Public opinion and sentencing reform

Stephen Whitehead | nef | 14 May 2012

New research reveals a public that is more open to reform than those who claim to speak for them.

The prospect of a new crime and justice bill, heralded by last week’s Queen’s speech, is likely to re-awaken debate around the coalition’s sentencing policy. While its latest proposals around community sentences are still at the consultation stage, the bill is another step in the coalition’s programme of cutting costs and increasing transparency in the justice system.

The community punishment reforms in the consultation, and those in this week’s speech, are much more cautious however, than those that Ken Clarke had in mind when he took office in 2010. The much vaunted rehabilitation revolution has crumbled under heavy fire, most of it from his own side. Tabloids and Tory back-benchers lambasted his plans as soft on crime and out-of-touch with public opinion.

One of the key attacks was made by Tory peer, former deputy party chairman and part-time citizen of Belize Lord Ashcroft. In a 2011 pamphlet entitled Crime, Punishment and the People Ashcroft argued that increased use of community sentences ‘command woefully little support’ amongst the public. A stark opinion poll outlined the public’s verdict – 81% thought that sentencing was too lenient, while only 3% thought it too harsh.

The argument, then, was clear: the British public demand tougher sentences and to ignore them was both politically inept and undemocratic. But a more sophisticated investigation of public opinion casts doubt on this analysis. Researchers from Oxford University and London’s Institute of Crime Policy Research investigated the way in which the public made their judgements about sentencing. They found that when asked to consider a range of mitigating circumstances, respondents would often consider a community sentence even for a crime which in the real world would almost always result in custody. When given the hypothetical case of a person convicted of a serious assault, 69% of respondents thought a community penalty would be appropriate if it was a first offense, 65% if the offender was caring for small children, and 64% if the offender was remorseful and apologised.

While the hangers and floggers in parliament or Fleet Street may whip up a storm about any proposal which seeks to reverse or even slow the unsustainable increase in our prison population, this research suggests that the public are more open to reform than those who claim to speak for them. The obstacle for reformers then, is not one of public sentiment but rather of bandwidth. If they can overcome the myths around crime and sentencing and engage the public in a serious debate about who really needs to be in prison, they may find more traction than they expect.

AG Greg Smith's speech to Public Defender's Conference

Speech by Greg Smith SC MP, Attorney General and Minister for Justice to 

open the Public Defender’s Conference, Saturday 24 March 2012 at Taronga 

Park Zoo Conference Centre. 

This Monday marks the first anniversary of the election of the O'Farrell Government.  

For the past week we have had the pleasure of getting up at 5.30 and going out to 

railway stations handing out  little cards telling people what good things we’ve done 

and they are saying: what’s up?, Is there an election on? But we have had a very 

good reception. 

I am pleased to say the firm agenda I set in opposition – with the backing of the 

Coalition –which was that there would be no law and order auction at the last 

election, has been honoured by us. And I think Labor was becoming weary of it. 

They didn’t try to counter with a one sided auction – no grid sentencing, or more 

maximum life sentences, no extra aggravated offences, no standard non parole 

periods – which had coloured the previous 20 years of elections. 

Unlike previous governments, our State plan does not demand a certain number of 

arrests or prisoners. Take section 22A of the Bail Act; it allowed only one application 

for bail and had a particular impact on young people - especially for those who 

breached curfews. There are now are 150 people a week in juvenile detention 

centres who will never receive a custodial sentence. 

I promised we would open a second metropolitan drug court – I expect that will up 

and running in May – and the first intensive drug treatment facility in a NSW jail. We 

have done that at the John Morony complex at Windsor. In late February the first 62 

prisoners started and within two years I hope we have 300 prisoners – 250 men, 50 

women - undergoing treatment that will last for about six months. They will be linking 

up with the non-government organisations after their release so they can continue 

their treatment. 

Drug addiction can be a lifelong struggle and my hope is that this program will help a 

lot of people to turn their lives around and make a positive contribution to the 

community. If they can get off the drugs, get a job, get somewhere to live and help – 

 rather than just being thrown into jail and let out with the same problems – it will be 

better for the community. We will have more citizens who might have been 

permanent criminals going straight and the community will be safer. And hopefully 

the perceptions of safety will increase because that is one of our big problems. 

Fanned by publicity and sensation, there is a perception out in the suburbs of 

Sydney that it’s dangerous out there, in the night, even in the day.   

When it comes to crime, harsher punishment doesn't pay

Anna Patty | SMH | March 14, 2012

LENGTHENING prison terms will do nothing to reduce crime in NSW, one of the most comprehensive reports on the criminal justice system conducted in Australia shows.

The study by the NSW Bureau of Crime Statistics and Research found that increasing the risk of arrest and imprisonment were much more effective.

Another major reason for falls in crime in the past decade was an improved economy and employment levels, which provided strong disincentives to crime. A 10 per cent increase in household income was estimated to produce an 18.9 per cent reduction in property crime and a 14.6 per cent reduction in violent crime.

The bureau's director, Don Weatherburn, said the study suggested governments should focus more on strategies to increase the risk of arrest and less on increasing the severity of punishments.

The study looked at whether Australian taxpayers were getting value for the $11.5 billion they spend each year on law and order.

It reviewed changes in the risk of arrest, the likelihood of prison and the average prison term on trends in property and violent crime across all 153 local government areas in NSW between 1996 and 2008.

