SOCIETY’S RESPONSE TO THE VIOLENT OFFENDER - Australian Institute of Criminology - First published in 1989, subsequently updated

During its life, the National Committee on Violence anticipates publishing:

Monographs

Violence in Australia

Victims of Violence

Final Report

Violence today - a series of information papers

  1. Violence, Crime and Australian Society Domestic Violence

  2. Violence Against Children Violence in Sport

  3. Violence and Public Contact Workers Violence on Television

  4. Violence, Disputes and their Resolution Racist Violence

Political Violence

First published in 1989 by the Australian Institute of Criminology Canberra

Note: The pagination of this web version found at http://www.aic.gov.au/research/cvp/offender.pdf is different from the original print version published in 1989.

Copyright National Committee on Violence

This book is copyright. Apart from any fair dealing for the purpose of private study,

research, criticism or review, as permitted under the Copyright Act, no part may be

reproduced without written permission. Inquiries should be made to the publisher.

National Library of Australia Cataloguing- in-Publication entry

Grabosky, Peter N. (Peter Nils), 1945-

Society's response to the violent offender.

Bibliography.

ISBN 0 642 14777 9.

1. Corrections -Australia.

2. Violent crimes-Australia.

3. Criminal justice, Administration of Australia. I. Lucas, W.E. (William Ewart), 1933-.

II. Australian Institute of Criminology. III. Australia. National Committee on

Violence.

IV. Title. (Series: Monograph [Australia. National Committee on Violence]; no. 3).

364,60994

Designed by Stephen Cole

Typeset by Sunrise Setting Pty Ltd

Printed by Koomarri Printers,

Canberra (062) 513033

Note on Illustrations

The Australian Institute of Criminology has a small representative collection of

paintings which illustrate the characteristics of individuals with personality disorders.

They were selected from the Australian Collection of Psychiatric Art located in the

University of Melbourne where there are some 8000 paintings, drawings, models and embroidery.

The material there is divided into diagnostic groups of which schizophrenia, the manic-depressive

illnesses, the neuroses and the personality disorders are some of the categories.

Most of the items date from the early 19605; additions are, however, being made by

both public and private gifts. One of the advantages of studying art during this period is

that psychotropic drugs were not so commonly used. They influenced the paintings less

than they might now. Moreover, drug-taking amongst this group of people was then

comparatively rare.

Many of the adolescents and young adults who entered the psychiatric hospitals might

have been under the correctional services except they had made suicidal gestures or

exhibited impulsive and aggressive behaviour: So there was a considerable overlap

between the two services and this is illustrated by the Institutes collection.

It is not easy to understand the feelings of these artists, the intensity of their frustrations

or the guilt associated with their actions. Often they think themselves ugly, unworthy,

inferior, unwanted and ill-treated, and because of their limited abilities to deal with their

problems they resort to actions which lead them into further conflicts and so they

become even greater social outcasts.

For some, the arts can be used as creative outlets for the free expression of their

difficulties, that is providing there is no interference in their work. Therefore their

products must be confidential, without forcing them into the description of their

production or trying to make them verbalise their meaning. The value of the paintings

lies in that they express their thoughts, fears or aggressions in an unhampered fashion.

Violence can then be depicted as in sympathetic magic, so injury; suicide or even

murder may be committed on paper instead of in action.

The examples held by the Australian Institute of Criminology were collected from

freely painted material, thus showing the seeds of violence, frustration, anti-social

activities, imprisonment, mutilation, guilt, torture and self destruction. Often they are

the products of rage and terror in inadequate, insecure and immature people who lack

the psychological resources needed to deal with emotional stress.

There is still the room for a much wider therapeutic application of the arts in such

people but equally well there is the need for a better understanding of the reasons for

their behaviour, and much can be learned from the study of the products of their creative expression.

E. Cunningham Dax

Melbourne University

Australian Collection of Psychiatric Art

PREFACE

The National Committee on Violence was established in October 1988 as a co-operative

venture of all governments in Australia. It is due to report to the Prime Minister; the

Premiers, and Chief Ministers at the end of 1989.

As part of its terms of reference, the Committee has been asked to report on the need for

special measures in the treatment of violent offenders. How to deal with the violent

offender has provoked emotive debate in Australia, as it has elsewhere. This publication

reviews the basic issues which must be considered by authorities on behalf of society in

response to an act of violence. It is apparent that some violent offenders can be

rehabilitated and should not be imprisoned, but others are a very real risk to society and

need to remain in prison for some time.

As Society’s Response to the Violent Offender indicates, the interests of justice, and the

enormous cost of imprisonment, dictate that offenders who can be rehabilitated should

be identified and offered suitable treatment programs. The authors also acknowledge the

very important need in our society that acts of violence and those who perpetrate them,

be forcefully denounced. In its final report, the National Committee on Violence will

give consideration to the appropriate allocation of the limited resources available for the

prevention and control of violence in Australia.

