Fairbrother Russell: Criminal Justice Reform Bill — Second Reading 
Fairbrother Russell: Criminal Justice Reform Bill — Second Reading 
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RUSSELL FAIRBROTHER (Labour) 
: 
 I have enjoyed listening to this debate on the Criminal Justice Reform Bill and I have enjoyed listening to my friend Ron Mark. I have to say that I am not sure that I can say that everything he says is wrong; I know I disagree with him but I am not sure I can say he is wrong. Just as I can assert what my position is he is entitled to disagree with me—and will disagree with me—but again he cannot do so based on any science. That is the difficulty with discussions on sentencing: we each come to the criminal justice system from an entirely different point of view. 
My position is somewhat humble with not much research but I have appeared for perhaps over 10000 people charged with criminal offences and I have appeared on sentence of many of those people and have appeared on sentence through to the appellate level. One thing I have learnt from that experience is that we have a very very faulty system. It is inherent with human error and pseudo-science and at the end of the day nobody really knows what the causes of criminality are. 
I suggest that we are very cautious before we say that there are 22 percent or 25 percent of inmates with mental health problems and that if we cured mental health problems we would cure crime. There is a high percentage of people in the community with mental health problems who do not commit crime. Again with the statistics for alcohol and drug use there are equally high numbers in the community with alcohol and drug habits who do not commit crime. There are many in the community with literacy problems who do not commit crime. I think that when we look in good faith for reasons for criminal offending it is often easy to pick on the symptoms of someone’s difficulties and to say that it explains his or her criminal offending. But the other half of the equation is that for every one of those persons there are some other people in the community who have those same problems and who do not commit criminal offending. 
I speak today in support of the Sentencing Council having first of all been very reluctant and having been involved in my support because of a caucus decision thereon. I was very glad to get off the Justice and Electoral Committee before this Criminal Justice Reform Bill had to be considered because I thought I would be a malcontent on that committee in dealing with issues of the Sentencing Council and likewise. However I have thought long and hard on this issue and before being prepared to take a call tonight I had to reconcile with myself as to whether I would make a speech that was political and perhaps traditionally from my point of view lightweight or make one that reflected the many years of experience I have had in the courts appearing for many many people—many good people—appearing for sentence on terrible crimes. 
If we can have a Sentencing Council that takes away from judges the pseudo-science on which they are forced to sentence at present then I am all in favour of a Sentencing Council. There are about six basic tenets when a judge comes to consider sentence. I will not go through each of them but none of them are justified by any science. Most of them are inherited from British common law and they are repeated endlessly—such as deterrence. 
At the very moment that a judge says that he or she is imposing a deterrent sentence the courtroom is empty except for the police and the prosecutor the accused and the prison guards—the media are not there. The judge says that he or she must impose a deterrent sentence the judge imposes a difficult sentence or tough sentence and the prisoner is taken away. It is ridiculous to make such a comment because no one knows that the sentence was passed so it cannot be a deterrent sentence. However it is the only pattern the judge has available to him or her and that shows more a paucity in the sentencing process and the science behind it than it does with the people who choose to become judges and who take on the very difficult task of passing sentence. 
One thing that I did learn from my time at the Bar is that very few if any judges enjoy the sentencing process. I have spoken with some considerable minds who have been very highly regarded lawyers and who have sat on difficult civil cases and difficult trials. They have said that the time of passing sentence has been the time that causes them the most sleeplessness and the most anguish no matter how worthy or unworthy the accused person is. So I welcome a Sentencing Council because the Sentencing Council may be able to build up a jurisprudence of science on which to base its recommendations to the courts and the judges as to the sentences that should be imposed. 
