The Coalition and Mandatory Sentencing

Who will prevail in the battle between liberals and “rednecks”?

In each election in New South Wales since 1999, the Coalition has promised a policy of mandatory sentencing in relation to one or more offences. In 1999, the Opposition spokesman on Legal Affairs, John Hannaford, proposed a form of grid sentencing.

In 2003, the Coalition went to the election promising mandatory minimum sentences for a range of offences including murder in the first and second degree, murder of a police officer, gang rape and some commercial drug offences.

It was reported that the original policy, drawn up by Shadow Legal Affairs spokesman Chris Hartcher, had also included mandatory sentences for property offences, and that a split in Shadow Cabinet had developed over the proposals.

A leaked document made its’ way into government hands, and it was revealed that Opposition front bencher, Brad Hazzard, had led the argument against mandatory minimums, and for the proposition that judicial discretion in sentencing should be maintained.

In the end, Opposition Leader John Brogden went to the 2003 election with a modified proposal that did not include property offences, but nonetheless would have required courts to impose, for example, 25 year minimum sentences for first degree murder, and life imprisonment for the murder of a police officer. These laws would have permitted no judicial discretion to impose a sentence that was appropriate to the facts of the offence or the offender.

In 2005, Brogden had again proposed to take mandatory sentencing to the next election, only to lose the Opposition leadership in disgrace. The new leader, Peter Debnam, picked up the baton and maintained the policy of mandatory life for the murder of a police officer, with Hartcher again putting forward proposals to end 'soft' jail terms and introduce a new system of sentencing for violent criminals.

Arriving as a new MP in 2007, former Deputy Director of Public Prosecutions Greg Smith became the new Shadow Attorney General. In that role, Smith has repeatedly stated his determination to take Coalition policy in a very different direction to his predecessors. In 2009, he told the Australian’s Chris Merritt:

"I have (Liberal Party) support for the view that the law-and-order auction should not be continued in the next election." 

He said his colleagues in the state opposition "did not take a lot of convincing" to abandon the law-and-order auction and embrace the need for more effective rehabilitation of prisoners:

"The Liberal Party are supportive of this line, as are people who I have spoken to in the community.”  

 Smith went on to say: "I know there are still rednecks out there that want mandatory sentencing and matters of that sort," before emphasizing his priority to reduce the growing budget devoted to imprisonment.

Despite these comments, and what would appear to be a denunciation of mandatory sentencing by Smith, the Coalition have not abandoned their policy to introduce mandatory life for the murder of a police officer.

We already know what such an amendment might look like, care of a 2007 private members bill, introduced by NSW’s next Police Minister, Mike Gallacher, but defeated in the Legislative Council.

The proposed amendment was as follows:

19B Compulsory life sentences for murder of police officers 

1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder of a police officer if the murder was committed:

(a) While in the execution of the police officer's duty, or 

(b) As a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of the officer's duty. 

2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person's natural life. 

3) This section applies to a person who is convicted of murder of a police officer only if the person was of or above the age of 18 years at the time the murder was committed. 

4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (of any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. 

5) Nothing in this section affects the prerogative of mercy. 

In the Second Reading Speech, Gallacher referred to his own background in the Police Force, and the deaths of David Carty and Glenn McEnallay, both officers murdered in the execution of their duty. The bill was strongly supported by the NSW Police Association, as well as the parents of Carty and McEnally.

Interestingly, the second reading speech referred to the case of Taufahema, a co-accused in the murder of McEnallay, who drove the vehicle being pursued by Police, and in which the shooter was a passenger.

Taufahema’s murder conviction was quashed on appeal to the CCA, on the basis of certain principles of accessorial liability, and he was acquitted of the charge. Notwithstanding that the shooter, Penisini, was convicted of murder and sentenced to 34 years, with a 23 year non parole period, McEnallay’s family and the Police Association were outraged by Taufahema’s acquittal.

Although this result had nothing to do with the adequacy or otherwise of sentencing, and concerned principles that most people (including criminal lawyers) do not understand, Gallacher was not deterred:

"The community and the Opposition—and certainly Glenn McEnallay's parents—believe the driver of the car involved was implicated in the murder and should have stayed in jail for the murder of Glenn. The cases of those involved in the murders of David Carty and Glenn McEnallay highlight the soft stance taken in New South Wales against people who murder police officers. This bill is another step in providing a higher level of protection for police."

It would appear this policy has remained something of an article of faith for some members of the Coalition, and like other matters of faith, resistant to reasoned argument. And as the following part of the second reading speech reveals, Gallacher’s understanding of the effect of the amendment and the removal of judicial discretion was, at least in 2007, questionable:

“One member referred to it as a simple bill. It is a shame that the simpleton did not read this so-called simple bill. The Hon. Lynda Voltz spoke about her big issue with this legislation. In fact, it was her only issue in the contribution she made some time ago. She said: 

The question that comes to my mind is: If this sentence is mandatory, is there no situation that we can see where a judge should hear the case and give some weight to the decision? 

Should we not ask the judge to look at the situation? 

Had she bothered to read the bill she would have seen that in relation to the compulsory life sentence for the murder of police officers—new section 19B—it says: 

Nothing in this section affects the prerogative of mercy. 

In other words, the very issue that she hung out as the only one that was causing her not to vote for this bill is that we are denying judges the ability to use their prerogative with regard to mercy."

It is not known whether there will be a further debate within the party over this policy, or the position that Greg Smith will take. His previous statements appear not to favour mandatory sentencing, yet he has not spoken publicly against this proposal. Requests made to his office this week to clarify his position have not been answered.

Those in the criminal law world might remember that Mr Smith prosecuted the brothers Gilbert and Richard Adam for the murder of Constable David Carty in 1998, and then went on to appear in the appeals in the CCA and High Court. One wonders what that experience had on the formation of his attitude to this policy.

What we do know is that this bill will resurface at some stage. Whether the so-called “rednecks” prevail over the small-l liberals of the Coalition remains to be seen.

In 2000 the then PM John Howard said:

“As a matter of principle, I do not agree with mandatory sentencing. I agree with strong sentencing laws, but in the end I do think these matters ought to be determined by judges and magistrates.” 

