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Resist shock jock 'judge bashing'

Fran Hogan |  20 February 2011

Neil MitchellI was at a church service recently when there was a prayer for quiet achievers who dedicate their lives to the service of others. I felt pretty certain that the prayer was not for lawyers. I thought immediately of all you good folk who work for Brosnan Youth Services and other programs run by Jesuit Social Services.

I recall that in an address given by Paul Keating, at the Annual Jesuit Social Services Fundraising Dinner a few years ago, notwithstanding a certain amount of ego driven justification of 'the recession we had to have' and the like, he rather poignantly stated that governments rely heavily on the good work done by your organisation. He said, 'Thank God for Jesuit Social Services'.

In my time on the Bench there have been quite a number of times when I have privately thanked God in the same way. Frankly, at times, without the intervention of Jesuit Social Services in between the time a young offender was charged and committed in the Magistrates' Court and ultimately came to his plea in the County Court, there would have been little material to give a court confidence that it was appropriate to release the offender into the community.

Instead, a young offender, thanks to Jesuit Social Services, has often been able to demonstrate stable accommodation and some positive steps on the way to rehabilitation by the time we, in the County Court, hear the plea.

I have particularly enjoyed learning about some alternative types of music which have been recorded by some defendants at Gateway Connexions Studio. I suspect that some of it is not what I would seek to soothe me when I can't sleep at night but it's great to see some people who have had really tough lives get the opportunity for a creative outlet for the first time ever.

The Court Referral and Evaluation for Drug Intervention and Treatment Program and now the Court Integrated Services Program run in the Magistrates' Court have also been valuable initiatives whereby young offenders on bail enter a contract to see a case manager regularly in order to take positive steps to address issues that lead them to offend.

There are some young people who come to court without a single person in the courtroom there to support them. They are usually the product of appallingly inadequate parenting from alcoholic and/or drug addicted parents.

They have, at times, been subjected to physical or sexual abuse and suffer psychological or psychiatric problems and, like their parents, often suffer problems with alcohol or drug addiction. We see history repeating itself as defence counsel announces that a 19 or 20 year old in the dock has fathered one or two children.

The very thoughtful and well-researched report on Young People On Remand In Victoria, co-authored by Dr Matthew Ericson and Professor Tony Vinson being launched today, is right on the money. Early intervention in a rehabilitative way, rather than emphasis on punitive measures, is the only hope of saving many young people, not to mention the cost to the community approaching $100,000 per head per year, of having a person in prison.

I have become increasingly alarmed by the number of young people on remand who are being held in protective custody, either because they are mentally ill or because they are particularly young and vulnerable and stood over by experienced criminals. This means that they are often ineligible for jobs within the prison or other rehabilitative programs. Hence, they are sentenced to boredom.

The other very worrying thing about lengthy periods of remand is that what few social supports young people have, can be lost. It can be very difficult for friends or family to find the wherewithal to make the journey out to Deer Park or wherever the prisoner is held on remand.

Even more crucial, is the fact that the one cornerstone of security for many of these young people is their public housing, which has been allocated to them only after a long wait. This is lost while they are on remand and, when they are released, they are back to the same dislocated situation that got them into trouble in the first place.

One of the most poignant cases I have had before me where I was grateful for the role played by Brosnan Youth Services was late last year in which one of Brosnan Youth Services senior workers, Wayne Clark, gave evidence before me.

Although the defendant at age 27 was outside the age group generally catered for by Brosnan Youth Services, Clark had had contact with him on and off over a lengthy period of time and sought that an exception be made to enable him to support him.

The thing that really struck me about Clark's involvement with this young man was that he had seen him fail in his attempts to be law abiding many times but still he had stuck by him. One must need a very resilient, wise and compassionate outlook to keep going in such work. It really is a classic illustration of the Jesuit philosophy of being a man for others in action.

The defendant had a truly appalling background. He was subjected to physical violence by his father which resulted in him being hospitalised for the first time with injuries at the age of three. As a toddler, he began to exhibit aggressive, destructive behaviours. He was involved in fights at school and was suspended, and at age 11 or 12, he ran away from home.

He never went to school again and suffered many problems associated with long-term homelessness and drug abuse.

Interstate he appeared in the juvenile justice system regularly and, from the time he turned 18, he was repeatedly sent to adult prison. This pattern continued when he came to Victoria. For eight years, prior to coming before me, he had been in and out of adult prison with no court-ordered rehabilitative programs. He had been imprisoned repeatedly for dishonesty, driving, weapon and assault offences.

From about 2003 onwards there were indicators of mental illness and in 2004 he was diagnosed with paranoid schizophrenia. While in prison serving a sentence, on 18 August 2005, in a psychotic state, he committed a frenzied stabbing attack on two prison officers. For these offences he was sentenced on 7 February 2007 to serve five years with a non-parole period of three years and nine months.

