Suspended sentences
Attorney General Rob Hulls please explain to the Community who the laws belong to, having told us in 2006 no violent criminals would recieve suspended sentences…
25 July 2006
Suspended Sentences
|Are they a practical way of keeping offenders out of prison and sending them a firm message, or is it like being thrashed with a warm lettuce leaf? Victoria is moving to abolish them and critics say this will limit the options available to the courts, expand prisoner numbers, and throw a whole lot more people onto the jail/crime merry-go-round. But supporters say this reform will help deliver ‘truth in sentencing’.
Transcript
This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.Damien Carrick: Today we explore the ins and outs of suspended sentences. They’re described by their critics as having all the force of being ‘beaten with a warm lettuce leaf’. An offender is found guilty of a crime, a jail sentence is imposed. But then the sentence is suspended.
Well Victoria has just recently announced plans to phase out suspended sentences. The move follows a number of high profile cases where a suspended sentence has prompted community outcry.
Man: I was completely amazed at what the judge had to say, and his reason for not putting him away in the first place I thought was disgraceful. They’ve just lost complete touch with the community at large.
Man: Ultimately, if we remove options from our sentencing armoury, we’re going to run the risk of creating severe injustices.
Damien Carrick: Earlier this month a controversial suspended sentence decision involving a repeat drunk driver, a Mr Taban Gany, was overturned by the Victorian Court of Appeal.
Newsreader: In February, a County Court judge described Taban Gany’s case as one that cried out for mercy, and he handed down a three-year suspended sentence. But today that was quashed by the Court of Appeal after the DPP submitted it was manifestly inadequate. It argued the sentencing judge didn’t take Gany’s prior driving-related offences into account, or give weight to how five young victims have been affected.
Several children were injured in May last year when Gany lost control of his car and drove it through the front wall of Dandenong West Primary School. He was three times over the legal blood alcohol limit.
The initial sentencing judge gave consideration to Gany’s life in war-torn Sudan and the brutal events leading up to his journey to Australia. But the Court of Appeal ruled while there’ll always be room for exercising mercy, the sentence must be reasonably proportionate to the crime.
Damien Carrick: The Taban Gany case is one of a number that have attracted enormous community response. Other like it prompted the Victorian Attorney-General, Rob Hulls, to refer the use of suspended sentences to the Victorian Sentencing Advisory Council, which is an independent statutory body.
The Council recommended their gradual abolition and the Victorian government is now drafting the legislation.
Professor Ari Frieburg is the Chair of the Victorian Sentencing Council. He’s had serious reservations about suspended sentences for many years.
Ari Frieburg: There’s a sort of paradoxical logic which the High Court has remarked on. The judge has to take in all the usual factors, the gravity of the offence, the circumstances, the offender’s prior record, to come to a decision whether or not a sentence of imprisonment should be imposed and if so, what length. Then a judge is required to reconsider all those factors, particularly the personal factors, to decide whether to suspend it. The criticism is that there’s a certain amount of double counting in that process, and that’s been the criticism that some of the factors have been given too much weight. So lawyers who are critical of suspended sentences say it is anomalous because you should only count factors once, and if you decide not to send a person to jail that should be the end of the story, and if you decide that you should, that should be the end of the story. The suspended sentence requires the judge to think twice about the same thing.
Damien Carrick: I understand it’s something like 24% of jail sentences which are handed down in the higher courts, the County and Supreme Courts, are actually suspended sentences, so a quarter of people who you think are getting jail sentences, are not going to jail.
Ari Frieburg: Indeed, and that’s one of the findings that we made, that in fact since the early 1980s when the suspended sentence was brought in, although the number of, or the proportion of jail sentences actually served decreased slightly, the number of bonds and fines and other non-custodial orders, decreased, leading us to conclude that the introduction of suspended sentences did not replace jail sentences, that were being used inappropriately for people who previously wouldn’t have got a jail sentence, but the court wanted to make a denunciatory statement, and a deterrence statement that ‘You are getting a jail sentence, but of course you won’t serve it because it is a suspended sentence’.
