Recent Northern Territory News discussion on the perennial topic of crime and punishment seems to have generated more heat than light. Chief Justice Trevor Riley wrote an excellent piece pointing out basic facts about the NT criminal justice system, not least the fact that NT judges and magistrates are actually tougher on crime than any other part of Australia. However, that hasn’t stopped a succession of subsequent correspondents from asserting that judges are “out of touch” and adopting an excessively lenient approach.
Former Chief Minister Shane Stone even weighed into the debate with a piece advocating re-adoption of an expanded mandatory sentencing regime, ignoring the fact that crime in relevant categories actually increased while the last version of mandatory sentencing was in force and fell when it was repealed (although I’m not suggesting there was a direct causal relationship).
Territorians are justified in being worried about crime. Crime rates are twice as high here as the Australian average in most categories; in some they are significantly higher. Moreover, things are getting worse in some categories. Crime rates for homicides, house break-ins and sexual assaults have not changed over the last 6 years, but non-sexual assaults have increased by a disturbing 73% from already high rates, armed robberies by 58% and commercial break-ins and vehicle thefts by 71%.
There are limits to the extent any NT government can reduce crime rates, because we have a very young population with a high indigenous component and high levels of alcohol consumption. All are factors associated with higher crime rates. However that doesn’t deny that we can do better than at present.
Research and practical experience indicate that crime is not deterred by longer and longer prison sentences, but that increasing the certainty of being caught and meaningfully punished has a measurable crime-reducing effect. On the other hand, imprisoning young first offenders for short periods tends to increase crime rates. Most first offenders never commit another crime, but for some the “school for crime” effect of prison may outweigh any deterrent effect. That’s why judges view imprisonment as a last resort for young first offenders, even where the offence committed may seem one that warrants imprisonment. It depends whether you view crime reduction or “just deserts” as the main aim of sentencing.
Research also indicates that sentencing options aimed at rehabilitation mostly don’t work either. Offenders will reform themselves when ready and not before. On the other hand, recent research suggests that well designed rehabilitation programs for drug and alcohol-related crime may be effective for some categories of offender.
What does all this mean? We should emphasise diversionary programs for young offenders that treat their offending seriously but also reduce the chances of their being imprisoned and becoming hardened criminals as a result. We should have enough police and law enforcement resources (including CCTV) so that offenders face a high probability of being caught. For repeat offenders and first offenders whose crime is serious enough to require imprisonment to maintain public confidence in the justice system, terms of imprisonment should be long enough to have a real deterrent impact. Sentences of less than 6 months are mostly a waste of time and money and likely to be counter-productive.
Lastly, the Territory should consider implementing a “grid” or “presumptive” sentencing system:
“The authors posited that jurisdictions that expressly link prison use to resources in the presence of sentencing guidelines will have less crime, at least for the more serious crime types (e.g. murder, rape, aggravated assault). This is predicted because these systems reserve scarce prison space for those with the longest and most serious prior criminal records and the most serious crimes, while attempting to divert less serious offenders. Other guideline systems (not expressly linked to prison resources) do not ignore prior record or serious crimes, of course, but may be more indiscriminate in who receives a sentence to prison, leading to a relatively higher proportion of less serious offenders imprisoned and higher aggregate levels of imprisonment overall. … The results of this realist approach are intriguing but certainly not definitive given the limits of aggregate data and the available research design. For jurisdictions with guidelines linked to prison resources, violent crimes are lower in such jurisdictions after controlling for date of guideline implementation and various social and political factors (Hunt and Sridharan, 2010: Table 9). Other guideline systems are associated with more crime. The effect is statistically significant for aggravated assault, robbery, burglary, and auto theft.”
Minnesota in the US is perhaps the best known example, where a community-based independent Sentencing Commission sets indicative or presumptive sentences for all crimes, including a range of variations for the offender’s prior criminal record, co-operation with police and other individual mitigating or aggravating factors.
Judges would be free to impose sentences outside the presumptive sentence indicated by the Sentencing Commission grid, but would be required to give full written reasons where they did so and would be subject to appeal to a higher court as to whether those reasons justified departure from presumptive community norms.
A system like this would facilitate adjustments of sentencing practices to take account of changing crime and social patterns over time, and allow general community input into sentencing without undermining judicial discretion which is essential to ensure that punishment as far as possible fits both the crime and the criminal. A Sentencing Commission is unlikely to have a huge impact on reducing crime rates, but may at least increase public confidence that we have a fair system where criminals overwhelmingly get their just deserts.