the end of this year. [6] 15. The motivation for the Queensland Government's commitment is reflected in the premise of terms of reference to the Sentencing Advisory Council for SNPPs: that the penalties being imposed for serious violent offences and sexual offending are not always commensurate with community expectations.
Community views16. Against this background of 'commitment', are various recent reports, as well as the Council's own observations [7] that there is no available Queensland data at present to measure community views about the seriousness of certain offences and the appropriateness of sentencing practices and non-parole periods. 17. In an article published in the July edition of Proctor, Judge John Robertson discusses the results of a Tasmanian juror survey and a Californian decision. Quoting from the conclusion of the report of the survey of jurors: The results show that a substantial majority of jurors with firsthand experience of judges consider that sentences are appropriate and judges are in touch with public opinion. By surveying members of the public who have engaged directly with the criminal justice system in a much more meaningful way than those who form their perceptions second-hand via the mass media, the study has shown that the jury survey methodology provides a better approach to finding a reliable source of informed public judgement of judicial sentencing. 18. In the forward to this article, the director of the Australian Institute of Criminology, Dr Adam Tomison, wrote (amongst other things): Replication of this study may be of assistance to policy makers and judges who wish to know what informed members of the public think about sentencing. Portrayals of a punitive public are misleading and calls for harsher punishment largely uninformed. 19. In discussion of the Californian decision (in the Proctor article) Judge John Robertson explains that California was one of the first states to introduce laws and other punitive measures designed to eliminate or substantially reduce the judicial discretion in sentencing. As a consequence of the serious crisis situation of the Californian corrections system, a decision of a lower court requiring the State of California to substantially reduce its prison population was upheld by in a majority judgement of the Supreme Court of the United States. The basis for the decision was that the number of prisoners exceeded the design capacity of the prisons to such an extent that the prisoners' rights not to be subjected to cruel and unusual punishment were being violated.
International Human Rights Instruments20. It is the Commission's view that the diminution of judicial discretion in sentencing by the imposition of SNPPs conflicts with the International Covenant on Political and Civil Rights [8] (ICPCR), in particular Article 14 that provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Although existing laws limit to judicial discretion some extent (such as the Penalties and Sentences Act 1992 and Serious Offenders Act), it is the Commission's view that SNPPs limit judicial discretion to the extent that the court is no longer independent as contemplated by the ICPR or by the fundamental principle of the separation of powers. 21. Further, the Convention on the Rights of the Child [9] (CROC) requires that the arrest, detention and imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. [10] Therefore, the Commission strongly recommends that any SNPP should not apply to offenders convicted and sentenced to imprisonment who are or were under the age of 18 years at the time of the offence. 22. On the issue of exemptions to any SNPP scheme, the Commission's view is that people who are subject to forensic orders (people charged with offences but found to be of unsound mind or unfit for trial) should not be included in any SNPP scheme. These people have not been tried and convicted of any offence, and the presumption of innocence prevails.
Conclusion23. In conclusion, the Commission encourages the Council to make recommendations, and the Queensland Government to make decisions, that are based on sound evidence. Recommendations and decisions should be focused on achieving a greater protection of the community, and if an SNPP for Queensland is recommended or endorsed, then there should be clear evidence that such scheme will reduce recidivism at an acceptable level of cost. 24. The Commission's view is that rather than investing in a larger daily prison population, the Queensland Government should invest in ‘justice reinvestment' and placing a greater emphasis on rehabilitation through measures such as a better parole system. 25. There is a wealth of learned commentary that supports the need to invest in addressing the 'front end' causes of criminal activity rather than the 'back end' where many end up on the conveyor belt of the criminal justice system and, after causing considerable grief and cost to society, are deposited in big expensive bins called prisons to be 'rehabilitated'.[11] 26. ‘Justice Reinvestment’ is a concept that has been discussed extensively by Tom Calma, the former Social Justice Commissioner at the Australian Human Rights Commission. In his 2009 Social Justice Report he said: Justice reinvestment is a localised criminal justice policy approach that diverts a portion of the funds for imprisonment to local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested in programs and services in communities where these issues are most acute in order to address the underlying causes of crime in those communities. [12] 27. There is currently no comprehensive, published offender mapping research in Queensland or Australia. However, demographic research mapping of disadvantage by Professor Tony Vinson in his study ‘Dropping off the edge: the distribution of disadvantage in Australia’[13], analyses indicators of disadvantage [14], including imprisonment, to map the most disadvantaged areas in Australia. 28. Professor Vinson found that 3% of Australia’s postcodes account for a disproportionate amount of disadvantage. Compared to other areas, the 3% of most disadvantaged post codes has at least twice the rate of unemployment; criminal convictions; imprisonment; child maltreatment; disability support recipients; and psychiatric admissions.[15] 29. Some of the most disadvantaged communities in Queensland are areas with high Indigenous populations (see Attachment 1). 30. Tom Calma emphasises that: Justice reinvestment still retains prison as a measure for dangerous and serious offenders but actively shifts the culture away from imprisonment and starts providing community wide services that prevent offending. Justice reinvestment is not just about reforming the criminal justice system but trying to prevent people from getting there in the first place. 31. The functions of the Sentencing Advisory Council include providing information to the community to enhance knowledge and understanding of matters relating to sentencing, and to publish information relating to sentencing. In the short time that the Council has existed, it has undertaken and published a commendable volume of research about sentencing. 32. The Commission recommends that before implementing any SNPP, the Council be given the opportunity to invest more in its functions of researching matters relating to sentencing, publishing results and of research, and providing information to the community about sentencing, and then obtaining community views in a manner that will reflect informed community views. Thanks and acknowledgement.The Commission thanks the Sentencing Advisory Council for the opportunity to contribute to the consultation on Standard Non-Parole Periods.
Attachment 1Table 1 shows some of the most disadvantaged locations in Queensland and the Indigenous population from the 2006 Census. ‘M’ denotes ‘most disadvantaged’ and ‘NM’ is ‘next most disadvantaged’. Table 1: Disadvantaged locations and Indigenous populations
Footnotes1. JJ Kennedy, Commission of Review into Corrective Services in Queensland: Final Report (1988) | ||||||||||||||||||||||||||||||||||||
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