Damien Carrick: And I understand that Victoria is about third in terms of the states around Australia, I think it’s even higher in some places, I think it’s 48% in South Australia and 36% in Tasmania, of jail sentences which are in fact suspended sentences.
Ari Frieburg: Yes, and it varies across Australia. One has to understand the different judicial cultures, and in some states it’s more akin, if you like, to a bond rather than a jail sentence. So the structure and the nature and the expectations of those sentences differ. Certainly they were inserted in Victoria into a pre-existing system. I should also add that only 5% or 6% of the sentences in the Magistrate’s Court of suspended sentences, and there’s a far narrower range of them there.
Damien Carrick: Ari Frieburg, Chair of the Victorian Sentencing Advisory Council.
The phasing out of suspended sentences has been welcomed by many6, including victims of crime support groups. But others have grave concerns.
Lawyer Stan Winford is the Policy and Project Officer with the Fitzroy Legal Service in Melbourne. He reckons that there are strong arguments in favour of giving some offenders a suspended sentence. And many of his clients benefit from the availability of this sentencing option.
Stan Winford: People engaged in, for example, property crimes; people who commit frauds to satisfy gambling addictions, people who commit what we call street-level drug trafficking to pay for their own drug habits; young people who commit offences of violence such as robberies and assaults, these are the sorts of people, and I suppose there are also people who are I suppose longer-term petty criminals who commit what we might see as relatively insignificant offences, but keep doing it, and inevitably find their way up the ladder towards those more serious penalties.
Damien Carrick: The ones that you describe who are violent offenders, well, can you tell me about them, because I’m thinking violent offenders go to jail.
Stan Winford: It’s an obvious reaction; I think that’s why a lot of people don’t see a great problem with jailing people. But every case has its own particular circumstances, and there’s a number of aims of sentencing, there’s the idea that we need to punish people, there’s the idea that we need to deter people, there’s the idea that we need to rehabilitate them. People come to courts with all sorts of reasons for committing offences, and some of them even to the toughest-minded of us, would seem understandable, if not excusing offences, we can at least understand why they’ve don’t it. And for those people, often suspended sentences are a good option.
Damien Carrick: Well tell me about some of them.
Stan Winford: Well I can immediately think of a young person that I’ve re[presented whose been given a wholly-suspended sentence for what amounted to a stupid act on a night out with some young friends of his, driving along in a car. One of the friends decided that they should hassle someone on the street; that turned into a situation where a baseball bat that was in the car was produced, and that person’s wallet was taken. So it is a serious crime; it’s armed robbery, but this young man had a few difficulties, a few learning difficulties, he’d struggled at school. Giving him a jail sentences, which is what he would have if a suspended sentence wasn’t available, would have really been the end of his life for most purposes. He wouldn’t have been able to get employment later on, and he would have learnt how to behave inside, how to survive, that would have inevitably meant coming out without any other options. I just think for someone like him, it would have been a terrible sentence, and it wouldn’t have helped the community at all, because he would have then come out and been committing more crimes.
Damien Carrick: Now in Victoria there have been some very high profile cases where there have been suspended sentences handed down, and there’s been a huge public outcry. I mean perhaps the most recent one involved a bloke called Taban Gany. Can you tell me about him?
Stan Winford: Taban Gany was I believe a Sudanese refugee who had a number of prior offences for driving whilst intoxicated, and committed an offence that involved losing control of his car while intoxicated and crashing it through I think the wall of a playground of a school, and injuring quite seriously, some young people there.
Damien Carrick: He injured about five kids and I think one of the kids was it Sabi Mashid basically had to have his foot amputated as a result of injuries sustained in the accident.
Stan Winford: Yes, a terrible situation for those children. In that case Taban received ultimately a wholly-suspended jail sentence, and there was an outcry over that, and the Director of Public Prosecutions lodged an appeal against the sentence, on the ground that it was manifestly inadequate.
Damien Carrick: That appeal was successful, and I think he got something like 21 months in jail as a result.