Clark visited him at Port Phillip Prison very regularly. He described how the defendant was looking forward to getting out of prison and eating a good steak and Wayne said he would take him out to find that good steak.

On 18 November 2009 the defendant was released on parole. Six days later he was re-arrested. He had stolen a set of car keys and then a car and some cash and a wallet. He purchased some knives, and late at night, entered a service station and bailed up the attendant with a knife for a couple of hours before police spotted the stolen car and came in and arrested him.

The victim stated that he actually didn't menace him with the knife or try to get cash out of the cash register. The victim said that the defendant had wanted to make a phone call to a member of his family interstate and then spent most of the time sitting on a chair taking anti-psychotic tablets as though they were lollies.

The defendant was taken to Frankston Hospital where behaviour consistent with psychosis was noted and he was remanded in custody and taken back to the Melbourne Assessment Prison where he was given his anti-psychotic medication, which he still had on him.

He was then transferred back to Port Phillip Prison where he had served the three years and nine months and his psychiatric history was well known. For reasons that will never be clear to me, he was not given his anti-psychotic medication.

A hapless prison officer, who had no familiarity with the defendant and was not briefed about him, let him out of his cell to play cricket and, after the end of the game, the defendant came up behind that prison officer and bashed him unconscious with a cricket bat. There was evidence that he was psychotic and had been hearing voices through the public address system for some time prior to this.

Thereafter, he spent a short time in Thomas Embling Hospital where he had been a patient from time to time over the previous four or five years. He was aggressive towards staff and other patients and had a proclivity for use of makeshift weapons which made him an unacceptable risk. He was then transferred to the Exford Management Unit at the Metropolitan Remand Centre in Deer Park.

If it hadn't been for Clark's evidence describing the conditions under which this prisoner was held at that unit I would never have been the wiser. I went out to Exford and it was like visiting an enclosure at a zoo for dangerous animals. It's all a criss-cross of steel bars and concrete. There are no trees and there is not one softening, civilising influence anywhere.

Clark's client never saw another human being all day long except the prison officer who would deliver his meals through a hatch or open the door from his cell into the adjoining so-called exercise yard. The yard was like a concrete cave, no bigger than his cell. You could not see the sky above and there was minimal natural light entering from a heavily barred window.

For 24 hours a day he was alone in that environment during six of which he was allowed into the exercise yard. He had been in those conditions for approximately ten months and the only human being he saw, apart from the prison officers, his psychiatrist or other medical personnel, was Clark.

Clark had watched this young man lose motivation, become pale and overweight and have less and less conversation because there was nothing that happened in his day to talk about.

As I understand it, the Exford Unit was designed as a short-term punishment unit for badly behaved prisoners. While recognising that this particular prisoner presents a difficult management problem, it is a disgrace that anyone, and particularly a mentally ill person, should have been held in such conditions of gross deprivation for so long.

After I visited the Exford Unit, Justice Health and the prison authorities seemed able to move fairly quickly to assure the Court that this prisoner would be moved to a less austere environment within the week. We will never know how much longer he would have been held there had Wayne Clark not drawn the situation to the Court's attention.

The young man of whom I have been speaking is probably institutionalised. One wonders if, instead of being repeatedly sent to prison from the age of 18 years, he had been given some serious court supervised intervention, the outcome for him, for those poor injured prison officers and for society in general might have been different.

This is why the report on remand being launched today needs to be heeded.

I detect in circles of government, the community and some areas of the noisiest (but not necessarily best informed) media, an increasing call for more punitive sentences. There seems to be a common misconception that crime, and particularly violent crime, is constantly increasing, although I understand that this is not the case.

The annual report of the Department of Justice for 2009-2010 states that: 'Crime in Victoria has fallen 25 per cent in the past ten years. There is recent evidence of fewer street assaults in central Melbourne as more police, backed by stronger powers, target city hot spots'.

The mass media is the primary source of information to members of the public on crime and justice issues. Unhappily, often the manner of sensationalist reporting does nothing to inform the public that punishment is but one of several purposes for which a sentence may be imposed.

It is important that there be public discussion of the sentencing process, but it is also important that it be informed, intelligent discussion and not knee-jerk reactions from shock jocks who seemed to have developed a taste for the sport of 'judge bashing'. There was a particularly offensive example of this relating to one of my judicial colleagues in the Herald Sun last week.

I don't make a habit of reading some newspapers or listening to some radio commentators. A few years ago I had anguished over a particular sentence which was the subject of days of media comment. One of my fellow judges stuck his head around the door and said, 'I thought you'd like to know that Neil Mitchell says you are right'. This I found unsettling. The judge then said, 'But don't worry, Derryn Hinch says you are a disgrace.' Phew!

