Crime & Punishment: Offenders and Victims in a Broken Justice System

By Russell Marks

If the goal of our justice system is to reduce crime and create a safer society, then we must do better.

According to conventional wisdom, severely punishing offenders reduces the likelihood that they’ll offend again. Why, then, do so many who go to prison continue to commit crimes after their release? What do we actually know about offenders and the reasons they break the law?

In Crime & Punishment, Russell Marks argues that the lives of most criminal offenders – and indeed of many victims of crime – are marked by often staggering disadvantage. For many offenders, prison only increases their chances of committing further crimes. And despite what some media outlets and politicians want us to believe, harsher sentences do not help most victims to heal.

Drawing on his experience as a lawyer, Marks eloquently makes the case for restorative justice and community correction, whereby offenders are obliged to engage with victims and make amends. Crime & Punishment is a provocative call for change to a justice system in desperate need of renewal.

‘This book is for anyone who despairs at the current system. But more importantly, it is for those who think punishment is the answer.’ —The Age

‘A reflective, well-argued book...what makes it even more compelling is Marks also offers suggestions on a different (better) system of crime and punishment.’ —Sydney Morning Herald

• Language: English
• Publisher: Black Inc. Books
• Release date: Feb 28, 2015
• ISBN: 9781925203035

Russell Marks

Russell Marks is a practising lawyer, has a PhD in political history and is an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System, and has been published in The Monthly, The Saturday Paper, Overland, Inside Story and the Australian Book Review.

Book preview

Notes

INTRODUCTION

‘O ur penalties are a joke,’ declared Steve in the Victorian Herald Sun ’s letters pages in November 2014. The previous day, the newspaper’s website had displayed video footage of a sickening assault. While travelling on a bus, a 68-year-old grandfather had asked a much younger man to turn the music down on his mp3 player. The two men got off the bus at the same stop and the verbal confrontation continued. This was when the bus’s CCTV camera picked it up.

Just as the bus was about to pull away from the kerb, the younger man punched the older man once, sharply, in the face. The victim collapsed, and the attacker walked off. Two schoolgirls sitting on the bus saw the attack and got off to administer first aid. Ultimately, the victim suffered a broken nose, swelling and bleeding on the brain. He also lost four teeth. He was lucky to be alive.

It wasn’t the first time the Herald Sun’s readers had been introduced to this particular assault. The previous month, the paper’s Leader supplement had reported, misleadingly, that the ‘Grandfather attacker walks free from Dandenong Magistrates’ Court’. I say ‘misleadingly’ because the twenty-year-old assailant was actually sentenced to a one-year Community Corrections Order – one of the highest penalties short of imprisonment available to Victorian courts. This order meant that for the next twelve months the young man would need to attend regular supervision sessions with an officer from the Department of Corrections. He’d also need to attend regular treatment and rehabilitation appointments, probably with a drug and alcohol counsellor and at an anger management course, and would be assessed for a mental illness.

If he failed to attend more than a handful of those appointments over the next year, the corrections officer would allege that he’d breached the order, and the matter would return to court for re-sentencing. If that happened, the young man would very likely face jail.

But the Herald Sun’s reportage played for outrage, and outrage it got from those writing in. ‘It is time magistrates are elected into (and out of) their role by the public,’ growled Michael. ‘Only then will they give sentences that reflect what society expects.’ CJ wondered ‘how this magistrate will feel if they see the same offender in a few years’ time, but the victim ends up dead’. Elijah went one step further: ‘So the scum just walks away? I hope those in the justice system responsible for such an out-of-step decision are the ones who are attacked next time.’

The particular magistrate who sentenced this young man was Greg Connellan, formerly a well-known human rights lawyer. I appeared before him a number of times while I was working as a lawyer with the Victorian Aboriginal Legal Service between 2012 and 2014. It’s unlikely there’s a magistrate who approaches their judicial responsibilities with more thoroughness and sincerity. And he’s certainly not afraid to use jail – he sent one of my clients away for nearly two years, and soon after he was appointed to the bench in 2007 he criticised the leniency of the maximum penalty available (five years) for a reckless conduct charge. Connellan does need a very good reason to send someone to prison, though, and despite the views of the Herald Sun and its selection of baited readers, it’s unlikely that reason existed in this case.

