by Rick Morton

THE great progressive experiment in crime control is coming to an end, its chief protagonists grappling with a string of vicious acts committed by people with known horrific histories.

A rising chorus of experts and researchers are categorically ruling out the possibility of reform for the most dangerous and violent offenders, the ones whose clockwork histories of serious offending ought to have been red flags for parole authorities charged with protecting the public.

But, faced with failure in the rear-vision mirror, there is no guarantee authorities who turn up the “tough” in their policy settings will succeed.

“Jail is, in fact, criminogenic. When you are locking up more people, you are exacerbating the problem,” says Sentencing Advisory Council Victoria chairman Arie Freiberg. “Tough is not clever or effective.”

In February 2012, Adrian Bayley did not have his parole cancelled by Victoria’s Adult Parole Board after punching a man in Geelong, despite prior convictions for rape and violent assault.

While he remained free, Freiberg’s sentencing council released a March review of parole board decisions in the state that came with a major recommendation “that community safety should be the paramount consideration in all decisions relating to the granting of parole”.

Just six months later, Bayley raped and killed Jill Meagher.

“I think they may have made the wrong decision there,” Freiberg says. “It’s not that they didn’t assess community safety when making decisions, but it wasn’t as set in stone as we would have liked it to have been. They seemed to be saying ‘when in doubt, give them (criminals) a go’.”

Derryn Hinch was blunt after the Bayley revelations, which became symbols of the abject failure of the system: “Bleeding hearts, civil libertarians, they failed.”

Bayley is now appealing against his sentence on the grounds it is excessive.

Ross Fitzgerald served almost two decades on parole boards in Queensland and NSW and says the “terrible dilemma” must factor in the admission of one truth: “I have never seen any empirical evidence that has convinced me sex offender courses actually work,” he says. “But if they (politicians) are so concerned about pedophiles and sex offenders, what they need to do is seriously increase the penalties and judges need to sentence people more strongly.”

Victoria’s Corrective Services Minister Edward O’Donohue tells Inquirer there is room for a dual approach to crime.

“During the term of the previous Labor government it became clear that Labor’s approach to parole and sentencing did not meet community expectations,” he says. “It is possible for the interests of victims of crime and the notion of offender rehabilitation to co-exist.

“Aligning sentencing more closely with community expectations does not alter the efforts made in prison to rehabilitate offenders. For some years, Victoria’s recidivism rates have consistently been among the best in Australia.

“The very great majority of offenders will be released from prison at some stage. It is in the community’s best interests that those prisoners not reoffend when released.”

NSW Attorney-General Greg Smith has begun slowly altering his own approach to the portfolio despite hammering his own preferred message since arriving to the office in 2011: “Jails are universities of crime.”

He says: “We have established Youth on Track, an early intervention scheme for young people at risk of becoming involved in crime.

“Police and schools will refer young people considered to be at risk of committing crimes to be assessed and provided with services which address their needs and risk factors.”

But this simply forms part of an effective two-speed justice system which tries to save only what can be saved, typically young people.

“Simply building more and more prisons is not only fiscally unsustainable, but does not address the underlying causes of crime,” he says. “If we want to properly address crime, we must approach the issue in a more sophisticated manner.

“There are of course situations in which offenders simply must be imprisoned for life, or extended periods, for the safety of the community. It is true that some people cannot be rehabilitated and the public must be protected from these people. Each case must be assessed on its own merits. It is not always easy to identify who these people are and sometimes the wrong decision is made.

“In NSW, if a high-risk violent offender or a serious sex offender fails to engage in rehabilitation, this is a possible trigger for an application to the Supreme Court to prevent their release after the expiration of their sentence. The judge does not engage in a superficial or mathematical exercise, but one informed by the reports of clinical experts who have conducted individual examinations of the offender.”

In the year the Victorian parole board made its fateful decision not to cancel Bayley’s parole, it was considering about 10,200 cases at a rate of 54 per sitting day. Over a similar period, the NSW state parole authority considered 11,093 cases at a rate of 39 per sitting day.

In 2011-12, including Bayley’s decision, there were 727 parole breaches the board did not consider serious enough to issue a cancellation.

One of the board’s 24 members tells Inquirer, on condition of anonymity, that mistakes have clearly been made.

“At some point in time, I couldn’t pinpoint it exactly, it is fair to say we collectively lost sight of the very serious consequences of our actions,” the board member says. “You don’t want to make excuses but there was a pervasive sense that there was never enough time and never enough information to make a decision satisfactorily.”

Not only were these resources scarce, but they have been based on flawed science, according to Edith Cowan University’s founding chair of social justice, Caroline Taylor.

In 1987 and 1988 the Canadian and Australian law and sentencing peak bodies recommended “just deserts” as the appropriate response to crime, an approach which was gradually abandoned into the 1990s as something of an enlightenment washed over the continent.

“That was the start of a very long-running mistake which we’re only just beginning to see now,” Taylor says.

“There was, for the longest time, a preference for pop psychology to masquerade as some kind of scientific, evidence-based knowledge, when in fact we know now it is a false knowledge and we’ve all used it to have a rights-based approach for offenders.”

The statistics are literally unbelievable, she says.

First it is necessary to cleave offenders into two categories: those who commit crimes of passion or desperation, and those who commit crimes for fun.

A high-ranking NSW police officer tells Inquirer pedophiles and violent sex offenders are not “sick”.

“They do not suffer from a sickness. They do what they do because they enjoy doing it,” he says. “They will tell you all sorts of things but deep down, deep down, this is who they are.”

A Corrective Services PowerPoint display based on data from 330 prisoners in 2006-07 boasts its sex offender treatment programs were significant and effective, revealing that of those who withdrew from programs, 20 per cent “sexually re-offended” and that 4 per cent of those who completed the programs also “re-offended”.

Even international recidivism rates with treatment were 13.5 per cent – 27.2 per cent without – but there was one crucial omission in the data and it is the same problem evident in study after study, Taylor says.

“These studies are based on convictions, and convictions are not the same as offences,” she says. “When courts convict a sexual predator we call it lucky, because research has indicated predators convicted of assaulting one victim usually had between six and nine other victims nobody knew about.

“The really dangerous thing is that we have been basing our understanding of sexual offenders on flawed science and this unswerving, deadly, dedication to political correctness.”

These criminals get “better and better” at what they do as they grow older, Taylor says, “and we provide them the very environment the sex offender needs to commit and re-commit crimes – anonymity and secrecy”.

Fitzgerald says this category of offender is manipulative enough to get around loose parole requirements.

“I’m increasingly disillusioned by the fact pedophiles and violent sex offenders are not treated more severely,” he says. “They are often capable of mouthing the right responses, mimicking the behaviour required to be released but are, in fact, utterly incapable of changing their internal character.”

‘The Weekend Australian’, July 20-21, 2013, INQUIRER p 20