Professor Duncan Chappell

Director, Australian Institute of Criminology

Chair

National Committee on Violence

CONTENTS

INTRODUCTION 1

DECISIONS TO INVOKE THE CRIMINAL LAW 2

PRE-TRIAL DETENTION OF THE ALLEGED VIOLENT OFFENDER 4

SENTENCING CRITERIA 6

Sentencing Options 7

DETERRENCE 9

Capital Punishment 10

REHABILITATION 21

Counselling and Therapy for Violent Offenders 23

Prison Industries 24

Special Programs -Sex Offenders 25

Special Care Unit 26

Intellectual disability, Mental Illness, and the Violent Offender 27

Medical and Psychiatric Treatment 27

The Unintended Consequences of Imprisonment 31

Non-custodial Options 31

Domestic Violence Offenders 34

INCAPACITATION 36

Recidivism 37

RETRIBUTION 41

DENUNCIATION 42

Public Perceptions of Criminal Sentencing 43

COST CONSIDERATIONS 46

UNITED NATIONS STANDARD MINIMUM RULES 47

CONCLUSION 49

REFERENCES 51

LIST OF TABLES

Table 1

Occupancy rates of Australian prison systems, by state, January/March 1987 38

Table 2

Numbers and percentage of prisoners by gender and most serious offence or

charge, Australia, 30 June 1988 38

Table 3

Reconviction rates of violent offenders released from prison, Victoria, 1972-73

39

Table 4

Reconviction rates of violent and non- violent offenders, Released July 1982-

June 1985, South Australia 39

Table 5

Prison expenditures, Australia, 1986-87 46

Table 6

Summary of United Nations standard minimum rules for the treatment of

prisoners 48

1

INTRODUCTION

Violence pre-dates recorded human history. So too do the earliest means by which

societies dealt with the aftermath of violence. Pre- industrial societies developed systems

of dispute resolution in response to acts of aggression. Some of these entailed carefully

measured compensation or restitution by the offender to the victim of non-fatal injury,

or to the surviving relatives of homicide victims (Rohrl 1984). Others involved aspects

of direct retribution, as reflected in the biblical injunction 'an eye for an eye' Black

1984, pp. 2-5). As societies evolved, however; their growing complexity was

accompanied by the development of formal government. Among the functions

embraced by the institutions of the state were the powers to define certain behaviours as

criminal, to adjudicate criminal responsibility, and to punish those deemed to have

offended. Response to violence thus became a governmental responsibility rather than a

matter left simply to an aggrieved victim and his or her kin. Society's response to

victims of violence was the subject of an earlier volume in this series (Grabosky 1989).

The present publication deals with adult violent offenders and what to do with them.

The problem of how to deal with the violent offender is by no means unique to

contemporary Australia. Indeed, it is a problem which has plagued societies for

centuries, and continues to do so. It was, of course, central to Australia's very founding:

the transportation to Australia of violent and other offenders was the solution to crime

chosen by British authorities over two hundred years ago (Hughes 1986).

Over the past two centuries in Australia, as elsewhere, public officials, judicial

authorities, philosophers, and concerned citizens alike have participated in an ongoing

debate on what society should achieve in its response to an act of violence. This debate

tends to be grounded in divergent perspectives of human nature. There are those who

see violence as the product of social forces, and the perpetrators of violence as, to a

great extent, the victims of their environment. Others regard violent offenders as

rational individuals, very much in control over their own destinies, and able to choose

freely between criminal and non-criminal alternatives. The most pessimistic

commentators regard violent offenders as essentially evil or inherently depraved.

These conceptions of human nature are as persistent as they are fundamentally

incompatible. It comes as no surprise, then, that policies of response to violence are

directed towards a number of goals, which themselves are incompatible, if not entirely

contradictory. The task of balancing these competing priorities falls to the criminal

justice systems of the Australian states and territories.

This monograph will review the basic issues relating to the treatment of adult violent

offenders in Australia. First, we discuss the initial response of the criminal justice

system, and the principles of punishment. The focus then turns to the extraordinary

expense which imprisonment entails. We conclude with the argument that penal

policies, be they based on principles of deterrence, rehabilitation, retribution or some

other criterion, be employed efficiently and be subject to rigorous analysis and

systematic evaluation, Case histories illustrating the variety of violent acts and the

diversity of violent offenders appear throughout the monograph. In addition, artwork

produced by psychiatric patients is included in this work with captions written by Dr E.

Cunningham Dax.

2

DECISIONS TO INVOKE THE CRIMINAL LAW

The response to violence in Australia is very much a systemic one, in the sense that it is

conditioned on the interdependent decisions of a variety of individuals and offices. The

initial stage, upon which any formal or governmental response to violence often

depends, is the victim's definition of an incident as a violent criminal act. Whilst at first

blush such definition might appear unambiguous to the point of truism, this is hardly the

case. Brawling, at least within certain limits, is regarded by many young Australian

males as recreation, not as crime. To some members of the public, the resolution of

disputes by physical means is not regarded as a criminal offence. A 1983 survey

conducted by the Australian Bureau of Statistics revealed that 16 per cent of those who

reported having been assaulted during the previous twelve months regarded the incident

as a 'private matter'. Others regard minor acts of violence as unworthy of official

attention. A further 28 per cent of assault victims identified in the 1983 survey regarded

the incident as 'too trivial or unimportant' to warrant notification of the police

(Australian Bureau of Statistics 1986, p. 53).