''Increasing the risk of arrest and the likelihood of going to prison produces modest reductions in property and violent crime,'' Dr Weatherburn said. ''But increasing the length of prison sentences exerts no effect at all.''

Hardline A-G hits back at his critics

Anna Patty | SMH | February 3, 2012

It didn't take long for the vitriol over the state government's approach to law and order to start.

Ten months after the NSW election, the opposition and tabloid media have been dishing it out to the Attorney-General, Greg Smith, accusing him of being soft on crime.

One radio talk-back host recently accused Smith of being a step away from the Greens, saying he had failed to earn his stripes as a conservative Attorney-General.

When it comes to the rehabilitation of non-violent offenders, Smith would agree.

He says he is "more left-wing on issues like dealing with prisoners and rehabilitation than any other Attorney-General in the country".

But Smith, reputed as a tough public prosecutor when he worked for the DPP - having put away murderers including those who killed policeman David Carty - is hardline when it comes to serious violence.

In response to a recent spate of drive-by shootings in Sydney's south-west, the opposition and some commentators have confused the distinction Smith has made between his different approaches to sentencing and rehabilitation.

He believes in non-custodial sentences for less serious offenders and rehabilitation for people with drug and alcohol addiction or mental health problems.

When it comes to people guilty of serious violent crime, including the "buffoons" responsible for the shootings, repeat offenders and those guilty of child sex offences, Smith wants to toughen punishments.

Smith recently asked the Supreme Court to look at how judgments against people convicted of sex offences against children could be strengthened.

Crime and punishment

Jack the Insider Blog | The Australian | 31 January 2012 

Recently, the Australian Bureau of Statistics published the figures for Australia’s corrective services systems and those who exist within it. The figures provide a starting point for reflection on the nature of crime in Australia and how it can be diminished.

There are some startling statistics.

The Northern Territory has a higher incarceration rate than the US (762 prisoners per 100,000 adult population compared to 504/100,000). US incarceration rates vary wildly from state to state, with Maine at 154/100,000 - lower than the Australian national average - while Louisiana stands at the top of the table, making light work of the Top End with 853 per 100,000.

The OECD average is 140/100,000. Across Australia in 2011 we incarcerated people at a rate of 167/100,000.

Prison populations have come down across the nation by two per cent since 2007. This is due largely to a decline in NSW (which contributes both a third of the nation’s population and now an even third of the nation’s prisoners) by eight per cent but this comes after a sharp increase in incarceration rates in NSW between 1995 and 2004.

In the NT, prison populations have increased by 46 per cent and in Tasmania by 32 per cent over the past decade. Queensland accounts for 19 per cent of all Australian prisoners, while the most densely populated state in the Commonwealth, Victoria, has just 14 per cent.

Overall there are 29,106 prisoners behind bars, sentenced and unsentenced. Unsentenced prisoners make up almost a quarter of the total. On average more than half of the nation’s prisoners have had a stretch in prison at least once before.

The average custodial sentence in Australia is three years.

But looking at incarceration rates is really only scraping the surface of crime.

It is estimated that reporting of crime runs at about 40 per cent of all crime committed. 32 per cent will be recorded by the police, just seven per cent of offenders will be detected, four per cent will be convicted and 0.1 per cent will go to jail.

The first and most obvious response is if our governments make more draconian laws, reduce bail applications and legislate mandatory sentences to the effect of say, doubling the prison population in quick time, there will still be 99 per cent of the crime occurring.

Well perhaps not, as those who do get caught often may have been getting away with quite a bit of unreported crime for some time. Nevertheless, the overall trend indicates that longer sentences may satisfy our desires to punish but achieve little else than create a longer list of individuals who, due to the criminogenic effects of prison, will almost invariably reoffend and make further contributions to crime statistics than would otherwise be the case.

The cost of crime in Australia is almost unfathomable. Yet it is the job of criminologists to make an attempt and most estimates put the cost at between $35 and $45 billion a year based on criteria such as direct financial loss, medical costs, lost productive capacity and assorted intangibles including the emotional costs to victims and families. For example the cost of one homicide is estimated at $1.8 million when the victim is aged between 18 and 34.

The direct cost of incarceration runs to about $80 per Australian man, woman and child or $1.6 billion a year.

Then there’s the cost of state policing - $3.2bn a year across the nation; the Commonwealth agencies from the AFP, the Commonwealth DPP, the Australian Crime Commission, the Attorney General’s office etc. cost $820 million. $350m is spent on Juvenile Justice and the courts themselves cost $410m to oversee it all.

The issue of crime prevention is complex and a whole-of-society problem.

William Stuntz, a Harvard law Professor, evangelical Christian and author of The Collapse of American Criminal Justice devoted his life to ending discrimination within the US legal system. He died of cancer in 2011.

Stuntz identified plea bargaining as a scourge and one of the primary causes of the unravelling of the criminal justice system in the US.

It is a scourge that has beset our legal system, too.

In general plea bargaining will see an offender plead guilty to a lesser charge. There is no trial. Unlike the US system, there is no direct bargaining on sentencing in Australia but offenders will appreciate the sentencing scale when they put their hands up.

The statistics on plea bargaining across Australia’s state jurisdictions are difficult to obtain given the clandestine nature in which the bargaining is conducted but approximately 70 per cent of offences in our higher courts are resolved in this manner.

This is an unsatisfactory means of dispensing justice – unacceptable for victims and often likewise for offenders who are represented by overworked and under-resourced public defenders.

