imprisonment and recidivism - microsoft...early, the court has effectively played its “trump...
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www.balancedjustice.org
18 September 2018 Imprisonment and recidivism inquiry Queensland Productivity Commission PO Box 12112 George St, Brisbane 4003
Dear Sir/Madam
Imprisonment and recidivism
The Balanced Justice Project is a campaign which aims to enhance the safety of all Queenslanders by promoting understanding of criminal justice policies that are effective, evidence-based and human rights compliant.
Balanced Justice involves a number of community groups, which work together to develop resources that promote community understanding around evidence-based, effective and human rights compliant criminal justice policies.
We attach eleven factsheets which discuss specific opportunities to improve Queensland’s criminal justice system, and to make our community safer.
In November 2014, Balanced Justice commissioned UQ economists Associate Professor Jacqueline Robinson and Dr Alexandra Bratanova to undertake an economic analysis of potential Queensland budget savings. We attach their report, which estimated redirecting funds from detention centres and other costly responses to criminal offending towards early intervention services could save the Queensland budget up to $263m to 2030.
We hope that these resources will be helpful for the Queensland Productivity Commission’s inquiry into imprisonment and recidivism in Queensland. We would be happy to discuss the content of these materials with the Commission, and I can be contacted on .
Yours sincerely,
James Farrell OAM Balanced Justice
www.balancedjustice.org
Crime statistics – the real picture
Although crime statistics can help to provide a
picture of the current situation regarding crime, it is
important to understand the limitation of crime
statistics when interpreting them.
Crime statistic sources
Information about crime trends in Australia comes
from two main sources – police statistics and crime
victim surveys.
Police statistics count all the incidents recorded as
crimes by the police during the year in each state
and territory. These statistics are generally
reported as incidence measures, that is, a count of
reported crimes, usually presented as a rate
between the number of crimes and the number of
people in the general population.1 National figures
on a selection of important crimes are published by
the Australian Bureau of Statistics in an annual
report.
Major crime victim surveys are conducted by the
Australian Bureau of Statistics and these surveys
ask people aged 15 years and over whether they
have experienced particular crimes over the past 12
months. Crime survey results are usually based on
prevalence measures, that is, the number of crime
victims, usually expressed as a percentage of
people or households that experienced the crime,
regardless of the number of times victimised.2
Reliability of crime statistics
The greatest weakness of police statistics is that
not all crimes are reported to or recorded by the
police. There are only a few types of crimes where
virtually all the offences are reported to or
discovered by police (e.g. motor vehicle theft,
homicide).3 This means that the police statistics
produced may not reflect the true crime situation.
While the anonymity associated with crime victim
surveys helps to avoid some of the problems
associated with the underreporting of crimes to
police (i.e. fear of retribution or fear of giving
evidence), it is important to note that despite the
name, crime victim surveys are not surveys of
victims of crime. Crime victim surveys are
representative sample surveys of a defined
population (usually the adult population) which can
be used to obtain estimates of the prevalence of
certain types of crimes in the population and
estimates of the proportions of victims reporting
these crimes to the police.4 As crime victim surveys
measure both reported and unreported crimes,
these surveys have the potential to give a more
accurate picture of the true prevalence of crime
than police statistics.5 However, in order for crime
victim surveys to accurately reflect the true crime
situation, the sample surveys must be truly
representative of the population.
Is crime increasing?
Queensland Police statistics show that in
Queensland, between 2000 and 2011:
homicide rate fell by 56%
assault rate fell by 10%
robbery rate fell by 39%
sexual assault rate fell by 31%
drug offence rate fell by 1%.6
National crime statistics show that between 2000
and 2009, the national homicide rate fell by 39 per
cent, the national robbery rate fell by 55 per cent,
the national motor vehicle theft rate fell by 62 per
cent and all forms of other theft fell by 39 per cent.7
Crime victim surveys also show a decrease in
assault, robbery, break-in and malicious property
damage rates between 2008-09 and 2011-12.8
Therefore, considering the above, crime rates
appear to be on the decline.
www.balancedjustice.org
Public perception
Despite the reality that crime rates are falling, it is a
commonly held view amongst Australians that crime
is on the rise.9 The reason for this view can likely
be attributed to distorted, misrepresented or
exaggerated facts on crime in the media and by
politicians and the police.10
Although there are various ways that the media
abuse crime statistics, a common method is the
selective reporting of data. This usually involves
comparing a period where the recorded crime rate
is unusually low with a period where the crime rate
is unusually high, resulting in a completely distorted
view on the ‘trend’ in crime rates.11 An obvious
motivation for the manipulation of crime statistics is
the increased public attention which such
sensationalised statistics attract.
Politicians and police also engage in the selective
use of data, selective reporting of the facts and
misleading commentary, in order to manipulate
crime statistics in a way which best suits their
objectives. 12 Reasons for doing so may include the
downplaying of certain statistics, or the bolstering of
support for a proposed legislative reform.
Balanced Justice view
Unlike New South Wales, Western Australia and
South Australia, Queensland does not have an
agency which independently compiles, analyses
and publishes crime statistics.
On 27 June 2013, the Queensland Police Service
introduced the ‘Online Crime Statistics Portal’. This
portal enables community members to access
crime statistics for their street, suburb, postcode,
local government area, neighbourhood watch area
or police region, district or division. While we
welcome the public having increased access to
crime statistics, we are concerned that by
encouraging community members to focus on crime
statistics in a particular area, communities may end
up with a skewed perspective about crime activities
occurring in Queensland and make incorrect
assumptions about what is happening across the
state.
Therefore, to ensure that the community is properly
informed, we believe that a crime statistics agency,
which is independent of police and government,
should be established in Queensland. This
agency’s role would be to monitor crime statistics
and crime recording practices, publish regular
reports on crime trends, provide statistical
information to the community and provide
independent advice to the government.
References 1 Henderson, M,’ Australia Crime Trends’ (2012) 24(1) Legaldate 2 at 2. 2 As above. 3 Weatherburn, D, ‘Uses and Abuses of Crime Statistics’ (2011) November
(No. 153) Crime and Justice Bulletin: Contemporary Issues in Crime and
Justice 1 at 3. 4 As above at 2. 5 As above at 3. 6 Queensland Police Service, Reported Offence Rates July 1997 to June
2012, published at <
http://www.police.qld.gov.au/services/reportsPublications/> (28 March
2013). 7 Weatherburn, D, ‘Uses and Abuses of Crime Statistics’ (2011) November
(No. 153) Crime and Justice Bulletin: Contemporary Issues in Crime and
Justice 1 at 1. 8 Australian Bureau of Statistics, Crime Victimisation, Australia, 2011-12,
published at < http://www.abs.gov.au/ausstats/[email protected]/mf/4530.0/>
(28 March 2013); Australian Bureau of Statistics, Crime Victimisation,
Australia, 2008-09, published at
<http://www.abs.gov.au/AUSSTATS/[email protected]/allprimarymainfeatures/E
929631D0E1956F1CA257839000DEF96?opendocument> (28 March
2013). 9 Weatherburn, D, ‘Uses and Abuses of Crime Statistics’ (2011) November
(No. 153) Crime and Justice Bulletin: Contemporary Issues in Crime and
Justice 1 at 1; Gelb, K, ‘More Myths and Misconceptions’ (2008)
Sentencing Advisory Council at 4
https://sentencingcouncil.vic.gov.au/content/publications/more-myths-
and-misconceptions (28 March 2013). 10 Weatherburn, D, ‘Uses and Abuses of Crime Statistics’ (2011)
November (No. 153) Crime and Justice Bulletin: Contemporary Issues in
Crime and Justice 1 at 1. 11 As above at 10. 12 As above.
This factsheet was updated on 28 June 2013
This factsheet is for information and discussion purposes only. It
does not represent the views of organisations involved in the
Balanced Justice Project.
www.balancedjustice.org
Detention and bail for children
Detention as a last resort
The United Nations’ Standard Minimum Rules for the
Administration of Juvenile Justice (the Beijing Rules)
which outline the importance of nations establishing a
set of laws, rules and provisions specifically applicable
to child offenders and with the administration of juvenile
(youth) justice being designed to meet the varying
needs of child offenders, while protecting their basic
rights.1 The Beijing Rules and Article 37(b) of the United
Nations Convention on the Rights of the Child (CROC)
also require that in juvenile justice, detention pending
trial must only be used as a measure of last resort and
for the shortest possible period of time. Whenever
possible, detention pending trial should be replaced by
alternative measures, such as close supervision,
intensive care or placement with a family or in an
educational setting or home. 2
Research supports this approach in relation to that
children, namely that the criminal justice system should
recognise their inexperience and immaturity.3 Early
adolescence through to early adulthood is a peak period
for brain development and consequently a period of
increased risk.4 Children, due to the continuing
development of the frontal lobes that does not culminate
until the early to mid-twenties, exhibit behavioural and
emotional deficits compared to adults. They have less
capacity for forward planning, delaying gratification and
for regulating impulse. Impulsivity is a commonly
observed element in juvenile offending and raises
questions as to the culpability of juveniles in relation to
criminal behaviour.5
Minor offending by many young people may therefore
be the result of testing the boundaries of acceptable
behaviour through this developmental period.
Alternatively, early brain development and socio-
emotional and cognitive development can be severely
affected by inadequate or harmful parenting. While the
majority of abused and neglected children do not offend,
a significant number of children who do offend have had
abusive, neglectful or inadequate parenting.
Whatever the reason, what is important is that any
interventions will help to foster a young person’s
desistance from crime.6 It has been found that the more
restrictive and intensive an intervention, the greater its
negative impact, with juvenile detention being found to
have the strongest criminogenic effect – that is,
increasing their involvement with crime rather than their
ability to desist7 and the younger a child is when first
detained, the more likely that they will come back into
custody.8
Removal of principle of detention
as a last resort
The Queensland Government is currently reviewing the
youth justice system and has suggested that detention
as a last resort could be removed as a principle for both
adult and child offenders.
Firstly, this would place Queensland clearly in breach of
international commitments.
Further, it would also risk criminalising young people by
involving them in the detention system earlier than is
necessary. By using the most significant punishment
early, the court has effectively played its “trump card”
and there is nowhere else to go after this other than to
keep locking the young person up for longer and longer.
Since detention has not been shown to be effective in
preventing re-offending and is expensive to run (it costs
the Australian taxpayer approximately $237,980 per
year to imprison one young person), removal of the
principle of detention as a last resort would not seem to
be of any benefit to the community, either in terms of
safety or cost effectiveness. Young people, particularly
young women, completing a detention sentence have
also been identified at greater risk of homelessness on
release – which puts them at further risk of offending.
www.balancedjustice.org
Increasing remand of children in
custody in Australia
Since 2004, the number of juveniles in detention in
Australia has been increasing.9 This is concerning for
several reasons including:
the widespread use of remand in custody is
inconsistent with the principle of detention as a last
resort for juveniles
only a small proportion of young people remanded
in custody are convicted and sentenced to a
custodial order
periods of detention represent missed opportunities
to intervene in juveniles’ lives with constructive and
appropriate treatment.10
Queensland has a particularly poor record with over
70% of young people in detention on remand – about
the highest in the country.
Bail in Queensland
One way in which a person who is charged with an
offence is brought before the court is by arrest and
charge. A decision is then made about whether the
person will be released into the community or kept in
custody until their matter is dealt with by the court. If
they are released then this may be with or without bail.
The purpose of bail is to ensure the attendance at court
of a person charged with a criminal offence while
recognising international human right principles of the
right to liberty and presumption of innocence that
underpin the justice system. Further, given that bail is
not to be used as a punitive measure, the objects should
reflect the fact that a person who has not been
convicted of an offence should not be imprisoned unless
there is a good reason to do so11.
Where bail is granted, the police or court may impose
conditions to ensure that while on release the person
will not:
commit an offence; or
endanger anyone’s safety or welfare; or
interfere with a witness or otherwise obstruct the
court matter.
Reasons for not remanding children in particular in
custody include:
it is at odds with the presumption of innocence
(children held in remand report feeling isolated and
frustrated by the experience of being denied bail
and held on remand; they feel as if they have
already been found guilty12);
for those young people engaged in school or work,
it disrupts that and risks disengagement, again
increasing the risk of re-offending;
it may expose young people to negative
influences13 - detention centres have been
described as ‘Universities of Crime’ where young
people may know more about offending when they
come out than when they went in.
Breach of bail
The law relating to bail is slightly amended for children
(10-16 year olds: in Queensland, a child is a person who
has not yet turned 17 years for the criminal law.14). If
any person fails to attend court or breaches a condition
of their bail, then they can be arrested and brought back
to court. This breach of bail or bail condition is a further
offence for adults which means that the court can
impose a fine or imprisonment for that breach but it is
not an offence for children and so they cannot be
sentenced for this. In either case, however, the court
can then decide not to grant bail again but order the
adult or child to remain in custody until their case is
dealt with.
The Queensland Government is reviewing the youth
justice system and has suggested changes in relation to
bail which would treat a child offender the same an adult
offender in that breach of bail would become an offence.
As noted above, this is contrary to accepted
international norms and does not take account of the
inexperience and immaturity of young people.
It is important to note that there is no evidence that
monitoring, arresting and detaining young people for
breaches of their bail condition reduces re-offending
among juvenile offenders. 15 The more likely outcome of
a’ breach offence’ is the further criminalisation of the
child and an increased likelihood of the child being
www.balancedjustice.org
placed in custody, thereby further entrenching the child
in the criminal justice system.
Young repeat offenders often face a number of
challenges in their lives which put them at greater risk of
(re-) offending. By virtue of their youth and that the law
generally (aside from the criminal law) does not
recognise that children are independent before the age
of 18, there are many influences which affect their lives
and life situations over which they have no control and
can make no choices.
An example of this is the issue of where a young person
lives. Young people under 18 have difficulties in being
able to rent in their own right. Sometimes the family
home is not a safe or viable place for the young person
to be or the family relationships are in disarray and this
may lead them to leave. Their access to a legitimate
income is also significantly reduced compared to an 18
year old and therefore being able to pay rent and other
life necessities, including food and travel, becomes
problematic.
If a young person is out of home for whatever reason
and has no money, then involvement in offending
behaviour becomes a potential consequence. This
could be as simple as evading a fare on public transport.
They do not have the life skills or experience to know
where they should go to seek help and often assume
that no-one would be interested in helping them anyway.
Similarly, even if a young person is on bail and at home,
if the family is not able to support them adequately in
terms, for example, of ensuring that they meet any bail
conditions or making sure they have the resources to
get to court, then they have limited ability or capacity to
manage that situation and may well find themselves in
breach of bail. This is a particular concern for children
on care and protection orders who are overrepresented
in the youth justice system.
Some bail conditions are particularly onerous for young
people and can “set them up to fail”. To tell a young
person they cannot associate with any of their friends,
for example, or not to go to a certain place where young
people meet is unrealistic. Young people are social
beings and to isolate them for maybe weeks at a time is
going to invite a breach of the condition – certainly
without any other support being provided to the young
person. Even if the young person does not contact their
friends, it is likely their friends will try to contact them
and a breach is likely to occur.
Care needs to be taken to ensure that any bail
conditions imposed are reasonable and are directly
relevant to the purposes of ensuring that the young
person attends court on the specified day and protecting
the community. 16 Charging young people with what
might be termed “technical breaches” can create
problems in the longer term to no-one’s benefit – as this
example from New South Wales shows:
In NSW a young girl was arrested for breaching a bail
condition which required her to be home by 9.00 p.m.
She was arrested as she was making her way home
when the train pulled in at five minutes past nine. She
spent at least a month in custody, even though when
convicted she did not receive a custodial sentence for
the shoplifting charge. The young girl gave up her
schooling after these events.17
Balanced Justice view
Available statistics and research suggest that detention
of a juvenile is generally ineffective as a deterrent to
their re-offending.18
Therefore if the goal is to support
young people and to reduce repeat offending, options
which are likely to result in the increased detention of
children are inappropriate.
