Robert Clark determined to make wayward youths into lifelong criminals

See what happens when you elect the “conservatives” to government? Sending kids to jail.

Attorney-General Robert Clark has asked the Sentencing Advisory Council for advice on sentencing protocols for serious-injury offences that involve ”gross violence”.

He has committed to introducing a mandatory two-year minimum sentence in a youth detention facility for 16 and 17-year-olds found guilty of recklessly causing serious injury and intentionally causing serious injury when committed with ”gross violence”.

(Note that this isn’t just for intentionally causing serious injury, it’s also for recklessly causing serious injury.)

Yeah, brilliant. Rather than redirecting impressionable kids away from offending behaviour, let’s lock them in to a life of crime. Let’s force the courts to send them to be trained by the more serious offenders in prison so that when they come out, still young, they’ll have developed whole new skills in even worse behaviour.

Revealingly, Robert Clark hasn’t even tried to present us with any evidence that mandatory jail sentences for young offenders work in reducing crime, probably because it doesn’t exist.


Don’t worry, my brief practice didn’t actually have anything to do with criminal law, so I’m not tainted by actual KNOWLEDGE of how it works or anything.

Obviously the gullible idiots who believe the Herald Sun spin think this is a wonderful idea that will keep them safe – despite the research indicating quite the opposite – and when it actually results in an increase in crime, they’ll demand we increase mandatory sentences even further. THIS BEING TOUGH ISN’T WORKING, WE MUST DO MORE OF IT!

Meanwhile, the calls by the Children’s Court to properly fund bail support programs that actually do get good results fixing these kids up, continue to be ignored…

UPDATE: Greg Barns in today’s Crikey: Mandatory jail terms for young to cost lots, fail to cut crime:

While Clark is happy to send more young people to prison, in Texas — yes hard-core, conservative Texas — Republican governor Rick Perry has joined with Democrats a fortnight ago to pass a law that will close three of the state’s 10 youth detention centres and put the savings into rehabilitation. It costs about $A270 to house youth offenders in prisons in Texas but only $A70 to have them participate in a structured program of rehabilitation and support. No wonder fiscal conservatives in Texas love it…

There is a realisation in the US that, as Anthony Barkow, a former senior prosecutor put it recently, “juvenile offenders have diminished culpability: a view supported by science — and common sense, as anyone can attest to who remembers his or her years as a teenager”. Placing them behind bars, irrespective of the circumstances of each case and without having regard to their mental capacity at the time of offending, is simply a recipe for higher recidivism rates on release and the high cost to taxpayers that goes with that and the incarceration.

Did Robert Clark even talk to any people who deal with young offenders?

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16 responses to “Robert Clark determined to make wayward youths into lifelong criminals

  1. narcoticmusing

    I think you are understating the seriousness of the ‘serious injury’ classification and overstating the ‘recklessness’ element. It will not apply to causing injury, only ‘serious injury’ and only those limited cases caused in ‘gross violence’ – which to me implies a higher standard again. Serious injury is not well defined but it is more than much more that mere contact or injury. It must be a combination of injuries substantial enough to be considered ‘serious’. Consider, for example, belting a pregnant mum and killing the child she carries, regardless at what point in her pregnancy, she could be giving birth at the time and it wouldn’t matter – that is not murder, it is simply a ‘serious injury’. The fact that this proposed change is only in the context of a scenario of ‘gross violence’ to me suggests that the ‘recklessly’ mens rea borders on semantics.

    So, if via an act of ‘gross violence’, it is reasonably foreseeable you’d cause a serious injury (even though you didn’t really intend to or at least don’t admit to intending to) you think we shouldn’t be harder than if it was a serious injury not caused in ‘gross violence’? Why not be harder in that context? Why shouldn’t it be an aggravating factor?

    As you are aware, I agree 100% and support rehabilitation programs, particularly for young offenders and agree we should do all we can to divert young offenders from prison; At the same time I think there needs to be some perspective here as I think you are being a little misleading to an audience that isn’t full of lawyers. We do need to have general deterring provisions against ‘gross violence’ in general, particularly when it is reasonably foreseeable that that episode of ‘gross violence’ would likely result in serious injury (the test for recklessness).

    While I’m not convinced a mandatory sentence is itself the answer (particularly for our young offenders) I think you are overly minimising what is a ‘serious injury’ and the recklessly test (when the context is already clear – ‘gross violence’).

  2. “Serious injury” can be a combination of more minor injuries. “Recklessly” means there was no intent to cause the particular injuries (as opposed to “Intentionally”).

    I think you’ll find that this proposal will require draconian prison terms in cases well, well below what you would consider wise or just in the circumstances.

    Deterrence is not particularly effective with young offenders, who think through the consequences of their actions even less than the ordinary offender. These are offences of stupidity, of drunkenness, of no planning – deterrence simply does not work. Mandatory sentencing won’t reduce these offences, because these kids are not thinking.