Plea bargaining has become rife in our court system to reduce costs. The cost of a trial in the District or County Courts is $10,000 per day and that does not include the cost of defence.

So, there must be a realisation that more money will need to be spent, at least in the short term to ensure that as many, if not all serious offences go to trial to allow a jury to determine guilt or innocence based on the evidence and the legal principle of reasonable doubt.

But according to Stutz, it is not just a trial but the manner in which it is conducted that can make the difference. If an offence occurs in, say, the Blue Mountains region of NSW, then the trial should be conducted there and the jury taken from a pool of residents from the local area.

The rationale is that the regionalisation of juries will provide greater insight and understanding of the peculiarities of the offence and the context in which it may have been committed as opposed to a jury selected from anywhere around the state who have no local knowledge, no real empathy for the victim and may come to the courtroom with certain prejudices obtained from tabloid media.

Stuntz’s thoughtful recommendations would not create a perfect system but may well create a system that is less imperfect than the one in place at the moment.

Certainly, it will lead to better outcomes for victims and while it will be more expensive the hope is that in time, the better dispensation of justice itself will reduce the incidence of crime overall.

It is just one measure available to our legislators who too often run a tough on crime agenda that offers no benefit to our communities and merely amplifies the problem.

Aboriginal crime and punishment: incarceration rates rise under neoliberalism

Inga Ting | Crikey | 15 December 2011

The number of indigenous adults held in the nation’s jails has increased for the 11th year in a row, despite the nation’s prisoner population falling for the first time in a decade.

According to the latest Australian Bureau of Statistics data, the indigenous prisoner population increased by 1% in the year to June 2011 while the total prisoner population dropped by 2%. The gap between indigenous and non-indigenous imprisonment rates grew by 0.1%, with indigenous Australians now 14.3 times more likely to be incarcerated than non-indigenous Australians. Today, about one in four prisoners are indigenous even though indigenous Australians make up just 2.5% of the general population.

While the reduction in the national prisoner population makes a welcome change, the fact remains that it has expanded by 30% over the past decade despite falling crime rates across the nation. At first glance, this doesn’t make sense: crime rates have decreased dramatically in the past decade (see the complete data) while incarceration rates — especially indigenous incarceration rates — have continued to climb.

The problem lies in the common assumption that punishment is a direct outcome to criminal behaviour, says Chris Cunneen, Professor of Justice and Social Inclusion at James Cook University and a criminologist with more than 20 years’ experience in indigenous criminal justice. “Sentencing and imprisonment is not related to crime. It’s a function of government policy,” he told Crikey. “The fact that we’re locking up more people is … really about changes to law and practice.”

Jailing fathers increases problems in Indigenous communities

Richard Fletcher | The Conversation | 13 October 2011

There are hopeful signs from a number of sources that the “get tough on crime” approach is working, with politicians promising the era of more prisons and longer sentences has had its day. Movements such as Justice Reinvestment – redirecting money earmarked for prisons to address disadvantage in communities…

DISCLOSURE STATEMENT

Richard Fletcher receives funding from government and non government organizations. His research team developed the Brothers Inside program.



Measures are needed to reduce the number of fathers going into jail as well as the number not coming back. Casey Serin

There are hopeful signs from a number of sources that the “get tough on crime” approach is working, with politicians promising the era of more prisons and longer sentences has had its day.

Movements such as Justice Reinvestment – redirecting money earmarked for prisons to address disadvantage in communities prisoners come from – is one manifestation of a more rational and humane approach to crime.

For Aboriginal communities, where imprisonment has reached epidemic proportions, this shift is long overdue.

And the research community has a responsibility to make the costs more transparent, not just to the taxpayer but to Aboriginal communities, prisoners and prisoner families as well.

Deaths remove fathers completely

We were reminded of one aspect of these costs when marking 20 years since the Royal Commission into Aboriginal Deaths in Custody.

In the time since that report highlighted the unacceptable, and often brutal, deaths of Aboriginal men in custody, 269 more Indigenous men have died in similar circumstances.

Most of the Aboriginal men who die in custody are fathers, as are most of those who remain in custody. And in Indigenous communities, both fathers and men who are not fathers have important roles to play children’s growth and well-being.

So, when Aboriginal men are removed from the community, the social and family relationships that might steer young people away from crime break down and the nurturing these men might provide is lost.

Vandals to clean own mess

Nino Bucci | The Age | 20 October 2011

IT STARTS with a can of spray paint and often ends behind bars.

But Frankston police are confident a new program will stop the first graffiti mark leading to a lengthy criminal history.

For the first time in Victoria, youths facing a criminal damage offence can have the charges dropped if they take part in a program that includes painting over daubed walls.

Frankston City Council spends almost $400,000 each year removing graffiti from about 30,000 square metres of property.

Senior Constable Renee Bloomfield, who developed the program as youth resource officer, said too often police dealt with offenders who started as teenage vandals before graduating to more serious crime. The program will be launched today and rolled out more widely if the pilot proves successful.

''The earlier the young person enters the criminal justice system the greater the likelihood they are going to remain embroiled within it,'' she said. ''If we can get a young person at 13 or 14 and put that intervention in place we can stop that cycle.''