The focus should instead be on:
addressing the issues that put children at risk of
becoming offenders to start with, particularly repeat
offenders; and
diverting young people coming into contact with the
criminal justice system as soon as possible.
www.balancedjustice.org
References 1 Richards, K ‘What makes juvenile offenders different from
adult offenders?’ (2011) Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice (No. 409) at 1 <http://www.aic.gov.au/documents/D/6/D/%7bD6D891BB-1D5B-45E2-A5BA-A80322537752%7dtandi416.pdf> (15 April 2013) 2 United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (the Beijing Rules), UN Doc A/RES/40/33 (1985), r 13.1 and 13.2 cited in Stubbs, J, ‘Re-examining Bail and Remand for Young People in NSW’ 2010 (43) Australian & New Zealand Journal of Criminology 485 at 488 3 Richards, K, Trends in Juvenile Detention in Australia’ (May
2011) Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice (No. 416) at 1 <http://www.aic.gov.au/documents/D/6/D/%7bD6D891BB-1D5B-45E2-A5BA-A80322537752%7dtandi416.pdf> (15 April 2013); Richards, K ‘What makes juvenile offenders different from adult offenders?’ (2011) Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice (No. 409) at 1 < http://www.aic.gov.au/documents/D/6/D/%7bD6D891BB-1D5B-45E2-A5BA-A80322537752%7dtandi416.pdf> (15 April 2013) Australian Institute of Criminology. 4 Australian Law Reform Commission, ‘Seen and heard:
priority for children in the legal process (1997) Report 84 at 251 < http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC84.pdf> (15 April 2013) 5 The prohibition of the publication of names of children
involved in criminal proceedings / Standing Committee on Law and Justice. [Sydney, N.S.W.] : the Committee, 2006 (Report ; no. 35) 6 Richards, K ‘What makes juvenile offenders different from
adult offenders?’ (2011) Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice (No. 409) at 5 <http://www.aic.gov.au/documents/D/6/D/%7bD6D891BB-1D5B-45E2-A5BA-A80322537752%7dtandi416.pdf> (15 April 2013) 7 As above at 7
8 Snowball, L, ‘Diversion of Indigenous Offenders, Trends and
Issues in Crime and Criminal Justice’, (2008) Australian Institute of Criminology (No. 35) cited in Wong, K, Bailey, B & Kenny, D, ‘Bail Me Out: NSW Young People and Bail’ (February 2010), Sydney: Youth Justice Coalition at 3-4 <http://www.yjconline.net/BailMeOut.pdf > (15 April 2013) 9 Richards, K, Trends in Juvenile Detention in Australia’ (May
2011) Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice (No. 416) at 7 <http://www.aic.gov.au/documents/D/6/D/%7bD6D891BB-1D5B-45E2-A5BA-A80322537752%7dtandi416.pdf> (15 April 2013) 10
As above at 4-5 11
PIAC 12
Australian Law Reform Commission, ‘Seen and heard: priority for children in the legal process (1997) Report 84 at
277 <http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC84.pdf> (15 April 2013) 13
Bamford, D, King, S, & Sarre, R, ‘Factors affecting remand in custody: A study of bail practices in Victoria, South Australia and Western Australia. (2009) Australian Institute of Criminology: Research and Public Policy Series (No. 23) at p 2; Brignell, G. (2002) ‘Bail: An examination of contemporary issues’, NSW Judicial Commission: Sentencing Trends & Issues (No.24), retrieved January 13, 2010 from http://www.judcom.nsw.gov.au/st/st24/index.html; Justice Policy Institute (US) (2009), ‘The costs of confinement: Why good juvenile justice policies make good fiscal sense’, retrieved January 13, 2010, from http://www.justicepolicy.org/images/upload/09_05_REP_CostsOfConfinement_JJ_PS.pdf; Kellough, G & Wortley, S (2002), ‘Remand for plea: Bail decisions and plea bargaining as commensurate decisions’ 42 British Journal of Criminology 186 at 187; Oxley, P, ‘Remand and bail decisions in a magistrates court’ (1979), Department of Justice (NZ): Research Series (No. 7); Stubbs, J, ‘Bail reform in NSW’ (1984), Sydney: NSW Bureau of Crime Statistics and Research at p. 92; cited in Stubbs, J, ‘Re-examining Bail and Remand for Young People in NSW’ 2010 (43) Australian & New Zealand Journal of Criminology 485 at 486. 14
Youth Justice Act 1992 (Qld), Schedule 2 15
Vignaendra, S, Moffatt, S, Weatherburn, D & Heller, E, ‘Recent Trends in Legal Proceedings for Breach of Bail, Juvenile Remand and Crime’ (May 2009), BOCSAR Bulletin 128 cited in Wong, K, Bailey, B & Kenny, D, ‘Bail Me Out: NSW Young People and Bail’ (February 2010), Sydney: Youth Justice Coalition at 3 <http://www.yjconline.net/BailMeOut.pdf > (15 April 2013) 16
As above at 497 17
Stubbs, J, ‘Re-examining Bail and Remand for Young People in NSW’ 2010 (43) Australian & New Zealand Journal of Criminology 485 at 497-498 18
Australian Law Reform Commission, ‘Seen and heard: priority for children in the legal process (1997) Report 84 at 285 < http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC84.pdf> (15 April 2013)
This factsheet was produced on 16 April 2013
This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
www.balancedjustice.org
Indigenous overrepresentation in prisons
When the Royal Commission into Aboriginal Deaths
in Custody delivered its final report in 1991, it
concluded that the high rate of Aboriginal deaths in
prison stemmed from Aboriginal overrepresentation
in prison.1 The reason for this overrepresentation
was a combination of Aboriginal disadvantage,
substance abuse and institutional bias in the
criminal justice system.2
The Royal Commission looked in detail at the
issues facing Aboriginal and Torres Strait Islander
communities and made recommendations about
reducing and eliminating disadvantage.3 Following
the Royal Commission report, Commonwealth,
State and Territory Governments made a concerted
effort to reduce the rate of Aboriginal and Torres
Strait Islander people imprisonment,4 yet their
collective efforts have not met with much success.5
The Queensland Government published a response
document outlining their intention to tackle each of
the recommendations which were obligatory for
them to address.6 The growing police arrests,
prison population numbers and lack of application
of discretionary powers by police and courts is proof
of systemic failures by government agencies. This
coupled with a failure to fund sufficient secondary
and tertiary service providers to deal with offending
behaviours and put in place diversions from custody
is proof of little or no regard to not only the Royal
Commission’s recommendations but also the
Queensland Governments own response in 1992.
Statistics released in 2012 revealed that despite
comprising only 2.5% of the Australian population,
Aboriginal and Torres Strait Islanders constitute just
over a quarter (27% or 7,982) of the total prison
population.7 Furthermore, Aboriginal and Torres
Strait Islander youth account for approximately 50%
of incarcerated children. 8
Factors that contribute to
Indigenous Overrepresentation
in Prison
Disadvantage
As identified in the Royal Commission report, one of
the biggest factors contributing to
overrepresentation by Aboriginal and Torres Strait
Islander people in prison is disadvantage. People
who are or have been in prison are typically from
highly disadvantaged backgrounds and Aboriginal
and Torres Strait Islander people are the most
disadvantaged group in Australia.
As a consequence of years of systemic racism and
colonisation, Aboriginal and Torres Strait Islander
communities are now plagued with high
unemployment, lack of job prospects, lack of
economic or business opportunity, low incomes,
dependence on government pensions and
allowances, low home ownership, inability to
accumulate capital, greater school drop-out rates,
lower post school qualifications, and lower life
expectancy.9
To gauge how this has all come about one must
look at the detrimental impact laws have had upon
Aboriginal and Torres Strait Islander people and
what were the requirements for social and
economic inclusion in the Australian social
landscape under those laws. For want of a better
term this country’s legal system has been premised
upon White Race Privilege.10
Substance abuse
Substance abuse is another key contributing factor,
with issues of substance abuse featuring
prominently in Aboriginal and Torres Strait Islander
communities.11
www.balancedjustice.org
As a response to the devastating effects of
colonialism, including dispossession, and illness
and death resulting from disease and confrontation,
alcohol has become somewhat of a panacea for
Aboriginal and Torres Strait Islander people’s pain,
with many using it as a means of escape and
solace.12
An Aboriginal community worker commenting on
the connection between drug and alcohol abuse
and the high crimes rates in the Wilcannia
community stated:13
“Drug and alcohol use is one of the biggest factors.
I think there are lots of reasons for that. People
drink to forget things, whether it’s sexual assault or
domestic violence in their home. The only way they
are ever going to change drug and alcohol abuse is
to have counsellors living in the community, on the
ground, for the people. Mental health is a huge
issue.”
The harmful effects of alcohol on the lives of
Aboriginal and Torres Strait Islander Australians are
readily apparent, with Indigenous Australians
experiencing health and social problems resulting
from alcohol use at a rate disproportionate to non-
Indigenous Australians.14 The links between
substance abuse and Aboriginal and Torres Strait
Islander violence, suicide, offending and
incarceration are widely recognised.15 Drug and
alcohol abuse has also been shown to increase the
risk of child neglect and abuse which in turn
increases the risk of juvenile involvement in crime,16
and a significant increase in the number of
Aboriginal and Torres Strait Islander children
removed by State authorities from their families.
The Bridges and Barriers report published by the
National Indigenous Drug and Alcohol Committee
acknowledged the critical need for new strategies to
address alcohol and other drug misuse to
significantly reduce the overrepresentation of
Aboriginal and Torres Strait Islander Australians in
the prison system. 17
Mental health
Another much overlooked factor is mental health
within Aboriginal and Torres Strait Islander
communities and the relationship of mental health
problems with the social and economic
circumstances of Aboriginal and Torres Strait
Islander people.18
A report published in the Medical Journal of
Australia about the mental health of Indigenous
Australians in Queensland prisons found that
approximately 73% of Aboriginal and Torres Strait
Islander men and 86% of Aboriginal and Torres
Strait Islander women in prison had a mental
disorder (i.e. depressive, anxiety, psychotic or
substance misuse disorders).19 This is compared
with 20% of the wider Australian community.20
These results highlight the critical mental health
needs of Aboriginal and Torres Strait Islander
Australians, particularly those who are incarcerated.
Unfortunately, the National Indigenous Drug and
Alcohol Committee recently reported on the lack of
opportunities that exist for Indigenous people to
access appropriate treatment for mental disorders
in custody.21 This means that mental health
problems are likely to remain untreated and
continue to affect the individual on their return back
into the community; potentially placing these
individuals at greater risk of re-incarceration.22
Racial bias
While the Royal Commission into Aboriginal Deaths
in Custody placed most of its emphasis on
disadvantage and substance abuse in Aboriginal
communities as the principal reasons for Aboriginal
overrepresentation in prison, it also highlighted a
number of areas where, in its opinion, institutional
bias in the criminal justice system also played a
role.23 These areas included bias against
Aboriginal offenders in the willingness of police to
employ alternatives to arrest, lack of community-
based alternatives to prison in rural communities,
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inadequate funding of Aboriginal legal aid and
excessively punitive sentencing.24
However, there is disagreement as to whether
institution bias in the criminal justice system
continues to be a factor contributing to
overrepresentation by Aboriginal and Torres Strait
Islander people in prisons. It has been stated by
some that whilst Aboriginal and Torres Strait
Islander people were historically subject to
discriminatory treatment by police and courts, there
is little evidence that racial bias in policing or the
courts currently plays a significant role in shaping
Aboriginal and Torres Strait Islander
overrepresentation in prison.25
A 2007 study on this topic held that racial bias is not
the cause of overrepresentation in prison and that
Aboriginal and Torres Strait Islander defendants are
more often sent to prison because they commit
more serious offences, acquire longer criminal
records, and more frequently breach non-custodial
sanctions.26 Consequently, it is suggested that the
focus should be on problems of Aboriginal and
Torres Strait Islander substance abuse and
economic disadvantage, rather than the workings of
the criminal justice system.27
While it continues to be debated whether explicit
forms of racial bias exist in the criminal justice
system, the reality is that the following changes
have contributed to the increased use of
imprisonment, which has particularly impacted on
Aboriginal and Torres Strait Islander people:28
lack of discretionary powers by police
officers;
reinstatement of the Community
Development Employment Programs;
changes in sentencing law and practice;
restrictions on judicial discretion;
changes to bail eligibility;
changes in administrative procedures and
practices;
changes in parole and post-release
surveillance;
the limited availability of non-custodial
sentencing options;
the limited availability of rehabilitative
programs; and
a judicial and political perception of the
need for ‘tougher’ penalties.
What needs to be done?
Although it is important that the criminal justice
system does not operate in a manner which is
inherently discriminatory towards Aboriginal and
Torres Strait Islander people, preventing this alone
will not solve the problem of Indigenous
overrepresentation in prisons. Underlying factors
which result in Aboriginal and Torres Strait Islander
people coming into contact with the criminal justice
system must also be addressed.
Therefore, while this has been said before, if the
overrepresentation of Aboriginal and Torres Strait
Islander people in prison is to be reduced, the
following must occur:
the disadvantage experienced by
Aboriginal and Torres Strait Islander
people needs to end;
drug and alcohol abuse by Aboriginal and
Torres Strait Islander people must be
reduced (therefore, the reasons behind
substance abuse in Aboriginal and Torres
Strait Islander communities must be
addressed); and
the mental health needs of Aboriginal and
Torres Strait Islander people must also be
addressed (with adequate support being
made both within the community and
prisons).
Justice Reinvestment
There is a growing recognition of the pressing need
to try new initiatives such as justice reinvestment.29
Justice reinvestment refers to diverting funds that
would ordinarily be spent on keeping individuals in
prisons to communities with high rates of offending
www.balancedjustice.org
and incarceration, giving those communities the
capacity to invest in programs and services that
address the underlying causes of crime, thereby
reducing criminal behaviour and the rate of re-
offending.30 The emphasis of justice reinvestment
is on empowering the community, with the idea
being that the community dictates how the money
should be spent.31
Addressing the symptoms of endemic criminal
behaviour is a far more suitable approach to dealing
with the effect of crime. A youth program in Logan
City, Queensland, known as the Friday night Live at
Yugambeh (F.L.Y.) program, commenced 6 years
ago targeting at risk youth to divert them from
criminal behaviour. The result was an approximate
drop in Aboriginal and Torres Strait Islander youth
crime by 17%. Unfortunately, the F.L.Y. program
has been unsuccessful in attracting government
funds as the precursor for being eligible for funding
was that the program had to be dealing with known
offenders.
[For more information on Justice Reinvestment,
see the Balanced Justice factsheet “Is Justice
Reinvestment a good idea for Australia?”]
The contributing factors identified above need to be
tackled at the local community level, with genuine
involvement by Aboriginal and Torres Strait Islander
community members in key decision making.
Adopting the justice reinvestment approach may be
a way of ensuring that this occurs.
References 1 Commonwealth of Australia 1991 cited in Snowball, L and Weatherburn, D, ‘Indigenous overrepresentation in prison: The role of offender characteristics’ (September 2006) No. 99 Crime and Justice Bulletin: Contemporary Issues in Crime and Justice, NSW Bureau of Crime Statistics and Research at 1 2 Snowball, L and Weatherburn, D, ‘Does racial bias in sentencing contribute to Indigenous overrepresentation in prison?’ (2007) 40(3) The Australian Journal of Criminology 272-290 at 273; Weatherburn, D and Holmes, J, ‘Re-thinking Indigenous overrepresentation in
prison’ (2010) 45(4) Australian Journal of Social Issues 559-576 at 560 3 Johnston 1991, Volumes 2 & 4 cited in Cronin, D, ‘Indigenous disadvantage, Indigenous governance and the notion of a treaty in Australia: An Indigenous perspective’ in Treaty: Let’s get it right! Aboriginal Studies Press, Canberra, 2003 at 152 4 Snowball, L and Weatherburn, D, ‘Indigenous overrepresentation in prison: The role of offender characteristics’ (September 2006) No. 99 Crime and Justice Bulletin: Contemporary Issues in Crime and Justice NSW Bureau of Crime Statistics and Research at 1 5 As above 6 Queensland Government, Royal Commission into Aboriginal Deaths in Custody : Queensland Government response to the Royal Commission, 1992, Queensland. Department of Family Services and Aboriginal and Islander Affairs, Published Brisbane, Qld : Dept. of Family Services and Aboriginal and Islander Affairs, 1992. ISBN 072425191X 7 Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 3 8 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time— Time for Doing: Indigenous Youth in the Criminal Justice System (Canberra: Commonwealth of Australia, June 2011) cited in in Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 5 9 Cronin, D, ‘Indigenous disadvantage, Indigenous governance and the notion of a treaty in Australia: An Indigenous perspective’ in Treaty: Let’s get it right! Aboriginal Studies Press, Canberra, 2003 at 152; Weatherburn, D and Holmes, J, ‘Re-thinking Indigenous overrepresentation in prison’ (2010) 45(4) Australian Journal of Social Issues 559-576 at 568 10 Hart, Victor G. and Thompson, Lester J. and Stedman, Terry (2008) The Indigenous Experience of Australian Civil Society: Making Sense of Historic and Contemporary Institutions. Social Alternatives 27(1):pp. 52-57. 11 Weatherburn, D and Holmes, J, ‘Re-thinking Indigenous overrepresentation in prison’ (2010) 45(4) Australian Journal of Social Issues 559-576 at 565-566 12 Wilson, M et al, ‘The harmful use of alcohol amongst Indigenous Australians’ (May 2010) No. 4 Australian Indigenous Heath Reviews at 7 <http://www.responsiblechoice.com.au/wp-content/uploads/2013/01/alcohol_review_june_2010.pdf> (3 June 2013) 13 McCausland, R and Vivian, A, ‘Why do some Aboriginal communities have lower crime rates than
www.balancedjustice.org
others? A pilot study’ 43 Australian & New Zealand Journal of Criminology 301 at 309 14 Wilson, M et al, ‘The harmful use of alcohol amongst Indigenous Australians’ (May 2010) No. 4 Australian Indigenous Heath Reviews at 1 <http://www.responsiblechoice.com.au/wp-content/uploads/2013/01/alcohol_review_june_2010.pdf> (3 June 2013) 15 As above at 571; Lumley, K and Norris, Judge Stephen, ‘Exchanging ideas about Aboriginal contact with the criminal justice system’ (November 2011) 23(10) Judicial Officers Bulletin 83-90 at 85 16 Weatherburn, D and Holmes, J, ‘Re-thinking Indigenous overrepresentation in prison’ (2010) 45(4) Australian Journal of Social Issues 559-576 at 566 17 Lumley, K and Norris, Judge Stephen, ‘Exchanging ideas about Aboriginal contact with the criminal justice system’ (November 2011) 23(10) Judicial Officers Bulletin 83-90 at 85 18 As above 19 Treloar, A, ‘Mental health illness rife in prison’ (August 2012) 20(2) Australian Nursing Journal 34 at 35; Heffernan, E, ‘Prevalence of mental illness among Aboriginal and Torres Strait Islander people in Queensland prisons’ (2012) 197(1) Medical Journal of Australia 37 20 Treloar, A, ‘Mental health illness rife in prison’ (August 2012) 20(2) Australian Nursing Journal 34 at 35; Heffernan, E, ‘Prevalence of mental illness among Aboriginal and Torres Strait Islander people in Queensland prisons’ (2012) 197(1) Medical Journal of Australia 37 21 Heffernan, E, ‘Prevalence of mental illness among Aboriginal and Torres Strait Islander people in Queensland prisons’ (2012) 197(1) Medical Journal of Australia 37 at 40 22 Heffernan, E, ‘Prevalence of mental illness among Aboriginal and Torres Strait Islander people in Queensland prisons’ (2012) 197(1) Medical Journal of Australia 37 at 40 23 Snowball, L and Weatherburn, D, ‘Does racial bias in sentencing contribute to Indigenous overrepresentation in prison?’ (2007) 40(3) The Australian Journal of Criminology 272-290 at 273; Weatherburn, D and Holmes, J, ‘Re-thinking Indigenous overrepresentation in prison’ (2010) 45(4) Australian Journal of Social Issues 559-576 at 560 24 Snowball, L and Weatherburn, D, ‘Does racial bias in sentencing contribute to Indigenous overrepresentation in prison?’ (2007) 40(3) The Australian Journal of Criminology 272-290 at 273 25 Weatherburn, D and Holmes, J, ‘Re-thinking Indigenous overrepresentation in prison’ (2010) 45(4) Australian Journal of Social Issues 559-576 at 563 and 569; Snowball, L and Weatherburn, D, ‘Does racial bias
in sentencing contribute to Indigenous overrepresentation in prison?’ (2007) 40(3) The Australian Journal of Criminology 272-290 at 286 26 Snowball, L and Weatherburn, D, ‘Does racial bias in sentencing contribute to Indigenous overrepresentation in prison?’ (2007) 40(3) The Australian Journal of Criminology 272-290 at 287 27 As above at 286-287 28 Cunneen, C, ‘Punishment: two decades of penal expansionism and its effect on Indigenous imprisonment’ (2011) 15(1) Australian Indigenous Law Review 8 at 11 29 Calma, T, ‘Investing in Indigenous youth and communities to prevent crime’ (2009), Australian Institute of Criminology <http://www.aic.gov.au/media_library/conferences/2009-indigenousyouth/presentations/tom_calma.pdf> (24 May 2013) 30 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 2; Clear, T, ‘A private-sector, incentives based model for justice reinvestment’ (2011) 10(3) Criminology & Public Policy at 587 31 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 5
This factsheet was produced on 18 June 2013
This factsheet is for information and discussion purposes
only. It does not represent the views of organisations
involved in the Balanced Justice Project.
