An ACT Legislative Assembly committee this week published its report of an inquiry into the administration of bail, amidst growing public dissatisfaction and concerns that serious offenders are released on bail, only to commit further crimes.

The inquiry, launched in April, made 17 recommendations, including explicitly recognising the rights of victims of crime; reviewing bail conditions for domestic and family violence offenders; and providing more support for offenders to meet their bail conditions and avoid re-offending while on bail.

Throughout this Assembly term, police unions, victims’ advocacy groups, and opposition and independent politicians have pushed for a complete overhaul of the justice system. They argue that the current system places too much emphasis on rehabilitation at the expense of community safety.

Bail breaches and lenient sentencing

Last month, for instance, Wei Wang (an alleged drug kingpin, facing more than 50 charges) was released on bail, despite police and prosecutors’ advice not to do so.

A 44-year-old man with 40 charges of raping and indecently assaulting his children breached bail and allegedly confronted a witness.

A 14-year-old boy was granted bail in the ACT Children’s Court over the death of Joshua Stewart, despite concerns he was intimidating another person.

Last year, a man in his 70s accused of historical child sex abuse offences against his family was granted bail. So was a recidivist teenage offender, who had been arrested four times in two months.

In another case, a domestic and family violence offender was granted bail twice, despite having breached the conditions of his Family Violence Order on both occasions, violently assaulted his victim, and threatened her life. He was released on bail, and murdered her.

“There are many examples of offenders who have been released on bail only to reoffend,” Inspector Mark Richardson, an Independents for Canberra candidate, said. “It is most certainly the case for people on bail for dangerous driving offences.”

Breaches of bail have increased: the latest 12-monthly police data shows 1,204 breaches from 30 June 2023 to 1 July 2024, up from 1,106 the previous year and 940 the year before that.

Altogether, there have been nearly 4,500 breaches of bail resulting in arrest since 2020–21, Shadow Attorney-General Peter Cain MLA, who is also the committee’s chair, noted.

Coupled with a three-year high in recidivist offences – more than 1,200 in the past financial year – he sees this as evidence of a failing system.

“Canberrans are realising that sentences being handed down are not aligned with what their expectations are,” Mr Cain said.

“Unfortunately, these realisations are occurring as a result of avoidable tragedies occurring in our homes, our roads, and our city.”

The Director of Public Prosecutions (DPP) has challenged many sentences as too lenient. Two years ago, the DPP filed a record number of appeals, arguing that sentences were falling “clearly short of community standards”. In 2021–22, the DPP filed 28 appeals, 25 per cent of which were Crown Appeals, and was successful in 68 per cent of its appeals.

Since then, the number of appeals has decreased. In the last couple of years, the DPP filed 20 appeals for inadequate sentences: six from the Magistrates Court and 14 from the Supreme Court. In 2023–24, it filed eight appeals; all five from the Supreme Court were successful.

Likewise, ROGS data shows that the number of ACT magistrates’ court decisions resulting in guilty outcomes fell by a third in the last decade, although the ACT Government attributes this drop to a change in how traffic offences are recorded.

Assaults on police

One political candidate can argue from first-hand experience that sentences are too lenient. The Belco Party‘s Jason Taylor, a former police sergeant, left the force with PTSD after he was assaulted by Robert James Reid and nearly killed.

Reid received a relatively light sentence: a 20-month intensive corrections order. His offence carried a seven-year penalty, which, Mr Taylor says, meant he should have been sentenced in the Supreme Court, not the Magistrates Court.

“Whilst he was sentenced to a term of imprisonment – apparently that’s what an intensive corrections order is – I was court-ordered not to read parts of my victim impact statement that he argued were unfavourable to him,” Mr Taylor said.

“The ultimate irony is that if I had read them – I considered it as I stood at the bar table – I may have been held in custody for contempt, which would have meant I’d have spent more time in custody than someone who nearly killed me. Again, mine is but one more example of an offender-focused, broken justice system that only a full and independent review can fix.”

In seven incidents where criminals drove at police, endangering officers’ lives, none received prison sentences; instead, they were given Drug and Alcohol Treatment orders, Inspector Richardson noted.

The ACT has legislation similar to NSW’s “Skye’s law” for failing to stop for police, with a one-year sentence for a first offence and three years for repeat offenders, compared to NSW’s three years and five years. However, in the ACT, the average custodial sentence for this offence over three years was just 78 days.

ACT Government: Presumptions of bail

The ACT Government, while acknowledging the complexity of sentencing and bail decisions, maintains that laws are designed to protect both the community and the accused’s right to a fair trial. The judiciary, it argues, are best placed to make case-by-case decisions on bail.