Women behaving badly

The Economist | 29 October 2010 

Calls to reform the sentencing of women are growing louder

AFTER a bad beginning, Fiona Flaherty has done well. Convicted of assaulting her partner in 2005, she was sent to Downview, a women’s prison in Surrey. There she studied for a BTEC in digital media, organised by a not-for-profit outfit, Media for Development (MfD), and helped run Britain’s first prison-based television station. In 2006 she was allowed out each day to work at MfD’s Inside Job Productions, which makes films. Released in 2007, Ms Flaherty found a job in the private sector, though her heart was in her mouth when she told her prospective boss, as she was legally bound to, that she had done time. Today, after having two daughters, she works for her husband as a software tester.

Ms Flaherty was lucky. For all the efforts of groups such as MfD, not to mention those of prison and probation staff, just 13% of women found employment on their release from prison in 2009. And that is only one of the problems they face. A third will have lost their homes; most will have been separated from children and may struggle to regain custody; many are still dealing with the drug habit or mental-health problems that about three-quarters went into clink with, or picked up inside. Women account for 5% of people in prison, but for 43% of the self-harming that happens behind bars.

Juliet Lyon of the Prison Reform Trust, a campaigning charity, scathingly points out that although at least six big inquiries over the past decade have made a strong case for reducing the imprisonment of women and finding alternatives to custody, the basic situation hasn’t changed. It is not that all the 4,200 women in English and Welsh prisons are angels or victims. But as a group women are different from the 95% of the prison population that penal policy is designed to hold securely.

Three-quarters of women are sentenced for non-violent offences (for men, the figure is lower); a big chunk are inside on remand, of whom most do not go on to receive a custodial sentence; perhaps three-quarters have been subjected to sexual or domestic violence. Most importantly, 60% of women in prison have children, only 5% of whom are able to stay in their homes when their mothers are put away.

There have been some improvements since an influential government-sponsored report in 2007. One is the growth of women’s community centres, part-funded (until next year at least) by central government, which offer sentencing alternatives, access to drug treatment and rehabilitation courses and try to divert women at risk of offending. But the number of women in prison has not dropped.

That could be set to change now, thanks in part to a sharper focus on the finances of locking people up. It costs over £55,000 a year to incarcerate a woman. As two-thirds of them are serving sentences of six months or less—too short a time to tackle addictions or mental-health problems—and two-thirds of these short-stayers will be reconvicted within a year, it seems money ill spent when intensive community sentences can be had for £10,000-15,000. New assessments of women’s centres suggest that many of them work. For example only 3% of women referred to the Anawim centre in Birmingham reoffend; only 7% breach their community sentences.

For some, the government’s new criminal-justice bill, to be debated by MPs from October 31st, offers a chance for reform. Jenny Chapman, Labour’s shadow minister for prisons, intends to introduce an amendment requiring the government to appoint someone to champion women in the criminal-justice system, and to report annually to Parliament. Others of her 2010 parliamentary intake who are interested in the matter include Claire Perry, a fast-rising Conservative MP, and Caroline Lucas, Parliament’s sole elected Green.

For both Ms Chapman and Ms Perry, payment by results (PBR) may be the key to success. The government has embraced PBR as a way to cut costs while improving outcomes: two such programmes, which reward private and third-sector outfits for reducing male reoffending rates, are running at Peterborough and Doncaster prisons. The justice ministry is interested in PBR schemes for women too, it says; some reformers would like to see them designed to encourage non-custodial sentences.

Wider pressure for some sort of change is growing. On October 18th the National Council of Women called on members to lobby their MPs. On October 25th the Howard League, a charity that advocates penal reform, launched an inquiry into how to keep vulnerable girls on the straight and narrow. With more immediate practical effect, perhaps, Pret a Manger, a fast-food chain, is now giving women offenders apprenticeships that lead to fully paid employment.

Reasonable Cause conference: papers

On 15-16 September 2011 a group of criminal lawyers gathered in Sydney to hear speakers at the inaugural "Reasonable Cause" conference.

Born from an idea by barrister Mark Dennis, the creator of www.criminalcle.net.au, the conference was the first of its kind: participants paid a registration fee the equivalent of a regular CLE conference but each speaker gave their time for free, and profits were donated to the Cambodian orphanages run by Geraldine Cox.

A group of old and new heads were fortunate to hear from Geraldine herself, and be inspired by the work she does for some of the poorest and most vulnerable children of Cambodia, as well as from top shelf speakers including Peter Hidden, Robert A. Hulme and John Nicholson from the Bench, and Warwick Hunt, Graham Turnbull and Phil Strickland from the Bar.

Papers are available at www.criminalcle.net.au. The highlights for me were two papers: the first by Phil Strickland on the topic of memory and the eyewitness in criminal trials; and the second by Judge John Nicholson, who provided a very strong critique of the "modern" sentencing regime, and the assumptions which underpin it.

Breaking the prison cycle

Mike Steketee | The Australian | 15 October 2011

IN Canberra, a hung parliament has given a Labor Party too scared to take action on climate change before the last election the courage of its convictions.

In NSW, a very different parliament in which the government has a lopsided majority may have a similar effect on law and order policy. An opposition as weakened as that in NSW may not be ideal for democracy but it does allow the government to focus more on policy than populism. And in no area has the auction for votes been more unseemly or come at a greater cost to sensible policy.

As NSW shadow attorney-general, Greg Smith called a halt to the law and order auction. While strongly conservative, he saw during his previous life as a crown prosecutor the failings of the lock-'em-up-and-throw-away-the-key approach - namely that, despite costing a packet, it does little to reduce crime and in some circumstances increases it. One pointer to that is the 43 per cent of prisoners who are back in jail within two years in NSW, compared with 34 per cent in Victoria, where there has been less emphasis on the punitive approach and there have been more resources for rehabilitation and other services for prisoners before and after they are released.