www.balancedjustice.org
Is Justice Reinvestment a good idea for
Australia?
What is Justice Reinvestment?
Justice reinvestment is relatively new concept and is an approach to dealing with over-imprisonment. Justice reinvestment refers to diverting funds that would ordinarily be spent on keeping individuals in prisons to communities with high rates of offending and incarceration, giving those communities the capacity to invest in programs and services that address the underlying causes of crime, thereby reducing criminal behaviour and the rate of re-offending.1 Justice reinvestment focuses on both existing criminal behaviour and reducing the number of people entering the criminal justice system in the first place.2
How Justice Reinvestment works
The main stages of justice reinvestment are as follows:3 1. ‘Justice mapping’: analysing data provided by state and local agencies relating to crime, then to using that data to map specific neighbourhoods that are home to large numbers of people under the supervision of the criminal justice system. 2. Collecting information about services in the community and developing ‘practical, data-driven policies’ that reduce spending on corrections to reinvest in other services likely to improve public safety and reduce crime. 3. Redirecting funds from corrective services and implementing the policies to reduce offending. 4. Evaluating the effectiveness and impact of the policies on rates of incarceration, recidivism and criminal behaviour, to ensure effective implementation. The emphasis of justice reinvestment is on empowering the community. The idea is that the community dictates how the money should be spent.4 It is about taking a local approach to dealing with a local problem. The types of justice reinvestment programs adopted will vary according to the needs of particular areas. The causes of crime are complex and may also be location specific, so programs need to be tailored accordingly.5 However, justice reinvestment programs may include
investments in education, job training, health, parole support, housing or rehabilitation.6
United States and Justice
Reintervention
In the US, one in every 100 adults is incarcerated and two-thirds of released prisoners return to jail.7 This costs the US more than US$60 billion per year.8 As a result, the concept of justice reinvestment has proven popular in the US. So far, 16 US states have signed up with the Council of State Governments Justice Centre to investigate or apply justice reinvestment in their jurisdiction, with another five states pursuing justice reinvestment independently or through non-profit organisations.9 The justice reinvestment programs have been notably successful throughout the US. The 2004 justice reinvestment pilot in Connecticut resulted in the cancellation of a contract to build a new prison, realising savings of US$30 million.10 So far, US$13 million of these savings have been reinvested into community-based crime prevention initiatives, including funding the Department of Mental Health and Addiction Services to support community-based programming and resourcing community-led planning processes to develop neighbourhood programs to improve outcomes for residents.11 Reinvested funds have also been channelled into revamping probation and parole, focusing on reducing technical violations and increasing transitional support for probation violators who would otherwise have been re-incarcerated.12 Justice reinvestment efforts in Texas resulted in $1.5 billion in construction savings and $340 million in annual averted operations costs.13
www.balancedjustice.org
Why is Justice Reinvestment
needed in Australia?
Financial costs
As at 30 June 2012, there were 29,383 prisoners (sentenced and unsentenced) in Australian prisons —a national imprisonment rate of 168 prisoners per 100,000 adults, an increase of 1% from the previous year.14
The latest figures available show that in 2011–12, national expenditure on prisons totalled $2.4 billion.15 This is a cost of $305 per prisoner, per day or $111,325 per prisoner per year (in Queensland, during this same period, the cost of incarceration was $318.50 per prisoner per day or $116,252.50 per prisoner, per year).16
Twenty years ago there were 2259 people in prison in Queensland (QCS Annual report 1993/4), now there are over 6000. If we were to reduce the prison population to the level of 1993, we would save $446 581 931 per year. That's four hundred and forty six million that could be invested in crime prevention.
Overrepresentation of Indigenous Australians
in prisons
Despite comprising only 2.5% of the Australian population, Aboriginal and Torres Strait Islanders constitute just over a quarter (27% or 7,982) of the total prison population.17
Indigenous youth account for approximately 50% of the total population of children’s prisons.18
There is a very high rate of recidivism in the Indigenous prison population—75% of Indigenous prisoners have a history of prior imprisonment compared to 50% of non-Indigenous prisoners.19
Social costs
The cost of imprisoning an individual extends beyond financial costs. The effects of imprisonment include:
disruption and damage to the lives of every member of the family, particularly where a parent is imprisoned;20
disruption to Indigenous communities where the Indigenous person played an important social, cultural and family role, leaving family and community members to try and fill the void;21 and
loss of employment and income, exacerbation of debt issues, possible loss of housing, potentially affecting the incarcerated person’s ability to reintegrate back into society when released.22
People in prison are disproportionately affected by drug and alcohol problems, intellectual disability, illiteracy and innumeracy, low educational attainment, and unemployment.23 In relation to Indigenous Australians, factors linked to increasing the risk of their involvement in crime includes, substance abuse, overcrowded living environments, unemployment and poverty.24 Without addressing these factors, disadvantaged individuals will continue to commit crimes. Justice reinvestment is an opportunity to address the underlying factors which may cause someone to commit a crime and to break the cycle.
Criticisms of Justice Reinvestment
Criticisms of justice reinvestment include:
Australia’s penal system is quite different to the US, the concepts of justice reinvestment may not work in practice in Australia; 25
the concept of justice reinvestment is vague; it does not have a clear definition and means different things to different people;26 and
justice reinvestment could be used as a cover for cost cutting.27
Balanced Justice view
The traditional punitive approaches to law and order have not worked and the emergence of the justice reinvestment concept is the perfect opportunity for Australia to trial a new approach to preventing crime. Regardless of the jurisdiction, it is an accepted fact that socioeconomic factors play a critical role in whether a person commits a crime. As justice reinvestment is about working with communities to address the underlying factors which cause crime, the fact that Australia’s penal system differs to other jurisdictions should not detract from the potential success of this
www.balancedjustice.org
approach. Furthermore, the lack of definition of justice reinvestment will allow it to be adopted and tailored by a community in a way that best suits their needs. Lastly, as a critical stage of justice reinvestment is evaluating the effectiveness and impact of justice reinvestment policies on rates of incarceration, recidivism and criminal behaviour, this will ensure the accountability of such policies and prevent justice reinvestment from being used as a cost cutting strategy.
References 1 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 2; Clear, T, ‘A private-sector, incentives based model for justice reinvestment’ (2011) 10(3) Criminology & Public Policy at 587 2 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 2 3 Fox, C, Albertson, K and Warburton, F, ‘Justice Reinvestment: Can it deliver more for less?’ (2011) May 50(2) The Howard Journal at 121; Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 1 4 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 5 5 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 3 6 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 3 7 Brown, D, Schwartz, M and Boseley, L, ‘The Promise of Justice Reinvestment’ (2012) Social Science Research Network at p 2 <http://ssrn.com/abstract=2078715> (8 May 2013) 8 Brown, D, Schwartz, M and Boseley, L, ‘The Promise of Justice Reinvestment’ (2012) Social Science Research Network at p 2 <http://ssrn.com/abstract=2078715> (8 May 2013) 9 Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 10 10 Brown, D, Schwartz, M and Boseley, L, ‘The Promise of Justice Reinvestment’ (2012) Social Science Research Network at p 2 <http://ssrn.com/abstract=2078715> (8 May 2013) 11 Brown, D, Schwartz, M and Boseley, L, ‘The Promise of Justice Reinvestment’ (2012) Social Science Research Network at p 2 <http://ssrn.com/abstract=2078715> (8 May 2013)
12 Brown, D, Schwartz, M and Boseley, L, ‘The Promise of Justice Reinvestment’ (2012) Social Science Research Network at p 2 <http://ssrn.com/abstract=2078715> (8 May 2013) 13 Justice Centre, The Council of State Governments, ‘Lessons from the States: Reducing Recidivism and Curbing Corrections Costs through Justice Reinvestment’ (April 2013) <http://justicereinvestment.org/resources/lessons-learned> (8 May 2013) 14 Australian Bureau of Statistics, ‘Prisoners in Australia, 2012’, Cat. No. 4517.0, Canberra: ABS, December 2012 cited in Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 4 15 Productivity Commission, ‘Report on Government Services 2013’ Volume 1 at 8.4 <http://www.pc.gov.au/__data/assets/pdf_file/0005/121784/government-services-2013-volume1.pdf> (30 May 2013) 16 Productivity Commission, ‘Report on Government Services 2013’ Volume 1 at 8.24 <http://www.pc.gov.au/__data/assets/pdf_file/0005/121784/government-services-2013-volume1.pdf> (30 May 2013) 17 Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 3 18 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time— Time for Doing: Indigenous Youth in the Criminal Justice System (Canberra: Commonwealth of Australia, June 2011) cited in in Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 5 19 Select Committee on Regional and Remote Indigenous Communities, Indigenous Australians, Incarceration and the Criminal Justice System (Canberra: Commonwealth of Australia, March 2010) cited in in Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 7 20 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 6 21 Australian Human Rights Commission, Calma, T, ‘ 2009 Social Justice Report – Aboriginal and Torres Strait Islander Social Justice Commissioner’ (2009) at p 42 cited in Law Council of Australia, ‘Value of a justice reinvestment approach to criminal justice in Australia’ (March 2013) at p 12 <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/justice_reinvestment/submissions.htm> (8 May 2013) 22 Scharwartz, Melanie, ‘Building Communities not Prisons: Justice Reinvestment and Indigenous over-imprisonment’ (2010) 14(1) Australian Indigenous Law Review at 6 23 Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 3
www.balancedjustice.org
24 Weatherburn, D, Snowball, L and Hunter, B, ‘The economic and social factors underpinning Indigenous contact with the justice system: Results from the 2002 NATSISS survey,’ (2006) 104 Crime and Justice Bulletin cited in Law Council of Australia, ‘Value of a justice reinvestment approach to criminal justice in Australia’ (March 2013) at p 15 <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/justice_reinvestment/submissions.htm> (8 May 2013) 25 Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at 14 26 Brown, D, Schwartz, M and Boseley, L, ‘The Promise of Justice Reinvestment’ (2012) Social Science Research Network at p 4 <http://ssrn.com/abstract=2078715> (8 May 2013) 27 Brown, D, Schwartz, M and Boseley, L, ‘The Promise of Justice Reinvestment’ (2012) Social Science Research Network at p 4 <http://ssrn.com/abstract=2078715> (8 May 2013)
This factsheet was produced on 30 May 2013
This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
www.balancedjustice.org
Mandatory sentencing
Mandatory sentencing is harsh and
unfair and does not reduce crime
Mandatory sentencing is being introduced for more offences
in Queensland, despite overwhelming evidence from
Australia and overseas demonstrating that it fails to reduce
the crime rate, leads to harsh and unfair sentences and
disproportionately affects Aboriginal and Torres Strait
Islander and other marginalized groups.
Most jurisdictions in Australia already have some form of
mandatory sentencing. In the Northern Territory, assaults
causing harm carry mandatory prison sentences,1 and in
Western Australia, “third strike” burglars face a minimum of
12 months’ imprisonment. In NSW, there are presumptive
minimum sentences for certain offences,2 while the
Commonwealth has mandatory sentences in some
circumstances. Increasingly, the Queensland government is
introducing mandatory sentencing to more and varied
offences, including:
murder;3
certain child sex offences;4
evading police;5
graffiti;6
possession, supply or trafficking of unregistered
firearms;7
driving under the influence of drugs or alcohol (three
times in five years).8
While mandatory sentencing may appear a superficially
attractive option to reduce crime and provide consistency
and certainty in sentencing, evidence-based research shows
that it simply doesn’t work.
Mandatory sentencing fails to
consider an offender’s circumstances
Mandatory sentencing means a one size fits all approach
which doesn’t properly consider the circumstances of the
offender. Giving judges and magistrates discretion
maximises the chances of finding a sentence which will
address the causes of the offending and reduce the chance
of reoffending. Evidence shows that therapeutic approaches
to sentencing, such as community and treatment-based
orders, can substantially reduce reoffending rates compared
with prison.9
Kevin Cook, a homeless man, was sentenced to 12 months
in prison under the Northern Territory’s three strike laws in
1999. His crime? Stealing a towel from a clothes line.10
Mandatory sentencing leads to harsh
and unfair sentences
Mandatory sentencing means a one size fits all approach to
the culpability of the person who has committed the crime,
instead of matching the sentence to how serious the crime
was. This leads inevitably to harsh and unfair sentences.
Mandatory sentencing shifts
discretion from the courts to police
and prosecutors
Instead of judges having discretion to impose the appropriate
sentence, mandatory sentencing encourages judges,
prosecutors and juries to circumvent mandatory sentencing
when they consider the result unjust. In some circumstances
when someoneis faced with a mandatory penalty, juries have
refused to convict. Furthermore, prosecutors have
deliberately charged people with lesser offences than the
conduct would warrant to avoid the imposition of a
mandatory sentence. Victims groups have opposed
mandatory sentencing because it discourages pleas of guilty.
In effect, this shifts sentencing discretion from an
appropriately trained and paid judicial officer to police and
prosecutors who decide – behind closed doors – whether or
not a charge that carries a mandatory sentence should be
brought against someone.11
www.balancedjustice.org
Mandatory sentencing
disproportionately affects
marginalised communities
In Western Australia and the Northern Territory, mandatory
sentencing laws disproportionately affected Aboriginal
offenders, particularly young people from remote areas.12
In the United States, far from leading to more consistent
sentencing, mandatory minimum sentences for drug cases
widened the gap between sentences imposed for black and
Hispanic people and white people charged with similar
crimes.13
Mandatory sentencing does not
reduce crime
In the Northern Territory, property crime increased during the
mandatory sentencing regime, and decreased once it was
repealed. Advisory Commissions and Committees in the
United States, UK and Canada have all rejected the notion
that mandatory sentencing acts as a deterrent to crime.14
This is hardly surprising, since research demonstrates that
the perceived risk of being caught is a much greater
deterrent than the fear of punishment when caught.15
In 2008, Victoria’s Sentencing Advisory Council, an
independent statutory body, conducted a review of that
state’s mandatory minimum sentence for driving while
disqualified, and found that the mandatory sentencing
scheme:
was NOT effective in protecting the community;
did NOT lead to sentences that rehabilitated peopleor
prevented them from reoffending;
resulted in penalties which are disproportionately high;
and
caused strain on the criminal justice system.16
Based on this evidence, the Victorian Government abolished
the mandatory prison sentence for this offence in 2010.17
Mandatory sentencing violates human
rights
Mandatory sentencing laws in the Northern Territory and
Western Australia have been examined by three of the
United Nations committees – on civil and political rights, the
rights of the child and against racial discrimination. Each
concluded that the laws violated Australia’s international
human rights obligations.18
Balanced Justice view
The Balanced Justice view is that mandatory sentencing
should be taken off the agenda. Sentencing reform should
focus on promoting the court discretion so that judges can
tailor the punishment to fit the crime and make orders (such
as drug and alcohol treatment) that maximise the chances of
preventing reoffending.