“Bail laws are designed to balance the competing objectives of acknowledging that individuals charged with offences have not been convicted of those crimes and are presumed innocent, and ensuring accused people attend court, and to keep the accused person, witnesses, and the community safe,” a spokesperson said.

“Bail is not a system of punishment.

“Most offences in the ACT have a presumption in favour of bail. Only the most objectively serious offences such as manslaughter, aggravated robbery, and sexual assault in the first degree do not have a presumption of bail.”

Sentencing is governed by the Crimes (Sentencing) Act 2005, which requires judges to balance competing factors to impose fair and proportionate sentences, the spokesman said. Maximum sentences are reserved for particularly severe offences.

However, that same act, Inspector Richardson points out, states that no one purpose of sentencing – punishment, deterrence, protecting the community, rehabilitation, holding the offender accountable, denouncing their conduct, recognising the harm done to the victim – should be given more weight than another.

“The reality is that rehabilitation is clearly given more weight,” Inspector Richardson said.

“This is problematic, as our rehabilitation programs are not funded to the level they require to provide support and wrap-around services, and we are seeing high levels of reoffending for those on community orders.

“Across all crime types, if you compared sentencing in the ACT to other jurisdictions in Australia, we have on record the most lenient sentencing.”

Jason Taylor agrees with Inspector Richardson that courts place too much emphasis on rehabilitation and ignore all other aspects of sentencing.

“It is quite apparent that we have an offender-focused system of justice that has been allowed to fester for years, due to the ideological views of too many of those in government,” Mr Taylor said.

ACT Greens: Address the social causes of crime

Many blame Attorney-General Shane Rattenbury, who believes addressing the social causes is a more effective means of lowering crime than incarcerating offenders.

“We know that time in prison often has a criminalising effect and disproportionately affects people who are already enduring disadvantage,” Mr Rattenbury recently said.

“We achieve the best results when we put investment in things that actually work like restorative justice, housing, health, mental health and improving people’s quality of life.”

“If you have an Attorney-General in authority who basically wants to bend over backwards wrongly to protect the rights of criminals as they see it, and to hell with the victims? Yeah, that’s a big problem, because that will rub off on a court,” former Attorney-General Bill Stefaniak, co-convenor of the Belco Party, said.

Two years ago, the Australian Federal Police Association (AFPA) called on Mr Rattenbury to resign, because he had not commissioned the independent review of bail and sentencing they believed was necessary. Courts had granted bail to recidivist offenders who went on to reoffend, including, in one case, attacking a policeman. Mr Rattenbury, the AFPA argued, had put the rights of offenders above the safety of Canberrans.

The Canberra Liberals also threatened to move a no-confidence motion in Mr Rattenbury. Their bill for an independent review – following bereaved father Tom McLuckie’s e-petitions, which had the second most support of any in the ACT’s history – was defeated. (Chief Minister Andrew Barr did not acknowledge the victims’ families.)

Although Mr Rattenbury did not agree to an external review, he set up the Law Reform and Sentencing Advisory Council, an independent expert body to advise on law reform. The 13-member council, chaired by former ACT magistrate Lisbeth Campbell, was established at the end of 2023. It is reviewing the Bail Act 1992, which establishes the legislative framework for the courts and police to decide whether bail should be granted or not, the bail system for recidivists, and sentencing for dangerous driving.

Mr Rattenbury maintains that rehabilitation and reintegration programs to address the root causes of offending will enable the ACT to meet its target of reducing recidivism by 25 per cent by 2025, and that recidivism has declined by 19.6 per cent since the goal was first set in 2018.

“This is due to measures that improve access, fairness and support across the justice system,” Mr Rattenbury said.

“We have focused on addressing the causes of harmful behaviour that lead people into contact with the justice system.”

Inspector Richardson, however, argues that the government’s measurement is flawed, because it only tracks those who return to prison within two years, and overlooks the ACT’s high reoffending rates. (See article published earlier this week.)

Victims’ rights

This week’s committee report recommends that the Human Rights Act 2004 be amended to explicitly recognise the rights of victims of crime. The committee is concerned that victims’ rights are not on an equal footing with those of the accused (such as the right to a fair trial and to the presumption of innocence) – a view held by both police and advocacy groups.

“We have a justice system that has very little regard for victims’ rights,” Inspector Richardson said. “Many victims of crime, and families of those victims, have recounted how powerless they felt during their experiences with the ACT justice system.”