Traditionally, many victims of domestic violence did not regard an act of violence at the

hands of a spouse as a criminal assault, but rather, as an unfortunate fact of married life.

In recent years, heightened consciousness of basic rights has been accompanied by a

growing readiness on the part of domestic violence victims to define an assault as

criminal. Nevertheless, a recent survey found that 17 per cent of Australian women

regarded it as acceptable for a man to use physical force against his wife in some

circumstances (Public Policy Research Centre 1988).

Even when a victim defines an incident as criminal assault, he or she may be disinclined

to invoke the law by calling the police. The non-reporting of assaults perceive? as trivial

was noted above. In other cases, non-reporting may arise from a perception that police

would be unwilling or unable to act on such a complaint. Twenty-six per cent of those

surveyed in 1983 by the Australian Bureau of Statistics who reported having been the

victims of sexual assault, failed to report the incident to the police because they felt that

the police 'couldn't or wouldn't do anything about it' (Australian Bureau of Statistics 1986, p. 53).

In some Australian communities, local values may militate against reporting an incident

to police. A current Federal Minister describes quite colourfully how this ethos

prevailed in a working class suburb of Melbourne not long ago:

…you can't give people up. I mean between 1955 and '65 in Richmond, if I

walked into a hotel and someone from the DLP said 'There's Holding', and

he had a few beers in him and landed one on me, the one thing I couldn't do

would be to report it to the police (quoted in Victoria 1982, p. 59).

For whatever reason, the size of the 'dark figure' of unreported violence is substantial.

The most recent crime survey conducted by the Australian Bureau of Statistics

suggested that over 70 per cent of sexual assaults, over 60 per cent of non-sexual

assaults, and over half of all robberies were not brought to the attention of the police

(Australian Bureau of Statistics 1986, p. 53).

Nor does an incident of fatal violence automatically trigger an official response. To be

sure, most homicides in Australia, if not actually occurring in public, come to the

attention of the authorities soon after they take place. But others are less visible. As is

3

indicated by the occasional discovery of human remains, there are incidents where

persons who meet with foul play simply disappear. In some instances, the precise

circumstances giving rise to a death might be obscure.

The lingering public perception of the occasional bizarre event overshadows the more

common incident of violence. In most crimes of interpersonal violence the identity of

the perpetrator is known. But there are those instances in which there may be no

identified suspects. In these cases, and those in which there is a suspect at large, the

police must decide the extent of resources which they will contribute to the

investigation. All else being equal, the more serious the offence and the greater the

probability of apprehending a suspect, the more likely are the police to commit

resources to an investigation and the greater the amount of resources they are likely to commit.

Once a suspect has been apprehended, the decision then arises as to whether to bring

charges against the alleged offender; and if so, which charges to bring. Here, the

decision rests largely on the gravity of the alleged offence, the strength of the evidence,

and the likelihood that a prosecution will succeed.

4

PRE-TRIAL DETENTION OF THE ALLEGED VIOLENT OFFENDER

It is, of course, a fundamental principle of Australian justice that a defendant facing

criminal charges is regarded as innocent until proven guilty. Whether a defendant is

detained in custody or remains free in the community pending formal adjudication of

these charges is often a matter of concern to the alleged victim, to the police, and to the

general public. The issue is important to the accused as well, for the deprivation of

liberty is inherently punitive, and another fundamental principle of Australian justice

holds that punishment should follow, rather than precede, the determination of criminal

responsibility. At common law, the basic justification for pre-trial detention is concern

that the accused might abscond. Concerns about the interests or preferences of the

alleged victim, and about possible re-offending or intimidation of witnesses by an

accused at liberty were traditionally regarded as subordinate. The accused may apply for

bail, and the Crown may oppose bail; the decision rests with a magistrate, and may be

subject to review by higher judicial authority.

When a magistrate grants bail, he or she may specify one or more conditions, such as

periodic reporting to local police, the pledge of a financial surety, or an order that the

accused refrain from contact or communication with the alleged victim. All else being

equal, the more serious the charges facing an accused, the greater the likelihood of pretrial

detention. The vast majority of persons charged with the most serious crimes of

violence remain in custody pending determination of guilt or acquittal.

It is suggested by some that violent offenders are too often allowed at liberty pending

trial. Evidence to support such an assertion tends to be lacking, however. Indeed, the

fact that over fifteen per cent of all Australian prisoners are remandees, awaiting trial or

sentence (Walker 1989a), suggests that the granting of bail has been less than

extravagant. In any event, debate on pre-trial detention in Australia continues to be

based upon ideology rather than fact. It does not seem unreasonable to suggest that

authorities in the states and territories of Australia might be expected to monitor closely

the consequences of bail, and would regularly publish precise statistics on the

proportion of bailed defendants who abscond or who re-offend whilst awaiting trial.

They do not.

The determination of an accused person's guilt may occur in one of two ways. The

accused may plead guilty to the charges against him, or he may stand trial. Minor

assaults are heard before a magistrate, and more serious charges are tried in the higher

criminal courts. These trials are usually held before a jury, comprised of members of the

public. Although comparable statistics are not maintained across the states and

territories of Australia, the majority of trials relating to alleged crimes of violence result

in conviction.

