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Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016

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Sam Hibbins MP
Member for Prahran
4 November 2016

Mr HIBBINS (Prahran) — I rise to speak on the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016, which primarily amends the Sentencing Act to restrict the use of community correction orders (CCOs), the non-custodial orders. We have concerns about this bill because it does reduce judicial discretion by limiting the sentencing options available when judges should have a wide range of sentencing options available to tailor sentencing to ensure community safety, rehabilitate the offender, meet the level of seriousness of the crime and make sure that they are acting in line with the Sentencing Act 1991. Of course the offences listed in this bill are very serious in nature, but we do have sentencing guidelines in place for CCOs which does outline the circumstances and how the orders should be used. The Director of Public Prosecutions (DPP) does still maintain the option to appeal when they feel a sentence is inadequate.

This bill prevents the use of CCOs and non-custodial orders for serious category 1 offences, including murder, rape, incest, causing serious injury and a number of other serious offences. It also applies to some category 2 offences such as manslaughter, homicide, kidnapping and intentionally causing serious injury. Community correction orders will only be able to be applied if special reasons can be demonstrated, such as the offender suffering impaired mental functioning.

The bill is making changes to the length of imprisonment that can be combined with a community correction order. It will be halved from two years to one year or less, which we have concerns about. It also provides that a non-parole period cannot be fixed as part of a combined order, meaning that offenders must serve their full term of imprisonment before beginning a community correction order. It also limits the maximum length of a community correction order to five years, when previously it was up to the maximum term of imprisonment for that particular crime.

We do see community correction orders as an important sentencing option for courts. They are non-custodial orders that have mandatory conditions laid down by legislation — that is, not reoffending and not leaving Victoria without permission. They also have at least one and often a range of conditions that may be prohibitive, coercive, rehabilitative or intrusive. These conditions are both punitive and rehabilitative in nature. They could mean supervision, unpaid community work, treatment, drug rehabilitation, curfews, bans on entering particular areas, bans on contact with specific people, bans on where a person might live or a bond.

I do not accept the language used by the Premier in announcing this bill that a community correction order is a 'slap on the wrist'. I think that does not do justice to the often complex nature of the cases brought before the court and the circumstances in which community correction orders are actually applied. We understand that they have become controversial since the Court of Appeal issued its guideline judgement where sentence appeals were lodged by offenders against lengthy community correction orders. That guideline judgement concluded that the community correction order had punitive elements, including the mandatory conditions, the fact that contravening a community correction order is an offence in itself and punishable by imprisonment, and that there is a wide range of conditions which can be coercive or restrictive.

It also emphasised that a community correction order can be a punitive sanction when imposed as a sentence in its own right or when imposed as a condition of imprisonment. It accepted that a non-parole period is an alternative to a community correction order and provided matters to consider when determining a community correction order in terms of the length, the difficulty complying with the conditions and any conditions specific to youth offenders. The court also stressed the need for the provision of pre-sentence reports so they could actually use evidence to make sure that the community correction order is actually tailored to the offender.

We have had statements and instances put forward in support of this bill. There have been some instances of rape where community correction orders have been put in place, and there is a belief that these were inappropriate. We would certainly be interested in knowing whether these serious instances were appealed by the DPP, what the outcome was and what the circumstances were in which the court provided its judgement. We would certainly be interested in understanding the circumstances around those cases. I do not believe any evidence has been provided of community correction orders being put in place for some of the more serious crimes such as murder, but the Court of Appeal has made it clear that the governing principles of community correction orders are proportionality and suitability. It does not advocate for a sentence that does not reflect the seriousness of the offence and the circumstances of the offender. Of course an inappropriate use of a community correction order can already be appealed by the DPP, who did welcome that Court of Appeal guideline judgement.

I would also suggest that a number of conditions apply with a community correction order, as I have discussed, including drug and alcohol treatment and curfews. So we are concerned that this legislation, given the restrictions on judicial independence, will not make the community any safer; that the language the Premier has used like 'slap on the wrist' or 'sob story' undermines the principles of smart investment in crime prevention. We note the need to shift the focus away from imprisonment to crime prevention. We have an opposition painting a picture that the government has lost control of the state or of the youth justice centre and that we are living in a dark time when people are afraid in their homes or are afraid to drive down the street.

But what seems to have happened is that the Premier and the government have lost control of the debate. They have failed to put in place that clear plan for justice reinvestment for crime prevention and they have not shown the courage of conviction to see those sorts of policies through. Instead we have got these bits of legislation that undermine the judiciary, reduce the sentencing options available and even threaten to potentially make us less safe. The government, as I have said when speaking on previous bits of legislation, has a real choice: they can follow the coalition's lead with a failed approach and failed policies, which will lead to more prisons, more recidivism and more crime, or they can take a clear approach to justice reinvestment and to crime prevention and have the courage of their convictions to see it through.

Incarceration does not necessarily address the needs of the community. Those who are incarcerated may pose an even greater risk to community safety compared to if they had a combined community correction order or custodial sentence. We have seen an increase in recidivism rates over a number of years, which is making us less safe.

We have got community correction orders that can presently be combined with two years of imprisonment. That is being reduced, and we do not understand why, because having both a community correction order and a term of incarceration could actually be beneficial not just to the offender but to the community at large. We have already got the DPP in a situation where it can appeal the sentence of a community correction order if it finds that it is inappropriate. Certainly we have concerns about this legislation.

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Sam Hibbins MP
Member for Prahran
4 November 2016




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