Can we expect the Liberal Party to follow the lead of their patriarch, and stand up for the principle of judical discretion in sentencing? And will this issue give us any line on O'Farrell, and his reputation as a moderate?

Depending on where the Upper House votes fall tomorrow, the answers to these questions may not be too far away. 

Time for NSW to escape the penal colony

By Richard, Ackland, SMH, 1 March 2011:

Someone get a gavel. Any minute now the bidders will arrive for the latest law and order auction. 'Do I hear ''Life sentence'', anyone?'

THE prospect of a NSW election without a strong dose of law'n'order doesn't seem right. The restraint was promised by both sides, but it's inevitable that they will fall off the wagon. Greg Smith, the shadow attorney-general, has already shown what he's made of with a promise of mandatory life sentences for cop killers.

I thought that had already been promised in an earlier auction. Indeed it was. It's a dusted down version of an old Peter Debnam promise.

There was anger in 2006 that the Court of Criminal Appeal quashed a conviction for the murder of a police officer. The then premier, Morris Iemma, was so livid he said he was considering the introduction of re-education programs for judges.

As it is, you only get 25 years' non-parole if you murder a judge. Same for killing a police officer. Presumably when the Liberals speak of life sentences, they don't mean anything as soft as 25 years.

After the Cronulla disturbances in 2005 Iemma advocated top-up prison sentences for anyone who attacked a surf lifesaver. The possibilities for the sentencing of special categories of victims are limitless. Maybe lighter sentences for those who slay columnists or disc jockeys would be an attractive vote getter.

Under a no-nonsense O'Farrell government young graffiti artists will no longer be subject to police discretion. If caught spraying and daubing on walls it will be straight off to court. The courts will be empowered to cancel ''graffiti vandals''' driver's licences or extend the time they are provisional drivers.

Presumably they'll be allowed to keep their skateboards.

Smith was quoted last year as saying: ''I understand that the culture hasn't been to jail [graffiti offenders] and we've got to change that culture, otherwise our city is just going to be an … eyesore.''

Rock throwers and knife carriers are next.

Labor has yet to announce its law and justice policy. It has unveiled a proposal to introduce new laws to target serious crime ''committed in groups''. Watch out for legislation dealing with ''complicity''.

There was also legislation to allow courts to detain new categories of violent offenders beyond their term of imprisonment. The Liberals don't disagree with that. So far, though, we're seeing a softer John Hatzistergos and a milder Greg Smith.

Smith admits he's been on quite a journey. He was once a ''headkicking prosecutor … I defended life imprisonment. I fitted in with that hard-line genre''.

At a recent gathering conducted by the Community Justice Coalition, Smith conceded that years of punitive rhetoric and policies have ''done a lot of harm … It has turned a reasonably enlightened prison system into a penal colony''.

Last act for Hatzistergos before axe falls

By Richard Ackland, SMH, March 18, 2011:

Attorney-General John Hatzistergos has performed what we can only hope is his final act of bastardry before he is flung out of office. As long as Hatzistergos had breath in his body he was going to see the end of the Director of Public Prosecutions, Nicholas Cowdery - and his final play in the battle was the appointment of Ian Temby, QC, as acting DPP for two months.

Today is Cowdery's last day in office. He turns 65 tomorrow and to keep the full extent of his pension benefits he has to go right now. There's a certain amount of government deliberation in that situation - more of that in a moment.

The Attorney-General put out a statement on Wednesday lauding Temby's capacities and achievements. Labor governments have been in and out of love with Temby ever since federal attorney-general Gareth Evans plucked him from the Perth bar to be the first Commonwealth DPP.

There was a two-sentence mention of Cowdery at the bottom of the announcement, thanking him for his service and noting the government ''valued the integrity of his prosecutorial decisions''. In any language it was a singularly icy farewell.

Cowdery had advised the government that he was available to serve as acting DPP from tomorrow so that the functions of the office could continue seamlessly until the incoming government found a replacement. About 11.05am on Wednesday, Hatzistergos phoned Cowdery to say his resignation had been accepted. He added he had taken advice from the Solicitor-General and would not agree to Cowdery's suggestion that he continue in an acting capacity.

Further, he would not even appoint the current deputy DPP, Lou Lamprati, SC, as acting director. Temby would take the job for two months - full stop. However, if the incoming government had not filled the position within Temby's tenure, Lamprati might be able to be acting director. How's that for tortured jockeying?

The reality is that Cowdery was perfectly entitled and eligible to be appointed for a term as acting director. It would have been the most efficient and cost-effective thing to do but under this regime memories are long and unforgiving.

The Greens Plan for Justice Reform

Press Release, 19 March 2011:

More Justice with Fewer Gaols 

The Greens have a clear plan to divert money from prisons to programs that will reduce crime, decrease reoffending and make our community safer while saving scarce public funds. 

Research by the Greens has established that this financial year expenditure on adult correctional services in NSW is budgeted to be $1.06 billion. A further $333 million is being spent to punish and gaol young people in the state's juvenile justice budget. Altogether the total annual state expenditure on correctional services is a staggering $1.4 billion. 

Policy Summary 

The Greens plan will create savings in reducing incarceration rates of adults and juveniles through: 

(i) Bail law reform $340 million over 4 years 

(ii) Juvenile justice reform $404 million over 6 years 

(iii) Sentencing law reform $340 million over 4 years 

We will direct savings to community building and mental health programs: 

(iv) 200 bed community mental health facility $260 million over 4 years 

(v) Investing in public libraries for learning $52.8 million over 4 years 

(vi) Aboriginal transport and mentoring services $40 million over 4 years 

(vii) School nutrition program $15 million over 4 years 

(viii) Aboriginal Women Housing program $40 million over 4 years 

Net savings over 6 years $626.2 million 

Despite having similar socio-demographic profiles, Victoria has half as many prisoners as NSW. Victoria imprisons its citizens at the rate of 103.6 per 100,000 compared to the NSW rate of 184.8. The result is NSW runs 57 gaols to Victoria's 14. This comes at a significant cost to taxpayers, with NSW paying to run four times as many gaols as Victoria. 