It almost did, though. Causing serious injury is among the gravest charges heard by magistrates courts, and Connellan said in sentencing the offender that he’d be going to jail if he hadn’t already made ‘significant changes’. More than six months had elapsed since the original assault, which gave the offender time to complete a pre-sentence bail program known as CREDIT (Court Referral and Evaluation for Drug Intervention and Treatment). The idea is that an accused person who would otherwise be remanded in custody until they are sentenced is given access to treatment or rehabilitation services for four months, if it’s assessed that their problem with drugs, alcohol or mental illness is a factor in their offending. Their engagement with those services, and their progress in addressing some of the problems which may have contributed to their offending, is then taken into account by the sentencing magistrate.

‘I hope karma will catch up with [the offender],’ said David, another letter-writer in the Herald Sun. David likely doesn’t know the assailant, so was expressing a familiar idea – that criminal offenders are motivated primarily by evil intent, that they’re basically villains who should get their just deserts. But if David had read the Herald Sun’s report closely, he would have learned that the assailant in this case had been diagnosed with ADHD and a mild intellectual disability, and had been previously observed to have anger management issues. David would also have learned that the offender grew up in a violent home.

None of this represents an excuse for the offender’s conduct, which is why he was charged, processed through the criminal justice system and sentenced. But the backgrounds of most offenders provide courts with hints as to what might be causing their behaviour. Unfortunately, it’s all too common for children who experience violence while growing up to express themselves violently as they get older.

We don’t have to bend our minds too much to imagine what kind of childhood this young man had. At various times, he would very likely have been described as a victim himself. The Herald Sun was quick to cast him as a ‘thug’ and a ‘coward’, but he might equally be seen as a kid who fell through the cracks – a kid whose society failed in its duty to protect him from damage and to educate him into self-sufficiency and prosperity. David might hope karma catches up with this young man, but on another view, karma might already owe him some points.

‘This sentence in no way reflects community expectations for such a vicious and unwarranted assault,’ asserted Michael in the Herald Sun. ‘What an absolutely disgraceful sentence,’ bellowed Matthew. ‘Hopefully this is appealed.’ We bay for jail in cases like this one. There’s a pattern to it – first, we convince ourselves that the offender is bad, a villain, and then we want them to suffer as much as possible.

And we instinctively link punishment to deterrence. ‘This will continue to happen until we get fair dinkum about punishments,’ thundered Mark. ‘At the moment creatures of his ilk know jail is unlikely.’ According to Keith: ‘Gutless thugs will continue to rule the streets if this type of decision continues.’ The problem with this kind of instinctive reaction is that jail doesn’t do what Mark and Keith think it does. It doesn’t actually work very well as a deterrent.

Perhaps even more significantly, prison doesn’t solve the problem Mark and Keith expect it to solve: it doesn’t rehabilitate. If anything, it augments any existing problem, for the offender and for his society: a twenty-year-old who goes to prison for a few months is ‘warehoused’ in an environment with other offenders, and nobody will give him a job upon his release. Meanwhile, his underlying problems – the causal factors in his criminal behaviour – go largely unaddressed.

Without knowing much about this young man, we can tell that he’s angry – and that he can’t control his anger. From the fact that he was carrying two cans of Wild Turkey bourbon on a public bus during daylight hours, we can surmise that he’s probably got a problem with alcohol. What’s the most important thing here? That he be punished with a term of imprisonment which doesn’t address whatever drove him to punch a stranger in the face? Or that we find a way to prevent him from doing the same thing to someone else?

Gary said the judiciary ‘does as it pleases according to its own insulated views’. This is the (also common) view that magistrates and judges are out of touch with community thinking on punishment and sentencing. It’s a strange view, though, because Gary probably hasn’t sat in on any of the hearings and isn’t privy to most of the information Greg Connellan used to make his decision. Research has been done on views like Gary’s: perhaps surprisingly, when members of the public are given all the ‘facts’, as a jury is, the sentence they would impose tends to be a little more lenient, on average, than the magistrate’s or judge’s eventual sentence.

‘How does this act not result in a custodial sentence?’ asked CJ.

Another reader, Tim, offered his own experience by way of comparison:

I have been drinking booze for 15 years and when I get drunk all I want is a large cheeseburger meal and my bed. Never in my life have I wanted to punch someone. This dude will get drunk again. These people need the living daylights scared out of them and a community order is not going to do that.

But what CJ and Tim miss is that a community-based order with rehabilitative conditions is one of the very few instruments currently available to most courts around the country, in most circumstances, which at least has a shot at heading off this particular offender’s next crime. Simply dumping him for a few months in prison – a highly authoritarian environment where violence is a constant threat – is likely to make him more rather than less of a problem when he’s released.