Because guilty pleas, by definition, entail conviction, the vast majority of persons

charged with violent offences are in fact convicted. Through plea bargaining or

evidentiary deficiencies, some of these convictions may be on lesser charges. It is not

uncommon, for example, for murder charges to result in a conviction for manslaughter.

CASE ONE

An Aboriginal man had two wives and had been living with the first,

who was to be his victim, for about 20 years. On the morning of the

offence they woke about 6 o'clock and this wife told her husband she

5

wished to shop at the store which was about 7 kilometres away. He

did not want to go until later and a minor dispute followed at the

campfire. The woman called her husband a 'frick', a term which

offended him.

He left the campfire and went inside the house where he

obtained a single barreled shotgun and loaded it. Returning outside

he walked past the campfire before turning around. His second wife

saw the firearm and immediately left. The first wife ran towards the

house and was shot in the back, just above the heart. She died. When

the police attended and interviewed the husband he made full

admissions.

Two psychiatrists who assessed the man diagnosed a thyroid

disorder which had led to a psychiatric disturbance. The psychiatrists

agreed that because of the psychiatric disorder the man’s

responsibility for the crime was substantially reduced and the defence

of diminished responsibility (a defence available in Australia only in

Queensland, New South Wales and the Northern Territory) could

apply. The defence was successful, resulting in a conviction for

manslaughter rather than murder: The sentence was five years

imprisonment with a non-parole period of 30 months.

6

SENTENCING CRITERIA

In contemporary Australia, sentencing decisions are based on numerous factors. These

may be conveniently categorised as circumstances relating to the offence on the one

hand, and to the offender on the other. Given the diversity of violent offending and the

complexity of many violent offenders, parliaments have set out a broad framework

within which appropriate sentences may be determined. Sentencing authorities are given

wide discretion to impose sentences, although this discretion is constrained in some

jurisdictions by the limited availability of facilities and programs.

The exercise of sentencing discretion entails identifying the relevant characteristics of

the offence and the offender; weighing the relative importance of those which would

aggravate or mitigate the gravity of the offence and the culpability of the offender; and

determining an appropriate sentence in light of the maximum prescribed by law.

The Australian Law Reform Commission has described the following circumstances as

aggravating:

· intention, premeditation, or planning

· participation as a principal, ringleader, or instigator

· use of a weapon

· systematic commission of offences for profit

· unusually extensive harm to the victim

· knowledge that the victim is a member of a particularly vulnerable group (for

example, children or the elderly)

· breach of confidence or trust

· offence by law enforcement officer

· prior offences

· prevalence of the offence

(Australian Law Reform Commission 1988, p. 88).

The Commission described the following mitigating circumstances:

· lack of intentional planning or impulsiveness

· minor participation in offence

· provocation

· duress falling short of a complete defence

· entrapment

· youth or old age

· previous good character, where prior offences are irrelevant

· that the offence was out of character

· effect of alcohol and other drugs

· personal crisis, such as emotional stress, ill health, or financial difficulties

· cultural background, as it relates to the offence

· remorse or contrition

· offer to make restitution or reparation or actually making restitution or reparation

· voluntarily seeking treatment

· confession and guilty plea (not necessarily as a result of remorse)

· providing information to the authorities

· hardship to the offender; such as physical or psychological injuries or infirmities

or additional hardships in prison, from particular sanctions

7

· hardship to others, such as distress, reduced financial circumstances and

deprivation of emotional support

· indirect consequences of conviction, such as loss or inability to obtain similar

employment, pension rights, cancellation or suspension of trading or other

licences, diminution of educational opportunities or the possibility of deportation

· a jury recommendation as to mercy

· grievances arising in the course of proceedings, for example, delay in bringing

the matter to trial.

(Australian Law Reform Commission 1988, pp. 88-9).

Needless to say, not all of the information which is relevant to the determination of a

sentence will always be available to sentencing authorities in complete detail.

Sentencing Options. The imposition of a criminal sentence upon a person convicted of a violent crime is an important public function. It often entails the most awesome power which can be wielded against a citizen -the deprivation of liberty. In years past, prior to the abolition of capital punishment, it could entail matters of life or death.

Because of the diversity of violence and the diversity of its perpetrators, no simple formula for the management of the violent offender can exist. What is required is flexibility to select from a set of diverse options, so that the response, be it punishment, treatment, or some combination of the two, fits not only the crime but the criminal.

Such diversity and flexibility in sentencing poses a risk of disparity, however. Ideally, similarly situated offenders committing similar acts should receive similar sentences.

Grossly disparate sentences are more indicative of a lottery than of a rational sentencing process.

Sentencing authorities in Australia enjoy the discretion to impose a sentence of imprisonment up to the maximum specified by statute, or to impose a sentence involving one or more non- custodial options. Defendants may seek leave to appeal if they regard their sentence as unduly severe; the Crown may appeal on grounds of undue leniency. Courts of appeal are thus in a position to guide the discretion of sentencing authorities. Gross inconsistency or disparity in sentencing is thereby minimised.

The four major criteria which have evolved as the basis of society's response to the violent offender are:

·     deterrence;

·     rehabilitation;

·     incapacitation; and

·     retribution.