Stan Winford: That’s right. And what that reflects, I suppose, is that although there might be cases where in the first instance the judge has inappropriately imposed a wholly-suspended sentences, that judges make mistakes like the rest of us, and those can corrected on appeal. And to me it seems a bit like throwing the baby out with the bathwater to abandon what in other circumstances is an appropriate sentence just because in those cases the balance hasn’t been struck correctly by the judge.
Damien Carrick: But some people say that there are cases where even on appeal the suspended sentence will be upheld, and I guess for Victorians the most obvious one is the case if a bloke called David Leslie Sims. Tell me about that.
Stan Winford: That was a case involving a man, I think he was a chef or an apprentice chef, who had imbibed some drugs and alcohol, and was walking home one night through St Kilda and saw a woman through the open of a flat and walked in and committed an act of rape, I think it was a digital rape. He received a wholly-suspended sentence when he was sentenced.
Damien Carrick: And that was upheld on appeal?
Stan Winford: That was upheld on appeal.
Damien Carrick: And there was a huge public uproar about that, and I think there were 10,000 people demonstrated in front of Parliament House when that came down.
Stan Winford: Yes.
Damien Carrick: A lot of people would say that that is emblematic or points to a structural problem with suspended sentences. That sometimes they will be applied incorrectly and sometimes as far as a lot of people would consider, a lot of people would feel that it was incorrectly upheld.
Stan Winford: That’s possible. I do think though that ultimately if we remove options from our sentencing armoury, we’re going to run the risk of creating severe injustices, and there are always exceptional cases where things appear unjust. But if we remove that option from our armoury, there’s going to be more injustice caused by those people who really should be able to take advantage of an order like that, and aren’t.
Damien Carrick: Many people would say Well the removal of suspended sentences is being done in a context where the government and the Sentencing Advisory Council will have a comprehensive look at what sentencing options are available. So if they remove this one, which is a cause of public concern, that doesn’t mean that you’re throwing out the baby with the bathwater, they may well replace it with other kinds of sentencing options, which will provide all the necessary options in all the necessary cases, without this one which does strike a lot of people as galling.
Stan Winford: Yes, it may strike people, but there are also circumstances, and I think during the consultations for this report, there were plenty of examples where people given all the facts, actually thought this is an appropriate sentence, and those were things like mercy killings.
Damien Carrick: Say where you’ve had a happily married couple for 50 years and one falls ill and the other one basically helps end that person’s life.
Stan Winford: Yes. And that was seen as an appropriate sentence. But in relation to what the Council may be proposing to replace or rejig the sentencing regime once they’ve removed or abolished suspended sentences, it’s not something that’s been tested yet, and it’s still quite unclear what those options will involve, and we know at least that they won’t involve a wholly suspended sentence. So it’s not true to say that rejigging the system will somehow make up for the loss of this order, there won’t be an order of that nature.
And the other thing that’s important to know is that these changes from what we know are going to require very significant resources from the government because they involve orders that have increased levels of supervision, and monitoring and curfews and for the government to legislate to bring these changes in, they’ll need to match that with a lot of money, and if that doesn’t happen, then those orders are not going to be possible to bring in, and we’ll be left with a situation where all that’s happened is that one option has been removed.
Damien Carrick: Is Victoria alone in getting rid of suspended sentences?
Stan Winford: I believe so. It has happened before in New South Wales, but due perhaps to the increased numbers of people being imprisoned in about 2000, that option was reintroduced. The New South Wales Law Reform Commission had a look at it and said there really does need to be an option like this. And there were concerns about the rates of imprisonment.
Damien Carrick: So the numbers behind bars went up, and it was felt that there was a need to reintroduce this option?
Stan Winford: That’s right. And in New Zealand those orders were abolished, and I think they continue to be out of the picture, and there was a significant increase in prison population there too.
Damien Carrick: Lawyer, Stan Winford.