This situation has come about through repeated law and order auctions by the major parties that have seen the NSW prison population swell by one third since truth in sentencing changes in 1999. This has been compounded by changes to the Bail Act, especially the now notorious s22A, that limits most accused to a single bail application. 

The situation is ever more dramatic in the juvenile justice system where the average number of young people in detention increased by more than 60% from 2003/4 to 2009/10. As at 2009/10 there were on average, 431 young people in NSW gaols on any given night. This means we detain our children in NSW at more than 4 times the rate they do in Victoria. 

Aboriginal citizens are bearing the brunt of this law and order auction. More than 20% of all adult NSW prisoners are Aboriginal, with adult Aboriginals being more than 10 times as likely to be in gaol as adult non Aboriginals. The outcomes for young Aboriginal people is even more telling, with half of all the young people in NSW gaols being Aboriginal. Representing only 2.5% of the population in NSW, this means Aboriginal young people are more than 20 times as likely to be gaoled as non Aboriginal young people 

The Greens have a clear plan to turn this situation around by restoring communities, making our justice system fairer and diverting funds from punishing offenders to building communities and preventing offending. 

Coalition to review juvenile justice

ABC Online, 18 March 2010:

The New South Wales Opposition will review plans to spend $30m expanding the Riverina's youth jail in Wagga Wagga.

The Labor candidate for Wagga and former worker at the Juvenile Justice Centre Glenn Elliott Rudder said the spending is needed to modernise the facility and to address overcrowding problems. It would bring capacity to 60 people.

The Opposition's Justice spokesman Greg Smith is not prepared to commit to the rebuild of the youth jail as an election promise.

"If they've actually started buiding, then maybe we will but if I become the minister for Juvenile Justice I would want to have a review of any of these proposals to see whether the expenditure is warranted and secondly what are the community interests in going ahead with such expansion," he said.

The Opposition is proposing a softer approach to juvenile offenders if the Coalition wins the election Mr Smith said former Labor Juvenile Justice Minister Graham West resigned over the government's refusal to consider alternatives to jail. Mr Smith said Labor has encouraged police to crack down on young people breaking curfews.

He said the Coalition would take a more considered approach, including a review of the Bail Act.

"I'm concerned about the high jailing rate, particularly of Aboriginal youth," he said.

"But so many of these cases seem to be remand situations where they've been refused bail or bail has been revoked.

"And some of these people are charged with offences that don't even carry jail, the maximum penalty's a fine.

"And it's just most improper and most wrong to jail people in that situation."

Hard line fine for dangerous criminals, but what about the rest?

By Greg Smith SC MLA, Shadow Attorney General and Minister for Justice, Bar News, 2009/10:

Building more prisons to house the growing number of prisoners, many of whom are recidivists who have had little genuine rehabilitation, is expensive and does little to make a better society. Harsher sentencing is leading to more, not less, recidivism.

Introduction 

I have worked as a lawyer in prosecution and criminal justice agencies for most of my career, since the mid 1970s. This included working in Commonwealth Government agencies in Sydney from 1975 to 1987 and New South Wales Government agencies from 1987 to February 2007, as a crown prosecutor; a secondment to the Independent Commission Against Corruption as general counsel assisting in the Milloo inquiry into police corruption; deputy senior crown prosecutor; and finally, as deputy director of public prosecutions for almost five years before resigning to run for election as the member for Epping in the New South Wales Parliament. 

During that period, I witnessed many changes to the criminal justice system by the enactment of legislation and changes to practice and procedure dealing with such things as: the establishment of offices of Director of Public Prosecutions in each jurisdiction; the Uniform evidence Act; sentencing laws; guideline judgments; and standard non-parole periods. In that period I appeared for the Crown in hundreds of criminal trials and many appeals in the Court of Criminal Appeal, and full court appeals in the High Court of Australia. I became very uneasy with the law and order auctions, as they tended to make the law – particularly the sentencing laws – more complex and more susceptible to error. 

Law and order auctions 

Remarkably, law and order did not feature as a major issue in the 2007 NSW state elections. This totally contrasted with the previous five elections held between 1988 and 2003. The Iemma government and Coalition nevertheless continued policies with a ‘tougher approach’ to crime and criminals. 

In January 2003, journalist Paola Totaro predicted that ‘Bob Carr and John Brogden share an unstated hope – that crime does pay. In the March 22 election, they expect a dividend of votes from their efforts to exploit community anxiety about criminals.’(1) 

She opined ‘law and order’ auctions in New South Wales probably had their genesis in the lead-up to the 1988 state election, in the wake of disastrous revelations about Labor’s corrupted early- release prison scheme. 

She said Liberal opposition leader, Nick Greiner, built a powerful election policy platform on significant anti-corruption and criminal justice reforms. The early-release scheme, which allowed prisoners to earn time off for good behaviour, spawned what Greiner called ‘truth in sentencing’ legislation. 

Law and order issues featured prominently in the March 1995 election campaign, prompting ‘widespread criticism of both sides of politics for conducting a law-and- order ‘auction’ in a bid to win votes on the crime issue’.(2) 

The Fahey government proposed life imprisonment for serious offenders, such as murderers, rapists, drug traffickers and robbers who repeatedly broke the law. John Fahey stated in his campaign launch, ‘It is three strikes and you are in. In gaol. And in gaol to stay.’ 

Labor’s policy in 1995 included mandatory life sentences following conviction for dealing in large commercial quantities of hard drugs and for a new offence of ‘horrific crime’ (multiple murder, contract killing and murder or attempted murder in conjunction with violent sexual assault). 

Both sides promised greater victims’ rights. The ALP won that election and the following three elections. Many policies were not honoured or watered down. Gratefully, no mandatory sentences have ever been enacted. 

