By Ian Gray, Herald Sun, 22 March 2023

After years of ‘tough on crime’ rhetoric from both sides of politics, Victoria’s criminal justice system is at a crossroads.

There is increasing recognition that changes to the Bail Act following the Bourke St attack have gone too far, drawing many people deeper into the system and causing them to be imprisoned on remand, often for offences which would not usually attract a prison sentence.

The tragic death of Veronica Nelson has hastened moves to rectify this, but as a new report from the Justice Reform Initiative makes clear, there is much more work to do.

Over the past decade, Victoria’s annual expenditure on prisons has almost doubled to more than $1 billion, as the size of our prison population similarly trends upwards.

This demand for prison beds and the supply of bodies to fill them does not reflect a more criminal population: the overall crime rate has remained stable and is at the lowest level since 2005.

Yet sentences are becoming more punitive, with evidence showing that even leaving aside the Bail Act, there is an increased tendency to impose heavier sentences for more minor and intermediate offences.

For example, the proportion of cases sentenced to imprisonment in the Magistrates Court grew from 5% to 12% between 2012 and 2021. In 2016-17 74% of people whose most serious offence was theft were sentenced to imprisonment, but by 2020-2021 this had climbed to 92% and the average prison term also grew significantly.

When people convicted of property offences are going to prison, we need to ask ourselves whether this is the best use of taxpayer resources and why we aren’t taking more meaningful action to prevent this offending in the first place or divert people away from prison’s revolving door.

Our prisons are increasingly filled with people who are there for relatively minor offences, despite overwhelming evidence that going to prison entrenches disadvantage and makes future incarceration more likely. Around 40% of people in prison in Australia have not committed sexual or violent offences.

Prisons are failing to rehabilitate – more than half of the people currently in prison in Victoria have been imprisoned before. Moreover, most people leave prison without a job or a home to go to, lacking genuine support for successful reintegration into society.

It is therefore not surprising that the recidivism rate has barely shifted, with 43% of people released from our prisons back within two years. Evidence shows investing in accessible alcohol and other drug treatment, mental health and disability support, housing and First-Nations led programs, where appropriate, are more effective in reducing recidivism, improving community safety and delivering better returns for taxpayers’ money.

We can see the results from a shift to evidence-based policy by examining the success of the Children’s Court Youth Diversion service which has reduced reoffending rates while diverting more than 6000 young people away from the criminal justice system. Sadly not enough alternatives to imprisonment are available for adults, particularly for repeat offenders at the lower end of the scale.

Victoria has an opportunity to lead with long-overdue criminal justice reform by increasing the available diversionary options, both at the point of interaction with police and when an individual appears in court.

We need to maintain, and strengthen, judicial sentencing discretion; we can trust our magistrates and judges to weigh up the many factors before them and reflect them in balanced sentences.

Home detention is not currently available, but should be: when used for certain types of offence (for example, drink driving), it can combine both punitive and rehabilitative elements, help to keep families together and potentially enable continued employment. The power to impose suspended, or partially suspended, sentences with strict conditions promotes similar outcomes.

When a person does go to prison, they should have access to meaningful support programs that genuinely prepare them for release.

Most critically, we need to increase our investment in community-led support and services that work to prevent at-risk people from entering the justice system in the first place.

We’ve seen how jailing is failing our community. Now it is time for a smarter approach to justice.

Ian Gray AM is former Chief Magistrate of Victoria and of the Northern Territory, former County Court Judge and Victorian State Coroner, and a patron of the Justice Reform Initiative.