    What you will do is force kids who’ve made one stupid mistake into a life of making many, many more. Sod their interests – it’s not in any of our interests for that to happen.

  3. jordanrastrick

    Hear hear jeremy.

  4. narcoticmusing

    Your view also seems to be ‘sod the victim’s interests, it isn’t in the 16-17 yo involved in gross violence (so that clearly makes it ok right?) interests’. You are focused on them not re-offending rather than worrying about the actual first offence. This is intended as a general deterence against the primary offence. I completely agree with your sentiments re re-offending; but I think you distort the context and impact.

    My point is that I don’t think we’ll see a large change in the sentencing because it isn’t simply ‘recklessly’ causing serious injury, it is recklessly within the context of ‘gross violence’. Which means that just because they couldn’t prove intentional because of the subjective high standard that creates, doesn’t mean that it wasn’t easily forseeable by anyone. Normally recklessly has a much lower standard, yes, but not if the context is already within ‘gross violence’.

    I think it is misleading to diminish the context of ‘gross violence’ which would have been an aggrovating factor anyway. I don’t think this will end up in more sentencing or longer sentencing substantially – rather – there will simply be a public perception of that. Which is a good thing for a general deterrence.

  5. I tend to agree with jeremy on this.

    There is no deterrent value in this sort of mandatory sentence.

    I do follow what you are saying nm, but mandatory sentencing is just stupid. The only benefit seems to go to the prison industry.

  6. narcoticmusing

    Juules – that is assuming there is any increase in the sentences at all as a result of this…

    Recklessly and intentionally causing serious injury already cannot be heard summarily, which is where you’d see sentences of 2years or less. So if they can’t be heard summarily and have the aggravating circumstance of ‘gross violence’ will there be a change at all?

    The only real concern here is the concept of mandatory sentences for 16-17 year olds. I think that sets a dangerous precedence but at the same time, I’m not sure people opposing it have met either the 16-17 y’olds that would be captured by this catagory nor have they considered the victims, which are, in the recklessly case, often innocent of any involvement and just happened to be there (hence no intention of injuring them per se).

    Recklessly requires a ‘reasonably forseeable’ type test; it won’t capture kids just mucking around and do something by accident or do something that only injury was reasonably forseeable, it’d need to be ‘serious’ injury that was reasonably forseeable. Again, in the context of ‘gross violence’ surely that is a no brainer?

  7. “Your view also seems to be ‘sod the victim’s interests, it isn’t in the 16-17 yo involved in gross violence (so that clearly makes it ok right?) interests’.”

    Quite the contrary. It’s not in victims’ interests because this policy will create more victims. This is not the kind of offending in which deterrence is particularly effective, and, worse, these are precisely the kind of offenders where deterrence is even less effective than usual.

    We won’t deter crime, but we’ll create more criminals for the future.

    That makes us all less safe.

    If you really are sanguine about the kind of cases where this would apply, I suggest you attend a Magistrates’ Court and watch a few “recklessly cause serious injury” charge matters. And then remember that if Robert Clark gets his way, those kids will be going away for two years. Two, critical, formative years.

    Yeah, it’s brilliant.

  8. “Recklessly requires a ‘reasonably forseeable’ type test; it won’t capture kids just mucking around and do something by accident or do something that only injury was reasonably forseeable, it’d need to be ‘serious’ injury that was reasonably forseeable.”

    I think you’re flat wrong there. That is not how the courts interpret that charge.

    “I’m not sure people opposing it have met either the 16-17 y’olds that would be captured by this catagory nor have they considered the victims”

    I think you’ll find I’ve met a lot more of those kids than you have. And appeared for them. And seen what happens with these charges.

    PS RCSI can be heard summarily.
    PPS Here’s a case study on the internet from Doogue & O’Brien of one example of the charge:

    Client believed another man had damaged his car. He confronted this
    male about the damage. An argument developed.
    The argument escalated with both men exchanging pushes and shoves.
    Client head butted the complainant to his face, and as a result the male sustained a fractured eye socket. Complainant taken to hospital with serious injuries, underwent surgery and was discharged from hospital 4 days later. A victim impact statement was tendered during the plea hearing, and this statement outlined the physical and emotional injuries sustained by the complainant.

    The result?

    Upon a plea of guilty to the charge of Recklessly cause serious injury, the Court imposed an Intensive Corrections Order for 6 months.
    The offence of Recklessly cause serious injury is at the upper rung of
    seriousness in the hiearchy of assaults causing injury, 2nd only to the
    offence of Intentionally cause serious injury. It is an offence that attracts a maximum of 15 years imprisonment.
    Our client had no priors, held a responsible job, and a stable family.
    Our client was able to avoid immediate imprisonment, but placing before the Court material which established that the incident in question was isolated and out of character. Further, he had constructively dealt with issues underlying the offending by consulting a psychologist and receiving counselling.
    The Court accepted our client’s remorse was genuine and consistent with his plea of guilty to the charge.