More recently, with increasing concern for the victims of crime, compensation to and

rehabilitation of victims have been added to these criteria.

Unfortunately, many prescriptions for dealing with the perpetrators of violence are

based on misunderstanding and over- simplification. Violence itself is a complex

phenomenon, not thoroughly understood even by specialists in those professions whose

members have regular contact with violent people. Under- standing on the part of the

lay public is even more superficial. The emotive nature of crime and violence in

contemporary Australia is such that simplistic solutions are often advanced.

8

Any single prescription, moreover, is likely to entail unintended and often unanticipated

consequences; these tend to be overlooked in the course of superficial discussion or

debate. Moreover; a number of basic criteria for response to violence are mutually

exclusive -that is, one can only be achieved at the expense of the other.

As the case histories in this monograph illustrate, violence in Australia takes many

forms. At one extreme are what might loosely be described as the most savage and

atrocious crimes -deliberate, pre- meditated, cold-blooded murders. No less heinous are

those without apparent motive, as well as so-called 'thrill killings' -those from which the

perpetrator derives sadistic gratification. Some, but by no means all, of these may be

explained by insanity or diminished responsibility on the part of the perpetrator. A small

number of homicides result, intentionally or otherwise, from hold- ups or muggings. A

more common category of homicide, generally regarded as less evil than those of the

above types, is that which results from the escalation of an interpersonal dispute,

whether between acquaintances, friends, or spouses. Non-fatal violence in Australia is,

if anything, even more diverse. Assaults on strangers may be committed for fun or

profit. Spouses or children may be subject to occasional or to routine physical abuse.

Sexual assaults may be committed against strangers, friends, or spouses, as expressions

of aggression or dominance, or for purposes of physical gratification. Ordinary disputes

between acquaintances or friends may erupt into assault. Drunken brawls date to the

European settlement of Australia, and throughout our nation's history have remained a

not uncommon pastime of young males from backgrounds of low socioeconomic status.

The diversity of violent behaviour in Australia is compounded by the varied

circumstances of those who perpetrate violent acts. There are those offenders without

morals or remorse, and those who derive gratification from the suffering of their

victims; there are offenders whose cultural circumstances have led them to develop a

self-image of toughness and meanness; others may be generally ill tempered, endowed

with 'short fuses'. Others still may have learned from family or peers that aggression is

an appropriate response to stressful circumstances. Some individuals only become

aggressive whilst under the influence of alcohol-the so-called 'nasty drunks'.

In very few instances, the offender may be mentally ill, and at law not responsible for

his acts (Wallace 1986, pp. 55-9). More common are those violent offenders with

organic brain impairment, with intellectual disabilities, and with various forms of

mental illness which may compound the various social influences briefly noted here

(Potas 1982). Mental illness does not necessarily provide a defence to a criminal offence

(violent or otherwise), but is often taken into account as a mitigating circumstance at

sentencing.

Given the wide diversity of violence and the varied circumstances of violent offenders,

it is self-evident that a rational policy of response to violence must incorporate a range

of alternatives. The following pages review some of the basic issues which surround

policies relating to violent offenders in Australia.

9

DETERRENCE

One of the fundamental principles on which the criminal justice system is based is that

of deterrence. It has become an article of faith that a person's decision to commit an act

of violence will depend upon his or her perception of the probability of detection and

punishment, the likely severity of that punishment, and, to a lesser extent, the speed

with which that punishment will take place.

Those who speak of deterrence tend to differentiate between specific deterrence, the

effect of punishment on an individual' s inclination to re-offend, and general deterrence,

the effect of the threat of punishment on prospective offenders in general.

The nature of punishment available under Australian law is constrained by prevailing

standards of civility and by the international human rights agreements to which

Australia is a signatory. The brutal floggings administered during the convict era have

become part of Australia's grim history. At present, the most severe penalty available is

imprisonment.

Central to the theory of deterrence is the assumption that violent acts are the result of

rational decisions on the part of the offender. To be sure, most acts of violence entail

some degree of conscious choice. They are hardly random occurrences. But they do not

always flow from the perpetrator's careful calculation of the probabilities of arrest and

conviction, and from an estimate of the severity of punishment contingent upon

conviction. Many homicides are impulsive acts. Others arise in a situational context of

threat, insult, or instigation, or from an escalation of dispute between two parties, where

rage eclipses any real consideration of the consequences of one's actions (Steadman

1982). It would appear that a careful assessment of the costs and benefits of alternative

courses of action is more characteristic of corporate criminals (and responsible drivers)

than of violent offenders.

On the other hand, the fact that the vast majority of violent acts are other than random

suggests that some element of personal choice underlies most acts of aggression. This in

turn would imply that some, if not all, potential aggressors can be discouraged by an

explicit threat of certain punishment.

CASE TWO

After an argument in a hotel bar with some acquaintances, a man

aged in his late twenties went to his nearby home and obtained an

infrequently used .22 calibre rifle from a wardrobe. Returning to the

hotel he waited outside and later fired at a man from a distance,

killing him. He had been drinking but was only moderately

intoxicated. He was charged with murder. On assessment he was

found not to be suffering from any medical or psychiatric disorder. He

was unemployed and his marriage had failed some time before. He

had been generally unhappy and drinking to moderate excess.

