Nicholas Cowdery on crime and punishment

On Wednesday night I was listening to the soon to retire New South Wales Director of Public Prosecutions, Nicholas Cowdery QC, being interviewed by Tony Jones on the ABC's Lateline Program. It was a fascinating interview made annoying because we lost the program in the middle through some technical fault. Now the transcript is on-line.

For the benefit of those outside NSW, Mr Cowdery has been something of a stormy petrel determined to defend the independence of his office in a state where law and order issues can dominate campaigning and where events and activities in the Sydney goldfish bowl play out in the merciless glare of publicity.

The apparent trigger for the interview was the DPP's decision to drop the manslaughter charge against Mark Wilhelm over the death of Dianne Brimble. It is now some seven years since Mrs Brimble died on a cruise ship. From her death through the inquest and then the failed trial that followed, all those involved have been subjected to a relentless glare of publicity that stripped away any privacy and embedded every detail in the public mind.  In Mr Cowdery's words:

I think there's a lesson in there. I hope that there is a lesson in there for media in reporting matters of that kind in the future.

I don't want to go through the whole interview. I leave that to you. However, I do want to comment on a few points that will give you a feel for justice in NSW.

NICHOLAS COWDERY: The progressive removal of presumptions in favour of bail in particular circumstances is what I'm concerned about. When the Bail Act was brought in, it was very carefully constructed, a very measured and very moderate provision. And it was realistic.
But over time, in response to tabloid outbursts, the Attorney General, particularly the present Attorney General, has introduced legislation which has amended the act and made it much more difficult to get bail and therefore - and to have bail reviewed, and therefore has increased the remand population of the prisons enormously....

The problem is that if you whittle away presumptions in favour of bail, you do tend to interfere with the presumption of innocence and you get an increased number of people who are put into prison on remand, bail refused, who ultimately are acquitted or released or charges are not proceeded with. And we don't have a system in our jurisdiction of compensation for people in that position, as they do in some European countries.

This one pulled me up. While I disliked the constant tightening of bail provisions, I suppose that I hadn't really focused on the central issue: we are sending people to jail, sometimes for considerable periods given lags in the legal process, for crimes that they did not commit. We have made the act of being changed a crime, punishable by an undefined jail sentence.

TONY JONES: What is the impact of that kind of decision (in the Skaf case) and those kind of exemplary punishments? I mean, for example, I know that you were concerned that there'll be more murders in the cases of rape because the rapists would decide they've got more chance of getting away with it if they murdered the victim.

NICHOLAS COWDERY: Well, the danger is that if you increase the available penalties and the penalties that are being imposed unreasonably, then people who are going to commit these offences have nothing to lose by taking it the extra step.

In NSW something of a lock them up and throw away the key approach has developed.  In a rather nasty rape case, the brothers Bilal and Mohammed Skaf, ended up getting extraordinarily high terms - 55 and 32 years. This was over-turned on appeal. The NSW Government has also tried for legislative powers that will allow it to keep prisoners considered to be a continuing danger to society in jail after their term has finished.

The practical effect that Mr Cowdery is referring to is that if you blur the sentencing distinctions between different types of crimes then you blur the deterrent effect.

TONY JONES: It's certainly swelled the numbers of people in prison in New South Wales, and interestingly, I think the incarceration rates in New South Wales are almost double what they are in Victoria. Is that as a result of this kind of ad hoc changes?

NICHOLAS COWDERY: It's contributing to it, yes. It's one of the enduring mysteries why Victoria has a much smaller prison population per head and why it has shorter sentences per head, but not a burgeoning crime rate.

They must be doing something right in Victoria; if only we could learn and apply the lessons here.

In fact, it appears that NSW locks up in jail four times as many young people relative to population size than Victoria. Seventy per cent of these re-offend within twelve months. In July 2009, the NSW Government commissioned a study to find out why the State jails so many.

I don't think that it requires rocket science to understand why. It is a natural outcome of the current NSW approach to criminal justice rules intended to get tough on crime. In addition, another reason lies (I think) in the increased numbers of people spending time in jail for non-payment of fines. This is another aspect of the NSW Government's overall approach to compliance issues.

I find in conversation that while people might be prepared to accept in a general sense that there are problems in current NSW approaches, conversation soon moves to specific cases or examples. As it does, attitudes toughen. It is these attitudes that NSW politicians play too, in so doing reinforcing them so that the cycle goes on. 

Ladettes - girls acting like boys

Under the rather dramatic headline Ladettes lead upsurge in female crime, Tuesday's (27 January 2009) Sydney Morning Herald had a rather interesting piece by Geesche Jacobsen, the paper's Crime Editor, on increasing crime rates among young women.

THE number of women found guilty of crimes has jumped dramatically, partly as a result of alcohol-fuelled young "ladettes" trying to emulate young males.