References
1 s 78BA, Sentencing Act 2008 (NT). A similar scheme was proposed by the Liberal Party in the recent Tasmamian State Election: http://tasliberal.com.au/news/mandatory-sentencing-for-assaults-against-police-and-emergency-service-workers
2 The presumptive minimum sentences relate only to the non-parole period for certain offences
3 S 305 Criminal Code Act 1899 (Qld) 4 S 161E Penalties and Sentences Act 1992 (Qld) 5 S 754 Police Powers and Responsibilities Act 2000 (Qld) 6 S 9 Criminal Code Act 1899 (Qld) 7 Ss 50, 50B and 65 Weapons Act 1990 (Qld) 8 S 79 Transport Operations (Road Use Management) Act 1995 (Qld) 9 In Victoria, people released from prison are twice as likely to return to corrective services within two years of ending their sentence as those with a sentence involving community correction: Productivity Commission Report on Government Services 2010, C.11-C.12. See also Lulham, Weatherburn and Bartels, ‘The Recidivism of offenders given suspended sentences: a comparison with full-time imprisonment’ Comtemporary Issues in Crime and Justice no 136, NSW Bureau of Crime Statistic and Research, 4
10 Barlow, ‘Back to the Future in the Northern Territory: the Return of Mandatory Imprisonment for First Offenders’ (2009) 33 Criminal Law Journal 231, 234
11 See eg Morgan, ‘Why we should not have mandatory penalties’, (2001) 23 Adelaide Law Review 141, 144
12 Sallmann,.’Mandatory sentencing: a bird’s-eye view’ (2005) 14(4) Journal of Judicial Administration 177, 189-90; Sheldon & Gowans, Dollars Without Sense: A Review of the NT’s Mandatory
www.balancedjustice.org
Sentencing Laws, (1999) North Australian Aboriginal Legal Aid Service
13 United States Sentencing Commission, Fifteen Years of Guideline Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004), xv
14 Sallman, above n 6, 187
15 Morgan, above n 5, 149; D Ritchie, "Does Imprisonment Deter? A Review of the Evidence", Sentencing Advisory Council (Vie), April 2011, 2
16 Sentencing Advisory Council, Driving While Disqualified or Suspended: Report (April 2009), viii
17 s 28, Sentencing Amendment Act 2010 (Qld)
18 Pritchard, ‘International Perspectives on Mandatory Sentencing’ (2001) 7(2) Australian Journal of Human Rights 51
‘Naming and shaming’ young offenders
Laws preventing the identification of
young people
In most parts of Australia there are laws that prevent people
publishing information which might identify a child involved in
court proceedings.1 It is generally understood that because
of the very fact that children and young people are young,
they make poor decisions or choices because of their lack of
experience and, with appropriate guidance and support, they
can make better choices and change their behaviour –
rehabilitation. This is more likely to happen with children and
young people than adults.2
We know that offending behaviour in relation to young
people must be considered in the context of child and youth
development. Early adolescence through to early adulthood
is a peak period for brain development and consequently a
period of increased risk in decision making and behaviour.
In Queensland information identifying young people aged 10-
16 years3 charged with offences cannot be published unless
the Court allows this4 and it may only do so in very specific
circumstances:
the child is sentenced for an offence for which, if the
child was an adult, the maximum sentence would be life
imprisonment;
the offence involved the violence against another
person; and
the court considers the offence to be particularly
dreadful (heinous).5
When deciding whether to allow identifying information about
a child to be published, the Court must consider:
the need to protect the community;
the safety or wellbeing of a person other than the child;
the impact on the child’s rehabilitation; and
any other relevant matter.6
Why are these protections so
important?
Most young people who come into contact with the police
before 18 will not go on to be “career criminals” – their
contact will be shortly lived and relatively minor and they will
“grow out” of offending from late adolescence. Many will
never come to court, their offending being addressed by a
police caution. A significant proportion of those brought to
court will appear once, maybe twice. There can be no
sensible reason to name these offenders.
The group of repeat offenders is very small. These young
people tend to have low socioeconomic status, low
educational attainment, significant physical and mental
health needs, substance abuse and a history of childhood
abuse and neglect. Young people in detention in
Queensland have reported experiencing multiple social and
health problems during the previous year. Most often these
problems related to school (69%), peers (62%), family
(50%), and drugs or alcohol (43%). It is unclear how naming
such young people could be useful.
Publicly identifying a child offender has the potential to
jeopardise the rehabilitation of that child. 7 It may give them
a bad name which they cannot rid themselves of –
irrespective of whether they are trying to “turn over a new
leaf” - so that people exclude them and make assumptions
about how they will behave in the future. This can affect, for
example, their job prospects and ability to positively engage
with their community generally.8 Inability to get a job or
otherwise be involved in positive activities is a risk factor for
further offending, which does not make the community safer
or reduce crime. Consequently, it is widely recognised that
young people who offend should not be stigmatised and
labelled by publicly naming them.9
Research has shown significant detrimental effects resulting
from young people being labelled as ‘delinquent’ or
‘criminal’.10 These detrimental effects can continue far
beyond the time when the information about the young
person is first published, particularly in a world where it can
be published online.11
There is also very little evidence to demonstrate that the
naming of young people prevents re-offending which could
be the only real justification for taking such action .12 Recent
research conducted in the Northern Territory (the only
jurisdiction in Australia where the naming of child offenders
is permitted) presents evidence that ‘naming and shaming’
can have the opposite effect with child offenders, with
children acting as though they need to live up to their
tarnished reputations.13 Children and young people are
unlikely to understand the consequences that may result
from being publicly named for criminal offending.14 Some
children may even welcome the publicity as a ‘badge of
honour’ and value the immediate gratification of belonging to
an ‘outside group’, cementing the anti-social behaviour
rather than helping the child move away from such
behaviour.15
In Britain, since 2003, local authorities and police have been
permitted to ‘name and shame’ children who have been
place on an ‘anti-social behaviour order’ (ASB Order).16 As
a result, personal details of young offenders, such as their
portraits, names and the requirements of their ASB Order
have been published.17 The rationales behind this approach
appear to be:
deterring the young person from further antisocial
behaviour through public humiliation;
increased community control by involving citizens in the
surveillance of the offender; and
reassuring citizens that something is “being done” about
young people,
none of which focus on preventing crime.18
The United Kingdom Government has now announced it will
abandon ASB Orders as they have been found to be
ineffective in addressing the behaviour complained of and
actually contribute to the criminalising of young people19 - not
least because the high breach rate of ASB Orders has led to
a sharp increase in prison sentences for antisocial behaviour
offences. Imprisonment is very costly and generally does not
prevent re-offending.
International obligations to protect
the interests of children
The United Nations Convention on the Rights of the Child
(the UNCRC) and the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice 1985 (the
Beijing Rules) refer specifically to a young person’s right to
privacy at all stages of juvenile justice proceedings.20 Rule
8.1 of the Beijing Rules notes that this is ‘in order to avoid
harm being caused to her or him by undue publicity or by the
process of labelling’.21
The UNCRC was ratified by Australia in December 1990:
consequently, any federal, state or territory legislation, policy
or practice that is inconsistent with the UNCRC places
Australia in breach of its international obligations and could
have consequences at the international level.22 In addition,
the Beijing Rules represent internationally accepted
minimum standards, and although these are not necessarily
binding on Australia at international law, failure by Australia
to adhere to these rules may result in international scrutiny.23
Balanced Justice view
Naming and shaming young people involved in the justice
system is likely to undermine their chances of rehabilitation.
It ignores fundamental, widely accepted principles contained
in international law, and the evidence which shows that it can
actually lead to increased levels of offending.
The existing protections in the Youth Justice Act 1992
provide an appropriate balance of holding offenders to
account for their actions, while protecting vulnerable young
people and encouraging rehabilitation. These laws should
not be changed.
References 1 Australian Law Reform Commission, ‘Particular Privacy Issues
Affecting Children and Young People – Identification in criminal matters and in court records’, Australian Privacy Law and Practice (ALRC Report 108) (2008) (Vol.3) at 2321 published at <http://www.alrc.gov.au/publications/report-108> (2 April 2013)
2 Kyriacou, K ‘Name and shame all child offenders, says Attorney-General Jarrod Bleijie’, The Courier Mail, 14 July 2012 <http://www.couriermail.com.au/news/queensland/getting-kids-back-on-track/story-e6freoof-1226425740039> (2 April 2013)
3 Importantly in Queensland, unlike all other Australian States and
Territories, for the purposes of the criminal law, a child is a person
who has not yet turned 17 years. Everywhere else, it is a person
who is not yet 18.
4 Youth Justice Act 1992 (Qld), sections 301(1) and 234 5 Youth Justice Act 1992 (Qld), sections 234 and 176(3)(b) 6 Youth Justice Act 1992 (Qld), section 234 7 ‘Qld wants to name and shame young offenders’, ABC News, 14
July 2012 < http://www.abc.net.au/news/2012-07-14/qld-name-and-shame-proposal/4130614>; Kyriacou, K ‘Name and shame all child offenders, says Attorney-General Jarrod Bleijie’, The Courier Mail, 14 July 2012 <http://www.couriermail.com.au/news/queensland/getting-kids-back-on-track/story-e6freoof-1226425740039> (2 April 2013)
8 Naylor B, ‘Do not pass go: The impact of criminal record checks on employment in Australia’ (2005) 30 Alternative Law Journal 174 at 174-175, cited in Crofts, T and Witzleb, N, ‘”Naming and shaming” in Western Australia: Prohibited behaviour orders, publicity and decline of youth anonymity’ (2011) 35 Criminal Law Journal 34 at 35
9 Crofts, T and Witzleb, N, ‘”Naming and shaming” in Western Australia: Prohibited behaviour orders, publicity and decline of youth anonymity’ (2011) 35 Criminal Law Journal 34 at 34
10 ‘Particular Privacy Issues Affecting Children and Young People – Identification in criminal matters and in court records’, Australian Privacy Law and Practice (ALRC Report 108) (2008) (Vol.3) at 2320 <http://www.alrc.gov.au/publications/report-108> (2 April 2013)
11 Krause, M, ‘Involving the Community in Youth Justice – “Naming and Shaming” and the Role of Local Citizen Courts in Britain and the Former GDR’ (2011) 38(4) Social Justice 91 at 97
12 Lincoln, Robyn, ‘Naming and shaming young offenders: reactionary politicians are missing the point’, The Conversation, 22 August 2012 < http://theconversation.com/naming-and-shaming-young-offenders-reactionary-politicians-are-missing-the-point-8690> (2 April 2013)
13 As above 14 Crofts, T and Witzleb, N, ‘”Naming and shaming” in Western
Australia: Prohibited behaviour orders, publicity and decline of youth anonymity’ (2011) 35 Criminal Law Journal 34 at 44
15 As above at 44-45 16 Krause, M, ‘Involving the Community in Youth Justice – “Naming
and Shaming” and the Role of Local Citizen Courts in Britain and the Former GDR’ (2011) 38(4) Social Justice 91 at 91
17 As above at 91 18 As above at 93 and 97
19 ‘Asbos to be abolished under new government plans’, Channel 4
News, 7 February 2011 < http://www.channel4.com/news/asbos-to-be-abolished-under-new-government-plans> (3 April 2013); Theresa May (Home Secretary), ‘Moving beyond the ASBO’ speech delivered at the Coin Street Community Centre (28 July 2010), cited in Crofts, T and Witzleb, N, ‘”Naming and shaming” in Western Australia: Prohibited behaviour orders, publicity and decline of youth anonymity’ (2011) 35 Criminal Law Journal 34 at 37
20 Convention on the Rights of the Child, 20 November 1989 (1991) ATS 4, art 40(2)(b)(vii) and United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc A/RES/40/33 (1985), r 8.1, cited in Australian Law Reform Commission, ‘Particular Privacy Issues Affecting Children and Young People – Identification in criminal matters and in court records’, Australian Privacy Law and Practice (ALRC Report 108) (2008) (Vol.3) at 2320 published at http://www.alrc.gov.au/publications/report-108 (2 April 2013)
21 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc A/RES/40/33 (1985), r 8 commentary, cited in Australian Law Reform Commission, ‘Particular Privacy Issues Affecting Children and Young People – Identification in criminal matters and in court records’, Australian Privacy Law and Practice (ALRC Report 108) (2008) (Vol.3) at 2320 published at http://www.alrc.gov.au/publications/report-108 (2 April 2013)
22 Australian Law Reform Commission, ‘Decision Making by and for Individuals under the Age of 18 – Privacy rights of children and young people at international law’, Australian Privacy Law and Practice (ALRC Report 108) (2008) (Vol.3) at 2256 published at http://www.alrc.gov.au/publications/report-108 (2 April 2013)
23 As above
This factsheet was produced on 3 April 2013 This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
www.balancedjustice.org
The removal of court-ordered parole
Court-ordered parole is currently under scrutiny by
the Queensland Government, with the Attorney-
General flagging the possible removal of court-
ordered parole.1 The Attorney-General has stated
that the potential removal of court-ordered parole
arises from community concern about crimes
committed by people on parole.2 Unfortunately, the
proposal to scrap court-ordered parole appears to
be based on populist misconceptions (i.e. that the
scrapping of court-ordered parole will prevent (Jill)
‘Meagher-type crimes’3) with the Attorney-General
failing to provide any hard evidence to show that
court-ordered parole is not working.
What is court-ordered parole?
Parole is the only option for an offender’s early
release from custody. The Corrective Services Act
2006 (Qld) provides that persons sentenced to
terms in prison will be released to parole at either a
date fixed by the sentencing court (court-ordered
parole) or when approved by a parole board.
In relation to court-ordered parole, the court has
discretion in fixing the date that the person should
be released on parole. For example, a court may
fix the parole release date to be:
on the same date of sentencing; or
during the period of imprisonment; or
on the last day of the sentence.
When can court-ordered parole
be granted?
The type of parole that a person is eligible to be
released on is determined by the length of sentence
and the type of offence.
The Penalties and Sentences Act 1992 (Qld) only
allows the court to grant court-ordered parole where
the sentence is three years or less and the offence
committed was not a serious violent offence or
sexual offence.4
In relation to other offences (i.e. sentences of more
than 3 years which are not for a serious violent
offence or sexual offence and sentences for serious
violent or sexual offences), court-ordered parole is
not available. In relation to these offences, the
court is only able to fix a date that the person is
eligible for parole (as opposed to fixing a parole
release date), which means that the offender will
need to apply to the parole board for parole at the
date specified by the court.5
What if the parole board
considers a person granted
court-ordered parole to be a risk
to society?
The Corrective Services Act 2006 (Qld) contains a
‘safeguard’ provision which allows a parole board to
amend, suspend or cancel a parole order, including
a court-ordered parole order, if the board
reasonably believes that the person subject to the
order poses:
a serious risk of harm to someone else; or
an unacceptable risk of committing an
offence.6
Furthermore, if a parole board cancels a person’s
court-ordered parole order, any application for a
subsequent grant of parole during that person’s
same period of imprisonment must be to a parole
board. 7
Queensland Corrective Services (QCS) has
implemented a strict regime when supervising
people on parole in the community, including those
on court-ordered parole.8 This includes ongoing
assessment, planning, close monitoring and
appropriate responses to any change in risk levels.9
www.balancedjustice.org
Why is court-ordered parole
important?
Australia currently has a strong judge-centred
approach to sentencing. While legislation creates
offences and prescribes maximum penalties, the
judiciary, for the most part,10 remains able to
exercise its discretion within these boundaries.11
The discretion enjoyed by judicial officers is
extremely important as it enables sentences
imposed to be tailored to the particular facts of the
case and to the individual before them.12 This
discretion is an important part of judicial
independence.
As outlined above, the law currently allows the court
(for certain offences) to determine a person’s
suitability for court-ordered parole. The court’s
discretion is already limited by legislation which
prescribes that court-ordered parole can only be
granted in relation to relatively minor offences.
Judicial discretion, and consequently judicial
independence, should not be further curtailed
through the complete removal of court-ordered
parole.
People in prison who are sentenced to serve less
than two years are not eligible for criminogenic
programs. If court ordered parolees were sent to
prison it would be largely for warehousing rather
than rehabilitation.
What will happen if court-
ordered parole is abolished?
Loss of a valuable sentencing option
Courts need to have a wide range of sentencing
options available to them in order to promote the
interests of individualised justice.13 Courts must be
able to impose sentences that align with both the
nature of the offence and the individual
circumstances of the case.
In 2011-12, there were 3195 people on court-
ordered parole orders in Queensland,14
demonstrating that these orders are an important
sentencing tool. QCS has confirmed that court-
ordered parole is its most successful supervision
order.15 In 2012-13, 72% of court-ordered parole
orders in Queensland were successfully completed
without cancellation or reconviction.16
QCS has reported that most common reason that
an offender has their parole suspended is because
Probation and Parole assess that there is an
unacceptable risk of further offending.17 This can
be because Probation and Parole are alerted that
the person on parole has been charged with an
offence or because there has been an increase in
risk factors associated with the individual’s
offending pathway (e.g. the offender losing their job
or their accommodation or a separation from their
partner or support person). 18
In 2012, only 58% of court-ordered parole
cancellations were the result of re-offending with a
subsequent new prison offence recorded.19
Therefore, it appears that many people who fail on
parole do so because they have breached the
technical conditions of their parole orders and not
because they have committed a criminal offence.20
Where a criminal offence has been committed,
often these offences may be of a minor nature.
