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Corrections Amendment (Prisoner Remission) Bill 2018 (No 59)

September 12, 2019

[12.50 p.m.]


Ms ARMITAGE (Launceston) - Mr President, I thank the Leader for all the briefings, particularly today; they were really informative and cleared up a few further issues we have.

It is clear from those briefings and also debate in the House this morning that there is disagreement on what reason is used to justify the removal and refining of the scope of remission. In her second reading speech, the Attorney-General clearly argued that the bill is largely to address community expectations regarding truth in sentencing that prisoners will not be released earlier than they are sentenced to be released.

As a movement, truth in sentencing has been responsible for the abolition of prisoner remission in New South Wales - about which I will speak later. I would first like to reflect on the function of remission as opposed to sentencing. Many do not realise sentencing is a highly nuanced and involved process. It is not something which a judge can make up on the spot. Guided by a raft of legislation and common law, the rules of sentencing are informed by the expectations of the community expressed through the legislature.

 

Consequently, what we are saying about our own judiciary, when we suggest prisoners can have early release in an extra judicial process where remission can be granted by the Director of Prisons, is worthy of consideration. The effect is a person's sentence is lessened without the consideration which judges must take into account when that sentence is handed down. The notion of sentencing being retrospective in that it is based on the nature, severity and impact of a crime, and that remission is prospective because it is based on the progress of rehabilitation of a prisoner is, while accurate, not reflective of the purpose of the sentencing process.

There is clearly an inherent tension between a sentence imposed by the court and the shortening of prison time by the non-judicial officer based on considerations like good behaviour. Essentially, the operation of remission does undermine the original sentence imposed on an offender. It is indisputable most people would assume when the court sentences an offender to a term of prison, it is that length of time they will be incarcerated. As I mentioned to the member for Windermere earlier when he was speaking, I had no understanding that a prisoner on remission would be seen as having served their time. I understood parole and thought if they had remission, they would still have been under the eye of the judiciary system.

Conversely, the availability of remission causes prisoners to see the reduced  sentences, the term which they will serve and that loss of remission is the result of disciplinary action being imposed upon them. The operation of remission is, therefore, arguably incompatible with the community's understanding and expectation of the nature and length of sentence to be imposed on the prisoner.

Of course, the consultation, brief as it was when it was conducted in 2017 of the relevant stakeholders, must account for something. It is clear a number of organisations that work with the prison and with offenders have expressed their support for the remission process to be maintained - some with various caveats. The Tasmanian Prison Service and the Tasmanian Law Society see the function of remission is to encourage discipline and good conduct within the prison system, as did the Association of Community Legal Centres. The Probation and Community Correction Officers Association submission indicated incentives and rewards for good conduct should be provided to prisoners, in addition to the availability or possibility of remission.

One issue currently ignored is the remission system raises issues of favouritism and subjectivity. The individual approach of prison officers writing up reports and feedback on prisoners seeking remission can be highly inconsistent.

Remission is seen to be a useful tool in the tool box of the Tasmanian Prison Service; however, that cannot negate the fact that errors and misconceptions can occur. What is this a tool for necessarily? It encourages good behaviour in prison inmates, but along with remission comes better control over the prison population by prison staff. This is, surely, an incentive for prison staff and the director to  consider granting prisoner remission. I question whether remission is actually conducive to long-term and meaningful rehabilitation of a prisoner. It may only serve to bring on good behaviour in the short term and within the very sanitised prison environment, which does not necessarily translate into the real world.

It is very possible remission in the short term could be used as a way to get back into society without proper, reflective and genuine rehabilitation, without which it would be far easier to lapse back into criminal behaviours. The natural conclusion to this possibility is a person ends right back in prison in an even more disadvantaged position than they were before.

In other words, I do not necessarily see a causative connection between the availability of remission and a minimisation of recidivism.

The Australian Bureau of Statistics indicates that as of 2017, in Tasmania, just over three out of five prisoners have previously been in prison. For approximately 60 percent of prisoners, their previous time incarcerated clearly not had any bearing on their future behaviour. Additionally, the ABS indicates the most common offences in Tasmania, as of 2017, were acts intended to cause injury 27 percent, followed by homicide at 12 percent. These are not light misdemeanours. The rates of recidivism and the nature of the crimes considered in the Tasmania context coupled together may demonstrate an argument in favour of the Government's prevailing concern of protecting the community.

