Improving the outcomes of the South Australian mental health court: an examination of the predictors of success

 This thesis investigated the role that mental health problem-solving courts play within the Australian criminal justice system. It demonstrated that these courts can be an effective solution in the delivery of effective justice responses to vulnerable offenders, if administered in a manner that focuses on risk rather than clinical variables.

The senseless war : the sentencing drug offenses arms race

There has been a considerable increase in the penalties for drug trafficking following the United Nations Single Convention on Narcotic Drugs 1961, over fifty years ago. In many parts of the world, the sanctions are as severe as those for homicide and rape. This penalty escalation is at odds with the counter movement to decriminalise illicit drugs. Drug supplying is the only serious crime where there are widespread moves to decriminalize the main outcome of the crime – the use illicit drugs. This paper explores this paradox. It also examines the rationales for the increasingly harsh penalties for drug suppliers. We conclude that while there is no conclusive argument in favour of the decriminalizing drugs, the weight of empirical data does not establish any concrete benefits stemming from severe penalties for serious drug offenses. In particular, there is no correlation between longer prison terms for drug offenders and a reduction in the availability and use of drugs. We propose that the penalties for drug offenses should be reduced considerably. There is no useful objective that can be achieved by a twenty-five-year term of imprisonment that cannot be achieved by a term of five to ten years. A more measured sentencing response to serious drug offense penalties would make sentencing fairer and enable billions of dollars currently directed to imprisonment to be spent on more pressing community needs.

The Mengistu genocide trial in Ethiopia

This article analyses the sentencing judgment issued on 11 January 2007 bythe Ethiopian Federal High Court in the case of Mengistu Hailemariam andhis co-accused who had been tried, among others, on charges of genocide andcrimes against humanity. This was the first African trial where an entire regimewas brought to justice before a national court for atrocities committed while inpower. Twenty-five of the 55 accused found guilty, including Mengistu, were triedin absentia (Mengistu remains in exile in Zimbabwe). The trial took 12 years,making it one of the longest ever trials for genocide. In December 2006, Mengistuwas convicted by majority vote of genocide and crimes against humanity pursuant toArticle 281of the1957 Ethiopian Penal Code, which includes ‘political groups’amongthe groups protected against genocide. A dissenting judge took the position that theaccused should have been convicted of aggravated homicide because the relevant part of the provision had been repealed. A few weeks later, the Court, by majority,sentenced the top tier of the accused to life imprisonment, taking into accountcertain extenuating circumstances. If not for these, the death penalty would havebeen imposed. In addition to ensuring some accountability, the judgmentis important for providing an official and detailed account of what happenedin those years in Ethiopia under Mengistu’s reign. Given that in Ethiopia there areno official gazettes where court judgments are published, it is unlikely that the publicwill be able to read the judgment and thus become aware of what had happened.In addition to analysing the reasoning of the court, this article also looks intothe prevailing political circumstances in the country and reflects upon the trialand the reception that this important decision has had, and will receive, in thewider community.

Intimate partner violence in prisoners: toward effective assessment and intervention

This paper reviews the significant challenges that are involved in the development of services for perpetrators of intimate partner violence who are in prison. It is suggested that difficulties in accurately identifying intimate partner violence, reliably assessing risk of re-offense, and in identifying offending behavior programs that meet the specific needs of prisoners have limited the development of services in this area. As a result it is argued that unique and complex victim related issues that arise during incarceration and post-release are not adequately recognized in current correctional assessment and case management systems. Four avenues for future research and service development in this area are identified, with a view to developing the role that correctional services have to play in preventing intimate partner violence.

Mental health diversion courts: a two year recidivism study of a South Australian mental health court program.

The need to develop specialized judicial processes to deal with offenders with mental illnesses is now widely recognized and has led to the introduction of mental health court diversion programs around the world. At present, however, there is only limited evidence from which to assess the impact of these initiatives. This paper describes the South Australian model of diversion, with specific reference to the relationship between identified participant characteristics, program compliance rates, and re-offending outcomes. The results of a two-year recidivism study suggest that involvement with the program has a positive impact on recidivism, but that this is independent from the individual's level of success in the program. Lower risk offenders were more likely to achieve successful outcomes than those in the higher risk categories. The implications of these results, as well the factors that might inform the ongoing development of mental health court programs, are discussed.

Looking for a needle in the haystack: arsonists with intellectual disability in Australia

Arson attracts substantial penalties in Australia, reflecting the serious consequences of the crime. It is often asserted that people with intellectual disability are particularly likely to commit arson offences, and yet it is difficult to establish the prevalence in this population. This study sought to describe the characteristics of those people appearing in Australian Courts who have an intellectual disability and have been charged with arson. A search of the AustLII, LexisNexisAU and WestLawAU databases over the 10-year period from 2003 to 2013 identified 50 arson convictions reported in case law. Of these, six involved an offender with an identified intellectual disability. These offenders were likely to have committed other crimes at the time, or to have prior offences and were likely to receive longer sentences of imprisonment than their non-intellectually disabled counterparts. These findings are discussed in terms of the barriers that exist to understanding more about this under-researched population.