The media can play such a valuable role in highlighting injustice and educating the public about the sentencing process. The better informed people are, the more likely it is that they will understand the multi-factorial process of sentencing and the less likely that they will call for more punitive sentences. It would be good to see more of it.

There was a study released by the Australian Institute of Criminology last week. In Tasmania and South Australia the responses of 698 jurors in 138 criminal trials were examined. The majority of jurors came up with a more lenient sentence than the one imposed by the judge. After reading the judges' reasons for sentencing, 90 per cent of jurors agreed with the sentence.

It is my belief that the campaign in Victoria that there is a need for more law and order, is a beat-up. There is a move afoot to abolish the judicial discretion to impose suspended sentences. In my time on the Bench, the vast majority of people to whom I have given a suspended sentence have not breached it, and I usually make the operational period three years.

The most recent statistic I could locate from the Sentencing Advisory Council is a statistical profile dated November 2007. It states that 72.5 per cent of people who were given suspended sentences did not breach them. To my mind, the fact that they have not re-offended in that time might be interpreted as a positive example of deterrence.

Many people who have breached suspended sentences which I have given to them have been sent to prison. Those in the community advocating abolition of suspended sentences because they see them as too soft an option, do not seem to appreciate that this occurs. According to the 2007 statistical profile, it apparently occurs in 17.5 per cent of cases and another 2.7 per cent of people have the operational term of the suspended sentence extended.

If the power to suspend sentences is taken away from judges, in my view, there will be more and more cases, like Wayne Clark's client, who, from an early age, spend time in adult prison corrupted by more experienced criminals and become institionalised.

It seems to me to be uncivilised that seriously mentally ill people should be housed in a prison. In my time on the Bench I have never once been able to make a Hospital Security Order because there are simply never any beds available at Thomas Embling Hospital. There is a desperate need for more psychiatric facilities. There is also a desperate need for more emergency and long-term accommodation for homeless people.

I see the same punitive trend often in the sentence indications given by prosecutors on pleas. The sentence range quoted seems to be getting higher and higher and seems not to take into account the mandatory discount on a sentence for pleading guilty.

I find it worrying that our Director of Public Prosecutions has seen fit to widely publish that he is actively seeking higher sentences for aggravated burglary offences. This 'broad log of claims' approach seems to be at odds with the essence of sentencing which is to evaluate each case on its own particular facts giving weight to aggravating factors and to mitigating factors and the individual circumstances of the offender, as well as sentencing principles generally.

There is actually a principle of parsimony which should apply in sentencing. That has got nothing to do with a judge being stingy but means that a sentence should be no greater than is required to achieve the sentencing objective. One doesn't hear much about that principle anymore. Indeed, imprisonment is supposed to be a sentence of last resort.

Sentencing is a complex and often worrying process. I believe that if an offender has a perception that he has been dealt with too harshly then that is not likely to be productive of rehabilitation. But maybe I identify too closely with the character in a Leunig cartoon that I keep on my desk.

It shows Leunig's character visiting a psychiatrist and he says, 'Help me, doctor, I'm having these episodes of compassion.' The doctor responds, 'A little bit won't hurt.' The patient says, 'No, this is serious, it's full-blown, it's spilling out all over the place.' The doctor responds, 'You mean it's – it's indiscriminate compassion?' The patient responds, 'Yes, I'm feeling sympathy and sadness for humans regardless of their race, religion, nationality or politics.'

The doctor responds, 'Oh dear, have you tried xenophobia, the old traditional remedy?' The patient says, 'It doesn't work, I just have to face the fact that I feel sorry for everyone.' And the doctor responds, 'You may have been abused as a child ... too much love and understanding perhaps.'

If only that were the only form of abuse of children.

I say again, thank God for Jesuit Social Services and very warm congratulations on the Remand report. Let's hope it falls on fertile ground. 

Fran HoganThe above text is from Judge Fran Hogan's address at the Inaugural Brosnan Breakfast, 16 February 2011.


Fran Hogan


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Submitted comments

The community generally doesn't appreciate the difficulty for judges, when sentencing, to get the balance right between punishment, deterance, rehabilitation, disapproval and protection. (I was not aware of those five objectives before a Neighbourhood Watch visit to the local court a few years ago. I believe N W could help more but Police support, involvement, etc with N W is being reduced rather than encouraged.) (Was the placement of the advertisement for alcohol beside the references in the article to the problems caused by alcohol-addiction deliberate ?) Geoff

Geoff 21 February 2011

Fran, you wouldn't consider coming out of retirement and going back on the bench, would you? That way you could continue to upset Neil Mitchell, Derryn Hinch et al with both your compassion and your gender.

Malcolm Wallace 28 February 2011

Wish I'd been there to hear you. Thanks very much Fran.

Leigh Mackay 02 March 2011

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