In Summary

  • This is an opinion piece by Mirko Bagaric, Professor of Law, Swinburne University of Technology that was originally published in The Australian

The main problem with criminal justice in Victoria is a grossly disfigured policy orientation by a government intractably wedged between failing to understand the causes of and solutions to crime and the pragmatic need to be seen to be tough to get re-elected.

As a result of a law-and-order crisis in recent years, the Victorian government has gone into reform mode. All of the changes have been reflexive. All are ineffective.

Overall, crime has dropped in Victoria over the past 12 months, but Victorians feel no safer. ­Rightly so. The only crimes which alarm people are sexual and violent offences and the incidence of these has increased over five years.

The Victorian government has promulgated a tough-on-crime approach recently and prison numbers have increased. But this has nothing to do with getting tougher on criminals.

In fact the incarceration rate for criminals in Victoria has declined in the past 3½ years (from 107 to 97 per 100,000 population). This could be a positive change. Prisons should be almost solely reserved for serious sexual and ­violent offenders. The problem is that more than a third of prisoners in Victoria are in for non-sexual and non-violent offences.

The reason for the increased prison population in Victoria stems solely from the massive jump in the number of suspects who are refused bail. Remand prison numbers have risen more than 60 per cent in the past 3½ years. That’s about double the Australian average.

Refusing bail for more suspects is not necessarily misguided, but what is unsatisfactory is that placing more suspects on remand was a reflexive approach to highly publicised crimes committed by defendants on bail.

Totally lacking was an attempt by the government to base bail ­decisions on the use of empirically validated assessment tools to ­determine more accurately which defendants were at high risk of reoffending.

Also lacking was a willingness to implement alternatives to ­prison, such as GPS bracelets to monitor the movements of suspects. The government’s failure to acknowledge the moral difference between the guilty and the presumed innocent is a stain on Victoria’s criminal justice system.

This system will remain a ­debacle until the government ­implements evidence-based policies to reduce crime and sets ­appropriate sanctions for sexual and violent offences.

The most effective method for reducing crime is to increase the perception in people’s minds that if they offend they will be detected. The Victorian government is committed to increasing police numbers. This is a waste unless the additional police are visible.

At the sentencing phase, the government needs to make a clear distinction between crimes that scare Victorians and ones that anger them. No one likes people who defraud the tax office or insider traders but these types of ­offenders don’t deserve a sanction in the form of prison, which costs us $100,000 a year per offender.

On the other hand, every ­offender who violates the sexual integrity of another person or physically disfigures a victim should go to jail. This is because of the incontestable truth that the harshness of the penalty should match the severity of the crime. The principle of proportionality is the fulcrum around which all criminal sanctions should be based.

At the same time, it is important to acknowledge that almost all offenders who are imprisoned will be released at some point. Thus, while they are in prison the principal objective must be rehabilitation and the best pathway for this is to enhance their education.

Impulsive, opportunistic and reflexive approaches almost ­always lead to bad outcomes, which is the precise reason that the Victorian criminal justice system remains in the Dark Ages.

Mirko Bagaric is Director of the Evidence-Based Sentencing and Criminal Justice Project at Swinburne University of Technology. This opinion piece was originally published in The Australian

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