Now he is Attorney-General, Smith is saying much the same things and is starting to act on them. In parliament in May he claimed the previous government regarded the prison population reaching 10,000 as a badge of honour. "I thought it was a disgrace," he said. "This government does not believe success on law and order issues can alone be judged by how many people are locked up. We believe in policies that break the cycle of re-offending. Every prisoner should have an opportunity for rehabilitation and that is in the interests of the whole community."

Smith has commissioned a review of the bail act, particularly because of concern that too many juveniles are remanded in custody and are introduced to what he calls "the university of crime". He has asked the NSW Law Reform Commission to look at sentencing legislation to, among other things, give courts greater discretion. He has announced extra funding for education programs in prison, drug and alcohol rehabilitation services and a second drug court with detoxification facilities, drug testing and treatment.

It is early days and it remains to be seen where these measures lead and whether the O'Farrell government succumbs to a "soft on crime" campaign. Nor is the law and order traffic all one way: the government has legislated for mandatory life sentences for killing police officers.

But this is an issue which has come to defy political pigeon-holing. Bob Carr in NSW took the same attitude as Tony Blair in Britain: that a populist, punitive approach to law and order would protect his political flanks from right-wing attack. Pity about the merits of the policy. Now the coalition government in Britain is changing tack, as has the O'Farrell government. Yet its Liberal-National counterpart in Victoria is headed at least partly in the opposite direction, with moves for mandatory minimum sentences for some juvenile offences, despite the evidence of Victoria's superior performance with its emphasis on alternatives to prison.

The change in thinking was perhaps best captured by another conservative politician, New Zealand's deputy prime minister Bill English, who in May described prisons as "a fiscal and moral failure". No Kiwi, he confidently asserted, wanted to see more large-scale prison building.

Lionel Murphy Lecture - 'Vigilance against injustice in the justice system'

The Hon. Robert McClelland | Australian National University, Canberra | 7 September 2011

Acknowledgments

Good Evening, and thanks Professor Dietze for your very kind introduction. First, I would like to acknowledge the traditional custodians on whose land we are meeting today – the Ngunnawal people - whose cultures we honour as among the oldest continuing cultures in human history. And I would like to pay my respects to Elders past and present.

I’d also like to recognise our hosts this evening – the ANU College of Law and in particular Associate Dean Fiona Wheeler and Head of School Stephen Bottomley; Members of Lionel Murphy’s family;
Trustees of the Lionel Murphy Foundation; Dr Kristine Klugman – President Civil Liberties Australia and Mr Bill Rowlings – CEO Civil Liberties Australia; Dr Helen Watchirs – ACT Human Rights and Discrimination Commissioner; Mr Daryl Dellora; Ladies and gentlemen.

Introduction

It’s a great honour to have been asked to speak this evening. I have entitled this year’s address as Lionel Murphy’s Legacy – Vigilance against Injustice in the Justice System.

And I wish to speak to the national shame that is the over-representation of Indigenous Australians in the criminal justice system.

And to the practical steps the Commonwealth and the States and Territories must take to right this enduring wrong.

This problem has been brought to the public’s attention this year particularly because of the 20th Anniversary of the Royal Commission into Aboriginal Deaths in Custody and the release in June of the House of Representatives Inquiry ReportDoing Time – Time for Doing: Indigenous Youth in the Criminal Justice System.

Lionel Murphy

But before turning to that I’d first like to pay a brief tribute to Lionel Murphy, whose memory we are here to honour tonight - a great Labor leader, an accomplished Attorney-General and an inspiring High Court Justice.

And in doing so, I would like to speak briefly of a judgment he wrote as a judge of the High Court - Neal v R.1

The case was that of an Aboriginal man, Mr Neal.

Mr. Neal was Council Chairman in Yarrabah, a community in Northern Queensland. This community had a deep sense of grievance about the paternalistic treatment by white authorities, including the management of the store which was reportedly selling rotten meat. Mr Neal had argued with the store manager about the management of the reserve. When the discussion reached an impasse, Mr. Neal swore at the store manager and spat at him.

For this, Mr Neal was sentenced to two months hard labour. On appeal to the Queensland Supreme Court, Mr Neal’s sentence was increased to 6 months.

Mr Neal then appealed to the High Court where Lionel Murphy presided.

The year was 1982, and Murphy noted in his judgment the appallingly high rates of Indigenous incarceration at that time – that although Indigenous Australians made up only 1 per cent of the total population they made up nearly 30 per cent of the prison population.

In addressing the question of Mr Neal’s relatively harsh sentence for what was a seemingly trivial offence, he said:

“That Mr. Neal was an ‘agitator’ or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. …Mr. Neal is entitled to be an agitator.”2

Needless to say, Mr Neal’s appeal was allowed.

So I’d like to draw some inspiration from Lionel Murphy tonight as I speak to the challenges that we currently face in terms of the overrepresentation of Indigenous Australians in the justice system - an injustice which remains nearly 30 years after Neal v R.

Prior to the recent Commonwealth Law Minister’s Meeting that brought together Attorneys General and Justice Ministers from across the Commonwealth, I had cause to reflect on the origins of European settlement in Australia. The British Transportation System arose from an attempt by England’s privileged classes to remove a so called “criminal class”.