Newsreader: A female Victorian schoolteacher who had a sexual relationship with a 15-year-old student …
Reporter: Karen Ellis left court alone, in the back of a prison van. The former Melbourne PE teacher wiped away tears as she was told she would serve a six-month jail term effective immediately. The Director of Public Prosecutions appealed against Ellis’ wholly suspended sentence, handed down last year. Today the Court of Appeal found the sentencing judge had unconsciously sympathised with the female offender.
Reporter: … unprotected sex with a 15-year-old student at here North Eltham home in late 2003. The judges upheld the appeal by the DPP saying the County Court made a mistake when it wholly suspended a 3-year sentence handed down to Ellis last year. In sentencing, Justice Batt said this was not a foolish lapse on one occasion by Ellis, but repeated offending. He said the law must be concerned to protect all children from abuse, especially from those in positions of trust and authority.
Damien Carrick: The Karen Ellis case attracted national attention.
Noel McNamara is president of the Victorian Crime Victims Support Association, and a vocal opponent of the use of suspended sentences.
Noel McNamara: Well Karen Ellis was an amazing case. Not long before her there was a bloke called Hopper who was a tennis coach who had had carnal knowledge with a 15-year-old student and who was having a lot of troubles at home and she was going to him for tennis lessons or whatever, and they had a bit of a fling there for a while, until this girl woke up and told her parents, and he was taken before the courts.
Now I can’t see a lot of difference between what happened in his case and what happened in the Karen Ellis case, except it was gender. In the Hopper case he was given two and a half years, or round about that mark, and Karen Ellis gets a suspended sentence. Once again we took out the pen and the paper and wrote to the Director, and he took it back to the courts, and he’s very good at what he does, and Karen Ellis was given a six months sentence. You know, you’d have to say there was a bit of a gender problem there in the sentencing.
Damien Carrick: Because Karen Ellis’ offences involved a male student, whereas Hopper’s offences involved a female student.
Noel McNamara: That’s right. And when you meet with people down the track that tell you about these stories, which we do, and whether it be boy or girl, they seem to have a way of putting it in the back of their mind and it doesn’t come out till they’re about 20 or beyond, and while I think they’re going or travelling all right at the time it comes out and that has a terrible effect on them in the end.
Damien Carrick: Now we’ve talked about so far cases where there have been Courts of Appeal which have overturned suspended sentences. Have there been any cases where for you, a decision not to overturn suspended sentences being particularly what you would regard as a bad decision?
Noel McNamara: That is the one of the -Sims – that cook that broke into a young lady’s house who came to us. He wrote to her twice, he was an aggregated burglary as well. She was sleeping on the couch, and he went past and looked in the window and thought, Oh, there’s an opportunity, so in he went. His excuse of course was that he’d had a few smokes of the grass and had a few beers and things like that. He was a cook. And he was on his way home, and he lived in the next flat apparently. Anyhow he put this attack on this girl who was known as Sigrid, and she did a good job for us. She helped to rally of 10,000 people at the Parliament one Sunday.
Damien Carrick: How long ago was that?
Noel McNamara: This would have been approximately 2, probably 3 years ago now. Sims went to the court, he pleaded guilty naturally, and there was obviously a plea bargain. He received a fully suspended sentence for three years. The judge there at the time which was I found most outrageous, of course I was sitting in the court with the victim, said ‘You’ve got another chance. All the best for the rest of your time.’ And I was outraged; I could have quite easily got up in the court and said something, but I didn’t. We once again got onto the Director, the Director took it back to the court, and one judge, Judge Batt, wanted to throw him straight into jail, he thought it was a jailable offence, the community did, but the other two overturned it and he remained free.
Damien Carrick: So the other two judges, the majority of the court upheld the early decision to give a suspended sentence?
Noel McNamara: Yes. Of course then we had that rally that was up at Parliament House in about August of that year, so it probably would have been three years ago, and 10,000 people turned up. We only had three days; we got it going within three days, we worked out a couple of weeks later we had about 100,000 up there I think.
Damien Carrick: Noel McNamara, President of the Victorian Crime Victim Support Association.