    Or, under Robert Clark’s new plan, four years in jail minimum (for an adult). Expensive, destructive, and, frankly, unjust.

  9. returnedman

    Why does everyone automatically assume that the victim wants “revenge” anyway? How many cases do we hear of where the victim has forgiven their attacker (or whatever)? Probably more often than the media would let us assume.

    Isn’t promoting forgiveness something we should be all working for?

    Especially pertinent for those people who insist Australia is a “Christian country”.

  10. narcoticmusing

    PS RCSI can be heard summarily.

    ‘Can’ being the opperative word here. One can apply for RCSI to be heard summarily, it isn’t a given. Again, I think you are being a tad misleading to an audience you obviously assume have no legal background. I was talking about RCSI in the context of ‘gross violence’ – not just in ‘violence’ but ‘gross violence’ – note the distinction here. Surely, ‘gross violence’ is greater than simply violence or a tiff as per your example, and thus ‘gross violence’ would normally not be permitted to be heard summarily.

    I certainly wouldn’t count the small fight you cited as ‘gross’ violence. I would certainly be more concerned if a) your example of a tiff where both parties were blameable unequally blamed one party and/or b) there weren’t appropriate levels of consideration given to circumstances of the offender. However, the AG’s sumbission doesn’t suggest that there wouldn’t be consideration of the circumstances of the offender; indeed that is why it was a submission for SAC’s consideration rather than going straight to a Bill. I would hope that SAC would comprehend the concepts of the role of sentencing, including that justice considers the circumstances of the offence and the offender, not just one or the other. I would also think that SAC would take into account the role of the Children’s Court and its success in managing young offenders, thus it would consider that which the Children’s Court considers.

    So, in summary I guess, my read on Clark’s submission to SAC was that the ‘gross violence’ context was intended to only capture those cases which wouldn’t have been heard summarily and that he was seeking their advice as to how that might work best – which would mean ensuring appropriate caveat’s were in place. So it wouldn’t just capture anyone.

    As I have said, I would be worried about any mandatory sentence for children (and I don’t like the idea of mandatory sentences anyway, I think the discretion of the judge plays an important role particularly for specific deterrence). Nevertheless, there is a public concern relating to violence and sentencing. I see this as having no real effect but having the public relations effect – I of course make assumptions of my own here that SAC will be reasonable. Perhaps I am too hopeful there. We’ll have to wait and see.

    I think you’ll find I’ve met a lot more of those kids than you have. And appeared for them. And seen what happens with these charges.

    You assume a lot.

  11. “The only real concern here is the concept of mandatory sentences for 16-17 year olds. I think that sets a dangerous precedence but at the same time, I’m not sure people opposing it have met either the 16-17 y’olds that would be captured by this catagory…”

    I’ve met a few. And honestly that supports Jeremy’s point about whats in society’s best interests. I’ve seen some go to prison and when they come out they do have a career path in front of them, and they understand the mechanics of intimidation. Just think about the logic here. The oldest juveniles in a detention centre, in there for violent crimes. In a place where violence is a currency. These kids are gonna be reinforcing their tendency to intimidate and use aggression Its what happens in prisons of all sorts, and teenage males especially are set up for violence. Its a mammalian trait thats been selected for over millions of years.

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  13. narcoticmusing

    Jules – I do not disagree that prison is bad for kids. I too have worked with my share of these kids/adults both the victims and perpetrators.

    But that isn’t the issue here, it is whether the AG’s submission would substantially change the sentencing status quo (which I don’t think it will) and thereby actually send more young people to jail and for longer. I don’t think it necessarily will as I’ve outlined already, due to the ‘gross violence’ context and that SAC will outline caveats/exceptions to make anything workable. We are yet to see the final product from SAC so it is a little early to jump the gun.

    I do think it’ll have the effect of public perception of harsher penalties which is win win – we don’t necessarily get the added harshness but we shut up the ‘Herald Sun readers’ demanding it.

    Jeremy – As for the recklessness test, forgive me attempting to use lamen’s terms earlier, but are you saying it isn’t that D forsaw that the consequence (ie serious injury) was a probable (per Campbell; Crabbe; Royall; Myers ) result of their action?

    Context too is important (eg ‘gross violence’ as a context). In Pemble , the then Chief Justice preferred a lighter test (possible) because of the nature of it – ie the context.

    Granted I’ve mixed and matched the actions here for a just off the top of my head expedience of reckelessness, but I think you’ll agree they are relevant to how the courts interpret this charge.

    I dare say this whole submission by the AG is a response to what was considered totally inadequate sentences in recent cases such as DPP v Karazisis and DPP v Aslan . I am genearlly quite irritated by criticism of sentencing because rarely does it involve the reading the actual justification of the judge for that sentence; but in both of these cases there were many who were concerned about both the offence and offender not being given a proportional sentence. This reminds me of R v Brown where Lord Jauncy talked about the public interest needing to consider the ‘potential for harm is just as relevant as actual harm’ (forgive me if I misquote from memory but you get the gist).

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