Transportation included punishment for lesser offences that were more often than not the effect of extreme social disadvantage. Well that’s how Europeans originally came to Australia but as a law and order measure this policy was unsuccessful. Crime wasn’t addressed until chronic social disadvantage was addressed.

Today, Attorneys-General and Justice Ministers across Australia need to ask ourselves if we making the same mistakes in respect to the issue of the incarceration of Indigenous Australians.

The figures speak for themselves.

Judge calls for sex trials rethink

Farah Farouque | The Age | September 8, 2011

SOME accused sex offenders should be dealt with outside the traditional courts in a system similar to South Africa's truth and reconciliation commissions where they meet and hear from victims, says one of Victoria's most senior judges.

Justice Marcia Neave, of the Court of Appeal, told The Age she was deeply concerned that conviction rates for sexual assaults remained ''very, very low'' and guilty pleas had plunged, despite law reforms in the past decade. Victoria's criminal justice system was not working for victims of sex offences, despite changes to court rules and systems to accommodate their needs, she said.

It was time for policymakers to consider a radical alternative to traditional courts by diverting some sex offenders, including alleged rapists, into a system where they made admissions and met their victims in ''conference'' settings. The victims, or a spokesperson for them, would explain how their lives had been affected and discuss reparations - commonly the offender enrolling in a treatment program. No conviction would be recorded.

Both victim and offender would consent to participate under the plan, echoing principles used in the truth and reconciliation commission system that applied after the end of apartheid in South Africa.

As a first step, the idea should be tested in Victoria for carefully selected juvenile sex offenders, including those accused of rape, and perhaps also some adults accused of sex crimes that were decades old and hard to prove beyond reasonable doubt in a criminal court.

''If you can use truth and reconciliation in the context of the apartheid regime in South Africa, in the context of the terrible things that happened in East Timor with the militias, then you might be able to use it in [this sexual offence] context,'' the judge said.

Justice Neave plans to raise the idea, which she conceded was controversial and might be a hard-sell politically in Spring Street, in a paper she will give at an Australasian Institute of Judicial Administration conference in Sydney today.

The paper cites statistics including that fewer than 20 per cent of sexual assault victims report the offences to police. In Victoria, from 2004-05 to 2008-09 a conviction was recorded in about 50 per cent of sex cases that went to trial in the County Court. By 2009-10, the conviction rate had fallen to 38 per cent.

''It must be accepted that some allegations of sexual assault may be false or mistaken … [but] the vast majority of true allegations do not result in any redress through the criminal justice system,'' the paper says.

Before becoming a judge, Justice Neave chaired the Victorian Law Reform Commission, which recommended major changes to court rules and systems for hearing sex assault cases. While acknowledging difficulty persuading the public and politicians her latest proposal was the right path, it was ''not impossible to persuade people that this might be a better outcome'', she said.

''If we are talking about a 17-year-old boy who offended against a neighbour's child - or against a member of his family - I don't think it's rocket science to say that putting this person away for a long period of time will not necessarily mean that he will be persuaded that what he did was wrong and won't do it again.''

Justice Neave said the ''restorative justice'' principle, used for young sex offenders in South Australia and overseas for violent offences, was not a soft option and often harder on the accused than traditional courts.

Under the path, sex offenders would be selected for the program under strict guidelines to be developed by the DPP, victims groups, defence lawyers and the judiciary. Repeat offenders would be excluded.

Justice Neave said she had spoken to many sex assault victims who were not concerned only with retribution. ''They want a voice in the process.''

Magistrates were told to send rioters to crown court, emails show

Owen Bowcott | The Guardian | 14 September 2011

Emails sent to justices' clerks after August riots raise questions about judicial independence and the use of blanket guidance

Magistrates were urged to abandon sentencing guidelines when dealing with rioters last month because "nothing like this was envisaged", according to court documents released to the Guardian.

The text of two controversial emails circulated to justices' clerks immediately after August's disturbances raises questions about judicial independence and the use of blanket guidance irrespective of individual cases. One human rights group described the emails as "disturbing".

The messages appear to betray a sense of confusion – verging on chaos – behind the scenes as hundreds of suspects arrested for looting and violence were processed in late night emergency sittings.
The documents, written by a senior justices' clerk in the London regional office of Her Majesty's Courts and Tribunals Service (HMCTS), were released by the Ministry of Justice following a freedom of information request from the Guardian.

They were sent out on successive days at the end of the week in which rioting had started in Tottenham, north London, following a police shooting, before degenerating into widespread looting as it spread across the capital and other cities.

The emails were sent to justices' clerks, who sit alongside magistrates providing guidance on the law and sentencing recommendations. The first, addressed "Dear all", began: "I should be grateful if you would ensure that the following advice is cascaded to every member of your legal team as soon as possible.

"The sentencing guidelines cannot sensibly be used to determine the sentence in cases arising from the recent disturbances/looting. When the guidelines were written nothing like this was envisaged."
Most of those arrested for looting had been charged with "commercial burglary", it noted. "The general advice from the higher judiciary is that we will not be criticised if we return these … If in doubt, commit to the crown court."

Some of the words in the first email were missing. The second message read: "Apologies for the fact that the email … sent yesterday is confusing and frankly incoherent. The intention was that you should advise magistrates to commit to the crown court cases of commercial burglary, or handling … or violent disorder arising from the recent disturbances.