In the 1999 election campaign, the opposition’s policy included reforming the justice system with a new set of sentencing guidelines, described as ‘grid sentencing’, which would set a mandatory minimum sentence, with rare exceptions. Judges could depart from the guidelines in particular circumstances.(3) 

The Carr government labelled the plan a ‘disaster’, claiming the proposal mirrored grid sentencing, which they claimed had failed spectacularly in the United States. Attorney General Shaw said it would take away judges’ powers to sentence and hand them over to politicians and in practice, would not lead to tougher sentences.(4) 

In the 2003 election both sides proposed to abolish double jeopardy laws, to allow re-trials for homicide and other serious offences. A restricted law was enacted in late 2006. A further amendment has recently been enacted.(5) 

In 2007 the opposition promised a parliamentary committee to monitor the DPP; increasing frontline police numbers; increasing police powers; mandatory life sentences for those who murder police; tougher bail laws and tougher laws against young offenders; and giving juries a say in sentencing. The Iemma government promised to build more gaols; to increase penalties and to introduce new offences. 

Both sides also promised to modify the right to silence.

Take No Prisoners

Australian Story, ABC1, 7 March 2011:

On the eve of his retirement from public office, the nation's longest serving Director of Public Prosecutions, Nicholas Cowdery, reflects exclusively on his sixteen years in the top job.

Cowdery's reign encompasses some of the nation's most notorious criminal prosecutions including the cases of Ivan Milat, Gordon Wood, Keli Lane, and the moral outcry over Bill Henson's photographs of children.

Loved by many in the legal profession, but loathed by some in the political arena, Nicholas Cowdery is acknowledged as a fierce defender of the DPP's independence. His decision from the outset not to 'curry favour' with his political masters led to a 'take no prisoners' leadership style that's divided friends and foes alike.

In a rare insight, Nicholas Cowdery reveals the stories behind some of his most difficult decisions - and finally explains what the gift of two olives in a jar from one of his biggest opponents really stood for.

Watch the Australian Story episode here

Hatzistergos v Cowdery - final round

By Theodora, Justinian, March 17, 2011:

The appointment of Ian Temby as acting NSW DPP was unnecessary, expensive and an act of vindictiveness, according to Theodora 

Attorney General John Hatzistergos phoned outgoing DPP Nicholas Cowdery on Wednesday (March 16) and told him Temby would be taking over for two months as acting DPP, until the incoming government found a replacement.

He rejected Cowdery's offer to stay on as acting director. Cowdery ends his 17-year stint as NSW DPP today (Friday, March 18), one day before his 65th birthday on Saturday.

Hatzistergos' explanation for the rejection of Cowdery's offer was that the legislation doesn't allow him to extend his appointment, even in an acting capacity.

Curiously, he told the DPP this was the advice he had from the Solicitor General, but according to Cowdery's version of the conversation with the AG, the SG said the situation "might be open to other interpretations".

Indeed it might, because the saving and transitional provisions of the DPP Act say that the amendments of 2007, which removed Cowdery's life tenure (till age 72) and made him ineligible for reappointment ("including reappointment after the end of the director's term"), do not apply to any senior officer of the DPP who held office immediately before the commencement of the amendments. See s.36(4) DPP Act. 

It was sheer bloody mindedness on the part of Hatzistergos that prevented Cowdery being extended for a few more months.

All the more so because having Cowdery as acting DPP would have saved the state money. Temby is to be paid at least the DPP's salary - at the rate of $354,030 p.a. plus $22,000 by way of a "conveyance allowance".

Had Cowdery been permitted to stay on, his pay would be the difference between his pension and his salary - a saving to the state of 40 percent of the usual DPP's purse.

Hatzistergos would not even appoint the deputy DPP, Lou Lamprati SC, as acting director. Temby is it.

Hatzistergos effectively forced Cowdery out of the job before the expiry of his tenure by refusing to amend an anomaly in the provisions which require the DPP to take his pension at 65, even though he could serve as director to the age of 72.

Small mindedness is never attractive, but at least Hatzistergos is not among those ALP characters who would have kept Ian Temby on a black list for what he did to Labor icon Lionel Keith Murphy.

Who Are the Real Beneficiaries of 50 Years of Global Drug Prohibition?

By Peter Sarosi, March 17, 2011:

This year marks the 50th anniversary of global drug control regime - civil society demands an evaluation

It was exactly 50 years ago that the United Nations adopted the first international treaty to prohibit some drugs – particularly drugs used by non-Europeans such as cannabis, cocaine and heroin. The 1961 Single Convention on Narcotic Drugs played a major role in creating the legal basis and institutional framework for the global prohibition regime. The logic of the system was simple: any use of the drugs listed, unless sanctioned for medical or scientific purposes, would be deemed ‘abuse’ and thus illegal. As a result of this convention, the unsanctioned production and trafficking of these drugs became a crime in all member states of the UN. 

This year marks the 50th anniversary of the Single Convention, and any person who believes in transparent, democratic policy making might assume that this should be a year of reflection for the UN. However, it seems only a few NGOs are calling for the evaluation of the social, economic, public health and human rights impacts of this drug convention. At the end of March, delegates of governments from around the globe will gather at the 54th Session of the Commission on Narcotic Drugs (CND) in Vienna, but the question of evaluation was not even put on the agenda of the meeting. Why is this? Is it because there is apparently no question that our policies, based on the drug conventions and driven by a punitive approach, are so successful that nobody can question their effectiveness? The answer is no: you would be hard-pressed to find any public policy so frequently criticized by both professionals and civil society alike other than drug policy. 

The Vienna Declaration, an international NGO initiative, calls for a substantial reform of drug policies. The Declaration points out that punitive drug policies have several unintended consequences: they fuel the global HIV epidemic, undermine public health systems, result in a crisis for criminal justice systems, lead to severe human rights violations and create a massive illicit market worth an estimated annual value of almost 400 billion USD. The Declaration calls on governments to “undertake a transparent review of the effectiveness of current drug policies”. Ex-presidents of a region hit especially hard by the global war on drugs, Latin-America, joined in the Latin-American Initiative on Drugs and Democracy to initiate “wide-ranging debates about the issue, hearing specialists, analyzing alternatives and formulating suggestions”.

Prison Reform in NSW: Public statement By Christian, Muslim, Buddhist, Jewish and Hindu Faith Organisations.

March 2011 at withoutfearorfavour.org.au:

The twelve religious groups below join the many voices calling for prison reform in NSW in this important pre-election period. We seek to apply the values of compassion, healing and social justice to all members of society, including prisoners, who are often the forgotten ones - ‘out of sight, out of mind’.