Marie-Noelle Cure, executive director of the Victims of Crime Assistance League (VOCAL) ACT, says that Canberra’s criminal justice system prioritises the rights of offenders over those of victims. VOCAL has argued that victims are often sidelined in the court systems, while lenient sentencing and bail conditions lead to further distress.

“A weak sentence or criminal getting out on bail causes great trauma to our clients,” Ms Cure said. “They feel the system has let them down and their legitimate fears and concerns ignored whilst the criminal seems to have been treated almost as a special person.”

Ms Cure notes that VOCAL has received no government support for more than 13 years – whereas the ACT Government spent more than $77,000 on prisons and nearly $24,000 on corrective services in 2022–23.

Concerned about high risks of recidivism, VOCAL told the inquiry that courts should give risks to victims greater consideration when determining bail conditions.

“All too often, the courts seem to pay scant regards to [a Victim Impact Statement], and go on to impose a less than appropriate sentence or grant bail to some criminals who should clearly remain locked up,” Ms Cure said.

“It’s just so much extra trauma for the victims and the victim’s family if a criminal gets a weak sentence, constantly out on bail,” Mr Stefaniak, who is also VOCAL’s patron, said. “Criminals’ rights are important, but they shouldn’t trump victims’ any day of the week.”

Bail for domestic and family violence offenders

The inquiry recommended that bail conditions for domestic and family violence offenders be reviewed to improve compliance and reduce recidivism. It heard that current bail conditions might not adequately protect victims of domestic and family violence, or prevent reoffending.

ACT Policing and other stakeholders argued that bail conditions should be more stringent: domestic violence offenders should be refused bail due to the risk they posed, and the Bail Act should be amended to include a presumption against bail.

Mr Cain, in a dissenting report, argued that a presumption against bail would better protect victims and reduce recidivism among high-risk offenders.

The report recommended electronic monitoring for high-risk offenders, such as those accused or convicted of domestic violence.

The ACT Government announced this week that it planned to introduce electronic monitoring first for community-based orders and later for domestic and family violence offenders.

Mr Rattenbury said that “while electronic monitoring is not a panacea for preventing a person committing a crime, it can be a useful tool” to track and respond to violations of location-based restrictions for people on community-based orders, such as bail, parole, and Intensive Corrections Orders. 

Electronic monitoring is not a complete solution for crime prevention, but it can effectively track and respond to violations of location-based restrictions for individuals on community-based orders. To ensure its success, the system must be supported by adequate funding, proactive services, and prompt responses to breaches.

It identified a lack of adequate bail support programs, particularly for vulnerable groups, which contributes to higher non-compliance with bail conditions. The Ngurrambai Bail Support Program for Aboriginal and Torres Strait Islander people – who are overrepresented in the justice system (24.6 times more likely to be sent to prison than non-Indigenous people, the highest rate in the country) – has been effective (85 per cent of bail plans were granted) but limited in scope, the report found. The committee recommended that it be expanded to include young people, and that a bail support program for young Indigenous Australians be set up.

Parties promise independent review

Calls for an independent review continue. Only this week, the Independents for Canberra committed to a review, arguing that the criminal justice system is failing victims and offenders. It would investigate rates of reoffending, youth offending and diversion, policing approaches and resources, justice reinvestment, bail, sentencing, corrections, family and domestic violence, and the ACT’s prison, the Alexander Maconochie Centre.

“A comprehensive independent review of our criminal justice system is the only way to get to the bottom of what’s going wrong in the ACT and start delivering fair outcomes,” a spokesperson said. “We need a forward-thinking system that reduces repeat offending and keeps our community safe.”

The Canberra Liberals have committed to review and reform bail and sentencing laws, “because we know they currently do not meet community standards”.

“When criminals do get a custodial sentence from our courts, they are more likely to reoffend than in other Australian jurisdictions, despite ACT taxpayers paying more per prisoner than in any other Australian jurisdiction.”

So, too, has the Belco Party. Their review would encompass bail and sentencing, how legislation is drafted (particularly how the Justice and Community Safety Directorate interacts with stakeholders), and rehabilitation and reintegration of offenders (how to fund and deliver programs for both incarcerated and non-incarcerated offenders).

“This will give the next Government a blueprint to administer effective, meaningful and long-lasting justice reform,” Mr Taylor said. “This is in the best interests of the ACT community.”

VOCAL also believes an independent review is needed.

“The internal government review gets nowhere, as the Greens especially have absolutely no interest in the rights of victims, but appear to care more for criminals,” Ms Cure said.

