In his recent autobiographical work The Pursuit of Justice former NSW District Court Judge, Michael Finnane QC gives a rather frank account of his experiences as a judge and provides a rare insight into the thought processes which go through the mind of a judge in sentencing offenders in NSW. A recurring theme throughout the book is the constant frustration that he felt as a judge at the limited options available to him for dealing with problems which, although presented in the cloak of criminal conduct deserving of denunciation and punishment, were really much more about how our society deals with the inequities of health, education, poverty and social disadvantage. One chapter of the book recounts numerous tragic stories of serious crime committed by people who lived in appalling circumstances, many of them clearly without any insight into the gravity of the conduct in which they had engaged or the effect that it had on others in the community around them. The author concludes the chapter by saying:
“These stories highlight a problem in our society in New South Wales that there are no proper mental institutions which provide accommodation, care and treatment for people with severe mental disorders. Many of these people, because of their disorders, cannot look after themselves, cannot manage money, run out of funds and then resort to crime just to stay alive. Some are lucky enough to get support from generous people in the community, but many of them have no friends or family.”
Similar concerns have been expressed by other members of the judiciary and magistrates. A recent interview with a Children’s Court Magistrate revealed similar concerns about the problem of charging children with criminal offences in relation to inappropriate sexual behaviour arising out of school yard romances or dysfunctional family relationships.
It seems that there is a large gap between the truly malevolent conduct of the determined criminal and the behaviour of normally functioning, well-balanced and productive members of society. Into that broad gap fall a large number of people who are affected by poverty, illness, disability and maladjustment and find themselves before the courts charged with criminal offences because, for too long, they have struggled without assistance or without adequate assistance to combat these problems which are not of their own making and, in the end, have committed crimes that, in some cases might have been entirely preventable had they received appropriate assistance in a timely manner. Too often the sentencing remarks of judges include a sad recital of tragic personal backgrounds and a litany of handicaps that would challenge the most robust citizens in society.
All too frequently media reports of serious and spectacular crime are met with calls for harsher penalties and there are politically opportunistic promises to crack down on crime and make “law and order” an issue at the next election. Such rhetoric makes many false assumptions. It assumes that all members of society have equal access to opportunity, resources, health, education, disability support and the support of a loving family network (the equity assumption). It assumes that all offenders make rational, considered and pre-meditated decisions to commit crime (the criminal intent assumption) and, most of all, it assumes that there is a direct and proportionate relationship between the harshness of the penalty and recidivism (the penalty assumption). None of these assumptions is correct.
As to the equity assumption, the Bureau of Crime Statistics and Research (BOCSAR) evidence discloses that, for the period from April 2018 to March 2019 the rate of non-domestic assaults within the Sydney city area and the inner western suburbs area to Beaconsfield were greater than 566 per 100,000 of population but reduced to less than 166 per 100,000 in the lower north shore and around Belleview Hill, Dover Heights and Vaucluse. A map depicting the incidents of assaults per 100,000 of population is shown below.
Of course the evidence is only as to one type of crime and there are other weaknesses with the use of this map including the assumptions about the affluence of Sydney’s inner west and the lower north shore. However, the map does give some indication of the prevalence of that crime in a small though densely populated part of NSW.
As to the criminal intent assumption the statistical evidence is more difficult to establish. It is interesting to note, however, that invariably the official reports of judgments handed down in the Criminal Law List of Common Law Division of the Supreme Court of NSW contain harrowing narratives of the kind described by Finnane in his book.
As to the penalty assumption the BOCSAR evidence is that the recidivism rate for non-custodial penalties is about 20% for adults and between 42% and 44% for juveniles as set out in the following table.
By contrast the recidivism rate for offenders who have been incarcerated is around 39% to 40% for adults and as high as 64% for juveniles as illustrated in the following table.
Two questions arise from this story. Firstly, why does any of this matter to a community of ADR researchers and, secondly, if it does matter, what can be done to address these problems?
Dealing with the first question first, it seems entirely plausible that our attention to restorative justice and restorative practices in modern dispute resolution discourse may as well focus on addressing the root causes of criminal and anti-social behaviour in the broader context in addition to the immediately presenting problem of reconciling a victim to an offender in the form of victim-offender mediation or conferencing or circles or other restorative practices of the kind advocated by King, Freiberg, Batagol and Hyams in the book Non-Adversarial Justice (Federation Press 2009). Every victim-offender mediation which succeeds in making a victim feel even slightly better or does something to restore their lost dignity or restore them to their former position is a good thing. How much better a place the world would be if we were able to extend restorative principles to encourage improvement in health, education and social welfare in order to remove the occasion for criminal delinquency and promote a healthier, better informed and better resourced society which reflected upon its failings and was more active in restoring equity to those who stumbled because they were unable to keep up.
The second question is how we deal with these problems. Undoubtedly this is a much more complex and difficult question to answer and one which would occupy more space than be accommodated in this post. In the first instant, we as academics and researchers can do much to educate the broader community both about the myths surrounding the causes of crime and anti-social behaviour and about the benefits to be gained by considering issues of crime and anti-social behaviour holistically and from an integrative perspective so that all of the causative influences are brought to account. At some point the penny has to drop that increasing crime rates are not just about more socially unacceptable behaviour by more individual people. They represented a systemic failure of society to provide more appropriate resources and funding to address these problems.
Secondly, we need to persuade governments that there should be a proper level of investment into the health, education, training and useful employment of people who are incarcerated. In short, this means a proper level of investment into corrective services. Those invested with the management of corrective services should understand that recidivism is a failure of the system – not a failure of the individual. There is an abundance of evidence from abroad that a more enlightened approach to corrective services produces better results. As an example, by comparison with the recidivism rates reported above, Norway, which boasts the most advanced corrective services system in the world, has a recidivism rate of 20%, about half that of NSW and less than one third of that reported in the USA which reports a recidivism rate of 68%.
Guided by a “Principle of Normality” under which imprisonment is regarded as deprivation of liberty but nothing more, life inside prison is designed to be as close as possible to life outside. Prison officers are educated in a range of disciplines including social welfare and psychology. Prisoners are taught a range of skills to assist them in their rehabilitation and receive vocational training to assist with employment prospects.
These principles bear some resemblance to those advocated by Justice Nagle in the NSW Royal Commission into Prisons when he said: ”People are sent to prison as punishment, not for punishment.” Norwegians cast their tactical approach to incarceration as a “good neighbour policy” – treat people like dirt and they will become dirt. Treat them like human beings and they will act like human beings.
These principles are also consonant with the principles advocated by the Restorative Justice movement which is gaining strong momentum in the City of Newcastle NSW. In a recent article by Professor John Anderson and Dr Nicola Ross of the University of Newcastle, the authors said:
“Restorative cities implement interdisciplinary restorative practices and restorative justice measures across a range of systems including education, justice, welfare, child protection and health to achieve positive results for residents, particularly the most vulnerable members of the community such as children and youth. Ultimately these cities are working towards and achieving a transformational change in culture and the social fabric of their cities using mediations, conferences and relationship-building exercises to encourage the resolution of disputes and disagreements through productive communication, to address inappropriate and harmful behaviours and to create community wellbeing in a caring and inclusive culture.” (J Anderson and N Ross A Restorative City for NSW – Could Newcastle be a Model? (2018) 27 JJA 74)
If even some of these objectives could be achieved, there would be cause for great optimism that many of the matters of which Judge Finnane complained might be removed from the criminal law landscape in New South Wales. It is to be hoped that this will be so.
 M Finnane The Pursuit of Justice (New Holland Publishers 2018)