The measure of compassion and social justice we extend to prisoners reflects on the presence of those values in our society.

We are actively involved in the pastoral care of prisoners through the prison chaplaincy programmes.

For too long, NSW has seen an increasing rate of imprisonment, and the highest rate in Australia of prisoners returning to prison after release (43%). These “prisoners” are children of the Australian society, we have a choice to support their rehabilitation and allow them to be constructive members of society, or keep them in this vicious cycle of relapse and recidivism. We believe that many prisoners can be reformed if there is the political will to do the work required. Prisoners should not be used for political gain with some political parties using the fear tactics around crime, and promising more harsh treatment to gain votes.

We recommend the incoming government consider the following measures to improve this situation.

1. To increase the focus on rehabilitation and education programmes and other measures to assist prisoners reintegrate into society, thus decreasing the rate of return to prison. To reduce the current rate of recidivism by 10% within the next 3 years.

2. To reform the bail laws that have been increasingly toughened, causing far too many to be imprisoned on remand. Restore the presumptions in favour of bail in all cases except where there is genuine evidence of harm, if the alleged offender is left in the community.

3. To create strong and independent oversight of the Corrective Services Department to ensure full transparency of their operations. In particular, official visitors should be able to report any concerns about prisoner management to an independent regulatory body without fear of being dismissed or locked out of prisons.

4. To provide a stronger pastoral care resource in the prison system. The government accepted a target of one chaplain per 200 inmates but this has not been met. If that ratio were implemented, pastoral care resources would be improved by 30%. Chaplains should also have better access to inmates in terms of longer visiting hours and better facilities for interviewing inmates and holding religious services.

5. To create a planning and review body to look at all of the ways that the performance of corrective services in NSW could be improved. NSW should be a model of best practice. This would benefit all citizens of NSW through lower rates of incarceration and crime.

It is our role as religious organisation to make a strong stand on these issues by upholding the values of compassion and social justice. We urge the people of NSW to expect and pressure the incoming new government to adopt policies to improve the rehabilitation of prisoners. This will create a more wholesome society for us all.

Supporting Organisations

• Missionaries of the Sacred Heart Justice and Peace Centre, Father Claude Mostowik msc, Director 
• Australian Federation of Islamic Councils, Ikebal Patel, President 
• Justice and Peace Office, Catholic Archdiocese of Sydney, Dr Steven Lovell-Jones, Justice and Peace Promoter 
• Federation of Australian Buddhist Councils, Mr Kim Hollow, President 
• UnitingCare NSW.ACT, Rev Harry J Herbert, Executive Director 
• The Hindu Council of Australia, Prof. Nihal Singh Agar, Chairman 
• Islamic Council of NSW, Khaled Sukkarieh, Chairman 
• Conference of Leaders of Religious Institutes in NSW, Sister Sharon Price rsm, Executive Director 
• Friends of Refugees Of Eastern Europe, Rabbi Yoram Ulman, Judge, Jewish Ecclesiastic Court of Sydney, Past President, Rabbinical Council of NSW, Chabad House Bondi 
• Council Of Imams NSW (Affiliated with Australian National Imams Council), Tarek El-Bikai, Secretary
• Australian Sangha Association (representative body for monks and nuns of all Buddhist traditions), Sujato Bhikkhu, Secretary
• Churches Together NSW.ACT (NSW Ecumenical Council ) Rev. Paul Swadling, Acting General Secretary

The next Labor leader?

Former Unions NSW boss, John Robertson, entered the NSW Legislative Council in 2008, following the retirement of the former Treasurer, Michael Costa.

Robertson was credited with no small role in bringing about that result, thanks to his performance in and around the 2008 NSW Labor Conference, during which he organised union resistance to the Iemma/Costa plan to sell off electricity assets, and thereafter, when he was reported to have plotted the same pair's execution.

With less than 3 years under his belt in the Upper House, Robertson will, at this election, attempt a move to the Lower House by contesting the seat of Blacktown (margin 22.4% ALP). Speculation has been growing that this move is being made with a view to taking the Labor leadership after the election.

With this in mind, RG dug into the archives to discern the attitude of one of the Labor greats to the prospect:

Prison Rape and the Government

By David Kaiser and Lovisa Stannow, New York Review of Books, February 23, 2011:

Back in 1998, Jan Lastocy was serving time for attempted embezzlement in a Michigan prison. Her job was working at a warehouse for a nearby men’s prison. She got along well with two of the corrections officers who supervised her, but she thought the third was creepy. “He was always talking about how much power he had,” she said, “how he liked being able to write someone a ticket just for looking at him funny.” Then, one day, he raped her.

Jan wanted to tell someone, but the warden had made it clear that she would always believe an officer’s word over an inmate’s, and didn’t like “troublemakers.” If Jan had gone to the officers she trusted, they would have had to repeat her story to the same warden. Jan was only a few months away from release to a halfway house. She was desperate to get out of prison, to return to her husband and children. So she kept quiet—and the officer raped her again, and again. There were plenty of secluded places in the huge warehouse, behind piles of crates or in the freezer. Three or four times a week he would assault her, from June all the way through December, and the whole time she was too terrified to report the attacks. Later, she would be tormented by guilt for not speaking out, because the same officer went on to rape other women at the prison. In a poem, Jan wrote:

These are a few of the reasons why prisoners fear reporting rape.

Fear of being written up and possibly losing good time.

Fear of retaliation.

Fear of feeling that no one will believe them.

Fear of feeling that no one really cares.

For all these reasons, a large majority of inmates who have been sexually abused by staff or by other inmates never report it.(1) And corrections officials, with some brave exceptions, have historically taken advantage of this reluctance to downplay or even deny the problem. According to a recent report by the Bureau of Justice Statistics (BJS), a branch of the Department of Justice, there were only 7,444 official allegations of sexual abuse in detention in 2008, and of those, only 931 were substantiated. These are absurdly low figures. But perhaps more shocking is that even when authorities confirmed that corrections staff had sexually abused inmates in their care, only 42 percent of those officers had their cases referred to prosecution; only 23 percent were arrested, and only 3 percent charged, indicted, or convicted. Fifteen percent were actually allowed to keep their jobs.

