MEANINGFULSENTENCING OF LOW-

LEVEL, INDIGENT OFFENDERSREVISITED

NJCA SENTENCING CONFERENCE 8 FEBRUARY 2014

Jelena PopovicDeputy Chief Magistrate, Victoria

Presentation at the 2006 Sentencing conference:MEANINGLESS VERSUS MEANINGFUL

SENTENCING: SENTENCING THE UNSENTENCEABLE

Published at (2006) 15 JJA 190

Awarded Churchill Fellowship in 2011 to study this topic:

MEANINGFUL SENTENCING OF LOW LEVEL, INDIGENT OFFENDERS

http://www.churchilltrust.com.au/media/fellows/2011_Popovic_Jelena.pdf

INTERACTIVE PRESENTATION:

1. WHAT DO I MEAN BY MEANINGLESS SENTENCING?

2. IS IT THE CONCERN OF A SENTENCER IF HE OR SHE KNOWS THAT THE PENALTY ABOUT TO BE IMPOSED IS NOT GOING TO BE COMPLIED WITH, OR WILL NOT SERVE TO PENALISE OR DETER THE OFFENDER?

3. WHAT LESSONS DID I LEARN?4. WHAT HAVE I RECOMMENDED?5. WHAT AM I DOING DIFFERENTLY NOW?

http://www.youtube.com/watch?v=W4anxZR1Sgs

•Many of the accused who appear before us present similarly to this:

If this defendant appeared before you on a first up drive suspended, what

penalty would you impose?

What do I mean by mean by meaningless sentencing?

“….(As a judge) you need to impose a sentence that is meaningful to the accused

– something that will make them take responsibility and to atone for what they

have done. Sometimes you have to consider all of the circumstances of an individual – punishments have to fit the

individual as well as the crime.”

[] Judge Marguerite Church, William Lake, British Columbia, Canada, 15 May, 2012.

WHERE DID I GO & WHY?•WILLIAMS LAKE, BC, CANADA•MINNEAPOLIS•NEW YORK•LIVERPOOL•GLASGOW•EDINBURGH•NOTTINGHAM•LONDON•STOCKHOLM•HELSINKI•AMSTERDAM•PARIS

WHAT DID I LEARN?

First and foremost, that the penalties imposed on this group of offenders is not limited to the penalties judicial officers impose – and that it’s not just the actual sentencing, but also the aftermath of sentencing.

SO: My report ballooned into looking at the ‘whole of justice’ and making recommendations across all areas in justice

WHAT I LEARNT:Sentencing is a construct of the privileged classes

1. THAT VICTORIA HAS THE BROADEST RANGE OF SENTENCING OPTIONS OF ANY JURISDICTION I VISITED

2. THERE IS NOTHING ANYWHERE THAT COMES CLOSE TO CISP

3. THAT THE US EQUIVALENTS OF THE NJC HAVE A LIMITED JURISDICTION, DEALING WITH EXTREMELY LOW LEVEL OFFENCES (EG BEHAVIOURAL ISSUES, PUBLIC TRANSPORT OFFENCES, DRUNKENESS). THESE ARE DEALT WITH MUCH MORE PUNATIVELY THAN SIMILAR OFENCES ARE DEALT WITH HERE

4. THAT WE FALL WELL BEHIND THE REST OF THE WORLB WITH RESPECT TO RESTORATIVE JUSTICE

CULTURAL ISSUES

THE CULTURAL DIFFERENCES BETWEEN CONTININETS, COUNTRIES, REGIONS, STATES AND CITIES IN TERMS OF JUSTICE ISSUES ARE ENORMOUSEG – EUROPE: POST-SENTENCING HEARINGS, APPOINTMENTS TO GO TO GAOL, PAY YOUR FINES, DON’T OFFEND, AND IF YOU DO, TAKE RESPONSIBILITY. DON’T CRIMINALISE BAD BEHAVIOURCONTRAST – US – WHERE EVERYTHING IS CRIMINALISED. PEOPLE IN CUSTODY FOR TRIFLING OFFENCES

AREAS COVERED IN REPORT:

1.AT TIME OF POLICE NOTICE2.BEFORE SENTENCE3.SENTENCING4.POST SENTENCE5.MADE SOME ADDITIONAL

RECOMMENDATIONS

SOME INTERESTING FACTS ABOUT FINES IN VICTORIA:

1.THERE ARE NO STATISTICS AVAILABLE ABOUT THE CURRENT AMOUNT OWING ON UNPAID INFRINGEMENTS

2.AS AT 30 JUNE 2012, $231M WAS OWED WITH RESPECT TO COURT IMPOSED FINES

3. IN THE YEAR 2011-2012, 55% OF COURT IMPOSED FINES WERE PAID

4. IN THE YEAR 2010-2011, 64% OF COURT FINES WERE PAID- A DECREASE OF 9% IN ONE YEAR

MORE FINE FACTS:

1. IN LONDON, 55% OF FINES ARE PAID (SIMILAR PERCENTAGE TO VICTORIA)2. IN STOCKHOLM, 98% OF FINES ARE PAID (SIMILAR FIGURE IN ALL NORTHERN EUROPEAN AND SCANDINAVIAN COUNTRIES) 3. IN GLASGOW, 3% OF FINES ARE PAID4. AS AT 8 JAN 2014, 60% OF INMATES IN CORK PRISON, IRELAND, ARE IN CUSTODY FOR NON-PAYMENT OF FINES5. IN LONDON AS AT 2 JAN 2014, 49% OF ON THE SPOT FINES FOR SHOP THEFT ARE UNPAID

RESTORATIVE JUSTICE

RESTORATIVE JUSTICEA restorative justice philosophy promotes the restoration of justice through constructive dialogue between victims, offenders, and their communities, with a focus on healing the victim and his/her suffering, healing the offender and his/her moral character, and healing the group as a whole and the relationships within it. In practice, restorative conferencing is diverse but typically involves the meeting of the affected parties in an open dialogue, with the goal of reaching a consensus about the offense, the implications of its harm, and how to effectively restore justice and reintegrate the offender

.