There remains a possibility of a significant disconnect between the sentence imposed by the court, which as part of this process determines that sentence by considering the quality of evidence, the effect on the victims of crime and the prospects for the offender's rehabilitation. The Director of Prisons makes a determination only by good behaviour, which itself is largely informed by the prospect of early release, not necessarily because good behaviour is intrinsically the right way to conduct oneself.

An evaluation of the operation of remission and sentencing in other jurisdictions might therefore be informative. This brings me to the New South Wales experience with the removal of prisoner remission.

The truth in sentencing movement in 1989 abolished remission and increased non-parole periods, resulting in an increase in sentence lengths by 90 percent for adults and 30 percent for children, with a 30 percent increase in the prison population over the first two years. Of course, prisons became significantly overcrowded, an environment hardly conducive to meaningful and beneficial change to occur for prisoners.

The result in New South Wales is there has been significant volatility between 1989 and now. It has been that prisons move between significant overcrowding, the effect of the numerous punitive legislative measures passed during that time, and bareness, with prisons closing during periods of low crime rates. There has been no legislative consistency and therefore it is arguable whether risks to the community have been mitigated.

The notion of prison is not just to punish those sent there and protect society. It is also supposed to reform and rehabilitate people so they do not end up back there.

Overly punitive legislation is liable to miss the point of rehabilitation and bound to fail society by reinforcing a 'revolving door' prison system. The New South Wales Bureau of Crime Statistics and Research survey on public confidence in the criminal justice system found the majority of those surveyed had misconceptions about the justice system.

Many do not realise crime rates either fall or stay at the same levels, rarely rise and have minimal understanding of conviction, sentencing and imprisonment rates. In other words, the public's misconception of crime and criminal justice was largely out of step with the reality and largely informed by highly sensational media reports.

The truth always lies somewhere in the middle. If the removal of remission is based on a motive and misconceived notions of criminal justice, it cannot possibly have a reasonable and proper effect. I am unconvinced there is a solid causative connection between the removal of remission and the safety of the community, which, by the Government's own admission, is the primary motivation behind this bill.

Why eliminate remissions holus bolus? The bill seeks to modify existing law and order to expand the factors the director can take into consideration when granting remission to eligible prisoners, by introducing participation in rehabilitative or approved purposeful activities as a factor which must be considered.

Why not just keep remission and retain this provision? I do not believe the Government's reliance on the community safety and truth in sentencing arguments necessarily address this.

It should go without saying, therefore, that if prisoner remission is removed, adequate support ought to go to the Tasmanian Prison Service to ensure it is able to manage properly the prison system and those living within it.

I agree greater clarity around the granting of remission, if at all, is required, and the bill seeks to do this. However, I urge small steps be taken regarding prisoner remission, especially as the New South Wales experience shows significant rise in volatility. 

Sitting suspended from 1 p.m. to 2.30 p.m.

 

Resumed from above.

[2.47 p.m.]


Ms ARMITAGE (Launceston) - Mr President, I agree that greater clarity in the granting of remission, if at all, is required and this bill seeks to do this. I urge that small steps be taken regarding prisoner remission, especially as the New South Wales experience shows there has been significant volatility. That could be devastating to a small state like Tasmania. A focus on evidence and expertise-based legislative reform is called for here, not an emotive overcorrection fuelled by  sensationalism.

I am not sure how to feel about remissions. I feel remission undermines the authority, expertise and experience of the courts and judiciary and, for the victims of crime, it is unfair to know that the sentence a person gets is probably far longer than the time they will serve in prison. There is a strong argument to be made about community expectations - truth in sentencing. However, I think people really misunderstand sentencing law to a significant degree and that in highly emotive cases, which are extremely emotive and extremely rare, sensationalism can force a
government into passing legislation that could be seen as an overreaction; does little, if anything, to address actual issues; and could create the kind of volatility we now see in the New South Wales system. 


I want to believe that people are essentially good and can change. However, remission only encourages short-term good behaviour with the prospect of early release, at which time it is easy to fall back into old criminal habits and end up back in prison. Therefore, honourable Leader, on this occasion, I will support the bill.

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