How many people are really victimized every year? Recent BJS studies using a “snapshot” technique have found that, of those incarcerated on the days the surveys were administered, about 90,000 had been abused in the previous year, but as we have argued previously,(2) those numbers were also misleadingly low. Finally, in January, the Justice Department published its first plausible estimates. In 2008, it now says, more than 216,600 people were sexually abused in prisons and jails and, in the case of at least 17,100 of them, in juvenile detention. Overall, that’s almost six hundred people a day—twenty-five an hour.

Homeless Triangle Part Three: How many Bay Area parolees are homeless?

By Doc Gurley, City Brights Blog, sfgate.com, February 17, 2011:

Sentenced to indefinite homelessness

It is universally acknowledged that the first wave of homelessness occurred when the mental health system was abolished. Many would argue that a second wave of homelessness occurred when vast amounts of affordable housing were eliminated. I would argue that a third wave of a more desperate, intractable, and frequently violent phase of homelessness has been created by our vast prison system.

How many people enter the prison system homeless? How many leave our prison system with no fixed destination? What subset of the 70 percent of ex-felons who return to prison are homeless?

Just for public safety reasons, you might assume the correctional system would want to know those numbers. A homeless person, by definition, is a wild card. You cannot know where they are at any point in time – much less immediately after a crime has occurred in the vicinity.

Surprisingly, according to both California Department of Corrections and Rehabilitation’s (CDCR) research division and the voluminous reports on its website, the prison system does not explicitly track that information. A well-funded assessment tool (COMPAS), which has the goal of predicting the inmates likely to become higher-risk parolees, was begun in 2008. A preliminary assessment of its data shows that 39% of inmates are at high risk of "residential instability."

Classifying offenders could lead to criminal justice revolution

By Juliet Rix, The Guardian, 2 March 2011:

Imagine being able to predict which offenders will go on to commit serious crimes. Juliet Rix on a new system that could have a drastic impact on the justice system

A new approach to classifying crime could revolutionise the way the criminal justice system deals with offenders. According to Peter Neyroud, the recently retired chief of the National Policing Improvement Agency and a former chief constable, such a revolution is urgently needed. Unless the UK dramatically changes the way it does justice, he says, the forthcoming 20% cuts in the criminal justice system budget will be "disastrous". So the requirement to save money is an opportunity to persuade politicians of all parties to embrace a new and more effective way of dealing with offenders, Neyroud believes. He and Lawrence Sherman, Wolfson professor of criminology at Cambridge University, are together working on a scheme they believe could achieve an irresistible trinity: cutting prison numbers by 50%-70%, saving money and keeping the public safer.

The prison population has soared in recent years – almost doubling since justice secretary Kenneth Clarke was last home secretary in 1992-93 – with a commensurate rise in the budget. Some 85,000 people are now locked up (the highest rate in western Europe) at a cost of some £45,000 a year each. The UK's criminal justice system is the most expensive per capita in Europe, costing more even than in the US, yet half of released prisoners are reconvicted within a year, three-quarters in the case of juveniles. "The best study we have on the effect of prison," says Sherman, "suggests that the first time an offender goes to prison it triples his offending rate, so the advantage of [temporary] incapacitation is quickly lost." As a tool for the overall reduction of crime, he says, "prison doesn't work".

Sherman and Neyroud hope all this will change if their new approach to classifying and dealing with crime takes off. Sherman has developed a Crime Harm Index (CHI) – a way of consistently measuring the harm done by crime rather than simply counting offences. Clearly, a murder does a lot more harm than shoplifting and so should carry more weight. Most crime measures – as well as government targets – focus purely on numbers of crimes, so a conviction for smoking a single joint of cannabis counts the same as one for rape.

Labour admits 'tough' penal policy failed to stem reoffending

By Alan Travis, The Guardian, 6 March 2011:

Shadow justice secretary Sadiq Khan is to argue for a change in party policy on prisons

Labour made a mistake by "playing tough" on crime and allowing the prison population to soar to record levels during its time in government, instead of tackling sky-high reoffending rates, the shadow justice secretary, Sadiq Khan, is to acknowledge for the first time on Monday.

In a break with New Labour's hardline rhetoric, Khan is to argue that the party should declare a new policy aim of jailing fewer people.

Khan's speech to a Fabian Society/Prison Reform Trust event is the first attempt by a senior Labour figure to sketch out the party's new direction on prisons policy. He is also to announce a party working group on punishment and reform to detail the new focus on rehabilitation and cutting crime.

"We did send more people to prison and for longer. While we successfully reduced crime, we did not manage to reduce the prison population," he is to say.

Labour should have done much better in reducing reoffending rates of those coming out of prison, he believes: "I feel it was a mistake to not focus more on the issue of reducing offending. We became hesitant in talking about rehabilitation and the merits of bringing down reoffending rates.

"A focus on rehabilitation and reducing reoffending was seen as being soft on crime, when in fact it is effective in reducing crime."

Khan also warns that Ken Clarke's "rehabilitation revolution", which includes greater use of the voluntary sector and payment-by-results schemes, is seriously jeopardised by 25% cuts in the justice ministry's budget. He argues that if Clarke's plans fail then much of the progress in criminal justice over the past 13 years will be undone and the door left opened for the Tory right.

Keneally opens state's second drug court

SMH, 7 March 2011:

NSW Premier Kristina Keneally has opened the state's second Drug Court and promised a third if Labor wins the March election.

Ms Keneally today opened a Drug Court in Toronto, in the seat of Lake Macquarie in the Hunter region, citing the success of the original court which is based in western Sydney.

She said if re-elected, the government would spend $6.3 million on a third court at the Downing Centre justice precinct in central Sydney.

"A drug court in Sydney's east would provide full coverage for the metropolitan area," she said in Toronto, the first stop on her three-day bus tour of the Hunter.

"The people who have gone through the drug court process overwhelmingly have gotten their lives back, gotten themselves back on track, become productive members of society and kicked their drug habits.

"If we can break an offender's dependence on drugs, we can help them break the drug crime cycle and reduce the overall rates of offending."