"There is a general acceptance that what occurred earlier this week is not covered by the sentencing guidelines and it will be very much the exception that such cases are sentenced in the magistrates courts …Hopefully before too much longer we may get some guideline cases."

Commenting on the emails, Sally Ireland, the director of policy at the civil liberties group Justice, said: "Justices' clerks can give directions to assistant justices' clerks under the Courts Act; however, the content of the email is disturbing. The application or disapplication of sentencing guidelines should be a matter decided on a case by case basis."

She also questioned the term "higher judiciary", saying: "In what way did they give this general advice? The higher judiciary does not have a role in allocation/sentencing by magistrates, except in the case of appeals and guideline judgments."

Paul Mendelle QC, a former chairman of the Criminal Bar Association, said: "The idea that established Court of Appeal authorities can be set aside or ignored by the secret advice from an anonymous civil servant strikes me as undemocratic at best and unconstitutional at worst.

"Blanket advice to magistrates to deal with all cases in one particular way – commit to crown court – regardless of the facts of the individual cases might be seen as an unlawful fetter on their discretion."
At the time the emails triggered alarm on at least one bench, prompting questions about magistrates' independence.

The week after the riots, Novello Noades, the chair of Camberwell Green magistrates court, in south London, claimed the court had been given a government "directive" that anyone involved in the rioting should be given a custodial sentence. She later retracted her statement and said she was mortified to have used the term "directive".

It has been generally accepted in courts in the legal and judicial world that participation in violent riots and looting should be deemed an aggravating factor, leading to harsher sentences than for theft committed as shoplifting.

John Thornhill, chairman of the Magistrates' Association, said: "Magistrates and legal advisers work as a team in court with the legal advisers having a role in law to advise the magistrates on all matters relating to the law and the magistrates making independent decisions based on any advice given ... this note refers to the issue of mode of trial decisions. Magistrates have to decide whether the maximum sentence of six months custody is sufficient for a single offence and if not then the matter is sent to the crown court.

"It is not in any way outside guidelines as statute allows the judiciary to raise the seriousness of an individual offence after taking account of the harm caused, the culpability of the offender and any aggravating features such as an offence committed during grave disorder."

Some sentences handed down immediately after the riots in August were criticised as being off the judicial scale. The former director of public prosecutions Lord Macdonald warned courts risked being swept up in a"collective loss of proportion". One person got six months for stealing £3.50 worth of water. Two youths were jailed for four years each for inciting riots on Facebook that never took place. Some sentences have since been overturned.

Unusually, the Ministry of Justice provided an accompanying explanation with the emails, rebutting any suggestion that magistrates had been inappropriately influenced by government officials or that the independence of the judiciary had been compromised. "HMCTS is not involved in any guidance justices' clerks choose to give to magistrates, as this guidance is given whilst acting in a quasi-judicial capacity," it said.

"It did not contain any direction by HMCTS or the Ministry of Justice on how anyone should be sentenced. Nor were there correspondence or conversations with the justices' clerks on any guidance prior to its issue."

The statement continued: "We believe there is a strong public interest in ensuring there is confidence in the independence of the judiciary and we do not want this to be undermined by a perception the government has inappropriately issued any directions as to the types of sentences which should be handed down."

According to the latest MoJ figures, Some 1,715 riot-related suspects have so far appeared before magistrates courts, two-thirds in London.

A lawyer in London

The Law Report | 23 August 2011

Meet London defence lawyer Bruce Reid and his rioting clients: the 20-year-old pregnant mum who stole a vacuum cleaner, the middle class student who's jeopardised a promising career over some stolen clothes, and the bank clerk arrested in a ransacked mobile phone store.

Listen to interview with Bruce Reid by Erica Vowles.

Sentencing remarks: The Queen v Stephen Carter, David Beswick, Linda Mary Boyd, Michael Gillespie-Doyle

Punish the feral rioters, but address our social deficit too

Ken Clarke | The Guardian | 5 September 2011

Three-quarters of the adults charged already had a conviction, which is why urgent reforms are needed

I've dealt with plenty of civil disobedience in my time, but the riots in August shocked me to the core. What I found most disturbing was the sense that the hardcore of rioters came from a feral underclass, cut off from the mainstream in everything but its materialism. Equally worrying was the instinctive criminal behaviour of apparently random passers-by. What are the lessons for the justice system?

The first is that disorder on our streets must be met with a firm, fast and sustained response. The system was briefly caught unawares, but tested like never before, and ultimately gave a quick and definitive answer to those who thought they could commit crime without consequence. It's thanks to the police officers who cancelled leave, the staff who kept courts open all hours and the judiciary who worked through the night that rioters high on violence soon found themselves facing the cold, hard accountability of the dock. I am hugely impressed by the dedication of our staff, some of whom worked 35-hour shifts to ensure the efficient delivery of justice. These are public-spirited people, doing their duty in the best traditions of public service. The criminal justice system was itself on trial and, though it's still early days, so far it has coped well. It has the capacity – whether in courts, in prisons, in prison transit or probation – to deal with those who come before it.

The second lesson of the riots is that they reaffirm the central point of any sane criminal justice policy: where crimes have been committed, offenders must be properly punished and pay back to the communities they have damaged. The scale of the violence and looting was new, but crimes like arson and burglary are not – and our courts do deal severe punishments to serious offenders.

Judge wants bench to 'reach out to victims'

Pia Akerman | The Australian | 1 September 2011

VICTORIA'S highest judge has admitted a gulf exists between the judiciary and victims of crime, proposing significant sentencing reforms to give victims and juries greater confidence in the legal system.

