Exploring the role and patterns of developmental trauma in substance using offenders

 The thesis explored the relationship between developmental trauma, substance use and offending behaviour. While a lack of sufficient power did not allow patterns and trajectories to emerge, it was demonstrated that developmental trauma was experienced disproportionally more in offender and substance using populations. Further, the study proposed the utility of the Good Lives Model in developing holistic treatment plans that encompass primary goods identified by these individuals.

The irrelevance to sentencing of (most) incidental hardships suffered by offenders

Criminal offenders often experience hardships beyond the imposition of a court-imposed sanction. These hardships typically take a variety of forms, but can be grouped into a number of relatively well-established categories, including loss of employment, public opprobrium and injuries sustained during or around the time of the commission of the crime. Other examples are deportation from Australia and the imposition of traditional forms of punishment.1 Collectively, these harms are termed incidental hardships or extra-curial punishment.2 Formally, extra-curial punishment is defined as a ‘loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence’.

Language functioning, mental health and alexithymia in incarcerated young offenders

Purpose: Previous studies describe high rates of language impairment in young offenders; however, important correlates such as mental health status and alexithymia have received little attention.
Method: This study describes a cross-sectional study of the language, emotion recognition and mental health of 100 young people completing custodial sentences in New South Wales (Australia). The sample comprised 70 young people from nonindigenous
backgrounds (n¼60 male) and 30 from indigenous backgrounds (n¼25 male). The mean age of the sample was 17.1 years. It was hypothesized that, in addition to elevated rates of language impairment, alexithymia would be overrepresented in this group. It was further predicted that impoverished language skills would contribute to alexithymia scores.
Result: Only a quarter of the sample overall achieved Clinical Evaluation of Language Fundamentals (CELF-4) Core Language Scores in the expected range; rates of language impairment were higher in indigenous males than in nonindigenous males and in the females. Alexithymia was present in 59% of the sample, but appeared to be associated with poor mental health, rather than with language impairment.
Conclusion: Interventions for young offenders (e.g. psychological counselling, restorative justice conferencing) should be framed around these difficulties. Validated language measures for use with young indigenous offenders are needed.

The naming of child homicide offenders in England and Wales: the need for a change in law and practice

Judicial decisions about whether or not to publicly name child homicide offenders have long ani- mated debate in the United Kingdom and internationally. This article draws on case law and in- depth interviews conducted with members of the English criminal justice system to critically analyse the viability of current domestic legislation in the context of the UK’s international human rights obligations. The article identifies ambiguities surrounding the definition of ‘public interest’ in law; the merits of equating the naming of child offenders with open justice, accountability and transpar- ency; and the increasing sabotage of the principle of rehabilitation. By identifying the complexities of this contentious area of judicial discretion, this article highlights the need for a rights-based approach to decisions about publicly naming children in conflict with the law.

A rational (unapologetically pragmatic) approach to dealing with the irrational - the setencing of offenders with mental disorders

People with mental impairment are so heavily over-represented in prisons and jails that jails have been labeled “warehouses for the mentally ill.” In many parts of the United States, there are more mentally impaired offenders in prisons than in hospitals for the mentally unwell. Offenders laboring with impaired mental functioning are often regarded as being less morally culpable for their crimes and hence less deserving of punishment. However, the reduced mental functioning of offenders does not diminish the harm caused to victims. People are no less dead if mentally unwell offenders kill them rather than offenders who are mentally sound. This tension has proven an intractable problem for sentencing law and practice. There are no clear, fair, and effective principles or processes for accommodating impaired mental functioning in the sentencing inquiry. It is an under-researched area of the law. In this Article, I explore this tension. Key to ascertaining the proper manner in which to incorporate mental illness into the sentencing system is clarity regarding the importance of consequences to the offender, as opposed to moral culpability. I analyze current approaches to sentencing offenders with mental health problems in both the United States and Australia. Despite the vastly different sentencing regimes in these countries, both systems are deficient in dealing with mentally ill offenders, but for different reasons. I propose a solution to administering sentences to offenders with a mental disorder that is equally applicable to both sentencing systems. Mental impairment should mitigate penalty. However, in determining the extent and circumstances in which it should do so, it is cardinal not to lose sight of the fact that those who are sentenced for a crime are not insane, and they were aware that their acts were wrong--otherwise they would not have been found guilty in the first instance. I argue that a standard ten percent sentencing discount should be accorded to offenders who were mentally disordered at the time of sentencing. There should be an even more substantial discount when it is likely that offenders will find the sanction--in particular imprisonment--more burdensome due to their mental state. This difference would ensure some recognition of the reduced blameworthiness of mentally impaired offenders and the extra hardship that some forms of punishment inflict on mentally *2 ill offenders, while not compromising the important objectives of proportionality and community protection. The only situations when mental disorder should not mitigate penalty are when the offender is a recidivist, serious sexual or violent offender. In these circumstances, the interests of the community are the paramount consideration. The analysis in this paper applies most directly when a term of imprisonment is imposed. However, the reasoning also extends to the threshold decision of whether or not a term of imprisonment should be imposed in the first place.

The abolition of defensive homicide : a step towards populist punitivism at the expense of mentally impaired offenders

The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. While primarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions are not typically covered by the restrictive mental impairment defence. We further argue that the decision to abolish defensive homicide was driven by dominant, populist voices, without sufficient attention given to the offence’s potential to achieve the aims underpinning its enactment, including providing an alternative offence for women who kill in response to prolonged family violence.

