Crime and punishment

Jack the Insider Blog | The Australian | 31 January 2012 

Recently, the Australian Bureau of Statistics published the figures for Australia’s corrective services systems and those who exist within it. The figures provide a starting point for reflection on the nature of crime in Australia and how it can be diminished.

There are some startling statistics.

The Northern Territory has a higher incarceration rate than the US (762 prisoners per 100,000 adult population compared to 504/100,000). US incarceration rates vary wildly from state to state, with Maine at 154/100,000 - lower than the Australian national average - while Louisiana stands at the top of the table, making light work of the Top End with 853 per 100,000.

The OECD average is 140/100,000. Across Australia in 2011 we incarcerated people at a rate of 167/100,000.

Prison populations have come down across the nation by two per cent since 2007. This is due largely to a decline in NSW (which contributes both a third of the nation’s population and now an even third of the nation’s prisoners) by eight per cent but this comes after a sharp increase in incarceration rates in NSW between 1995 and 2004.

In the NT, prison populations have increased by 46 per cent and in Tasmania by 32 per cent over the past decade. Queensland accounts for 19 per cent of all Australian prisoners, while the most densely populated state in the Commonwealth, Victoria, has just 14 per cent.

Overall there are 29,106 prisoners behind bars, sentenced and unsentenced. Unsentenced prisoners make up almost a quarter of the total. On average more than half of the nation’s prisoners have had a stretch in prison at least once before.

The average custodial sentence in Australia is three years.

But looking at incarceration rates is really only scraping the surface of crime.

It is estimated that reporting of crime runs at about 40 per cent of all crime committed. 32 per cent will be recorded by the police, just seven per cent of offenders will be detected, four per cent will be convicted and 0.1 per cent will go to jail.

The first and most obvious response is if our governments make more draconian laws, reduce bail applications and legislate mandatory sentences to the effect of say, doubling the prison population in quick time, there will still be 99 per cent of the crime occurring.

Well perhaps not, as those who do get caught often may have been getting away with quite a bit of unreported crime for some time. Nevertheless, the overall trend indicates that longer sentences may satisfy our desires to punish but achieve little else than create a longer list of individuals who, due to the criminogenic effects of prison, will almost invariably reoffend and make further contributions to crime statistics than would otherwise be the case.

The cost of crime in Australia is almost unfathomable. Yet it is the job of criminologists to make an attempt and most estimates put the cost at between $35 and $45 billion a year based on criteria such as direct financial loss, medical costs, lost productive capacity and assorted intangibles including the emotional costs to victims and families. For example the cost of one homicide is estimated at $1.8 million when the victim is aged between 18 and 34.

The direct cost of incarceration runs to about $80 per Australian man, woman and child or $1.6 billion a year.

Then there’s the cost of state policing - $3.2bn a year across the nation; the Commonwealth agencies from the AFP, the Commonwealth DPP, the Australian Crime Commission, the Attorney General’s office etc. cost $820 million. $350m is spent on Juvenile Justice and the courts themselves cost $410m to oversee it all.

The issue of crime prevention is complex and a whole-of-society problem.

William Stuntz, a Harvard law Professor, evangelical Christian and author of The Collapse of American Criminal Justice devoted his life to ending discrimination within the US legal system. He died of cancer in 2011.

Stuntz identified plea bargaining as a scourge and one of the primary causes of the unravelling of the criminal justice system in the US.

It is a scourge that has beset our legal system, too.

In general plea bargaining will see an offender plead guilty to a lesser charge. There is no trial. Unlike the US system, there is no direct bargaining on sentencing in Australia but offenders will appreciate the sentencing scale when they put their hands up.

The statistics on plea bargaining across Australia’s state jurisdictions are difficult to obtain given the clandestine nature in which the bargaining is conducted but approximately 70 per cent of offences in our higher courts are resolved in this manner.

This is an unsatisfactory means of dispensing justice – unacceptable for victims and often likewise for offenders who are represented by overworked and under-resourced public defenders.

Plea bargaining has become rife in our court system to reduce costs. The cost of a trial in the District or County Courts is $10,000 per day and that does not include the cost of defence.