And what about the victim? ‘That sentence is unacceptable,’ raged Margaret. ‘That poor senior citizen would feel like he has been wronged twice now. A jail term is the only acceptable outcome.’ Margaret was expressing our usual demand of victims: that they be outraged, just like the rest of us. Very often they are, and with good reason.

In this case, however, the victim didn’t play his allotted role, though few noticed. Despite still suffering from the assault – following the sentence, the victim was still undergoing physiotherapy, was still having trouble speaking and eating, and was still traumatised – he said: ‘If this is going to help him and he’s going to rehabilitate and get better, I’m happy with the judgment.’

But if forgiveness sounds sweet, it’s not as sweet as retribution. Noel McNamara, the founder and president of an organisation that aims to support victims of crime, declared the sentence to be a ‘travesty of justice’ and ‘manifestly inadequate’. McNamara, whose daughter was tragically killed two decades ago, also wanted prison for this particular offender – though prison was highly unlikely to help anyone in this case, least of all the victim.

What has happened here is that Margaret, Gary, Steve and the other correspondents who vented their spleens in gut-reactionary emails, which they then fired off to the Herald Sun, have been expertly manipulated by a newspaper with a commercial interest in maintaining the rage.

If that were all – if the outrage was limited to a small web of influence comprising newspaper and rusted-on consumer – then it could perhaps be safely ignored by everyone else. But that’s not all. The Herald Sun has the largest circulation of any newspaper in the country, so its web is actually a very big one. Most people get most of their information about the criminal justice system through mass media. They vote. This kind of ‘tough on crime’ talk ends up infecting governments.

That governments (and oppositions) are in a race to impose the longest sentences is hardly a new observation. But the race is quickening. An important aspect of judicial independence is that judges and magistrates have discretion over sentencing, but recently, populist governments have tried to direct sentences by imposing mandatory minimum tariffs in legislation. A ‘three strikes and you’re in’ WA law for burglaries was introduced in 1996 (a third burglary in the space of a year means at least twelve months in prison). The Northern Territory’s ‘three strikes’ regime (fourteen days’ prison for the first property crime, ninety days for the second and a year for the third) of 1997–2001 – when it was repealed – dramatically increased the Indigenous prison population without doing very much about property crime. Mandatory prison time for assaulting police officers has operated in Western Australia since 2009. Minimum sentences for various offences in Queensland, the Northern Territory and Victoria have been imposed since 2013, and in the same year a ‘loophole’ was closed in Western Australia to make sure mandatory sentencing ‘sticks’. In New South Wales from early 2014, ‘one-punch’ assaults causing death where drugs or alcohol are involved result in at least eight years in prison. Similar laws for Victoria were announced later that year. Governments have also moved to tighten laws surrounding bail and parole, making it more difficult for people to be released into the community.

Most such legislative amendments come at the end of campaigns for tougher laws driven and sustained by tabloids running at fever pitch. The result: even though crime rates are generally falling, the jail population is soaring. In the single year to June 2014, the number of full-time prisoners across Australia rose by a staggering 9 per cent. Prisons in nearly every state and territory are overflowing. For some months in 2013, lawyers (me included) had clients all over Victoria who were spending weeks sleeping on concrete floors in police cells, because there was no room for them in remand centres or prisons.

Why is this a problem? Surely, doing crime involves doing time, and that’s all there is to it? That sentiment might make intuitive sense from a perspective which prioritises individual morality. But if what we’re really trying to do is to reduce the amount of crime committed in society in ways that respect basic human dignities – it would be easy to completely eliminate crime by pre-emptively imprisoning and restraining everyone from birth, but that’s not the kind of society any of us wants to live in – then the ‘crime and punishment’ model doesn’t cut the mustard. Ultimately, crime is a social problem, both in its impact – it causes harm to innocent people – and in its causes.

Imprisonment results in big consequences, both individual and social. Jailing fathers and mothers profoundly affects their children, and because Centrelink stops payments to people in prison, the household budget for those with whom the prisoner would otherwise be living can become unmanageable. Finding a job upon being released is next to impossible for many prisoners. Medical, dental and mental health problems are rarely addressed properly while inside. The incredibly rigid atmosphere inside prison prepares nobody for being left to their own devices upon their release. Often, perhaps as a result of stigma and lack of contact, friends drift away, leaving ex-prisoners with other ex-prisoners as their only source of support. At the end of it all we find that we’ve spent tens or hundreds