Benzodiazepine use of community-based violent offenders : a preliminary investigation

Objective: To explore the relationship between benzodiazepine use and violent crime in a sample of community-based offenders. Methods: Participants were recruited via drug diversion and treatment programs in Melbourne, Australia. Data regarding benzodiazepine and other substance use, mental health, personality characteristics, and crime involvement were collected through semistructured interviews conducted in 2011. Participants (n = 82, 79.3% male) were 21–56 years old, predominantly Australian-born (89%), with 14.6% identifying as Aboriginal or Torres Strait Islanders. Eligibility criteria were having been charged with a criminal offence in the previous six months and at least monthly benzodiazepine use. Group differences between violent (n = 11) and nonviolent offenders were assessed via independent samples t-tests (two-tailed) and nonparametric tests. Results: Individuals charged with violent index offences were significantly more likely to use higher average doses of alprazolam (p = 0.040) and exhibit benzodiazepine dependence (p = 0.037) as well as report high levels of sensation seeking, prior violence, and the diagnoses of depression and personality disorder than individuals charged with nonviolent index offences. Conclusions: The findings suggest the existence of a complex dynamic between mental health and violent offending that may be influenced by benzodiazepine use, in particular alprazolam. A core implication of these preliminary findings includes attending to the interpersonal skills and adaptive coping resources of violent offenders.

New criminal sanctions-inflicting pain through the denial of employment and education

Imprisonments and fines are the standard sanctions employed by most western countries in punishing offenders.  Where neither of these penalties is appropriate, the courts normally have a variety of indeterminate sanctions at their disposal.  However the general effectiveness of these sanctions is questionable.  This paper argues that the criminal justice system has been too slow and unimaginative in developing efficient and effective methods of punishing offenders.  There are ways of inflicting pain on offenders that do not encroach on their liberty or affect their material wealth.  It is suggested that new sentencing options should include the annulment or suspension of an offenders academic qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.

Home truths about home detention

The Victorian Parliament has recently introduced a Bill which implements home detention as a sentencing option. Home detention is an intuitively appealing reform. The logic behind the proposal seems obvious. Prisons are expensive to run. There are too many offenders in prison. So let's take the cost out of prison by turning the homes of offenders into prisons: classic, user-pays, cost-shifting economics. The level of superficial appeal of the argument in favour of home detention is matched only by the depth of the fallacies underpinning some of the fundamental premises. The most basic of which is the assumption that offenders who are candidates for the new sanction should be in detention (of any kind) in the first place. Further, the narrow objective of reducing imprisonment is misguided. It should not be elevated to a cardinal sentencing objective?otherwise total success could be achieved by simply opening the prison gates. There are also other concerns about the appropriateness of home detention. The degree of pain it inflicts in many cases is questionable and it may also violate the principle that punishment should not be inflicted on the innocent. After examining the arguments for and against home detention, this article suggests the approach that should be adopted to achieve enlightened and meaningful sentencing reform.

Expanding criminal sanctions for corporate crimes-deprivation of right to work and cancellation of education qualifications

Fines are the standard sanctions employed by most Western countries when a corporation has been convicted of a crime. However, some offences committed by corporations are too serious to be dealt with by way of a fine. There is a need to consider other sanctions that can be invoked in order to deter corporate crime. In this article, it is suggested that the focus should be on criminal sanctions against the natural persons who can potentially commit crimes on behalf of a corporation. New sentencing options against those who can potentially commit crimes on behalf of a corporation should include the annulment or suspension of an offender's academic  qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.

Macleod and the offence of defrauding the company in one-person businesses: the divergence between legal principle and logic widens

The recent High Court decision in Macleod v R establishes that a director and sole shareholder may be convicted of fraudulently applying a company's property even though the person has consented to the personal use of the company's property. It is contended that while this decision is consistent with the weight of precedent, it is wrong in principle. The decision implies that corporations are not only separate legal entities, but that they are highly virtuous legal entities -- incapable of being imbued with the dishonest intentions and activities of the individuals controlling the company.

Criminal responsibility based on complicity among corporate officers

In a 2001 Issues Paper entitled 'Sentencing: Corporate Offenders', the New South Wales Law Reform Commission outlined a number of reasons for not ascribing liability to individuals within a corporation for unlawful acts arising from the operation of the corporation. One of the reasons raised in the Issues Paper, a reason traditionally used to avoid liability being imposed on individuals for corporate crimes, is that it is conceptually difficult to look behind the form to the substance of a corporate crime in order to establish liability for individual acts, when on the surface the unlawful conduct was caused by a corporation as a collective body. In this article, the authors challenge this position by suggesting that the doctrine of complicity can be used to [*2] pierce the corporate veil and direct criminal liability to those individuals who control the actions of the company. This proposition that company officers can be found liable pursuant to the principles regarding accessorial responsibility is not novel. However, what is unusual is the infrequency with which this wide ranging doctrine is applied in the corporate setting. The focus of this article is to underline the relevance of this doctrine to corporate offenders and, in the process, to assert that the problems of punishing corporate offenders are in principle no different to punishing other crimes which are committed by more than the one offender and can be addressed by the proper application of existing legal principles.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

R v Scobie, finally taking the Royal Commission into aboriginal deaths in custody seriously?

Royal Commission into Aboriginal Deaths in Custody examined in the context of R v Scobie - the use made of the Commission's recommendations by Justice Gray in R v Scobie - questioning the value of imprisonment for certain types of offenders.

Still plucking figures out of the air? Markarian and the affirmation of the instinctive synthesis

The High Court of Australia recently had the opportunity to reconsider the appropriate sentencing methodology to be adopted in the sentencing of offenders under Australian criminal law in the case of Markarian v The Queen. The High Court had to decide whether to continue with the instinctive synthesis approach to sentencing or a process that exposed in greater clarity the basis upon which sentencing was to occur. Ultimately, a majority of the Court favoured the continuance of the instinctive synthesis approach to sentencing in criminal cases. The article will consider the decision in Markarian and the implications that it will have for the sentencing of offenders in the States and Territories of Australia.