‘Jailing is failing’: How to fix a justice system that punishes disadvantage

Sara Stilianos says she was failed first as a child, and then again as an adult, by a justice system that punishes disadvantage and trauma.

A ward of the state, she says she was sexually abused multiple times throughout her childhood and beyond. She has survived domestic violence and battled a drug addiction from the age of 12. At every point in her life, when she was meant to be protected, she was let down by policies that did not prioritise early intervention or adequate support.

Sara Stilianos is a former inmate who is calling for reform of the criminal justice system.Credit:Eddie Jim

“We don’t need to be constantly punished and be retraumatised,” Stilianos, 35, says. “We need to move away from punishing people for the disadvantage and trauma they are facing.”

Five years ago, Stilianos was jailed for drug offences. The timing was bad, just after James Gargasoulas murdered six people on Bourke Street. The heat was on the government and courts for releasing him on bail just days before the January 20 carnage.

The tougher bail laws that followed had not yet come into effect, but Stilianos said the courts felt the pressure and she was remanded while awaiting sentencing. She says she knows how the prison system fails the most vulnerable and breaks them.

Stilianos has been sober for five years and is now an advocacy and campaign coordinator in the Victorian division at the Justice Reform Initiative, an alliance of eminent former jurists and politicians including former federal Labor minister Jenny Macklin, former federal Liberal MP Petro Georgiou and former Victorian Nationals leader Patrick McNamara.

The initiative’s State of Incarceration report, released on Wednesday, lays bare the failures of Victoria’s criminal justice system in a comprehensive assessment that they say reveals “jailing is failing”.

The report calls for more investment in efforts to reduce recidivism, diversion programs, an increase in home detention and to give judges more discretion over sentencing.

The state’s prison population has soared by a third over the past decade, though it has fallen in recent years, the report states. The proportion of unsentenced people waiting in Victoria’s prisons also more than doubled in that time, to 42 per cent of the prisoner population.

Victoria has the lowest rate of children in prison, but 83 per cent of youth in detention are awaiting sentencing. The report noted children who entered the youth justice system experienced disadvantage and trauma, with many having also been placed in out-of-home care.

Children who enter the justice system have experienced significant trauma

• 55 per cent had been subject to a child protection order
• 72 per cent were abused, traumatised or neglected as a child
• 50 per cent experienced domestic violence
• 62 per cent accessed mental health support for a diagnosed illness
• 29 per cent had an active cognitive difficulty diagnosed or documented by a professional 

The rise in the number of adult inmates has not been driven by the severity of the crime, according to the report, but rather by systemic failures fuelled by a populist law-and-order legislative agenda and a tough-on-crime media rhetoric.

“It is clear that disadvantaged groups – including First Nations people, newly arrived migrants and refugees, children in out-of-home, people with mental health conditions, people with disability and people experiencing multiple and complex disadvantage and discrimination – are imprisoned at disproportionate rates,” the report states.

“Prison entrenches disadvantage and does little to support people to turn their lives around. The over-reliance on incarceration as a default response to both disadvantage and to offending has resulted in a situation where too many people in the justice system are unnecessarily trapped in a cycle of harmful and costly incarceration.”

The statistics for imprisoned First Nations communities are “devastating”, the report states, with the number of Aboriginal and Torres Strait Islander people in prison almost doubling over the past decade, compared with a 24 per cent increase among non-Indigenous people.

Victoria is at a crossroads on justice policy.

After two decades of tough-on-crime policies and a tripling of government funding for police to $4 billion, Victoria has the country’s largest law enforcement agency per capita. The state spends $150,000 per person in prison, up from $100,000 over the past decade.

The Andrews government has committed to reforming the tough bail laws it introduced in 2018, decriminalised public drunkenness and vowed to raise the age of criminal responsibility from 10 to 14 – all moves welcomed by the Justice Reform Initiative.

The Coalition, which took a tough-on-crime approach to the 2018 election, has supported bail law reform. It also created a criminal justice reform portfolio in shadow cabinet, a position held by Brad Battin, who has flagged that he backs moves to lift the age of criminal responsibility.

The Justice Reform Initiative hopes politicians will seize the opportunity to make Victoria a leader in justice policy to end the high rates of recidivism and stop the revolving door prison system that costs taxpayers $1 billion a year to run. A third of people who leave prison are back inside within two years, while more than half have been in prison at least twice.

Former state attorney-general Rob Hulls, a patron at Justice Reform Initiative, said governments needed to think smarter on justice.

“We have to take a holistic approach, with early intervention to break the cycle before it becomes entrenched,” Hulls said. “The simplistic approach of just locking more and more people up is not a solution, is prohibitively expensive, and it doesn’t make the community safer.

“This is one of those few areas where policy decisions are often made despite the evidence, not because of it. Kneejerk decisions don’t lead to the best policy.”

Investments in alcohol and other drug treatment, mental health and disability support, housing and First Nations-led programs are more effective in reducing recidivism, according to the report. It also calls for more diversion programs, so matters can be dealt with outside of court and people can avoid a criminal record.

Former chief magistrate of Victoria Ian Gray, who is also involved with Justice Reform Initiative, said judges needed to be given greater discretion over sentencing and that home detention should be available for certain offences. He has also called for more targeted investment in meaningful support programs for people in prison.

The state government and opposition have been contacted for comment.

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