After this dramatic start, the story is balanced reporting, pointing to some of the issues (statistical and other) that affect the apparent rapid increase in female crime rates as compared to male.

As a social observer, I found the story especially interesting because the responses quoted in the paper actually say a fair bit about differing social attitudes in Australia today.

Paul Dillon, director of Drug and Alcohol Research and Training Australia, suggested that minor offences were often linked to alcohol.

The behaviour of such ladettes was the result of a societal change around alcohol, which had gone from frowning on women drinking in public to a time in which women were drinking as much, or more, than their male counterparts, he said.

"The whole idea of gangs of young women committing offences was something that was most probably not really heard of 10 years ago."

Sounds reasonable? Well, yes and no.

It is certainly true that young women drink more than they used too. It is also true that there has been some merging of male and female behaviour patterns. However, his comments have to be treated with a degree of caution for they sit at the centre of two overlapping social trends in Australia.

The first is the rise of the special interest group dedicated to the resolution of particular social problems or the promotion of particular causes. According to an ABC (Australian Broadcasting Corporation) introduction:

Paul Dillon has worked in the drug education field for almost 25 years. Through his own company Drug and Alcohol Research and Training Australia (DARTA), he has been contracted to provide information on a range of drug issues to many different audiences. For the past 13 years he has worked as the Information Manager at the National Drug and Alcohol Research Centre.

The DARTA web site itself describes its role in this way:

Drug and Alcohol Research and Training Australia (DARTA) aims to provide high quality research assistance as well as training expertise on a wide range of alcohol and other drug issues.

So Mr Dillon is undoubtedly knowledgeable, - his December 2007 ABC piece shows this clearly - but writes from a particular perspective.  This does not make him wrong, although in this case I think that he has gone a bit over the top.

The second trend is what, for want of better words, I call the rise of social behavioural control. See behavioural problem, fix behavioural problem. Just at present, excessive drinking especially among young people has become a major social issue of great concern to Mr Rudd as Australia's headmaster. This interacts with the rise of special interest groups; the two feed each other.

Is there a problem with alcohol consumption? Yes there is. However, in looking at this we have to be careful to distinguish between the problem and the way the problem is perceived and responded too.

To illustrate this further, Eva Cox is the next person quoted in the story. Eva Cox is head of the Women's Electoral Lobby and one of Australia's long standing feminists. She has a very different take.

Like Paul Dillon. she accepts that there is a problem. However, her stance is different. According to article, Dr Cox said that rising crime rates was "one of the consequences of equality" which happened as women had greater opportunities to offend than in the past.

"The hard-drinking, hard-driving larrikin lout is still being seen as the model of how to impress society," she said.

"For women looking for equal status, sometimes by being equal to inappropriate male culture is the only way to go."

A very different take indeed. Dr Cox also noted that female crime rates were still only 19 per cent of male rates.

"There are no ravaging hordes of women about to attack men," Dr Cox said.

Demographer Bernard Salt, Australia's best known private sector demographer, had a somewhat similar take. To him, the problem seemed to be "one of the bizarre negative aspects of equalisation", such as rising rates of heart disease and smoking among women.

Mmm. The problem of unforeseen side effects such as the way the Australian Government's alcopops tax may well have increased alcohol consumption among the young is always there. But bizarre? 

University of NSW law academic Chris Cunneen moved in a different direction. As a lawyer, he noted that while some argued women were becoming more violent, others believed the courts were more prepared to criminalise women. He concluded:

"The truth is probably somewhere in between," he said.

Professor Cunneen's comment links to another change in Australia that I have talked, the effect of changing attitudes to the use of the criminal justice system. 

Andrew McCallum, the head of the Association of Children's Welfare Agencies (another special interest group), took this line of thought further. To him, it (the problem) also reflected the developing punitive culture which stressed punishment above rehabilitation.

"You need to have more carrot than stick," he said.

To some degree at least, I am sure that the various responses reflect the way in which Geesche Jacobsen phrased the questions she asked.

Do we know any more at the end about the opening issue, girls acting like boys? Not really. However, the story is an interesting snap shot of different streams of Australian thought. 

Note to readers

This post is one of a series on social and cultural change in Australia that began with A note on Australia Day and related matters.

History of Child Pornography in Australia

One visitor came to this site because he/she searched on the history of child pornography in Australia. My one post on the Henson matter came up number five on the Google search. This got me thinking.

I know of no history of child pornography in Australia. I suppose there is a problem here in a general sense because you have to access to sources to write a history, and I know of no sources in this area. Indeed, to write a history you would now have to download illegal material.

That said, I do not think that Australia can be said in any way to have a history of child pornography until very recently. It did not exist or, to the degree that it did exist, it involved smutty photos exchanged in private.

This is not to say that we did not have a paedophile problem however defined. We clearly did. But child pornography, again however defined, seems to be new.