RESTORATIVE JUSTICE:

IS USED EXTENSIVELY THROUGHOUT EUROPE AND SCOTLAND, AND IS STARTING TO BE USED IN THE US

IT IS USED AT THREE POINTS:•IT IS MAINLY USED BY POLICE FOR EXAMPLE, ‘STREET RJ’ IN SCOTLAND, AND IN HOLLAND, POLICE CONTACT MEDIATORS PRE-CHARGING. ALSO USED EXTENSIVELY IN FINLAND AND FRANCE BY PROSECUTORS•ORDERED AS PART OF SENTENCE OR PRE-SENTENCE•POST SENTENCE VICTIM-OFFENDER RECONCILIATION

HOW IS RJ USED BY JUDGES OVERSEAS?Before sentence:‘Adjournment in contemplation of dismissal’Essay writing, programsAfter sentence:Condition attached to order – in Canada, attached to Probation orderRarely is victim/offender reconciliation ordered by a judge – it is more in the nature of something that a Corrections officer organises

COMMUNITY WORK

NEEDS TO BE PRODUCTIVE AND IMPART SKILLS

NEEDS TO MAKE OFFENDERS FEEL THAT THEY ARE MAKING A CONTRIBUTION

NEEDS TO BE A SUBSTANTIAL INVESTMENT IN THE WORK•TOOLS•TRANSPORT•COMMUNITY ENGAGEMENT

TutorCommunity paybackBrixtonPark bench

MAIN RECOMMENDATIONS:PROACTIVE POLICING – POLICE ENGAGING IN ‘STREET RJ’•POLICE ARRANGING MEDIATION THROUGH VOLUNTEER MEDIATORS•PROVISION OF MEANINGFUL WORK UNDER CCO’S – WORK TO PROVIDE SKILLS AND MAKE PARTICIPANTS FEEL THEY ARE MAKING A CONTRIBUTION•UTILISING SKILLED RETIREES FOR COMMUNITY WORK•ADDITIONAL SENTENCING OPTIONS;

•ADJOURNMENT IN CONTEMPLATION OF DISMISSAL•FULL DISMISSAL

Chief Judge Nunes: Newark Municipal Court:

“Under-utilised sentencing options should be revisited and examined to see if they could be employed more creatively and with better outcomes”

‘It’s about qualitative, not quantitative, outcomes”.

Unintended consequences of sentencing policy

• Suspension/disqualification of licence often leads to further offending – it is disproportionately more onerous for persons residing in the country where the distances are greater and there is a lack of public transport

Before Charging-Refer to community support agencies or specialist police-auspised support agencies;Diversionary programs expanded;Referral to mediation (train respected community members in mediation);Restorative justiceInterventions.

Referral to court support programs, such as bail support, CISP – expansion of these programs;Referral to specialised listsRestorative justice/diversion programs;Refer – Court Integrated Services Program

CCOs be trained in Cognitive Behaviour Therapy and motivational interviewing – role less supervisory and more case-management, CBT oriented;More volunteer mentors to improve skills of participants;Feedback mechanism to court;Community involvement in community work;Probation officers appointed from ranks of retired professionals;Meaningful work.

POLICE PRE-SENTENCE COURT & SENTENCING

Community CorrectionsAfter charging -

refer to court based support programs such as CISP;More referral to Diversion;Greater flexibility to exercise restorative justice or diversionary programs.

SPECIALISED LISTS Such as Special Circumstances Courts, Street Sex Worker CourtsADDITIONAL SENTENCING OPTIONSAdmonishment, Adjournment in Contemplation of Dismissal;Expansion of support/diversionary programs;Dismissal without finding of guilt (if programs are completed – such as ARC dismissal);Probation for supervision of restorative justice programs (Where Community Corrections officer not warranted).Work and development orders.

INDIGENT OFFENDERS – A WHOLE OF JUSTICE APPROACH

WHAT AM I DOING DIFFERENTLY?

•TAKING MORE TIME – THINKING THROUGH WHAT WILL WORK FOR INDIVIDUAL OFFENDERS•TAKING MORE RISKS•UTLISING ADJOURNED UNDERTAKINGS WITH MORE CONDITIONS AND FOR LONGER PERIODS•DID MAGISTRATES KNOW THAT REGISTRARS DO GET COPIES OF OUR ADU’S WITH PAYMENT CONDITIONS? AND ENFORCE THEM?•I PUT MORE RESPONSIBILITY ON PROSECUTORS AND DEFENCE COUNSEL TO COME UP WTH SOLUTIONS

•THE CHALLENGE IS TO COME UP WITH PRACTICAL SENTENCES WHICH WON’T BRING THE COURT INTO DISREPUTE -

TWO FINAL MATTERS:

1. WEB SITE & SAMETIME – BOUNCE IDEAS OFF EACH OTHER – GET SECOND OPINIONS, READ WHAT OTHERS ARE DOING

2. ENCOURAGE APPLICATIONS FOR FELLOWSHIPS:

http://www.churchilltrust.com.au/