Increase in prison populations
Court-ordered parole was introduced to address the
over-representation of short-sentenced, low-risk
prisoners in QCS facilities.21 Prior to the
introduction of court ordered parole, prisoner
numbers were forecast to grow.22 However, the
introduction of this type of order helped to stabilise
growth in prisoner numbers from 2006 until
recently, with the average daily number of prisoners
serving sentences of three years or less
declining from approximately 2,300 in July 2006
(prior to the introduction of court-ordered parole), to
a low of just over 1,800 in January 2011.23
www.balancedjustice.org
QCS has reported that approximately 40% of
persons who receive court-ordered parole orders
are paroled straight from court.24 In 2012, it was
found that 80% of people released straight from
court to court-ordered parole successfully
completed their order. 25
Court ordered-parole has notably reversed the
growth in short sentence prisoners, delaying the
need to invest in prison infrastructure.26
The reality is that removing this order will result in
more people being imprisoned, further burdening
the prison system.
Prisons in Australia are already at capacity and the
cost of running these facilities is incredibly high (in
Queensland, the cost of housing a person in prison
is approximately $318.50 per day or $116,252.50
per year). 27
Balanced Justice view
Instead of abolishing court-ordered parole, the
Queensland Government should be looking at ways
to proactively support persons on parole to reduce
the possibility of re-offending. Increasing the time
which these persons spend in prison is not the
answer to preventing recidivism.
It has been stated that:
‘Jails, as they’re run today, are possibly the worst
place to send many criminals. They exacerbate
drug abuse and health problems, they do nothing to
increase a prisoner’s chance of finding
employment, they brutalise young men and
reinforce violent behaviour’.28
It is known that people who commit offences are
disproportionately affected by drug and alcohol
problems, intellectual disability, illiteracy and
innumeracy, low educational attainment and
unemployment.29 Our view is that these underlying
factors need to be addressed in order to break the
cycle of offending.
For a suggested approach to breaking the cycle of
offending, see Balanced Justice Fact Sheet titled ‘Is
justice reinvestment a good idea for Australia’.
References 1 Norton, F, Ryan, B and Howells, M (1 August 2013) ‘Attorney-General Jarrod Bleijie orders review into Qld’s sentencing laws’ <http://www.abc.net.au/news/2013-07-31/attorney-general-orders-review-into-qlds-sentencing-laws/4855074> 16 August 2013 2 Norton, F, Ryan, B and Howells, M (1 August 2013) ‘Attorney-General Jarrod Bleijie orders review into Qld’s sentencing laws’ <http://www.abc.net.au/news/2013-07-31/attorney-general-orders-review-into-qlds-sentencing-laws/4855074> 16 August 2013 3 ‘Queensland aims to head off Meagher type crimes’ 31 July 2013, The Brisbane Times <http://www.brisbanetimes.com.au/queensland/queensland-aims-to-head-off-meaghertype-crimes-20130731-2qych.html> (29 August 2013) 4 Penalties and Sentences Act 1992 (Qld), s 160B(3). 5 Penalties and Sentences Act 1992 (Qld), ss 160C and 160D. 6 Corrective Services Act 2006 (Qld), s 205; Note: during the 2011-2012 financial year the two regional parole boards suspended or cancelled a total of 3548 court-ordered parole orders: Queensland Parole Boards Annual Report 2011-12 at p 10 <http://www.correctiveservices.qld.gov.au/Publications/Corporate_Publications/Annual_Reports/documents/paroleboardannualreport_2011-12.pdf> (22 August 2013) 7 Corrective Services Act 2006 (Qld), s 207. 8 Court ordered parole in Queensland, Research Paper (No. 4) June 2013, Queensland Corrective Services at p 8 <http://qldcorrections.files.wordpress.com/2013/06/qcs-research-court-ordered-parole-in-qld.pdf> (29 August 2013) 9 Ibid at 9 10 See Balanced Justice factsheet titled ‘Mandatory Sentencing’ for information on other attempts to reduce court discretion. 11 Freiberg, A, ‘Australia: Exercising discretion in sentencing policy and practice’ (April 2010) 22(4) Federal Sentencing Reporter pp 204-212 at p 204 12 Ibid. 13 Bartels, L and Rice, S, ‘Reviewing reforms to the law of suspended sentences in the Australian Capital Territory’ (2012) 14 Flinders Law Journal 253 at 256 14 Department of Community Safety Annual Report 2011-12 at p 20 <http://www.communitysafety.qld.gov.au/Annual_reports/
www.balancedjustice.org
Annual_Report_2011-2012/files/DCS_Annual%20REPORT%202011-2012%20complete.pdf> (22 August 2013) 15 Court ordered parole in Queensland, Research Paper (No. 4) June 2013, Queensland Corrective Services at p 1 <http://qldcorrections.files.wordpress.com/2013/06/qcs-research-court-ordered-parole-in-qld.pdf> (29 August 2013) 16 Ibid at 9 17 Ibid 18 Ibid 19 Ibid at 14 20 Jones, C et al, ‘Risk of re-offending among parolees’ (2006) No. 91 Crime and Justice Bulletin: NSW Bureau of Crime and Research at p 2 <http://lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/cjb91.pdf/$file/cjb91.pdf> (23 August 2013) 21 Court ordered parole in Queensland, Research Paper (No. 4) June 2013, Queensland Corrective Services at p 1 < http://qldcorrections.files.wordpress.com/2013/06/qcs-research-court-ordered-parole-in-qld.pdf> (29 August 2013) 22 Ibid 23 Ibid at 1 and 16 24 Ibid at 1 25 Ibid at 12 26 Ibid at 16 27 Productivity Commission, ‘Report on Government Services 2013’ Volume 1 at 8.24 <http://www.pc.gov.au/__data/assets/pdf_file/0005/121784/government-services-2013-volume1.pdf> (30 May 2013) 28 Anderson, John, ‘The label of life imprisonment in Australia: a principled or populist approach to an ultimate sentence’ (2012) 35(3) University of New South Wales Law Journal at p 21 <http://works.bepress.com/john_anderson/1/> (23 August 2013) 29 Hudson, S, ‘Panacea to Prison? Justice Reinvestment in Indigenous Communities’ (2013) Centre for Independent Studies, Policy Monograph at p 3 This factsheet was produced on 29 August 2013 This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
Tougher sentences – what the community
wants?
Public opinion on sentencing
A constant message in the media is that courts are too
‘soft on crime’, they let offenders ‘walk free’ and fail to
protect the public.1 As a vast majority of the public form
their opinions in relation to the criminal court system
based on information presented in the media, it is no
surprise that a majority of the public also think that the
courts are too lenient on people who have committed
crimes.2
International research regarding public opinion on crime
and justice has reached a number of consistent
conclusions:3
the public thinks that sentences are too lenient;
people tend to think about violent and repeat
offenders when reporting that sentencing is too
lenient;
people have very little accurate knowledge of
crime and the criminal justice system;
the mass media is the primary source of
information on crime and justice issues;
when people are given more information, their
levels of punitiveness drop dramatically; and
despite apparent punitiveness, the public
favours increasing the use of alternatives to
imprisonment.
Recent study4
In a recent Australian study, for a period of two years
(2007-2009), jurors from all criminal trials in Tasmania
were involved in the sentencing of cases they had
deliberated on. Each jury returning a guilty verdict was
invited by the judge to participate in the study by
remaining in court to listen to the sentencing
submissions.
Before the sentence was imposed, jurors were asked:
- to indicate the sentence that they thought the
offender should receive;
- to answer questions about crime and
sentencing trends; and
- to give their views on sentencing severity and
whether judges were in touch with public
opinion.
After the sentence was imposed, jurors were asked
questions such as their view on the appropriateness of
the sentence imposed, and whether their original
opinions on sentencing had changed.
In relation to questioning about current sentencing
practices across all offence types (violence, property,
drug and sex offences), the majority of jurors responded
that sentences were too lenient. This was most
pronounced for sex and violence offences.
However, when jurors were asked to indicate which
sentence they thought the offender should receive, 52
percent of jurors selected a more lenient sentence than
the sentence actually imposed by the judge and only 44
percent were more severe than the judge.
Furthermore, it was found that there was a high overall
level of satisfaction in relation to the sentence imposed
by the judge, with 90 percent of jurors considering the
sentence imposed to be either very appropriate or fairly
appropriate.
This study suggests when individuals are presented with
accurate and complete information, they are less likely
to be as punitive.
Therefore, it appears that the public’s critical view of the
courts, and their punitive stance towards sentencing,
ultimately stems from a lack of knowledge regarding the
crime situation and the workings of the criminal justice
system.
Why is public opinion so
important?
The public’s concern with rising crime rates and
dissatisfaction with sentencing has been used by
Western governments over the past two decades as a
justification of a hard-line approach and ‘tough-on-crime’
political rhetoric.5 Legislation is often introduced and
justified by politicians with reference to public opinion.6
Furthermore, while public opinion is not a legally
recognised factor for consideration during the
determination of sentencing, it appears that judges
make assessments of public opinion, with comments
such as ‘community expectation’ and ‘community
sentiments’ routinely appear in sentencing. 7 For these
reasons, it is extremely important that the opinion held
by the public in relation to crime and sentencing reflects
the actual situation.
The reality of sentencing
At 30 June 2012, all states and territories, with the
exception of New South Wales and Queensland
recorded increased imprisonment rates compared to
2002.8
Northern Territory and Western Australia saw the
biggest increases, while Queensland and New South
Wales saw slight decreases: 9
Northern Territory –72% increase (from 480
prisoners per 100,000 adult population to 826
prisoners per 100,000 adult population);
Western Australia –37% increase (from 195 to
267 prisoners per 100,000 adults);
Queensland –6% decrease (from 168 to 159
prisoners per 100,000 adults);
New South Wales –1% decrease (from 172 to
171 prisoners per 100,000 adults).
Therefore, on average across Australia, over the past 10
years the imprisonment rate increased, demonstrating
that the courts are not being as lenient as the public
may think.
The increase in imprisonment rates is the likely
combination of factors including the:10
passing of new laws;
increasing maximum and minimum sentences;
reduction in the use of remission, parole and
other alternatives to prison; and
increasing use of the criminal law to prosecute
offences.
Given that the increased use of imprisonment has
continued whilst crime rates have been falling, it has
been suggested that it is politics, rather than crime,
which is increasing these imprisonment rates.11
[See Balanced Justice factsheet ‘Crime Statistics –
the real picture’ for more information on decreasing
crime rates.]
Balanced Justice view
As public opinion can influence political agendas and
ultimately legislation, it is crucial that the public is
adequately informed.
The disbanding of the Sentencing Advisory Council of
Queensland in 2012 was a step backwards for
Queensland, as the state no longer has an independent
body to keep the public informed about sentencing in
Queensland. The Council had been responsible for the:
provision of information to the community to
enhance knowledge and understanding of
matters relating to sentencing;
publication of information relating to
sentencing;
research of matters relating to sentencing; and
publication of the research results.
If the public are to be properly educated about
sentencing in Queensland, there needs to be an
independent and reliable source responsible for collating
and disseminating information about sentencing and
sentencing related matters.
References 1 Warner, K and Davis, J, ‘Using jurors to explore public attitudes to sentencing’ (2012) 52 British Journal of Criminology 93 at 93 2 Roberts et al, ‘A country not divided: a comparison of public punitiveness and confidence in sentencing across Australia’ (2011) 44(3) Australian and New Zealand Journal of Criminology 370 at 371 3 Gelb, K, ‘Myths and misconceptions: Public opinion versus public judgment about sentencing’ (2006), Sentencing Advisory Council at v <https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/myths_and_misconceptions_public_opinion_versus_public_judgment_about_sentencing.pdf> (8 May 2013) 4 Warner, K et al, ‘Public Judgement on sentencing: Final
results from the Tasmanian Jury Sentencing Study’ (February 2011) No. 407 Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology 5 Gelb, K, ‘Myths and misconceptions: Public opinion versus public judgment about sentencing’ (2006), Sentencing Advisory Council at 4 <https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/myths_and_misconceptions_public_opinion_versus_public_judgment_about_sentencing.pdf> (8 May 2013) 6 Roberts et al, ‘A country not divided: a comparison of public punitiveness and confidence in sentencing across Australia’ (2011) 44(3) Australian and New Zealand Journal of Criminology 370 at 371 7 As above 8 Australian Bureau of Statistics, Prisoners in Australia, 2012, published at <http://www.abs.gov.au/ausstats/[email protected]/mf/4530.0/> (9 May 2013) 9 As above 10 Kury, H and Shea, E (eds), Punitivity International Developments: Vol. 1 Punitiveness a Global Phenomenon,
Universitatsverlag Dr. N. Brockenmeyer, Bochum, 2011 at 184 11 Kury, H and Shea, E (eds), Punitivity International Developments: Vol. 1 Punitiveness a Global Phenomenon, Universitatsverlag Dr. N. Brockenmeyer, Bochum, 2011 at 185
This factsheet was produced on 27 May 2013
This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
www.balancedjustice.org
Admissibility of findings of guilt
Young people test the
boundaries
Young people’s offending behaviour must be
considered in the context of child and youth
development; early adolescence through to early
adulthood is a peak period for brain development
and consequently a period of increased risk.1
Minor offending by young people may result from
testing the boundaries of acceptable behaviour as
they adjust to their emerging responsibilities and
changing position in society, or perhaps the
culmination of a history of deprivation and
disadvantage.2 Whatever the reason, it is important
to recognise that young people make mistakes
while they are growing up, and they should be
subject to a system of criminal justice that
recognises their inexperience and immaturity.3
Young people’s offending is
episodic
Most juvenile crime is episodic and transitory, with
young people predominantly ‘growing out’ of
offending behaviour over time through a maturation
process.4 Most young people who come into
contact with the police before 18 will not go on to be
“career criminals” – their contact will be shortly lived
and relatively minor and they will “grow out” of
offending from late adolescence.5 The majority of
these young people have one or two contacts with
the criminal justice system and do not reoffend.6
Many will never come to court, their offending being
addressed by a police caution.7 A significant
proportion of those brought to court will appear
once, maybe twice.8
Children’s Courts focus on
rehabilitation
In Queensland, less than 6 per cent of young
people appearing before the Childrens Court are
convicted. Childrens Court judges understand that
recording a conviction will have a serious impact on
the young person’s future, affecting their
employment prospects, chances of reoffending, and
any future sentencing considerations if they do
come back into the justice system.
It is the sentencing Childrens Court judge that is
best placed to make this judgement, with all of the
relevant, contemporary information in front of them.
To allow judges to use a small part of this
information (the sentencing outcome) in the future
is unfair and dangerous.
The ‘juvenile penalty’
A 2004 study showed that sentencing of juveniles
transferred to adult courts in Pennsylvania have
been found to be more severe, a result of a
considerable ‘juvenile penalty’.9 The same report
suggests that a person’s juvenile record
overshadows other traditional sentencing
considerations, like the severity of the offence and
history in adult courts. This study also suggests that
juveniles transferred to adult courts are intended to
be punished the same way as adults, but actually
receive more severe treatment than comparable
adult offenders. This evidence shows that juveniles
in adult courts are disproportionately punished,
despite the historical acceptance that young people
‘are still developing and warrant different
treatment’.10
www.balancedjustice.org
Past behaviour doesn’t prove
anything today
There are a number of laws across Australia that
limit the use of a person’s past history in court
cases, to ensure that a person is judged on the
facts of the specific incident that led to their
charges. Evidence shows that both magistrates and
juries are more likely to convict in cases where the
previous convictions are similar in nature to the
current offence,11 suggesting that past actions may
have a negative impact on the way that people are
treated in courts.
Limiting use of Children’s
Court findings in adult courts
All Australian jurisdictions limit the use of orders
made in Children’s courts.12 Our justice system
recognises that adults should not be punished for
minor offences that occurred while they were
young, especially when they received a relatively
minor sentence such as a fine, without a conviction.
Children’s court judged are best placed to identify
the issues relevant to the young person before
them, including the punishment that the young
person receives and the support that is available to
help them rehabilitate themselves and prevent
future offending.
Balanced Justice view
The point of a youth justice system is to
acknowledge that young people are developing and
make mistakes; to focus on rehabilitation and
reducing future contact with the justice system; and
to make sure that young people aren’t caught up in
a cycle of offending and punishment.
Allowing adult courts access to young people’s
records with the Childrens Court, without all of the
information that was available to the Court at that
time, will likely lead to harsh and unfair
punishments and undermine the rehabilitative
strategies put in place by the Childrens Court.
Adult courts should not consider the findings of guilt
of young people in the youth justice system, but
should consider the facts before the court and the
actions of adults in determining guilt and sentencing
offenders.