Although a large, powerfully built man, he was in many ways passive

and tended to avoid confrontation or physical aggression. Not long

before the shooting he had played a practical joke on an acquaintance

by concealing an expensive item of property and later surreptitiously

returning it. He was suspected of this and during an argument felt

embarrassed and humiliated, especially by having beer thrown over

10

him. He thought that if he had retaliated at the time he would not have

taken the matter further. The easy availability of the firearm led to the

tragedy and to the conviction for murder.

Of course, Australian systems of criminal justice do not dispense swift and certain

punishment to all violent offenders. The costs, in both fiscal terms and human rights

considerations, of approximating such a goal would be high indeed. Moreover, a great

deal of human conduct in general, and aggressive behaviour in particular; is selfdestructive,

if not self-defeating. One need only consider the driving behaviour of

adolescent males to conclude that risk aversion is not a universal Australian

characteristic. There is an obvious unconsidered element in much violence, which while

not excusing the offender, certainly suggests that a deterrent threat may be only vaguely

perceived and comprehended.

It has also been suggested that it is not the perceived deterrent threat, but rather the

individual's own conscience reinforced by the likely shaming of others which inhibits an

act of violence (Braithwaite & Petit, forthcoming). Those of us who may have been

tempted to express aggression from time to time, have refrained from so doing less

because of any legal threat than from personal moral inhibitions. Braithwaite (1989, p.

70) argues that it is the informal sanctions, such as embarrassment of family and friends,

and fear of shame in the eyes of intimates -which offenders may fear as much as legal

punishment. The power of shame as a means of social control is evident in Japan and

other eastern cultures.

Most probably, the truth embraces all three assertions. There are those who would

commit a violent act but for the threat of arrest conviction and punishment. There are

those whose consciences: reinforced by community social controls, inhibit acts of

violence. And there is a (thankfully) small minority who are constrained neither by their

consciences nor by the threat of legal sanctions.

It would thus appear that an increase in the certainty and severity of punishment for

violent crime would be unlikely to produce a commensurate decrease in violence.

Precisely what effect such increases would have remains problematic. Despite the

centrality of deterrence as a basis for the criminal justice system, definitive analysis of

the deterrent effect of penalties has yet to be conducted in Australia. Ho mel (1988) has

demonstrated that the legal threat inherent in random breath testing has had a deterrent

effect on drivers in New South Wales. Biles (1979; 1983) has found that those

Australian states and territories with high rates of imprisonment report rates of crime no

lower than those jurisdictions which rely less on incarceration. An additional study

(Biles 1982) reported no relationship between changes in the rates of imprisonment for

violent crime and the actual incidence of violence. At present, it seems safe to speculate

that whilst the threat of punishment does deter many acts of violence, a number of

prospective offenders remain relatively impervious to the threat of punishment. And the

expense entailed in increasing the deterrent threat may not produce proportionate benefits.

Capital Punishment. One of the most contentious issues in contemporary penology

concerns the presence or absence of a deterrent effect of capital punishment. Once

prescribed for over two hundred offences in England, including minor thefts, capital

punishment gradually fell into disuse in England and Australia. The most recent

sentence of death in Australia to be carried out was the execution by the Victorian

government of Ronald Ryan in 1967; capital punishment has since been abolished by

11

law in all Australian jurisdictions. Most serious proponents of capital punishment tend

to favour its use only in response to the most egregious cases of violence. Public

opinion surveys suggest that approximately half (52 per cent) of the Australian public

support the death penalty for murder (Morgan 1989). Presumably, this connotes

deliberate, cold blooded acts, rather than 'crimes of passion'.

Whether the threat of execution constitutes a deterrent, or more precisely, whether it

constitutes a greater deterrent than would a lengthy term of imprisonment, is a question

which has been the subject of considerable, but imperfect research (Zimring & Hawkins

1987). The vast majority of these analyses have failed to demonstrate a relationship

between the threat or use of capital punishment and the homicide rate. They have been

criticised for various methodological inadequacies, as have those few studies which

purport to have demonstrated a deterrent effect.

The fact is that research on the deterrent effects of executions tends to have been

conducted in jurisdictions where the penalty is rarely, if ever imposed. The argument

has also been made that capital punishment constitutes a brutalising, or counter deterrent

effect (Bowers 1988). It may well be that executions deter a small number of

homicides, inspire a few others, and have no effect on the remainder. Under these

circumstances, the likelihood of a definitive determination about the utilitarian merits of

capital punishment seems remote.

It is perhaps worth noting that the rate of homicide in Australia has shown no apparent

increase over the past two decades, and remains significantly lower than during the

nineteenth century when executions were conducted by all colonial governments (Potas

& Walker 1987; Mukherjee et al. 1989).

Admittedly, the threat of detection, apprehension, conviction, and punishment probably

does deter some potential offenders from committing crimes of violence. The precise

estimation of a deterrent threat defies the current interests, if not the analytical abilities,

of Australian authorities; its effect can only vaguely be estimated as marginal.