Supreme Court Chief Justice Marilyn Warren yesterday suggested judges should sit down with victims and their families after sentencing a criminal and explain in detail the reasons for the punishment.

"It is very frustrating for victims and their families where they have a sense of being a bystander when they go to court," she said. "There is a disconnection between us, and you wish to be just, but at the same time you are a compassionate human being and you would like to reach out."

In a move welcomed by victim support groups, she also floated trialling a US process where juries sit in on plea hearings and give recommendations to the judge on an appropriate sentence.

"The judge is the one in the middle who has to find a balance and deliver justice, but in terms of victims we still do not do enough," Chief Justice Warren said. "They do feel separated, alienated from the process.

"I can't help but wonder, if we sat down as judges and even just listened to the family after it was over, it might help."

A report released yesterday by the Victorian Sentencing Advisory Council found that only 28 per cent of 1200 people surveyed felt satisfied with court decisions, while 63 per cent thought judges were out of touch with what ordinary people thought.

Just over half were confident judges imposed appropriate sentences most of the time, and 59 per cent felt confident in the courts and legal system more generally.

Victims of crime had less confidence in the system than people who had not been victims.

NSW Opposition aims for drive-by 'silver bullet'

ABC Online | 31 August 2011

A spate of drive-by shootings in Sydney has prompted the New South Wales Opposition to push for increased penalties. In the latest incident, on Monday night, two cars exchanged at least a dozen shots at an intersection in Greenacre, in the city's west. Two stray bullets hit the front of a house while a family was inside.

There have been at least 10 shooting incidents over the past few weeks alone. Police believe many of the incidents are linked.

Opposition Leader John Robertson says there is currently no specific offence for firing from a car, despite the high risk of someone being injured or killed.

"Unless an offender kills or seriously injures a person in a drive-by shooting, they're typically charged with the offence of fire at a dwelling," Mr Robertson said.

"This at the moment is only delivering sentences of four and half years, and for first time offenders the most likely penalty is a suspended sentence.

"We're suggesting that the Attorney-General ask the (NSW) Sentencing Council to increase the penalties for all drive-by shooting related offences and introduce a specific offence to deal with this crime category.

"What we're seeing is the people of western Sydney feeling unsafe. They have a right to feel safe in their homes."

Attorney-General Greg Smith has poured cold water on the call, though he says the Government is reviewing crime penalties.

"The Opposition, when they were in government, all they thought was to increase penalties, that would cure problems," Mr Smith said.

"It cured nothing. In fact it created greater recidivism, enormous increases in population in prisons.

"It's much cleverer to find what's causing this. This is what the police have got to do, they've got to get to the bottom of the war that's going on."

Meanwhile, police believe they have found the second car involved in Monday's shooting. An abandoned Audi was discovered with bullet holes in it at Sydenham yesterday afternoon. A stolen four-wheel drive thought to be the other vehicle used was found burnt out at Wiley Park soon after the shots were fired.

Plead Guilty and Get It Over With

Peter Hidden QC | NSW Bar News | Summer 1991 

What to do when your client assures you s/he is innocent, but nevertheless wants to plead guilty. Peter Hidden QC, Senior Public Defender explains. 

It is not uncommon for a client in a criminal case to tell counsel that he or she is innocent of the crime charged but, nevertheless, wishes to plead guilty. Some clients who are, in fact, guilty cannot bring themselves to confess to their legal representatives (particularly if the decision to plead guilty follows earlier protestations of innocence). Other clients, who may well be innocent, elect to plead guilty because their defence to the charge necessarily involves revealing other criminal conduct more serious than that charged or other behaviour, not itself criminal, of which they are deeply ashamed. 

Barristers who have been instructed by the Aboriginal Legal Service will be particularly familiar with the situation. Many older Aborigines, especially from rural areas, have a long history of appearing without representation in magistrates' courts, and their experience of the criminal justice system taught them that conviction follows arrest as the night follows the day. Even with legal representation, they cannot break the pattern of pleading guilty "and getting it over with", regardless of the merits of their case; and it is understandable that they have no stomach for a fight which they are convinced they cannot win.

O’Farrell’s ineffective graffiti legislation

David Shoebridge MLC | 25 August 2011

Legislation passing through the NSW Parliament that sends more children to court for graffiti will do nothing to reduce graffiti and is a step backwards, according to the Greens NSW and the submission of the Law Society of NSW.

This legislation will push more children into our courts system and is not supported by any evidence that it will reduce graffiti vandalism. The Greens NSW continue to advocate non-punitive community-based solutions, such as those instituted in the Balmain electorate by Leichhardt Council.

The legislation

The Graffiti Legislation Amendment Bill 2011 amends the Children (Community Service Orders) Act 1987 and the Crimes (Sentencing Procedure) Act 1999 to compel courts to impose community service orders for graffiti offences that require young people to remove graffiti (unless it is not reasonably practicable).

It also changes the Graffiti Control Act 2008 to allow courts to make orders concerning drivers’ licenses of those found guilty of committing graffiti offences of owning graffiti implements. These include increasing probationary periods by 6 months and limiting the number of demerits that can be accrued.

However the fundamental change in the Bill is that it compels young people to attend court. It does this by removing power from the police to deal with young offenders by way of an on the spot fine or youth justice conference instead of court proceedings.

Once passed police will have just two options, send the child to court or let them go.