References 1 AIHW Young Australians: their health and wellbeing 2011 Chapter 25, Young people and crime (AIHW 2011) 2 Australian Law Reform Commission, ‘Seen and heard: priority for children in the legal process (1997) Report 84 at 251 <http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC84.pdf> (15 April 2013) 3 Richards, K, Trends in Juvenile Detention in Australia’ (May 2011) Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice (No. 416) at 1 <http://www.aic.gov.au/documents/D/6/D/%7bD6D891BB-1D5B-45E2-A5BA-A80322537752%7dtandi416.pdf> (15 April 2013); Richards, K ‘What makes juvenile offenders different from adult offenders?’ (2011) Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice (No. 409) at 1 http://www.aic.gov.au/documents/D/6/D/%7bD6D891BB-1D5B-45E2-A5BAA80322537752%7dtandi416.pdf (15 April 2013) Australian Institute of Criminology. 4 Cunneen and White 2002; Mukherjee 1983; Richards 2011. 5 Commission for Children and Young People Snapshot 2011: Children and Young People in Queensland Chapter 7, Criminal Justice System (CCYPCG 2011) and AIHW 2011 6 Rose 2006; Weatherburn 2004 7 12,238 cautions were administered in 2011-12 8 AIC (2011) What makes juvenile offenders different from adult offenders Trends and Issues in crime and criminal justice No 409 (AIC (2011) 9 MC Kurlychek and BD Johnson, ‘The juvenile penalty: A comparison of juvenile and young adult sentencing outcomes in criminal court’ (2004) 42(2) Criminology 485. 10 MC Kurlychek and BD Johnson, ‘The juvenile penalty: A comparison of juvenile and young adult sentencing outcomes in criminal court’ (2004) 42(2) Criminology 485, 507. 11 S. Lloyd-Bostock, ‘The Effects on Jurors of Hearing about the Defendant’s Previous Convictions: a Simulation Stud’ [2000] Criminal Law Review 734. 12 Youth Justice Act 1992 (Qld) s 148; Children (Criminal Proceedings) Act 1987 (NSW) s 15; Youth Offenders Act 1997 (NSW) s 68; Youth Justice Act 2005 (NT) s 136; Young Offenders Act 1993 (SA) s 58; Annulled Convictions Act 2003 (Tas) ss 6 and 9; Young Offenders Act 1994 (WA) ss 189-90.
This factsheet was produced on 12 June 2013 This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
www.balancedjustice.org
Busting the myths – the facts about addressing youth offending – Part 1
Young people’s behaviour has concerned adults from very earliest times: Our youth now love luxury. They show disrespect for their elders….they contradict their parents, chatter before company, gobble up dainties at the table and tyrannise their teachers1.
Fear of crime is a strong a motivator in the community. It is often a reaction to media reports which tend to focus on the worst of crimes- and particularly those involving young people - as being most “newsworthy”. Sweeping generalisations are made about young people and offending – the regular reference to a “youth crime wave” – but without any supporting evidence. There is a public perception that children are responsible for a substantial proportion of crime committed in the community. This perception is often reported in the media and is frequently supported by police statement2. It was found that the statistics did not support these perceptions. Misinformation means that there is a lack of understanding of the true level, causes and impact of youth offending which in turn means that public money is not used effectively and efficiently as it is diverted to the wrong activities or responses. So, the stated object of reducing crime is undermined from the beginning.
The facts - there is no crime wave. Crime generally is decreasing Crime rates [in Queensland] over the last ten years or so have largely been on a downward trend. While politicians may make legitimate points about spikes in specific locations or particular types of offence, the chances of Queenslanders becoming victims of crime has been decreasing when population is taken into account3.
The number of youth offenders is decreasing Queensland’s Youth Justice System covers young people aged 10-16 years alleged to have broken the law (for all other States and Territories it covers 10-17 year olds). In the 2011-12 financial year:
The Magistrates Court dealt with 5,840 young defendants and the higher courts 358
There was an overall decrease of 6.9% in the number of young people whose cases were dealt with by the courts (following a decrease of 8.6% in the number of young people coming in 2010-11 compared with 2009-10)4.
Most young people are not offending There are around 420,000 10-16 year olds in Queensland5. The number of 10-16 year olds in contact with the court system is small and is not increasing proportionate to the population – in 2011-12
only about 1.4% of the total population of 10-16 year old Queenslanders appeared in court.
Young people are already dealt with seriously It is often said that young people only get a “slap on the wrist” yet children as young as 10 years of age can be (and are) held accountable for breaking the criminal law. In reality, the sentences for young offenders are very similar to those imposed on adults: it is generally the length of the term which is different.
Child6 Reprimand
Adult7 Absolute or Conditional Discharge
Good Behaviour Bond Recognisances Fine Fine
Probation Order Probation Order Community Service Order Community Service Order
Conditional Release Order Suspended Sentence Intensive Supervision Order Intensive Correction
Detention Imprisonment Detention up to life – will most
likely be transferred to adult jail Imprisonment - indefinite
Generally, a Magistrate can sentence a child to up to 1 year in detention and a Judge up to 5 years8. For offences for which an adult can be imprisoned for 14 years or more, children can also be detained for significant periods of time, for example9:
Child Adult Robbery in company with violence Arson
10 years or Life* if: there was violence against a person and
Court considers particularly heinous
Life
Grievous bodily harm Receiving stolen goods
7 years 14 years
*Life in Queensland means the whole of one’s life
Once a person reaches 17 in Queensland, they are dealt with in an adult court and go to an adult prison10 – even though they cannot vote or buy alcohol or cigarettes. Queensland is only place in Australia where this happens and is contrary to Australia’s international commitment.
References 1 Socrates, Greek Philosopher 470-399 BC 2 Criminal Justice Commission (1992) Youth, Crime and Justice in
Queensland 3 Queensland Police Service data: Brisbane Times: 2 March 2012 4 Childrens Court of Queensland Annual Report for 2011-12 5 Queensland Government Statistician 6 Youth Justice Act 1992 7 Penalties and Sentences Act 1992 8 Youth Justice Act 1992 9 Youth Justice Act 1992 (child); Criminal Code (adult) 10 Youth Justice Act 1992
This factsheet was produced on 29 May 2013
This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
www.balancedjustice.org
Busting the myths – the facts about addressing
youth offending – Part 2
What we know 10-16 year olds are the minority of offenders in contact with the criminal law. In 2011/12, only 4.25% of offenders who appeared before the courts were youth offenders.1 Offending peaks at around 18 or 19 years of age.
Property offences are the most commonly committed offences by 10–17 year olds in Queensland. The rate of property offences committed by young people has been in decline, falling 21.6% over the past decade. Offences against the person remain considerably lower in prevalence than property offences and have remained relatively stable over the last decade.2
Offending behaviour in relation to young people must be considered in the context of child and youth development. Early adolescence through to early adulthood is a peak period for brain development and consequently a period of increased risk.3
Most young people who come into contact with the police before 18 will not go on to be “career criminals” – their contact will be shortly lived and relatively minor and they will “grow out” of offending from late adolescence.4 Many will never come to court, their offending being addressed by a police caution (12,238 cautions were administered in 2011-12). A significant proportion of those brought to court will appear once, maybe twice.5
While there is a concern that there is an increase in offences involving some level of violence, this remains a minority of the offences committed by young people Offences against property was the most common offence type among young people aged 10 to 17 years, accounting for 60.1% of all offences in 2010-11.6
Young people themselves are victims of crime. Statistics show that young people under 18 are at least as likely to be the victims of a crime as a perpetrator. In 2011-12 in Queensland, the majority of victims of offences against the person committed by youth offenders were aged under 20 years of age (53.3% of those where age was recorded) and only 6.4% were aged 50 years or over.7
Prison/detention does not prevent offending. Research consistently shows that prisons are an ineffective in rehabilitating offenders and preventing re-offending.8 Imprisonment is therefore a poor use of public money, particularly as the building, maintaining and staffing of detention centres or prisons is very costly. It costs the taxpayer approximately $237,980 per year to imprison one young person
(in Australia)9 and studies have indicated that youth detention is a pathway to adult offending as 30% of adult offenders were first incarcerated in the youth system.10
Addressing offending behaviour For the community to be and feel safe, and to spend our money usefully, we need to address the causes of crime.
For the majority of those who come to the attention of the police or courts and who do not become persistent offenders, the current sentencing regime is clearly sufficient.
The President of the Queensland Children’s Court has noted: The statistics seem to demonstrate that there are a small number of persistent offenders who are charged with multiple offences.
The small group of repeat offenders tends to have low socioeconomic status, low educational attainment, significant physical and mental health needs, substance abuse and a history of childhood abuse and neglect.11 Young people in detention in Queensland have reported experiencing multiple social and health problems during the previous year. Most often these problems related to school (69%), peers(62%), family (50%), and drugs or alcohol (43%).12
Do what has been shown to work
The Texas (USA) based group Right on Crime: puts forward The Conservative case for reform: Fighting Crime, Prioritizing Victims, and Protecting Taxpayers13:
Cost-effective interventions that leverage the strengths of families and communities to reform troubled youths are critical to a successful juvenile justice system. Youths who “slip through the cracks” may remain in the criminal justice system throughout their lives even though some could have been saved by effective policies during pivotal developmental stages. However, funds should only be spent on programs that are supported by evidence, and risk and needs assessment should be used to ensure that youths who would be most successful in non-residential programs are not placed in costly residential settings.
The “Conservative Solution” includes improved flexibility in funding, so funds currently used to keep young people in large state youth jails can be used for less costly community-based programs which are supported by research.
Begin early
www.balancedjustice.org
Antisocial behaviour invariably begins during primary school years and tends to be associated with exclusion (from school itself, but also within the school) which means the young person is not exposed to positive social values and role models.14 The research indicates that children and young people who are not in school are at high risk of delinquency.15
Diagnose and support those with disabilities Research has also identified that 17% of young people in detention in Australia had an IQ of less than 70 and that this is particularly an issue for Indigenous young people. Young people with intellectual disability are at a significantly higher risk of re-offending. A 2005 NSW study also found 88% of young people in custody reported symptoms consistent with mild, moderate or severe psychiatric disorders.16
Parents are important Parents are important in the development of language skills, particularly in the early years. The amount the parent talks to the child and how they talk to them is important. 17
Language skills are critical in being able to manage socially but also in being able to develop literacy skills and therefore are important for longer term success at school. Keeping young people at school can prevent and reduce criminal and anti-social behaviour.18
Early brain development and socio-emotional and cognitive development can be severely affected by inadequate or harmful parenting.19 Young people who have been abused or neglected often exhibit reduced social skills, poor school performance, impaired language ability, and mental health issues.20
While the majority of abused and neglected children do not offend, a significant number of children who do offend have had abusive, neglectful or inadequate parenting.
Parental monitoring and limit setting have been linked to managing antisocial/offending behaviour, substance abuse and sexual risk taking by adolescents.21
The most effective approach …
…would be to reduce the likelihood of a child or young person ever developing anti-social or offending behaviour patterns by:
supporting families who are struggling
providing parents with support and parenting programs from the early years into adolescence
supporting the development of good oral language and social skills
responding more appropriately where young people are the victims of abuse and neglect.
For those already in the system, providing therapeutic support, developing life skills and receiving an education will be most effective.
The least effective approach…
… is to put them into a youth detention centre:
Detention acts as a corrupting influence on these children, many of whom go on to re-offend. NSW Attorney General, Greg Smith: 28 Feb 2013
…or a military style boot camp as these have been clearly shown to have no long term effects on repeat offending: The traditional boot camp for young offenders was arguably the least successful sentence in the Western world – it made them fitter, faster, but they were still burglars, just harder to catch. Judge Andrew Becroft, New Zealand, 2009.
References 1 Criminal Courts Queensland: 2011–12: Government Statistician,
Queensland Treasury & Trade 2 Commission for Children and Young People Snapshot 2012
3 AIHW Young Australians: their health and wellbeing 2011 Chapter 25,
Young people and crime (AIHW 2011) 4 Commission for Children and Young People Snapshot 2011: Children
and Young People in Queensland Chapter 7, Criminal Justice System (CCYPCG 2011) and AIHW 2011 5 AIC (2011) What makes juvenile offenders different from adult offenders
Trends and Issues in crime and criminal justice No 409 (AIC (2011) 6 Child Guardian Report: Child Justice System 2010-11
7 Children’s Court Annual Report 2011-12
8 Solonec, T., and W., YOUNG. 2011. Epidemic incarceration and justice
reinvestment : it's time for change. INDIGENOUS LAW BULLETIN; 7 (26): 15-21. 9 Vumbaca, G. 2012. ‘Prevention is the only hope for young offenders
because cure is failing.’ YAPRAP Youth Issues and Youth Work. 10
Vumbaca, G. 2012. Young People and Violence. National Council for
Drugs / justice reinvestment for Aboriginal People 11
AIHW (2011) 12
Commission for Children and Young People Views of young people in
detention 2011 13
http://www.rightoncrime.com/priority-issues/juvenile-justice/ 14
AIC (2012) Youth (in)justice: oral language competence in early life and
risk for engagement in anti-social behaviour in adolescence Trends and Issues in crime and criminal justice No 435 (AIC 2012 No 435) 15
Australian Institute of Criminology (AIC) (2003) What works in reducing
young people’s involvement in crime? A review of current literature on youth crime prevention (for the ACT Government) 16
AIC (2011) 17
AIC (2012) No 435 18
http://www.griffith.edu.au/criminology-law/key-centre-ethics-law-
justice-governance/research/prevention-developmental-pathways/the-pathways-to-prevention-project 19
AIHW (2011) 20
AIFS (2011) The Link between child maltreatment and adolescent
offending Family Matters No.89 21
Australian Institute of Family Studies (AIFS) (2011) What works with
Adolescents – family connections and involvement in interventions for adolescent problem behaviour Family Matters No.88
This factsheet was produced on 29 May 2013 This factsheet is for information and discussion purposes only. It does not represent the views of organisations involved in the Balanced Justice Project.
1
Cost effectiveness analysis of a ‘justice reinvestment’ approach to Queensland’s youth justice services
Alexandra Bratanova and Jackie Robinson School of Economics
on behalf of the Pro Bono Centre TC Beirne School of Law University of Queensland
November 2014
1. EXECUTIVE SUMMARY
This report provides an economic evaluation, using cost-effectiveness analysis, to identify and
quantify the possible avoided costs and number of youth diverted from becoming clients of youth
justice services if the Queensland government invested in justice reinvestment programs.
This report has been prepared on behalf of the Pro Bono Centre within the School of Law at the
University of Queensland. The authors were briefed by Balanced Justice, an alliance of community
organisations that work to enhance the safety of all Queenslanders by promoting understanding of
criminal justice policies that are effective, evidence-based and human rights compliant
(http://www.balancedjustice.org/).
Using ‘cost effectiveness analysis’ methodology, this report examines the cost to the Queensland
Government of ‘business as usual’ of detaining, supervising and working intensively with young
people that may come into contact with the criminal justice system. Corrective services, youth
justice services and community services are examined, and the present value of these costs is
estimated as $8.862 billion over the period 2015-2030. That is, the taxpayers of Queensland will
pay almost $9 billion over the next fifteen years on a youth justice system that prioritises punitive
and criminogenic responses.
However, with an upfront investment of $10m over four years and a focus on justice reinvestment
(prioritising resources towards supporting 110 at-risk young people) the re-direction of a relatively
small amount of expenditure from the justice system can make a substantial difference in the
number of young people who obtain family support and who might be diverted from becoming
clients of justice services. Specifically, out of 110 children, annually, 7 should avoid offences which
would otherwise lead to community based-supervision and one – detention-based supervised
2
person. This estimates that 6 people should avoid imprisonment each year and 15 people should be
removed from community correction each year.
However, a more optimistic option assumes that community services, represented in the analysis by
intensive family support, are 5-10% efficient in the prevention of youth offences and at least 1-2%
efficient in the prevention of people from entering corrective services. This option leads to cost
savings for the Queensland budget of $263m by 2030 (expressed as a present value).
Even if they are only 5-10% effective, redirecting funds from detention centres and other
costly responses to criminal offending towards early intervention services could save the
Queensland budget up to $263m to 2030.
2. BACKGROUND
This report provides an economic evaluation, using cost-effectiveness analysis, to identify and
quantify the possible avoided costs and number of youth diverted from becoming clients of youth
justice services if the Queensland government invested in justice reinvestment programs.
This report is a first step for the integration of economic evaluation into the discussion about justice
reinvestment for Queensland.
Youth justice reinvestment
The Steering Committee for the Review of Government Service Provision (Productivity
Commission (PC), 2013) described the aim of youth justice services as “ to contribute to a reduction
in the frequency and severity of youth offending, recognise the rights of victims and promote
community safety” (PC, 2013).
The Queensland government has demonstrated a commitment to strengthen responses to youth
crime (PC, 2013, 8:39). Apart from the trial of ‘early intervention’ youth boot camps in
Queensland, for the most part, the current approach to youth justice in Queensland has been to
strengthen the response to youth crime by increased penalties rather than preventative measures
such as increased family, health and education services to at risk families.
An alternative approach is “justice reinvestment” , which involves advancing “fiscally sound, data
driven criminal justice policies to break the cycle of recidivism, avert prison expenditure and make
communities safer” (PC, 2013).
Justice reinvestment would require a change of emphasis for the Queensland state government,
from discouraging youth offending by punitive action to tackling youth crime before it eventuates,
in its earliest stage or during the transition from youth to young adults, as Homel et al. (2012)
3
assert, “early in the pathway, not necessarily early in life”. This requires identification of at risk
youth and provision of appropriate support services to divert them from a pathway to crime.
