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«A Magistrate’s view of the Law and Social Change Hugh Dillon, BA, LL.M (Syd) Magistrate, NSW Local Court 1. The reform of the NSW Magistracy as a ...»

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In some major NSW Local Courts, psychiatric nurses assess all persons brought to the court in custody and provide reports to magistrates. The reports not only provide a preliminary diagnosis or assessment of the accused person’s mental illness or health but also advice as to suitable treatments or other interventions which may be indicated. By means of this relatively inexpensive expert service, significant numbers of people who might otherwise be refused bail can be granted bail and diverted to mental health services for assistance and treatment. For all that, the problems of identifying mentally-ill people when they are brought to court, and of finding treatment for them outside the prison system once they are identified remains an acute one for the justice system and individual magistrates. It is a sad but common experience that magistrates will identify someone as probably mentally ill, have them taken by police to a psychiatric hospital for assessment only to have them bounced back to the court by a psychiatric registrar who cannot diagnose a mental illness in the accused. All too often, of course, these unfortunate people are properly diagnosed only when they get to prison having had bail refused. I have no doubt that a cost-benefit analysis would be very sobering.

Imprisonment rates also make for sobering reading but it is difficult for an individual member of the judiciary to tell precisely what they mean. Apart from the mentally ill, whether we are locking up too many people is a tricky problem to analyse from the coalface of the justice system. I can say that there is very little enthusiasm, as far as I can tell, among magistrates for imprisoning people. It is a dispiriting and, often, saddening experience when one finds oneself left with no alternative but to gaol someone. If, for example, the argument is made that the courts are still imprisoning Aboriginal people at much the same rates as they were before the Deaths in Custody Royal Commission, it seems to me that the real questions are not why are the courts behaving this way but why do crime rates among the people being locked up remain where they are and what are we going to do about them.

Similarly, one cannot help reflecting, almost on a daily basis, that one of the reasons that we now have more people going through the criminal justice system, and therefore being exposed to the risk of going to gaol, is that our society is now fiercely denunciatory of crimes which a generation or two ago were rarely prosecuted. One does not need to be a professional criminologist to observe that domestic violence and sexual abuse of children are two of the most prominent categories of offences dealt with in NSW courts these days. Communities and individuals are less ashamed of bringing these kinds of crimes into the open than they once were. No doubt the number of examples can be multiplied.28 What all this means in terms of crime statistics and imprisonments rates bears careful analysis but there do not appear to be simple answers.

The greater concern to me, as an individual member of the judiciary, is not so much the raw number of people being imprisoned but the length of the sentences being imposed.

The judiciary as a whole is, it seems to me, lives under two constant but countervailing 28 See, for example, Russell Hogg and David Brown on the question of the dimensions of the crime

problem: Rethinking Law & Order p18-44.

pressures -- to be tough on crime, because of community expectations, (insofar as one can discern them from the public statements of politicians, police and journalists and such things as letters to editors and talk-back radio) and to be staunch in defying irrational expectations or demands for excessively punitive approaches to individual crimes and offenders, because that is what your judicial oath requires. There has probably never been an easy time to be a judicial officer but this seems a fairly trying one because the debate (such as it is) about crime and punishment in Australia is frequently conducted in an irrational and, indeed, puerile way.

While I think that there are some signs of hope in the criminal justice system – circle sentencing, youth conferencing, therapeutic approaches to drug crime, etc -- the tendency towards a more punitive approach in terms of imprisonment (and the statistics appear to demonstrate this) is one in urgent need of rational analysis and debate. Don Weatherburn, in his paper “Law and Order Blues”, argues “the principal defect of Australian law and order policy is not that it is punitive but that it is so rarely evidencedriven or evaluated.”29 I would respectfully adopt those remarks in respect of sentencing policy too.

Sentencing policy of the courts is a subtle work, always in progress, constantly being crafted and revised by the senior judiciary (especially the NSW Court of Criminal Appeal and its interstate counterparts) but also by the minor players in the hierarchy. It is not usually driven directly by government policy but is fashioned intuitively by the judiciary in response to its interpretations of law and community sentiment. It is not, however, a creation in a vacuum. Judges and magistrates read, and listen, and think on these issues.

All of them are open to be influenced by rational and appropriately expressed arguments and all of them are interested in results.

My appeal, therefore, to academic lawyers and practitioners who find the justice system disappointing or unjust is that they develop arguments that will persuade governments that there are better ways to achieve the results the community desires than the alternatives currently available by implementing new policies giving courts new tools crafted to meet the problems which are funnelled into them.

I should not be understood to be impliedly denigrating academics and scholars when I suggest that a MERIT program and a circle sentencing project is infinitely more useful to the people at the coalface than an article in abstruse language in an obscure journal decrying, for example, the rising rate of imprisonment. Pure research has its place. I am, however, asserting that reform is not achieved merely by critique but the proposal of superior practical alternatives to current practice. That is, of course, an enormously tall order because, to be effective, it requires an understanding not only of the problems themselves but of the resource implications for policy-makers. It may also require some political sophistication on the part of advocates because reformist changes in direction in the criminal justice system always present political issues for governments. One thing that may give reformers some confidence is that bulk of the magistracy in NSW is supportive of the development of sophisticated problem-oriented approaches to criminal justice issues as they confront practising judicial officers on a daily basis. I hope that is some encouragement.

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