Offending: drug-related expertise and decision making

Drug use is endemic within offender populations and, as a result, considerable heterogeneity can be found in drug-related crime. Expertise in drug-related offending covers an equally broad base from internal mental processes through skill acquisition to social interactions. This review considers decision making and expertise for crimes in the domains of direct causal effects (e.g., burglary) and non-causal relationships (e.g., apprehension avoidance, detection). Also considered is the notion of expertise as it applies to addiction, in particular the conscious and unconscious goal-directed behaviors articulated in the Selfish Goal model (Huang & Bargh, 2014) and a cool cognition/hot affect dual processing model of criminal decision making (Van Gelder, 2013). The review findings would suggest (a) the need for more focused research into whether expertise differs as a function of drug use and (b) a paradigm shift in terms of treatment for drug-using offenders.

Proportionality in sentencing: the need to factor in community experience, not public opinion

This is the first book to address the question of what role public opinion should play in the way criminal offenders are punished.Should public opinion determine—or even influence—sentencing policy and practice? Should the punishment of criminal offenders reflect what the public regards as appropriate? These deceptively simple questions conceal complex theoretical and methodological challenges to the administration of punishment.In the West, politicians have often answered these questions in the affirmative; penal reforms have been justified with direct reference to the attitudes of the public. This is why the contention that politicians should bridge the gap between the public and criminal justice practice has widespread resonance. Criminal law scholars, for their part, have often been more reluctant to accept public input in penal practice, and some have even held that the idea of consulting public opinion constitutes a populist approach to punishment.The purpose of this book is to examine the moral significance of public opinion for penal theory and practice. For the first time in a single volume the editors, Jesper Ryberg and Julian V. Roberts, have assembled a number of respected criminologists, philosphers, and legal theorists to address the various aspects of why and how public opinion should be reflected in the way the criminal justice system deals with criminals. The chapters address the myriad complexities surrounding this issue by first weighing the justifications for incorporating public views into punishment practices and then considering the various ways this might be achieved through juries, prosecutors, restoratifve justice programs, and other means.

Sentencing: from vagueness to arbitrariness - the need to abolish the stain that is the instinctive synthesis

Criminal sanctions involve the deliberate infliction of hardship on offenders. In sentencing, the state acts in its most coercive and decisive manner: ‘the state may use its most awesome power: the power to use force against its citizens and others’. Despite the importance of the interests at stake in the sentencing realm,sentencing is arguably the least coherent, predictable and principled area of law. The High Court of Australia has not facilitated attempts to inject clarity and precision into sentencing determinations. It has repeatedly endorsed the ‘instinctive synthesis’ approach to sentencing, emphasising the need for ‘individual justice’ over the need for transparency and a step-wise systematic approach to sentencing.

Experience and expression of anger among Australian prisoners and the relationship between anger and reintegration variables

We examined the experience and expression of anger among a group of Australian prisoners prior to and following prison release, as well as the relationship between anger and several reintegration variables. Participants were 79 adult prisoners (54 male, 25 female) who completed the State-Trait Anger Expression Inventory (STAXI-2) 1 month prior to release and again at 1 to 4 weeks and 3 to 4 months post-release. A postrelease questionnaire was also administered at the two postrelease points focusing on the quality of life conditions experienced following release. Mean state and trait anger scores were significantly higher at pre-release than post-release. As well, higher levels of anger expression and anger control were reported at pre-release compared with post-release. Higher age was related to lower state anger at post-release, whereas several variables were related to trait anger at post-release. Theoretical implications for reintegration theory are discussed, together with practical applications.

Substance use, offending, and participation in alcohol and drug treatment programmes: a comparison of prisoners with and without Intellectual disabilities

BACKGROUND: Many offenders with intellectual disabilities have substance use issues. Offending behaviour may be associated with substance use. MATERIALS AND METHODS: Prisoners with and without intellectual disabilities were compared in terms of their substance use prior to imprisonment, the influence of substance use on offending, and their participation in alcohol and drug treatment programmes. RESULTS: Substance use was similar in prisoners with and without intellectual disabilities in the year prior to their current prison terms. Prisoners with intellectual disabilities were much less likely to report that substance use was an antecedent to the offences leading to their imprisonment. The completion rate of alcohol and drug treatment programmes was much lower for those with intellectual disabilities. CONCLUSIONS: Substance use may be as common in prisoners with intellectual disabilities as those without this condition. Services may need to reflect on whether their treatment programmes are meeting the needs of all prisoners.