The western Sydney court, opened in 1999, has diverted thousands of drug-dependent offenders into treatment programs, with more than 50 per cent not returning to jail, she said.

Ms Keneally's announcement came after the opposition promised a second drug court for the Sydney area.

Ms Keneally also announced a call for tenders for a $94 million justice precinct in Newcastle, which will replace the city's ageing courts with a new 10-court complex.

NSW Libs & Nats Announce Plan To Crackdown On Re-Offending Rates

Coalition Press Release, 7 March 2011:

NSW Opposition Leader Barry O'Farrell and Shadow Attorney General Greg Smith SC today announced a comprehensive plan to crackdown on re-offending rates in NSW, including the establishment of a second Drug Court in Sydney.

Mr O'Farrell explained the NSW Liberals & Nationals ambitious plan has the goal of reducing the re-offending rate to below the national average within ten years.

"The people of NSW are fed up with a corrective services system which merely acts as a 'revolving door' for offenders as they transition through a life of crime," Mr O'Farrell said.

"The NSW Liberals & Nationals are determined to treat crime at its source and this is why we have a comprehensive plan with the goal of reducing the rate of re-offending to below the national average within ten years," he said.

"NSW has the worst recidivism rate of any Australian State with more than 40 per cent of prisoners returning to gaol within two years."

A NSW Liberals & Nationals Government will:

1. Establish a second Drug Court in the Sydney metropolitan area including detoxification facilities, drug testing, monitoring and treatment;

2. Create a specialist Metropolitan Drug Treatment Facility to ensure up to 300 drug addicted prisoners get treatment and are given the opportunity to get off drugs;

3. Provide an additional $20 million over four years for education and training programs in prison; and,

4. Encourage greater use of non-custodial punishment for less serious offenders and create availability and access to diversionary programs.

Mr Smith said reducing re-offending makes sense.

"Every ex-prisoner who returns to gaol costs taxpayers and diverts resources which could be spent on more hospital beds, better public transport or fixing our roads," Mr Smith said.

Prisoners released during 2007-08 who returned to prison with a new correctional sanction within two years – Australian Productivity Commission, Report on Government Services 2011

                                           NSW   Vic      Qld      WA    SA      Tas      Aust

Prisoners returning to prison 42.4% 33.7% 33.5% 38.3% 30.2% 31.7% 37.6%

"A NSW Liberals & Nationals Government will establish a second Sydney Drug Court with evidence showing drug offenders who participate in drug courts are less likely to re-offend," he said.

NSW premier announces social bonds plan

From SMH, 6 March 2011 (AAP):

NSW Premier Kristina Keneally says her government will invest $25 million in social bonds, in an investment pilot to pay for non-government early intervention programs, if re-elected.

Speaking to reporters in Newcastle on the eve of a three-day bus tour of the Hunter, Ms Keneally said the government would chip in $25 million to provide confidence to investors in the scheme, inspired by a similar UK bond.

Under the Labor pledge, which she says would be an Australia-first program, $10 million would go to preventative programs that help keep young people out of juvenile detention.

Another $10 million would go to help families at risk, while $5 million has already been allocated to the Department of Ageing, Disability and Home Care to develop bonds for disability services.

"The government will kick off with $25 million, and we'll do that, one, to provide confidence to investors that this is a program that will work. We'll have our own skin in the game," she told reporters in Newcastle on Sunday night.

"And also to provide that seed funding."

The bonds are not financial instruments like those seen in the traditional bond market, but allow private investors to invest in non-government community service programs.

If the services meet agreed targets and deliver public sector savings - making a measurable social difference - then investors would receive a return on their investment.

"Social Impact Bonds increase the amount of money available to governments to invest in early intervention without having to cut services they are already delivering," Ms Keneally said.

"Social Impact Bonds will complement, not replace, government support for community services."

Homeless Triangle Part Two: Home erosion

By Doc Gurley, City Lights blog, sgate.com, 15 February 2011:

You can read Part I of this series about homelessness and our prison system here.

Get on the bus

Each year, for 130,000 Californians, the prison door is unlocked one day and the question now becomes - where do you go? And how do you get there? Do you get any money? If so, how much? It is remarkably hard to find an answer to those basic questions, even if you’re a concerned family member trying to find out.

Nowhere on the California Department of Corrections and Rehabilitation’s (CDCR) website could I find a description of the release process, or how a destination is chosen, or how much (or little) financial aid or transportation help a prisoner might get upon release. If you are the mother of a son with disabilities, impulse control disorders, and mental illness and you’re trying to find out exactly when he’ll be released – you can’t know. And if you’re trying to find out where he might be headed, or how much money the prison system might give him – you can’t know.

Recently released prisoners often tell me in clinic that they got “nothing.” After 10, or two, or 15 years, the door is unlocked and they take a bus somewhere with no medicine, no appointments, no place to stay and not a penny to their name. After being unable to verify this process on the CDCR website, but finding references in news articles to “$200 and a bus pass,” I decided to call CDCR and find out what was true. Eventually, I spoke to the highly professional and extremely helpful officer Joanne Duroncelet. She was a bit surprised that she couldn’t find the information on the website either. But she proceeded to explain that decisions about what you’re given, and where you can go on release can be highly variable. The maximum someone can get on release is indeed $200 – but you’re not guaranteed it. And there is no adjustment for length of time behind bars. And, if you need a bus ticket, and/or clothes, those come out of that same amount.

But you may indeed arrive in a neighborhood without a penny. There is something called a “parole hold,” which is when a parole officer decides to keep whatever is left of your potential after-bus-ticket-and-clothes money. A parole officer may choose to do that to encourage you to comply with the conditions of your parole (such as checking in). How does a parole hold decision get made? It depends on the parole officer, I was told.

Officer Duroncelet also later sent me the link to the written policy, which is here: 

When it comes to the choice of destination, many prisoners may have contraindications that prevent them from returning to within 35 miles of the place they previously lived. Reasons can include a stay-away order, history of domestic violence, restraining orders or sometimes as a condition of parole. No data exists on where those people go, or how many of them become homeless in a different community’s neighborhoods. But generally speaking, most prisoners are expected to return to their county of incarceration. If you have relationships to rely on, that’s where you are expected to go. Back where it all began.