Bail opposed for assaults on frontline workers

The Canberra Liberals, the Belco Party, and the AFPA advocate for a presumption against bail for individuals charged with assaulting frontline workers (police, ambulance, emergency workers), meaning that defendants would need to demonstrate exceptional circumstances to receive bail.

“Frontline workers are the everyday heroes of our community,” Mr Cain said. “It is not good enough for offenders who assaults on them to be out on bail. Criminals who have shown they pose a significant threat to frontline workers, and the broader community, should not get a soft deal on bail applications.”

“If you assault somebody in the course of them protecting the community, you should have to demonstrate to the Court why you deserve to be in the community,” Mr Taylor said.

Three years ago, the Canberra Liberals moved a bill to remove the presumption of bail, after four police officers were assaulted and hospitalised. The government defeated the bill, arguing it mischaracterised the bail system and violated human rights.

The government still does not support removing the presumption in favour of bail for this offence. They argue that it would be inconsistent with the bail framework, which reserves such measures for the most serious offences (those that carry prison sentences of five years or more), such as manslaughter, aggravated robbery, and rape.

Others have argued that presumptions against bail are incompatible with the Human Rights Act 2004, which generally opposes the detention of people awaiting trial. Legal Aid ACT advocates for a general presumption in favour of bail for all offences.

Assaulting frontline community service providers has carried a maximum penalty of two years’ imprisonment since 2020.

The Canberra Liberals are open to strengthening the penalty to five years, Mr Cain said.

The Belco Party supports making “assaulting a frontline worker” an aggravating factor in all assault provisions, up to murder, potentially leading to higher penalties depending on the severity of the assault.

Inspector Richardson, however, suggests that other offences, such as “Causing harm to a Commonwealth public official”, which carries a much higher penalty of 13 years, might be more appropriate.

Proposed reforms

“To bring [the ACT] more into line with every other jurisdiction,” Mr Stefaniak proposes that ACT courts should align with those of NSW by adopting sentencing guidelines and accessing other states’ guideline judgements.

“The ACT – and I can say this from my days a prosecutor to now – is a lot weaker in terms of sentencing, especially for serious matters, than its interstate counterparts,” Mr Stefaniak said.

“We’re an island in NSW, and that we should be so different in certain aspects of our sentencing, it’s just plain crazy.”

Other jurisdictions, such as Victoria have legislated sentencing schemes for standard sentences, Category 1 and 2 offences, Cat A and B serious youth offences, minimum terms of imprisonment and non-parole periods, and serious offenders, Inspector Richardson noted.

The ACT Government, however, said it did not propose to introduce guideline judgements, as justice stakeholders believe the small size of the ACT and its courts makes it unnecessary.

While VOCAL does not fully support mandatory sentencing, Ms Cure advocates for sentencing guidelines similar to those of NSW, and suggests using the NSW Registry of Sentences to help courts align their sentencing with those imposed for similar offences across the border. She noted that VOCAL was unhappy with the length of sentences in certain cases, including homicide.

Mr Stefaniak believes that serious offenders should go to jail for longer. Imprisonment, he argues, helps offenders rehabilitate.

“You’re not helping the criminals by being too lenient,” Mr Stefaniak said. “They need to know they’ve done the wrong thing. They need a trade and help them as best you can when they’re in there. By not locking them up, by not having them charged, by letting them have bail and commit more offences, and giving them bail again, it’s not only counter-productive and shocking for the community and victims, but it doesn’t help them. I think a lot of them probably realise that, too.”

Mr Stefaniak also believes that stricter bail conditions be imposed. For instance, people who breach bail by threatening witnesses, harming someone, or committing more offences should automatically be put in custody.

In 1991, Mr Stefaniak introduced section 9D of the Bail Act, which states that courts must refuse bail except in special and exceptional circumstances. That legislation, Mr Stefaniak said, halved the burglary rate within six months, because most burglaries were committed by the same 20-odd criminals who reoffended while on bail.

“One of the great satisfactions of my life, in terms of I’ve probably saved a few lives,” Mr Stefaniak said.

Now, he suspects, the government has watered his law down.

Currently, section 9D only applies when someone accused of a serious offence (punishable by five years or more) commits another serious offence while awaiting trial. Examples of such offences include threats to kill, assault, causing bodily harm, stalking in a family violence context, and violating a family violence order.

VOCAL ACT also calls for stricter enforcement of section 9D and for a re-evaluation of the presumption in favour of bail, suggesting that, for serious offences, there should be no presumption, or even a presumption against bail.

“Not ‘oh, they have been in care since birth’, or ‘their mother was a drug addict’, or ‘they have been in foster homes’, etc.,” Ms Cure said.