Sentencing in child sexual assault cases: factors influencing judicial decision-making

To date, there has been limited examination of variables that influence sentencing in child sexual abuse cases. This study examines the extent to which offence characteristics (such as the number of offences, number and age of victims), the behaviour and perceived credibility of the victim impact upon both sentence length and the setting of earliest parole dates. Analyses conducted using data from 66 adjudicated cases of child sexual assault from the County Court of Victoria, Australia revealed that longer sentences were handed down to offenders who had perpetrated multiple offences, or who had committed offences against younger children. Lower levels of victim credibility were associated with shorter sentences and earlier parole dates for offenders, which were also associated with the presence of more harmful behavioural indicators of abuse. The findings are discussed regarding the importance of presenting evidence about the behaviour of victims following sexual abuse in criminal trials. © 2013 Copyright National Organisation for the Treatment of Abusers.

When sexual infidelity triggers murder: Examining the impact of homicide law reform on judicial attitudes in sentencing

In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of ‘loss of control,’ applicable to England, Wales and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant’s culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.

Australia-Malaysia security cooperation as a pivotal component for more stable bilateral relations

In the 1980s and 1990s, Australian-Malaysian relations reached a critical juncture due to a series of crises, such as the 1986 capital punishment of convicted drug smugglers Barlow and Chambers, and the 1993 "recalcitrant" jibe by Australian Prime Minister Paul Keating. Following the election of the Howard government in 1996, relations continued to be on a roller coaster with the Malaysian Prime Minister Mahathir Mohamad leading anti-Australia protests over the "Howard Doctrine," the Australian leadership of the 1999 intervention in East Timor, and the "Deputy Sheriff" controversy. Despite this, defense relations between the two remained strong. The success of this cooperation rests on shared political commitment to the security of the region. This article examines the impact that positive cooperation in "high politics" has had in mitigating the negative aspects of crises in "low politics." It argues that close bilateral defense relations have worked to prevent the emergence of further critical junctures in 2012 following the collapse of the Australian-Malaysian refugee swap deal and statements by Australian politicians about Malaysia's poor treatment of asylum seekers, and in 2013 over the overt support by many Australian politicians of the opposition, especially Anwar Ibrahim, during the Malaysian general elections.

Skilling’s martyrdom: The case for criminalization without incarceration

This paper restricts itself to crimes involving corporate fiduciaries taking bad decisions at the expense of shareholders (corporate governance offenses). The arguments do not apply to fraud as moral wrongfulness exists in that case. To the extent that the actions covered by this paper are blameworthy, I argue that this determination must be disentangled from punishment. Disentanglement of blame from deserts suggests a via-media between criminalization and decriminalization - criminalization without incarceration. Accordingly, the legal process stops at the determination of guilt. The paper advances the criminalization debate because it does not get bogged down in the irreconcilable quarrel about whether corporate governance misbehavior ought to be criminalized for deterrence, retribution, or rehabilitation reasons, and whether it achieves any of these purposes. For these offenses, I argue that whichever theoretical justification underpins the decision to criminalize, imprisonment must not follow conviction. The conviction, despite the lack of incarceration, and the consequential sanctions likely to be imposed on the wrongdoer are sufficient to satisfy the three main justifications for criminalization. In appropriate cases, disgorgement of the offender’s gains will aid in the achievement of these objectives. The model proposed by this paper would yield significant savings by reducing prison costs. It would also allow the state to take advantage of the disproportionate cost/burden of conviction on corporate governance offenders. Owing to the offenders’ high earning potential, deterrence can be achieved at lower cost by conviction alone because the cost of incarceration does not have to be borne by the state whereas the destruction of capacity to generate similar (or indeed, any) income has to be suffered by the offender even without going to jail. If the cost of incarceration is the same for offenders with different earning capacities, imprisoning those with very high earning capacities is a waste of social capital if the objectives sought to be achieved by incarceration can be achieved through other means. Further, the cost of a conviction can be predicted with sufficient certainty in the case of white-collar criminals by looking at their earnings history, and in many cases this can be a significant sum. Unlike the common criminal who may not have a similarly predictable earning capacity and therefore suffer the same extent of monetary loss from a conviction, this loss ought to serve the deterrence function without the need for the state to spend money imprisoning the offender. In addition to loss of earning capacity, clawing back ill-gotten gains significantly adds to disutility. The paper is set out as follows: Part II briefly outlines the scope of the wrongs tackled as stemming from the principal-agent relationship in corporate law, and the inability of the law to overcome effectively problems resulting from the collectivization of the principal in that relationship. In Part III, I argue that conviction without imprisonment is a second-best alternative to decriminalization in cases where the conduct is blameworthy, and results in non-consensual harm. Part IV demonstrates the disutility caused by conviction alone to show that the objectives of criminalization can be satisfied without the need for imprisonment. Part V asserts that consequential sanctions like shaming add to the disutility of conviction. Part VI ties the thesis to Skilling’s conviction for bad business judgment devoid of moral wrongfulness to illustrate the problems with conflating blame and punishment. Part VII concludes.