The Sims decision and others like it and the anger they generated, was the principal reason the Victorian government referred the whole question of suspended sentences to the Sentencing Advisory Panel, the one chaired by Ari Frieburg.
Ari Frieburg: There have been difficulties about suspended sentences for a number of years. I recommended their abolition in a review of sentencing I did in 2002, so this has a long history. It’s probably the mismatch between the public perception of what a sentence of imprisonment is and the judicial perception. And that was exacerbated by a number of cases where the disparity was so great that we considered it had a tendency to undermine confidence in the criminal justice system. Although the public needs to understand the complexities of sentencing, I personally always held a belief that it’s had a very nominalist place in the sentencing hierarchy.
Damien Carrick: It’s interesting, that notion of what people understand. I think it was Jim Kennan, a former Victorian Attorney-General said something along the lines of ‘Well we don’t understand computers, but we still use them.’ You don’t throw out everything that you don’t understand, and perhaps the same criminal lawyers and advocates for offenders would say that, that it was part of the lexicon of sentencing options and it has a role.
Ari Frieburg: It hasn’t always been. Over the last 100 years or so, it’s come in and out of fashion. It was in Victoria in the late 1800s and then was abolished; it’s come in and out in New Zealand, in and out in New South Wales; there are different forms of it at the federal level, so it’s not just a question of public understanding, it’s a question of its place in the sentencing hierarchy and that’s very ambivalent, and it’s not just got to do with Victoria, it’s got to do with a structural problem of imposing a jail sentence and then the person not serving that jail sentence, and the public, and even judges, not clearly understanding.
One of the problems in Victoria is that we believe it was over-utilised, and some of the statistical analysis that we used, showed that it had in fact replaced non-custodial orders, rather than jail sentences, which was its original intention. And in fact that’s occurring now in New South Wales. There has been net-widening; that means it’s been used instead of non-custodial sentences instead of jail, and secondly, the sentences imposed when a sentence is suspended, have been longer than they would have been had the sentence been served. So it’s not just public understanding, we believe there’s a misuse and on top of that, there’s a problem of a reasonably significant breach rate, and we believe the combination of the breach rate, and inappropriate imposition, can probably lead to sending more people to jail than you divert.
Damien Carrick: So you’re saying that because people offend when they’ve been given a suspended sentence, they end up going into jail anyway?
Ari Frieburg: Indeed. And the problem is, had they not received a jail sentence in the first place, they wouldn’t be at greater jeopardy of going to jail again. So there’s some complex modelling that has to take place about whether in fact they do divert people from jail.
Damien Carrick: So what you’re saying is you can’t see this as grabbing away from offenders, an option which would keep them out of jail; sometimes it would lead to offenders who would not have otherwise gone to jail, spending time in jail because they’ve breached their suspended sentence.
Ari Frieburg: Indeed, and one of the other criticisms in Victoria was that we should not have abolished it, but amended it by adding conditions, so that there would be some rehabilitative and punitive content.
Damien Carrick: Why didn’t you do that? I mean that would seem to have been a logical way of addressing the reality of people – and I should say yes, there had been a lot of criticism, but suspended sentences would appear to the general public to be saying ‘OK, you’re out of jail, but you don’t have to get treatment, do community work’, all the other things which you normally associate with other kinds of orders.
Ari Frieburg: And it’s a very valid point. Our response was this: First of all there is a very wide range in a number of conditional options already in Victoria: combined custody and treatment orders, intensive correction orders, community-based orders, drug treatment orders, and a system of dismissal, discharges and adjournment. Adding another one we think would have confused the whole hierarchy and would have tempted judges to give a conditional order as well as a jail sentence, and we think more people would have got an inappropriate jail sentence had we added conditions. And our response was to say that the conditional orders needed significant restructuring, because we have too many and many of them don’t operate optimally. So Part 1 of our report was to say that we ought to restrict the use of the suspended sentence, because we believed it was inappropriately used in some cases, and legislation will be in parliament this session. Part 2 of our report will look at a significant restructure of the conditional orders, and then we believe judges will have more and better orders, which will mean more transparent and provide better supports for people who shouldn’t go to jail.