Whilst hardly any attempts have been made systematically to assess the effect of a

deterrent threat, it appears most unlikely, given the complexity of violence as a

phenomenon, that a doubling in police resources, and a doubling in the length of

sentences imposed on convicted violent offenders, would contribute to anything

approximating a fifty per cent reduction in the rate of violent crime.

That is not to suggest that the increases in question would fail to produce any changes in

violent behaviour. Rather; the proposed increase in penalties is not likely to produce a

commensurate reduction in violence. The issue at stake here is not trivial, given the very

significant costs of criminal justice in Australia today -an estimated $3,000 million per

year. As noted below, the cost of confining one prisoner in maximum security can

exceed $50,000 per year.

On the other hand, overseas research does suggest that the criminal sanction may have

at least a specific deterrent effect in some cases of domestic violence. An assault is a

crime, whether it occurs on the street or in the home. In the United States, as in

Australia, the traditional disinclination of police to make arrests in cases of domestic

assault was based on the assumption that violence between spouses was essentially a

private matter, as opposed to 'real crime', and that police intervention would accomplish

little. But analyses have shown that police intervention can reduce repeated incidents of

12

domestic assault. The Minneapolis Police Department conducted an experiment which

randomly assigned one of three intervention strategies to cases of common assault by

one spouse against another. The strategies included arrest; an order to the suspect to

leave the premises for eight hours; and advice, which included informal mediation in

some cases. Arrested suspects were significantly less likely to engage in subsequent acts

of violence than were those suspects assigned the other intervention strategies (Sherman

& Berk 1984).

It would nevertheless be premature to advocate a significant change in public policy

based on the results of a single American study, no matter how well designed or

executed. Rigorous analysis of the deterrent effect of arrest on domestic violence in

Australia should precede any policy changes.

13

A violent creature, a menacing attitude, claws and teeth prominent

and the black figure filling the paper

The fear simply expressed by someone locked up with a

possible anticipation of impending doom.

14

The preliminary to a violent attack. The drawing shows great

strength and accentuated muscles.

15

A violent product of an immature young man amused and self-satisfied

with his perverted sense of power.

16

The feeling of being mutilated. The attitude and appearance

show her fear while the exposure of her underclothes suggest

she was attacked or frightened by a child molester.

17

A stabbed and elderly overbearing woman, probably the

patient’s mother. This may be an example of sympathetic magic

and what he would like to have done to her.

Flogging, perhaps associated with religious rejection.

18

One of a series of violent and obscene drawings found hidden

suggesting the products of one with an anti-social personality

disorder.

19

This probably shows more frustration than violence or

aggression. It may be related to the effects of incarceration in a

prison or a mental hospital experience.

A typical drug addict’s picture possibly incorporating the idea of

having convulsion therapy.

20

The tied hands show this isn’t suicide. Whoever hung the person

has left him to die in a lonely empty space.

21

REHABILITATION

The ideal of rehabilitation holds that through exposure to the benign influence of

correctional and welfare programs, violent offenders may learn alternative behaviours,

become law-abiding members of the community, and conduct their interpersonal

relations in a non-violent manner. History has shown this to be easier said than done. A

majority of opinion in contemporary Australia regards rehabilitation as fruitless.

Systematic reviews of overseas research on rehabilitation paint a similarly pessimistic

picture. There is little in the overseas literature which has been demonstrably effective.

But this may be less an indictment of rehabilitation as a strategy than of inadequacies in

the implementation of programs. Rehabilitative programs may simply be lacking in

sufficient quality, duration and intensity to produce an observable effect. (Sechrest et al.

1979; Martin et al. 1981). Cynics would argue that rehabilitation has never been seriously attempted.

Because of the complexity of violence and its various manifestations, not all violent

offenders are alike. Consequently, there can be no single rehabilitation program for

violent offenders Those persons who are sentenced to prison in Australia following

conviction for crimes of violence are not a cross-section of the Australian public

(Walker & Biles 1987). Upwards of ninety per cent are male. Nearly half are in their

twenties. Not at all do they resemble the well-scrubbed, respectable, middle class

school-boy. The majority were out of the workforce at the time of the incident for which

they were convicted. Perhaps as many as one-third are unable to read and write. Many

are lacking in basic social skills. Some are intellectually handicapped, others suffer in

varying degrees from neurological impairment or brain damage. Hayes (19 estimates

that at least one prisoner in eight in New South Wales suffers from some intellectual

disability.

CASE THREE

Two mentally retarded brothers in their mid- twenties were charged

with the murder and sexual assault of a 7 year old boy. One of them,

the instigator of the crime, made full admissions and finally pleaded

guilty, giving evidence for the prosecution at the trial of his older

brother.

During a visit to the older brothers flat the younger went out to obtain

some wine, returned and immediately left again to pick up a young

boy whom he had seen in the street. The boy voluntarily went to the

flat but probably became frightened and attempted to leave. Following

this, the first brother subjected him to a sustained assault involving

strangulation, attempted drowning and the infliction of head injuries.

The second brother did not interfere or raise the alarm. During the

attack the boy was sexually assaulted by the first brother and towards

the end, when unconscious or possibly dead, by the second. The body

was placed on a neighbouring property by the instigator of the crime

while the older brother kept watch in the street. The flat was cleaned

up and knowledge of the boy denied during a police door knock

following the discovery of the body. When interviewed the next day;

the younger brother made full admissions about his own and his

brothers involvement.

