Richard Ackland | SMH | February 10, 2012
"There is a misguided perception that the legal community is soft on crime and out of touch with community expectations" ... Chief Justice of NSW Tom Bathurst. Photo: Wolter Peeters
The Chief Justice of NSW, Tom Bathurst, issued the annual rallying cry to lawyers at Parliament House's new law term banquet. That was on the night of January 30. Part of his speech was about the crisis of confidence faced by the criminal justice system.
''Community trust in the system is eroding. Much of this distrust is fuelled by misinformation that is propagated by sections of the media who prefer to inflame rather than inform … There is a misguided perception that the legal community is soft on crime and out of touch with community expectations.''
The next available issue of The Daily Telegraph promptly splashed on page one with a fine piece of confected inflammation: ''Exclusive: Gays, minorities get bail but the rest … Go Straight to Jail.''
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Accompanying the exclusive was a little graphic of the NSW Attorney-General, Greg Smith, in pink, captioned: ''Marshmallow man: Greg Smith.'' By asking the NSW Law Reform Commission to review the Bail Act, the Attorney-General seems to have confirmed in many minds that he is a big, fat, pink softie who presumably will melt when heat is applied.
The fact that the Attorney-General hasn't yet received the report of the commission, or considered any proposals for reform, or put them to cabinet is beside the point.
Similarly with sentencing policy. There is a reference before the commission seeking proposals to simplify sentencing laws and to ensure that judges have a range of sentencing options apart from prison - a sensible, badly needed review of a vexed issue. What Smith is on about is keeping low-level young offenders out of the prison system for as long as possible. These are youngsters who have committed relatively minor drug, assault, theft, affray and fraud offences. He is not talking about murder, rape or pillage.
What has happened as a result of successive amendments that have ratcheted-up the draconian elements of the bail law is that there is now a presumption against bail for a whole range of offences. In most circumstances nowadays, it is difficult to reapply for bail once it has been rejected.
Instead of a device to ensure people turn up at court, don't interfere with witnesses and generally keep themselves nice, bail has become another form of imprisonment. The farcical aspect is that 85 per cent of young people on remand don't get a custodial sentence when their case is heard.
What Smith contends is that jails are universities for criminals. The proof is that NSW has a 43 per cent recidivism rate. Already the state's prison budget is more than $1 billion a year, and requires the construction of a new jail almost every 18 months to keep pace with the growth.
People are hanging off the rafters at Silverwater because of the bail laws. There is a massively high attendance at this university.
Sentencing of offenders is a complex and fraught judicial exercise. Apart from that, truth in sentencing mandates a non-parole period to be served, irrespective of good behaviour. It means prisoners cannot earn their early release.
All of this needs to be rethought, and Smith deserves full credit for trying to keep the small fry out of the gaping maw of the prison system.
For this he has to endure over-egged Telegraph headlines such as ''How DPP Greg Smith went from Rambo to cream puff with stance of sentencing in NSW'' (sic). ''Tough talk is now a soggy reality.'' And, of course ''Marshmallow Man''.
And the hyperventilation of Ray Hadley, a leading Sydney shock-jock on 2GB, would be enough to send any marshmallow into palpitations.
Hadley wants the Premier to sack the Attorney-General. He has little songs composed to that effect and Smith is subjected to cruel punishment regularly on the program, as is any judge who looks a bit ''lenient''.
It seems that just about every crime and sentence is the responsibility of the Attorney-General, including all the drive-by shootings. The bombast and bludgeoning from this bully pulpit is quite puerile, but is what apparently makes for ''good radio''.
It is precisely what the Chief Justice was on about: inflammation rather than decent consideration.
Tom Bathurst did point to a major study published by the Australian Institute of Criminology and conducted with Tasmanian jurors.
Before sitting on trials the jurors responded that they thought sentencing was too lenient. After sitting and listening to the evidence and the sentencing submissions, most of the jurors indicated they would have given a more lenient sentence than the judge.
Oddly enough, for much of this ''debate'', Alan Jones, the other stentorian voice on 2GB, seems to be somewhat in Smith's corner on keeping youngsters out of the crime colleges.
Maybe while the Tele and Hadley play tag, Jones and Hadley play good cop, bad cop. It's enough to reduce any Rambo to a marshmallow.