Damien Carrick: So you’re pulling away the suspended sentences but you’re actually going to have some kind of comprehensive re-working of all the orders which are available to judges?
Ari Frieburg: Indeed, and over the next couple of years, when these orders come in, there will be the operation of the suspended sentences until the end of 2009, we hope with the new audit in 2008, and then at the end of 2009 we believe that if suspended sentences disappear or are attenuated, the judges will have a choice. If they really need to send somebody to jail, then they should, this is part of the truth in sentencing. If they really believe they need rehabilitative or some form of community work as a punitive order, they will have that available, and there will be a two-way process. The judges in a sense will have given up the threat, the statement that a person is going to jail, which the public didn’t believe. On the other hand, we’ll be asking the public to believe that the new orders, the community orders, will be appropriate for even serious cases. So there will be a two-way trade-off: judges giving up the suspendates, and the community believing that one of those new orders which may involve home detention, may involve community work, may involve drug rehabilitation, quite significant impositions, will be adequate to deal with both the seriousness of the case and the circumstances of the offender.
Now all of that will be subject to review in 2008, so the suspended sentences will not be out of the hierarchy until effectively 2010.
Damien Carrick: Professor Ari Frieburg, Chair of the Victorian Sentencing Advisory Council and Dean of Law at Monash University.
One of the big concerns for opponents of the abolition of suspended sentences is the impact on prisoner numbers. There are fears it will lead to further crowding of an already overstretched jail system.
But Noel McNamara from the Victorian Crime Victim Support Association says room in the jails could be made if non-violent offenders were kept out of prison.
Noel McNamara: One of the things that annoys us is the amount of people that get thrown into jail for non-violent offences, you know the young blokes who think, Oh well, I’m not going to pay me fines, and they build up a – and they get tossed in, or they do a bit of shoplifting or something, and it’s their first time. Now we think that those people would be better off put on the home detention system, sent back into the community, let them work or give them community work on weekends, whatever you like, but don’t put them in the jail for three to six months because those are the people that go in there and one guy, and I do a bit of work with restorative justice, with the Jesuits, and I met one guy down there one day and he told me about 200 different ways to use a credit card. And I said, ‘Where did you learn that?’ And he said, ‘Oh, I got thrown into jail for six months for not paying my fines, and a few other little odds and ends, and I thought to meself’, well you know these people and he’s turned out quite good, he’s sort of got a job and all the rest of it now. But I mean that’s what happens with these people, I mean they’re not in there long enough to learn anything except how to take down the public or commit crimes. And we sort of really believe that there can be a lot done for those sort of people and should be done and rather than a lot of money spent on locking them up.
Damien Carrick: Stan Winford, so there’s going to be legislation soon which says for certain kinds of offences unless there’s very, very good reason, there’ll be a presumption against providing suspended sentences in I think violence offences, and then in 2009 they’ll be gotten rid of completely for all offences. When those laws come in, what’s going to be the impact?
Stan Winford: Well initially with the first change, which is removal of suspended sentences in relation to serious offences listed in Section 3 of the Crimes Act, there’s been projected to be an extra 100 people incarcerated each year, at a cost of about $6-million. And it’s a real problem for us at the moment in Victoria. We’re building a number of new prisons and we’re going to have to spend a lot of money in order to house these prisoners, because each prisoner costs between $50,000 or $60,000 each year, even in minimum security prisons.
Damien Carrick: And come 2009?
Stan Winford: Well suspended sentences will be gone altogether. The Council hasn’t actually given us any information about the effects on numbers or the cost. So I think that’s one of the really critical things in this next three years we’ll be monitoring the effects of these changes, and making sure that we’re prepared for the numbers that we’re going to get in prisons.
Damien Carrick: Lawyer, Stan Winford and before him, Victims of Crime Activist, Noel McNamara.
That’s the program for this week