Support services are anticipated to be provided by the communities as community-based initiatives
as well as by specially established institutions. The services can include family support, educational
support, health and housing support and are anticipated to target identified groups of youth as the
literature and research emphasize “the crucial importance of the early years of life and the need to
target crime prevention initiatives towards the chronic offending group, as this is likely to result in
significant reductions in crime. […] A small group of offenders pose the largest long-term concern
for the justice system” (Livingstone et al., 2008, page 360).
To encourage the government to invest in justice reinvestment, information needs to be provided
about the likely outcomes from the investment. This means information about not only the cost
savings or avoided cost of youth justice services but also the number of at risk youth likely to be
diverted from crime.
This economic evaluation considers policies that seek to divert at risk youth from offending and
entering correctional services by providing increased family and community services. No attempt is
made in this report to examine the cost effectiveness of funding to specific family and community
services. Rather, it estimates the magnitude of the cost savings or avoided costs that might be
expected if at risk youth were diverted from entering youth justice services.
Outline of report
The next section of this report describes the methodology adopted for this evaluation and the steps
required. Section 4 details the assumptions underlying the estimates of the costs associated with
business as usual or do nothing as well as a number of options to estimate the cost and number of
offenders diverted from youth justice services as a result of implementation of a justice
reinvestment policy. Section 5 provides the results from the analysis reporting estimates of both the
avoided costs and number of young offenders diverted. The final section of this report makes a
number of recommendations and points out the limitations of this evaluation.
3. METHODOLOGY
3.1 Cost effectiveness analysis (CEA)
CEA, as an economic evaluation technique, is based on a comparison of the costs associated with
different decision options when the effect or benefits of an investment decision cannot effectively
be estimated in monetary values. It measures how well inputs (usually estimated in monetary
4
values) are converted into outcomes. CEA is frequently used in health economics and studies where
health effects are difficult to assign dollar values but where there is a common and measurable
outcome.
The benefits of crime prevention including those for community and family cannot effectively be
estimated in monetary terms but estimates of numbers of young people entering the justice system
under different funding regimes are measurable. For this reason, for the purposes of this study,
CEA is identified as an appropriate evaluation technique. It will be employed in this analysis to
estimate the avoided costs likely to result from justice reinvestment for youth justice services and
the number of youth averted from entering youth services.
It is important to acknowledge at the outset of this report, that the majority of young people who
come into contact with the youth justice system do not become clients of statutory youth justice
agencies. This report is concerned with young people who do become clients.
Elements of the justice system and justice reinvestment for analysis
This study considers several elements of the justice system and associated public expenditure
including:
- Prisons and community corrections
- Youth justice services including:
o detention-based youth justice services;
o community-based youth justice services;
o group conferencing.
At the time of this study, no data was available on the costs of the non-government and community
based service providers which are likely to play a substantial role in the justice reinvestment system.
Therefore intensive family support services which are classified as child protection services are
used in this study as a proxy for services which can be provided within a justice reinvestment
initiative
3.2 Steps in evaluation
A CEA evaluation requires a number of specified steps to be undertaken. In the interests of
reasonable brevity, these are described briefly with more detail about the assumptions used to
construct the evaluation provided in the appendices.
• A first and important step for undertaking an economic evaluation of investment in a project
or program is to identify the without project or business as usual (BAU) option. It is against
this that estimates can be made of the outcomes from the investment. Considerable detail is
5
provided in the next section to establish the projected expenditure on and numbers of clients
requiring justice services if the immediate past trends continue to 2030.
• Identification of the project and the objectives of the project to be evaluated require not only
a description of the project but also identification of the stated objectives. For a CEA this is
important because rather than estimating a monetary value for all of the objectives (benefits)
likely to result from the project, CEA identifies one objective for which a monetary value is
not required. The Productivity Commission (2013) provides a number of criteria for justice
services against which the performance of justice reinvestment could be measured. These
include, the amount of justice expenditure saved or avoided, reduced recidivism rates and
benefits to local communities. Although the literature on justice reinvestment provides little
guidance about the response rate for reduced recidivism and describes the benefits to the
community with little provided to assign a monetary value, there is detail about current
expenditure and the number of young people accessing youth services. As a result, this study
puts forward a number of hypothetical options or scenarios that assume a reduced number of
young people identified as at risk from entering youth justice services as increased
investment is made into family support services. The reduced number of young people
entering youth justice services is likely to result in a reduction in the costs associated with
these services. These are termed the avoided costs and are calculated as the difference
between the costs of the business as usual option and reduced expenditure on youth justice
as reduced numbers entering justice services declines.
• Anticipated expenditure for the business as usual option (over the estimated 15 year life of
the project) as well as avoided cost associated with reduced demand for youth justice
services, for the hypothetical options suggested in this study are converted to a present
value. For this study, a discount rate of 3.5% has been adopted as this is currently the 10
year cost of capital stipulated by Queensland Treasury when there are substantial social
benefits expected to result from the investment. This rate has been included in the sensitivity
analysis with the expenditure discounted at 6% and 10%.
4. ASSUMPTIONS FOR POLICY OPTIONS
4.1 Business as usual option
Cost effectiveness evaluation requires the BAU option to be estimated in monetary units. This study
considers several categories of government expenditure which are anticipated to be affected as a
consequence of the implementation of the justice reinvestment program in Queensland. The
6
expenditure categories include police services, youth justice services, corrective services and child
protection services.
This section of the evaluation report analyses the cost to the budget for the provision of services
from these justice services over the last 10-13 years. Identified trends in costs over the last decade
associated with the provision of these services are assumed to continue over the next 10-15 years
and are the basis for the BAU option. In order to make assumptions about expenditure for the BAU
case, numbers of persons using the service are initially estimated, followed by expenditure.
The categories of the users of justice services employed in this report are defined according to the
literature source. However, it is necessary to acknowledge that estimates of users of justice services
can vary substantially due to disparate assumptions underlying data collection procedures and
sources used by the authorities. For example, the data on juvenile offenders sourced from the
Productivity Commission (2013), differ from the figures reported by the Children’s Court of
Queensland. Specifically, whereas the Productivity Commission uses the Youth Justice Pocket
Statistics which defines a young offender as a person with one or more than one proven charge in
the reference year (regardless of how many individual charges against an offender in the one year,
they are counted only once), the Children’s Court of Queensland Annual Report adopts the
Australian Bureau of Statistics counting rules where 'the same person in the same court on the same
day' is counted once. However, if a defendant appears in court on several dates in any financial
year, they are counted more than once" (Youth Justice Pocket Stats 2012-13).
In order to maintain consistency for this study, one data source is employed, Youth Justice Pocket
Statistics 2012-13, as used by the Productivity Commission (2014), but the definitions used by that
source are made explicit in the text.
According to the Productivity Commission (2014) corrective services are described as follows:
Corrective services implement the correctional sanctions determined by the courts and
releasing authorities such as parole boards. …
Corrective services include prison custody, periodic detention, and a range of community
corrections orders and programs for adult offenders (for example, parole and community
work orders). Both public and privately operated correctional facilities are included. (PC
2014)
Corrective service assumptions
According to ABS (2014), the number of persons in prisons has recently increased. “In 2013,
Queensland had the largest increase in prisoner numbers (483 prisoners), followed by Victoria (456
prisoners)... The overall prison population increased 9 per cent (483 prisoners) to 6,076 from 2012”.
7
Although these figures have been interpreted by some experts as the beginning of an upward trend
associated with the legislative changes of the Queensland Government, this analysis is unable to
acknowledge this as a trend as the 2013 estimates from the ABS are technically not directly
comparable to data presented in the graph below, which is based on PC (2014). Moreover, one year
of increased number of persons in corrective services does not represent a trend which can
reasonably be expected to continue for the next 15 years.
For the BAU option no change in the imprisonment rate is anticipated over the project lifetime. The
dynamics of the corrective services population and population growth in Queensland over the last
10 years is demonstrated in figure 1. It shows that the number of persons in corrective services has
grown, since 2003-4 at approximately the same rate as population growth. Therefore, for the BAU
case, the number of offenders in community correction is assumed to increase at the same rate as
population growth.
Figure 1 Dynamics of average daily population in corrective services and population growth in Queensland
Source: Productivity Commission (SCRGSP 2014)
Expenditure on corrective services
Expenditure on corrective services, for the purpose of this study, is considered only for operational
costs. It is acknowledged that any marginal change in the number of offenders is unlikely to affect
expenditure associated with capital costs including the user cost of capital (depreciation).
0
500,000
1,000,000
1,500,000
2,000,000
2,500,000
3,000,000
3,500,000
4,000,000
4,500,000
5,000,000
0
2,000
4,000
6,000
8,000
10,000
12,000
14,000
16,000
18,000
200
3-0
4
200
4-0
5
200
5-0
6
200
6-0
7
200
7-0
8
200
8-0
9
200
9-1
0
201
0-1
1
201
1-1
2
201
2-1
3
pers
ons
pers
ons
Financial years
Average daily prisoner population (all prisons)
Average daily community corrections offender population
Queensland population
8
According to reports on government services by the Productivity Commission (2014; 2009)
expenditure on prisons in Queensland, in real terms, slowly increased over the period 2003-04 to
2007-08 (figure 2); however, expenditure over the last 5 years is indicated to have declined.
Consequently, no clear trend is observed in government expenditure on prisons.
However, a clear upward trend is observed for real expenditure on the operational costs for
community correction services since 2005-06 for both total and per offender expenditure (figures 2
and 3).
Figure 2 Real net expenditure on community corrections in 2003-04 – 2007-08 in Queensland
Source: Productivity Commission (SCRGSP 2014)
8
9
10
11
12
13
14
15
16
20 000
30 000
40 000
50 000
60 000
70 000
80 000
200
3-0
4
200
4-0
5
200
5-0
6
200
6-0
7
200
7-0
8
$
$'00
0
Financial years
Real net recurrent expenditure on community corrections
Real net recurrent expenditure, per offender per day
8
9
10
11
12
13
14
15
16
20 000
30 000
40 000
50 000
60 000
70 000
80 000
200
8-0
9
200
9-1
0
201
0-1
1
201
1-1
2
201
2-1
3
$
$'00
0
Financial years
Real net operating expenditure on community corrections
Real net operating expenditure, per offender per day
9
Figure 3 Real net expenditure on community correction Queensland, 2008-09 - 2012-13
Source: Productivity Commission (SCRGSP 2014)
The BAU option assumes that real expenditure on prisons remains unchanged over the lifetime of the
project. However, real expenditure on community corrective services is anticipated to increase at the same
rate as population growth and per offender. Therefore it is assumed that the rate of annual increase in
expenditure exceeds population growth by 1.5%.
Youth justice services
This study considers three elements of the youth justice system: community-based and detention-
based supervision and group conferencing. The following section analyses the population and cost
statistics for these groups for the BAU option.
Number of young people under supervision
Over the period 2000-01 – 2004-05 the total number of young people under supervision (detention
plus community-based supervision) is shown to have had a downward trend, primarily due to the
decreasing number of community-supervised offenders (figure 4). Since 2004-05 the number of
young people in community-based supervision shows no clear declining trend.
Since 2000-01 the number of young people in detention has been increasing (figure 4). Over the
12 year period the number of people in detention during the year increased from 577 to 894 which
is equivalent to an annual growth rate of approximately 3.7%.
Overall, the increase in the number in detention based supervision has driven up the total number of
youth under supervision over the last 10 years.
10
Figure 4 Young people aged 10–17 under community and detention based supervision during the year
Source: Productivity Commission (SCRGSP 2014)
For the BAU option the number of young people in detention can be expected to increase over the
lifetime of the project. It has been observed that the increase in youth in detention was driven by the
Indigenous population, therefore the projections for population growth of Indigenous communities
can be used as a proxy for a projected increase in the number of young people under detention
supervision in the BAU option.
At the same time community based supervision demonstrated a nearly constant number of young
people provided by this service over the past 10 years following a period of decline. The decreasing
rate of offenders in community supervision is assumed to be compensated by the increase due to
population growth. Therefore no change to community-based youth supervision is expected over
the lifetime of the project for the BAU option.
Expenditure on youth justice services
No consistent data is available to observe the dynamics of government expenditure on youth justice
services over the reference period in Queensland. However, as per 2012-2013, expenditure on
detention based supervision was the main contributor to total expenditure on youth justice services
(figure 5). The per person cost of detention supervision was over 11 times higher than for
community based supervision (figure 6).
500
550
600
650
700
750
800
850
2,000
2,200
2,400
2,600
2,800
3,000
3,200
3,400
200
0-0
1
200
1-0
2
200
2-0
3
200
3-0
4
200
4-0
5
200
5-0
6
200
6-0
7
200
7-0
8
200
8-0
9
200
9-1
0
201
0-1
1
201
1-1
2
nono
Financial years
Young people aged 10–17 under community-based supervision during the year
Total number of young people under supervision during the year
Young people aged 10–17 in detention during the year
11
For the purposes of this study, is has been assumed that state budget expenditure for detention based
supervision will increase at the rate of growth of the Indigenous population. However, the
expenditure associated with community-based supervision is assumed to remain constant.
Figure 5 Nominal expenditure on youth justice services in Queensland in 2012-2013
Source: Productivity Commission (SCRGSP 2014)
Figure 6 Cost per young person per day subject to supervision
Source: Productivity Commission (SCRGSP 2014)
$76,588$57,160
$10,508
Detention-based youth justice services ($'000)
Community-based youth justice services ($'000)
Group conferencing ($'000)
$1,302
$,117
$0
$200
$400
$600
$800
$1,000
$1,200
$1,400
Detention-based youth justice services Community-based youth justice services
12
There is no information currently available for the dynamics of youth under youth conferencing.
However, group conferencing accounts for a minor proportion of expenditure on youth justice
services (figure 5). Therefore, for the purpose of this study, group conferencing is no longer
considered.
4.2 Community services: intensive family support
The intensive family support service is seen to be a means of early intervention which can
potentially benefit the whole family of a child provided by the service.
Intensive family support is a means of child protection. According to the Productivity Commission
(PC, 2014, Volume F, 15:5) intensive family support services are specialist services that aim to
prevent the imminent separation of children from their primary care givers as a result of child
protection concerns and to reunify families where separation has already occurred.
Intensive family support services may use some or all of the following strategies: assessment and
case planning; parent education and skill development; individual and family counselling; anger
management; respite and emergency care; practical and financial support; mediation, brokerage and
referral services; and training in problem solving. Productivity Commission (Report 2014, Volume
F, 15:5)
The number of children undergoing intensive family support has been increasing annually over the
last 10 years, for both indigenous and non-indigenous categories as reflected in figure 7.
Figure 7 Number of children aged 0–17 years commencing intensive family support service by
Indigenous status
Source: Productivity Commission (SCRGSP 2014)
0
500
1,000
1,500
2,000
2,500
3,000
3,500
4,000
2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12 2012-13
Indigenous Non-Indigenous All children
13
The data on the proportion of children in the population provided with intensive family support is
not available. However, since intensive family support as a service is generally provided in response
to referrals from a child protection organisation, the rate of children in notifications was used to
study the trend for intensive family support. The analysis shows that the rate (per 1000 children) of
children aged 0-17 years (2009/10-20012/13) or 0-16 (before 2008/09) in notification has been
decreasing since 2003 for non-Indigenous children as well as for all children counted together,
although steadily increasing for Indigenous children (figure 8).
Figure 8 Children aged 0-17 years (2009/10-20012/13) or 0-16 (before 2008/09) in notification - rate per
1000 children
Source: Productivity Commission (SCRGSP 2014)
At the same time government expenditure in Queensland on intensive family support services in
real terms (2012-2013 dollars) per child is steadily increasing. Over a 10 year period the real
expenditure per child has increased 2.15 times or approximately 8.86% annually.
The real recurrent expenditure on intensive family support services is calculated based on the
assumption that “the service must average at least 4 hours of service provision per week for a
specified short-term period (usually less than six months)”.
The real recurrent expenditure per child commencing intensive family support services in
Queensland in 2012-2013 was $10 875.
For the purpose of this study intensive family support expenditure is assumed to be increasing by
5% annually in the BAU option.
0
10
20
30
40
50
60
70
80
90
2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12 2012-13
Indigenous Non-Indigenous All children
14
Police
In all jurisdictions, police have responsibility for administering options for diverting young people
who have committed (or allegedly committed) relatively minor offences from further involvement
in the youth justice system. Diversionary options include warnings (informal cautions), formal
cautions, and infringement notices. Responsibility for administering the diversionary processes
available for more serious offences lies with youth justice authorities, courts and in some cases,
other agencies.
The juvenile diversion rate deviates between 36 and 49% with the two lowest levels reported for the
last two years. At the same time it can be assumed that the juvenile diversion rate remains
unchanged in the BAU option over the projected period.
Police expenditure
Although, given the important role of police in the diversion of youth from the justice system,
justice reinvestment could in fact result in increased government expenditure on police. However it
is not possible to apportion the cost of police services expended on diversion of youth from the
justice system. Therefore, expenditure on police has been excluded from this analysis.
3.3 Identification and estimation of the outcomes from justice reinvestment
A review of the Pathways to Prevention Project literature goes some way towards establishing a
link between the maltreatment of a child and the increased risk of them coming before the courts as
youth offenders.