So, there must be a realisation that more money will need to be spent, at least in the short term to ensure that as many, if not all serious offences go to trial to allow a jury to determine guilt or innocence based on the evidence and the legal principle of reasonable doubt.

But according to Stutz, it is not just a trial but the manner in which it is conducted that can make the difference. If an offence occurs in, say, the Blue Mountains region of NSW, then the trial should be conducted there and the jury taken from a pool of residents from the local area.

The rationale is that the regionalisation of juries will provide greater insight and understanding of the peculiarities of the offence and the context in which it may have been committed as opposed to a jury selected from anywhere around the state who have no local knowledge, no real empathy for the victim and may come to the courtroom with certain prejudices obtained from tabloid media.

Stuntz’s thoughtful recommendations would not create a perfect system but may well create a system that is less imperfect than the one in place at the moment.

Certainly, it will lead to better outcomes for victims and while it will be more expensive the hope is that in time, the better dispensation of justice itself will reduce the incidence of crime overall.

It is just one measure available to our legislators who too often run a tough on crime agenda that offers no benefit to our communities and merely amplifies the problem.

AG at Estimates: Charge Bargaining

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

The Hon. ADAM SEARLE: Minister, in March 2010 you indicated that a review of charge bargaining guidelines should be undertaken. In answer to question 445 in the Legislative Assembly, when you were asked whether you proposed to alter or review the guidelines for the Office of the Director of Public Prosecutions in relation to charge bargaining, you indicated no. Are you able to indicate what changed your mind in such a short time? 

Mr GREG SMITH: If I remember rightly, back in 2010 the proposed amendment to the Crimes (Sentencing Procedure) Act was requiring Crown prosecutors or persons who were representing the Crown on a plea of guilty to file a certificate with the court verifying that there had been consultation with the victims, but also that the agreed facts constituted a fair and accurate account of the objective criminality. The Crown prosecutors were up in arms about that and I was aware of that. It showed a lack of understanding by those proposing that. Often if a victim of crime does not want to give evidence, to get a statement of facts together that the perpetrator is prepared to plead to you often might have to remove the presence of a knife from the statement of facts, or something like that. 

Otherwise there is no plea of guilty, there is no trial—there is a no bill. But you get a result if you can get a plea to a lesser charge with perhaps less serious facts. But they were the provable facts. The original suggestion did not ask for the provable facts, it just asked that it constitute a fair account of the objective criminality. Therefore, the words "or have otherwise been settled in accordance with the applicable prosecution guidelines" were added. Putting the alternative solved the problem because the prosecution guidelines, as I understand them, allow for a summary of facts that represent what can be proved. 

The Hon. ADAM SEARLE: I think your indication in 2010 that the guidelines should be reviewed was in the context of your criticism of what you termed "plea bargaining". You were being critical that the Office of the Director of Public Prosecutions was engaging in plea bargaining in criminal matters. 

Mr GREG SMITH: I am sorry, but I do not understand that I ever criticised plea bargaining—or charge negotiation, as it is fashionably called at the Office of the Director of Public Prosecutions. 

The Hon. ADAM SEARLE: Charge bargaining. 

Mr GREG SMITH: Charge bargaining. I think I was just attacking this proposal to, as it were, remove some of the independence of Crown prosecutors proposed by the Government at that time. I was concerned that there had already been a fair bit of reduction of independence during that last term. 

The Hon. ADAM SEARLE: But do you recall calling for the guidelines to be reviewed in March 2010? 

Mr GREG SMITH: The guidelines are probably 200 or 300 pages long so I do not think I ever called for all of them to be reviewed. I think it was just this particular one about charge negotiation and it was a question of how far they had to go while naturally taking into account the views of the victim whose sensitivities must be always respected. But who is the victim sometimes and who represents the victim sometimes were issues that I do not think were being addressed properly. I heard that all they were going to do was make the Crown sign an undertaking that the facts were an objective summary of the evidence in the case, and that is what I wanted to change. I am happy with the compromise that was ultimately agreed to.