At present there are guidelines for sentencing set down by our Court of Appeal and these have built up over the years and they have been building up since the late 1970s. These guidelines impose very rigid requirements on lower court judges on sentence but do they stop offending? No they do not. Why do they not stop offending? It is because the Court of Appeal judges who impose the guidelines are frequently not experienced in the practice of criminal law and they are faced for the first time in their lives when they go to the bench with people who commit very serious crime. Some of those judges are very experienced in criminal law. The judges have to go to an almost arithmetical pattern to determine what the appropriate sentence is. They do it by looking at various cases and trying to distil patterns from decided and sentenced cases and then they reflect on what might be the public attitude and determine whether that pattern should be subject to an increase or sometimes—only occasionally—to a decrease. 
This is not the way for a judge to operate. A judge is a representative of the community but if a judge’s only access to what the community thinks is by the newspaper the television or the protest outside the court then the judge is taking into the courtroom the very evidence that he or she would reject if witnesses appeared in his or her court using the same science to advance their case. So one of the inherent ironies is that we appoint very capable people to the bench who are then given the impossible task of passing the right sentence with absolutely no informed support. 
In fact no judges call upon and they are not able to call upon academic research when it comes to sentencing. Judges eschew hearing from specialists such as psychiatrists psychologists or sociologists as to a causative factor behind the offending because they are so bound by precedent and judicial guidelines that are inherited and passed down that their range is very focused indeed. I have seen judges with a look of terror in their eyes at the press of public concern outside when they consider a sentence. I have seen sentences affected by the judge’s experience of pushing through a throng of people outside who want the blood of the person being sentenced. That is a human reaction but judges should be protected from it. 
Therefore it is for all those reasons that I support a Sentencing Council. I do not think it is worthwhile quibbling about whether it could be seen to be a breakdown of the concept of the separation of powers; I do not really see how the logic follows on that. But if there is a risk of that occurring then what we do gain is judges who can point to an informed body of opinion before passing a sentence. And if the sentence they pass proves to be ineffective there is a review body that considers all the science in the community in the academic community and in the international community and comes forward to the bench or to Parliament with ideas for improvement. 
Members can stand here in future and say that drug addiction is a cause of criminal offending—I am not convinced that it is; lots of drug addicts do not commit crimes. Or they can say that broken homes are a cause of criminal offending—I am not sure they are; I know a lot of people from broken homes who do not commit crimes. Or they can say that mental health issues are a cause of criminal offending—I am not convinced that is the case; I know a lot of people with mental health issues who do not commit crimes. These are all factors but we can have a learned body of opinion that will enhance our community knowledge and our community. One day this Parliament may be able to debate the whole question of criminal justice based on fact and research rather than opinion and newspaper dialogue. 
I am moved to ask myself what prisons are really for. I look at the statement of intent of our Department of Corrections and one of its duties is to bring about rehabilitation. Members should think about just how illogical that is. We lock someone up in prison we take that person out of his or her community we take that person away from his or her family and we stick that person in with other like-minded people for 24 hours a day and all that person learns is how to behave in a criminal way. We put prisoners in the charge of prison officers—and I have acted for a lot of prison officers and I know them very well; they are very good people. But they are paid a menial wage and they bring into the job skills that reflect the level of pay. 
If we are going to rehabilitate prisoners in prison we should have professors running our prisons we should have academics running our prisons we should have mentors who are well paid running our prisons so that they impart real skills to prisoners. But we cannot rehabilitate somebody in isolation because at the end of the day that person leaves prison and goes back to the same family and the same community that never had the advantage of the rehabilitative processes given to that person in prison. It is my view that we use the term “rehabilitation” when we speak about prisons to ease our conscience about not thinking the matter through and locking people up rather carelessly. 
So I welcome the advent of the Sentencing Council. I think it is a tentative step to bringing our prisons back to being prisons and our reformative process—habilitation and rehabilitation—back on to a scientific basis so we can bring about reform for those very many people who commit criminal offences but who can lead a different life. I would estimate that 90 percent of people who appear for sentence are capable of living lawful lives if they have the chance. Prison does not offer that chance but community-based sentences such as the new home detention sentence will.