Although a little dated, Stewart et al. (2002) examined the effect maltreatment of a child has on
juvenile offending by demonstrating a direct link from child maltreatment to juvenile offending. Of
the 41,700 children born in Queensland in 1983, it estimated that about 10 per cent (approximately
4,170) had come to the attention of the Department of Families by the time they were 17 years old
because of a child protection matter. “About five per cent of those in the cohort [208] had a court
appearance for a proven offence” (Stewart et al. 2002, p.1). Stewart et al. concluded that the
relationship between maltreatment and the incidence of youth offending “has implications for
understanding criminal behaviour as well as implications for child protection initiatives and crime
prevention strategies”, (Stewart et al. 2002. p.1).
This study was followed by a report by Dennison et al. (2006) who found in their study of children
who had been cautioned by police rather than being charged was that “children who have been
maltreated and cautioned are more likely to re-offend than those who have not been maltreated
15
highlighting the importance of programs that target risk factors associated with maltreatment early
in a child’s life”. This was found to be particularly important for young Indigenous children.
Homel et al. (2012); although endorsing the findings of previous studies advocating early
intervention as a preventative measure for young offenders, cautions that the early prevention
approach aimed specifically at children is “not on its own sufficient for building community
prevention capacity within a national framework” (p. 3). They suggest that early prevention needs
to be expanded beyond children to young adult crime and that attention should be given also to the
problems for young adults including substance abuse. A main point made by the Pathways to
Prevention report, (Homel et al. 1999) was “early in the pathway” not necessarily early in life”.
For the analysis purposes it has been assumed that the cost reduction for different components of
expenditure associated with justice reinvestment options is proportional to the reduction in the
number of people in corrective services and youth under supervision respectively.
3.4 Up-front investment
Although justice reinvestment will require an initial investment by government agencies, it is
expected that the investment will result in cost savings which could be reinvestment in on-going
family services. There is limited information available in the literature on which to approximate an
initial investment. Hence, it is assumed that an initial investment of $10,000,000 over 5 years after
which $1,000,000 per annum is required for family or community support services plus the savings
from youth justice services and corrective services.
4. RESULTS FOR JUSTICE REINVESTMENT POLICY OPTIONS
The present value (PV) of the costs of the corrective services, youth justice services and intensive
family support analyzed in the BAU scenario is $8 862m. PV is calculated as the present value of
the estimated cash flow of budget expenses over the reference period (2015-2030). The cash flow is
discounted using the assumed discount rate (3.5%).
Option 1 – Conservative
Option 1 presents a policy alternative of gradual implementation of the justice reinvestment
initiative. The results of the project are expected to be realized five years after the start of the
initiative in 2015. The required initial investment is assumed to be $10m, which is assumed to be
made in equal annual installments over a 4 year period (25% each year from 2015 until 2018).
The number of people in corrective services and receiving youth justice supervision is assumed to
be decreasing annually at a low rate as a result of the preventative activities by the communities
16
which participate in the justice reinvestment initiative. At the same time the number of families
provided with intensive family support is expected to increase. The assumptions for the rate of
change of the described parameters are specified in table 1.
Table 1 Option 1: Assumptions
Group Number of people provided by the service (2012-2013)
Option 1 - Conservative Increase (+) / Reduction (-) in the number of people per
annum
Year, when cost change
is first realised
(2015-2030) No %
Prisons Average daily prisoner population 5849 -6 -0.1% 2020 Community corrections
Average daily community corrections offender population 14942 -15 -0.1% 2020
Youth justice services
Average daily number of young people subject to detention-based supervision 161 -1 -0.6% 2020 Average daily number of young people subject to community-based supervision 1335 -7 -0.5% 2020
Intensive family support services
Number of children aged 0-17 years commencing intensive family support services 3714 110 3.0% 2020
As table 1 demonstrates, the population of prisons is assumed to decrease by only 0.1% annually
from 2020. This is equivalent to 6 people per annum diverted from imprisonment and 15 per annum
from community correction. This is illustrated in figure 9.
17
Figure 9 Average daily prisoner population and community correction offender population in BAU and Option 1 scenarios
The number of youth under supervision is expected to decrease by only 0.6% annually for
detention-based supervision (1 person a year) and 0.5% annually for community-based supervision
(7 people per year) (figure 10).
Figure 10 Average daily number of young people under supervision in BAU and Option 1 scenarios
19000
20000
21000
22000
23000
24000
25000
26000
27000
2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
Average daily prisoner population and community corrections offender population -BAUAverage daily prisoner population and community corrections offender population -Option 1
500
700
900
1100
1300
1500
1700
2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
Average daily number of young people under supervision - BAU
Average daily number of young people under supervision - Option 1
18
At the same time it is assumed that the number of children provided with intensive family support
services increases by 110 people annually from 2020 which is nearly 3% annually as demonstrated
in figure 11.
Figure 11 Number of children commencing intensive family support services in BAU and Option 1 scenarios
The present value of the expenditure associated with this scenario (Option 1) is $8 902m. This is
nearly the same as the present value of the cost for the BAU option ($8 862m).
Consequently, a small reduction in the number of people in corrective services and youth justice
system can result in a substantial increase in the number of families provided with intensive family
support services as well as initial investment into the justice reinvestment system of $10m. In brief,
option 1, although suggesting nearly the same expenditure as the BAU option, shows how the re-
direction of a relatively small amount of expenditure from the justice system can make a substantial
difference in the number of young people who obtain family support and who might be diverted
from becoming clients of justice services.
However, the analysis demonstrates that for the justice reinvestment initiative to be cost effective,
the community services provided as a part of justice reinvestment activities (which are represented
in the analysis by intensive family support services), should be capable of reaching a minimal level
of effectiveness. Specifically, out of 110 children, annually, 7 should avoid offences which would
otherwise lead to community based-supervision and one – detention-based supervised person. This
3000
4000
5000
6000
7000
8000
9000
10000
11000
12000
2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
Number of children commencing intensive family support services - BAU
Number of children commencing intensive family support services - Option 1
19
estimates that 6 people should avoid imprisonment each year and 15 people should be removed
from community correction each year.
It is necessary to acknowledge that intensive family support services are expensive services which
require substantial resources. However, initiatives and services which can and should be offered as
a part of the justice reinvestment project are likely to imply lower costs per person or family in the
longer run. Consequently, more people (families) could be provided with these services within the
same budget.
Option 2 – Optimistic
The effectiveness of the justice reinvestment initiative is dependent on the effectiveness of
community-based services and support which are offered to youth and families at risk. At the same
time as demonstrated above, the effectiveness of community services should be expected for the
justice reinvestment initiative to be cost-effective.
The second option assumes that community services represented in the analysis by intensive family
support are 5-10% efficient in the prevention of youth offences and at least 1-2% efficient in the
prevention of people from entering corrective services. The assumptions are specified in table 2.
Table 2 Option1: Assumptions
Group Number of people provided by the service (2012-2013)
Option 2 – Optimistic Increase (+)/
Reduction (-) in the number of people per
annum
Year, when cost change is first realised (2015-2030) No %
Prisons Average daily prisoner population 5849 -2 -0.03% 2018 Community corrections
Average daily community corrections offender population
14942 -4 -0.03% 2018
Youth justice services
Average daily number of young people subject to detention-based supervision
161 -10 -6.21% 2016
Average daily number of young people subject to community-based supervision
1335 -20 -1.50% 2016
Intensive family support services
Number of children aged 0-17 years commencing intensive family support services
3714 200 5.39% 2016
The assumptions can be interpreted as, out of 200 children or young people who receive intensive
family support 10 people (5%) would otherwise offend and be under detention-based supervision
and 20 (10%) would be under community-based youth supervision. Furthermore, due to justice
20
reinvestment actions, 2 persons (1%) would avoid imprisonment and 4 (2%) would not serve their
sentence in community correction.
For this scenario we assume that the results from justice reinvestment are realized for the youth
justice system from 2016 and for adult corrective services from 2018. This option, as well as option
1, assumes an initial investment of $10m, which is expected to be made in equal proportion over 5
years.
The second option is expected to lead to cost savings for the Queensland budget of $263m by 2030
(expressed as a present value). The cost graph for this option as compared to the BAU scenario is
illustrated in figure 12.
Figure 12 Cost of option 2 (optimistic) as compared with BAU
4.1 Sensitivity Analysis
Sensitivity analysis is conducted to test the robustness of the obtained results and their sensitivity to
a change in the major assumptions.
Discount rate
Sensitivity analysis has been undertaken for the discount rate. The analysis demonstrates that
application of a discount rate of 6% changes the present value of the cost estimate associated with
580,000,000
600,000,000
620,000,000
640,000,000
660,000,000
680,000,000
700,000,000
720,000,000
740,000,000
760,000,000
780,000,000
2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
JR Option 2 Business as usual
21
the BAU scenario from $8 862m to $7,299m. Estimates for Option 1 increase to $7,330m and for
Option 2 – to $7,102m. The estimated avoided cost from Option 2 as compared to the BAU
scenario decreases to $198m. Consequently, although the discount rate has been increased from
3.5% to 6%, the BAU and Option 1 remain close in cost estimate and Option 2 implies cost savings.
This emphasizes the robustness of the obtained results.
A discount rate of 10% implies an increase in the difference between the BAU and Option 1 present
value of cost estimates. Specifically BAU ($5,545m) outperforms Option 1 ($5,565m) by $20m.
However, BAU remains a more expensive alternative when compared to Option 2 with a present
value of cost estimate of $5,416 using a 10% discount rate.
Initial investment
An important assumption of the analysis is the initial investment which is required to ‘kick-start’
justice reinvestment in Queensland.
Importantly, a change in the assumed initial investment does not substantially affect the results. The
results of the sensitivity analysis are demonstrated in table 3.
Table 3 Sensitivity analysis with respect to the change on initial investment assumption
Assumed initial investment Net Present Cost (NPC) for scenarios ($m)
BAU Option 1 Option 2
$10m 8862 8902 8598
$1m 8862 8894 8590
$5m 8862 8897 8594
$15m 8862 8906 8603
$20m 8862 8911 8607
5.0 LIMITATIONS AND RECOMMENDATIONS
This study has not attempted to evaluate where or how money should be specifically invested in
family and community services. However, regardless of how or where the investment is made,
rigorous on-going monitoring and evaluation is required to measure the impact of reinvestment and
the functioning of the criminal justice system as a whole. This is regarded as critical to ensure the
projected results and benefits are being realised. Monitoring and evaluation must ensure that the
projected savings are being realised and that the reinvestment of funds is having the desired effect
on offending and incarceration rates. Although this limits the applicability of this evaluation for
policy formation, it does highlight that justice reinvestment should be implemented in an adaptive
management framework. This means that justice reinvestment activities should be continuously
22
monitored and that evaluation is required so that adjustments can be made to ensure the on-going
effectiveness of the initiative.
Elements of on-going monitoring and evaluation identified by the House of Commons Justice
Committee are in the nature of adaptive management:
Performance measures, including the amount of justice expenditure saved or avoided, recidivism
rates and benefits to local communities – reduce numbers of youth using youth justice services
Monitoring systems, requiring collation of data across agencies on outcomes
Reviewer expertise to analyse how closely the actual impact corresponds to projections
Ability to commission changes to delivery of services.
The Law Council of Australia noted in its submission to the Senate Inquiry (PC, 2013) that
commentators have adopted a cautious approach to justice reinvestment as ‘true correctional
savings have been difficult to document and even more problematic to capture’ and that the ‘impact
on offending or recidivism from the reinvestment of these savings into community-based crime
prevention strategies will take longer to emerge’.
Data collection and analysis issues
Lack of data on the costs associated with different alternatives to imprisonment or community based
services and activities and their potential effectiveness is the major limitation of this study.
Therefore the suggested and discussed policy alternatives are only hypothetical. However, they do
provide a first step to evaluating, from an economic perspective, the likely effectiveness of justice
reinvestment. As data does become available, it is recommended that this analysis is revisited.
The problem of lack of data for Australia and the State governments, which is associated with the
lack of institutional capacity and formal requirements for data to be collected and analysed, has
been raised in the literature. For example, Justice Reinvestment NSW in their submission to the
Senate Committee argue that “there remains lack of publicly available peer reviewed data about the
costs, availability and effectiveness of alternatives to imprisonment” in Australia (page 19).They
also refer to the Washington State Institute of Public Policy as an example of institutional structure
undertaking the research on issues including justice reinvestment.
Potential flow-on effects of the justice reinvestment initiative
The potential benefits of the justice reinvestment initiative are anticipated to exhibit a flow-on effect
to other government services resulting in an increase of their quality, cost effectiveness and to
contribute to cost savings for the state government.
23
Specifically, potential positive effects and associated cost savings are expected for child protection
services provided by the Queensland Government. Child protection and out-of-home services
provided to children and families in Queensland demonstrate a steady trend of increasing budget
expenditure as well as in the number of children using the services. In 2012-2013 real expenditure
on child protection and out-of-home care services reached $719.9M (figure 13).
Figure 1213 Child protection in Queensland: real expenditure and number of recipients
Source: Productivity Commission (SCRGSP 2014)
The activities within justice-reinvestment initiative are likely to be capable of discontinuing or
reversing this trend. It will also indirectly imply cost savings for the government.
Furthermore, intensive family support as a child protection measure is likely to have a positive
effect not only on the child who is directly targeted, but also on other children in the family under
consideration.
However, this positive effect cannot be estimated and projected given the available data and
uncertainty associated with the potential outcomes of community actions and services within the
justice reinvestment project.
2 000
2 500
3 000
3 500
4 000
4 500
5 000
100 000
200 000
300 000
400 000
500 000
600 000
700 000
800 000
Num
ber
of c
hild
ren
$'00
0
Real expenditure on child protection and out-of-home care services
Number of children admitted to care and protection orders
24
Choice of methodology and interpretation of results
This analysis is based on the very limited data which is currently available. It has determined the
choice of the methodology for analysis. It implies that the obtained results are estimates based on
hypothetical outcomes and should be interpreted with care. Furthermore, it is be recommended that
the results are used only as indicative measures.
However the report constitutes the first steps toward an economic evaluation of the potential of
justice reinvestment in Queensland.
The analysis has demonstrated that justice reinvestment has the potential to provide a cost-effective
alternative to the existing approach of youth justice services by targeting the youth at risk and
concentrating resources on crime prevention activities in the communities in need (at risk).
Justice reinvestment can also result in potentially substantial cost savings for the state government
regional budget. However, for the initiative to provide cost-effective outcomes, individual activities
and community-based services are required to be monitored and provide certain levels of efficiency
in terms of crime prevention.
REFERENCES
Dennison, S., A. Stewart and E. Hurren. 2006. “Police cautioning in Queensland: the impact on juvenile offending pathways”, Trends and Issues in Crime and Criminal Justice, No 306. Australian Institute of Criminology. Australian Government.
Homel, R. and TR. McGee 2013, “Community Approaches to Preventing Crime and Violence: the challenge of building prevention capacity”, http://gcecs.edu.au/wp-content/uploads/2013/08/Community-approaches-to-preventing-crime-and-violence-The-challenge-of-building-prevention-capacity.pdf
Justice Reinvestment NSW (2013) Justice Reinvestment Campaign for Aboriginal Young People. Submission to the Senate Inquiry “The value of a justice reinvestment approach to criminal justice in Australia”. Retrieved from: http://justicereinvestmentnow.net.au/wp-content/uploads/2012/04/Just-Reinvest-NSW-submission.pdf, 20.10.2014
Livingston, M., A. Stewart, T. Allard and J. Ogilvie. 2008. Understanding Juvenile Offending Trajectories. The Australian And New Zealand Journal Of Criminology Vol. 41, No 3, pp. 345–363
Productivity Commission. 2013. Report on Government Services 2013. Canberra, Productivity Commission.
Productivity Commission. 2014. Report on Government Services 2014. Canberra, Productivity Commission.
Stewart, A. Dennison, S and Waterson, E. 2002. “Pathways from child maltreatment to juvenile offending”, Trends & issues in crime and criminal justice, No. 241. Australian Institute of Criminology. Australian Government.
25
Appendix
Population growth projections
The projections for population growth are sourced from ABS for Queensland (2012-2101) and
separately for Aboriginal and Torres Strait Islander Australians (2011-2026) (ATSI)1. Comparison
of projections for 2012-2016 show that the expected growth of ATSI population is expected to
exceed the overall rate of population growth slightly. At the same time proportion of population
under 15 years old is expected to decrease among ATSI Australians from 37.5% to 34.3% between
2011 anв 2026. However, the same rate for total population is predicted to decrease from 19.9% to
19.6%. Therefore, it can be assumed that the youth population is expected to grow with
approximately the same rate for total population and ATSI Australians.
Given that ATSI population projections are provided by ABS only until 2016, it is proposed that the
total population growth projections for Queensland are used for analysis purposes for the reference
period: 2014-2030.
Figure 14 Projected population growth
Source: ABS (2014)
1 Among three series of ABS population projections series have been chosen for future analysis as reflecting medium
assumptions: “Series B - assumes the total fertility rates (TFR) will decrease to 1.8 babies per woman by 2026 and then
remain constant, life expectancy at birth will continue to increase each year until 2061, though at a declining rate
(reaching 85.2 years for males and 88.3 years for females), net overseas migration (NOM) will remain constant at
240,000 per year throughout the projection period, and medium interstate migration flows.
0
50,000
100,000
150,000
200,000
250,000
300,000
0
1,000,000
2,000,000
3,000,000
4,000,000
5,000,000
6,000,000
7,000,000
2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026
Projected population, QLD (Series B) Projected population (ATSI), QLD (Series B)