Bradley Manning's forced nudity to occur daily

By Glenn Greenwald, Salon.com, 5 March 2011:

To follow-up on yesterday's observations about the prolonged forced nudity to which Bradley Manning has been subjected the last two days: brig officials now confirm to The New York Times that Manning will be forced to be nude every night from now on for the indefinite future -- not only when he sleeps, but also when he stands outside his cell for morning inspection along with the other brig detainees. They claim that it is being done "as a 'precautionary measure' to prevent him from injuring himself." 

Has anyone before successfully committed suicide using a pair of briefs -- especially when under constant video and in-person monitoring? There's no underwear that can be issued that is useless for killing oneself? And if this is truly such a threat, why isn't he on "suicide watch" (the NYT article confirms he's not)? And why is this restriction confined to the night; can't he also off himself using his briefs during the day? 

The law of England is not Christian

By Andrew Brown, The Guardian, 28 February 2011: 

The judgment in the case of a Pentecostal couple who wanted to foster children, but refused to accept homosexuality, is an important statement of secular principles

The Christian Insitute and similar bodies have mounted a series of court cases over the alleged persecution of Christians in the last five years. Almost all have been based around the claim that Christians are entitled to discriminate against gay people. Each one has ended in defeat. From the cross worn by Nadia Eweida to the attempts to allow religious exemption to the registrants of civil marriage, or the owners of B&Bs, the cases have been pitched as matters of high principle, and the judges have responded with increasing asperity. None, I think, has been so brutal as Lord Justice Munby in his judgment on the case of Owen and Eunice Johns, a couple of Sheffield pentecostalists who were turned down as foster carers because they would not accept homosexuality.

"I cannot lie and I cannot hate, but I cannot tell a child that it is ok to be homosexual", as Mrs Johns explained her position.

Now it is arguable that this is a case that could, and should, have been settled much more quietly. I believe that if you really "can't lie and can't hate", or even if you have ordinary human difficulties with a policy of full-on lying and hating, then you must come to the view that for some people it is perfectly OK to be homosexual. But either way it isn't really an urgent problem. The Johnses were applying to foster children between the ages of five and ten, not teens troubled about their sexuality. It's absurd to make their views on homosexuality a shibboleth.

But the Johnses themselves, no doubt egged on by rich backers, decided to turn the case into a matter of principle. they wrote to the council "We take these statements and others to mean that it is either your policy, or your understanding of the law, that Christians and other faith groups who hold the view that any sexual union outside a marriage between a man and a woman is morally reprehensible are persons who are unfit to foster. In short you seem to be suggesting that Christians (such as us) can only adopt if we compromise our beliefs regarding sexual ethics"

This is the view that Lord Justice Munby has described as a "travesty of reality". He goes on to say that:

Homeless Triangle Part One

By Doc Gurley, City Brights Blog, sfgate.com, February 11 2011:

If you work as a doctor in a clinic for the homeless, you see all kinds of simmering panic. There's the God, someone's got to help me panic of the person who lost their house to foreclosure. There's the fatalistic panic of a street person with a hard, bone-rattling cough who senses, deep inside, that this might be the infection that kills her.

But this time, when the man stopped me in the hallway between exam rooms, grabbing my upper arm a little too tightly, there was a different kind of panic in his eyes.

“I don’t know how to find the bathroom,” the man said, terror-stricken. “Curtis,” with salt and pepper hair, was in his late 50s.

“It’s just around the corner - through those doors and to the right.” I hoped to speed-walk past him, but his grip on my arm only tightened.

“I can’t do that,” he said, his voice rising to a near-shout.

His upper lip was shaky with emotion. The only clue that his problem wasn’t some type of unusual neurological defect was the fact that he had way more muscles than you’d expect to see on a man his age.

“Just got out of prison?” I said.

He gave a sharp nod. “Twenty years in a cell. I walked down one corridor. That’s all. For over 20 years.” He said it again, this time shouting it: “I can’t find the bathroom.”

My mind struggled to grasp his last 20 years. All the changes in the world. All the ways in which we maneuver through our lives – simple things that he’d never done. He’d become a man no longer able to even follow an easy task like going through the doors and turning right. At his age, to have been so restricted for so long in prison, he’d undoubtedly committed a truly vile and violent act against another person.

But now he is, as we say in the healthcare business, ours.

He is a man who is unemployable, with multiple chronic health problems, and most likely – even without being confronted with all he cannot do - with serious anger management and impulse-control issues. He is in our town with nowhere to stay, nowhere to go and no ability to get there.

“I’ll walk you there,” I said, and wondered, as we walked the few feet to the bathroom doors, which way he would go when he left the clinic.

Greens call for end to religious discrimination

Sydney Star Observer, 16 February 2011:

The NSW Greens have called for the closing of loopholes in the NSW Anti-Discrimination Act that allow businesses owned by religious groups to discriminate against students, employees and clients if they hold that something about them conflicts with their beliefs.

Currently religious groups may refuse to hire GLBTs or terminate their employment, while GLBTI children can be forced out of a school with no redress.

The law was passed before homosexuality was decriminalised in NSW but has remained on the books ever since.

Greens lead candidate for the Legislative Assembly, David Shoebridge, said the party supported removing the exemptions and replacing them with a bill of rights that enshrined protection from such discrimination, while the NSW Government and the Coalition parties did not.

“Once a religious organisation receives taxpayer money to fund its operations, whether it’s a school, welfare services or accommodation, then it is absolutely unacceptable that they be allowed to discriminate against people on the basis of their sexual identity, their religion or being a single mother,” Shoebridge said.

The Greens state election candidate for Marrickville, Fiona Byrne, echoed the call, singling out the NSW Attorney General for criticism.

“The NSW Attorney Genenal John Hatzistergos should be protecting the vulnerable in society rather than defending an antiquated law allowing students to be expelled due to their sexuality,” said Byrne.

A spokesman for the Attorney General told media the law was necessary “to maintain a sometimes delicate balance between protecting individuals from unlawful discrimination while allowing people to practise their own beliefs”.

The Shadow Attorney General, Greg Smith indicated he believed the law needed changing, but that was not the view of his party.