22

These two young men came from an unsettled family background and

had been in an institution for the intellectually handicapped until their

mid or late teens. The younger had spent time in a treatment program

aimed at improving his general functioning. There was a history of a

minor sexual offence against a young boy whom he had met up with in

similar circumstances six years previously. Both brothers survived in

the community in a marginal way; one in a boarding house, one in a

flat, and received support from their mother. Neither was involved in

any treatment, rehabilitation or work program, both were illiterate

and their time unstructured apart from regular visits home.

They received life sentences for the murder with lengthy non-parole

periods of 28 and 24 years being set. Their time in prison will involve

protection from other prisoners and placement in special units. No

special treatment programs are available for them. Each knew the

wrongness of his actions but neither had anything like a normal

appreciation of the seriousness of what happened t and its

implications.

In addition, there are those prisoners who are schizophrenic, or who manifest more

extreme delusional symptoms. Amongst those who are more 'normal' may be found a

range of personality disorders including general hostility, coldness, and the inability to

feel remorse or to empathise with others. It should be noted that very few services are

devoted to the identification of people who may require treatment.

Whilst none of these circumstances should be regarded as excusing or justifying

violence, some are more or less intractable. The likelihood of restoring all violent

persons to a peaceful constructive role in the community is thus remote.

Many aspects of the prison environment are regarded as impediments to rehabilitation.

The basic prison setting is not conducive to the acquisition of social skills and to the

learning of adaptive behaviour appropriate to resuming life as a responsible member of

the general community. The experience of incarceration can be extremely stressful and

humiliating, not the most ideal setting for developing self-esteem. In the custodial

setting, violent offenders are exposed to few appropriate role models. Indeed, for well

over a century, prisons have been referred to as 'schools of crime'.

With few exceptions, Australian correctional agencies do not provide specific programs

for inmates convicted of crimes of violence. Nor do community welfare agencies. Many

of the more general programs do address the needs of violent offenders, however.

Whether these programs are sufficient in quality and scope to meet the needs of all

violent prisoners is a key question. To the extent that they are not, this probably reflects

less on the competence and innovativeness of prison administrators than it does upon

the political climate and the severe cost constraints under which they labour. Annual

reports of Australian corrections departments are as likely to boast of reductions in the

costs of meals for prisoners and of a decline in the number of escape incidents as

they are to herald new programs for prisoner rehabilitation. Australian prisons have

been criticised for insufficient vocational, educational, life skills training, and for

inadequate drug and alcohol rehabilitation programs (Australian Law Reform

Commission 1988, p. 26).

23

Counselling and Therapy for Violent Offenders. All Australian corrections

departments employ professional psychologists who are available for assessment and

counselling of prisoners. The selection of the most effective treatment for a violent

person requires sophisticated clinical judgment. The sources of an individual's violent

conduct must be identified; then a course of treatment appropriate to the individual and

his or her circumstances must be selected.

Most programs of rehabilitation require the willing participation of the offender. The

individual must first recognise that a problem exists, and then accept responsibility for

the problem, and accept responsibility for changing their behaviour. The idea of

enforced rehabilitation is regarded by many penologists as futile; indeed, to others, the

idea of forced rehabilitation is obnoxious. Not least important is the fact that many

violent offenders will respond to coercive treatment with defiance and rage.

The essential basis of rehabilitation for violent offenders is to encourage the individual

to identity and to recognise warning signs - once the individual is able to identity the

stress and the anxiety which herald an impending loss of control, he is then able to learn

appropriate alternative responses.

One of the most common approaches to aggression management is referred to as social

skills training (Henderson 1984; 1989). This entails identification of the target

behaviour (aggression); recognition of the situations and circumstances under which it

is likely to occur; the learning of alternative responses under such circumstances; the

practice or rehearsal of these alternative behaviours, and the generalisation of these

responses in future real- life situations. This learning process is reinforced by corrective

feedback and rewards. Having met with considerable success in the treatment of

psychiatric patients, social skills training is being applied more frequently to offender

populations.

Whilst some individuals are more responsive to treatment in a one-on-one setting,

others benefit more from group therapy. A group setting permits an individual to

identity with others and to recognise that his problems are not necessarily unique. Group

settings, moreover, are more efficient.

Violence often occurs to compensate for a poor self- image. Rehabilitation programs

thus seek to restore the self-esteem of the violent offender. In addition, the lack of

empathy which appears to characterise many violent people may be addressed by

encouraging them to relate to the experiences and feelings of others.

It should be immediately apparent that the restoration of an offender's self-esteem may

be difficult to achieve in a setting often referred to as a dumping ground for society's

wreckage, and indeed designed as a place of discomfort and deprivation. But such are

the inherent contradictions of Australian penal policy.

Perhaps one of the most effective agents of rehabilitation for violent offenders is simply

the passage of time. Whilst aggressiveness tends to be a fairly stable personality trait,

the natural aging process does have a moderating effect on violent behaviour. Not all

violent adolescents become violent adults; not all violent individuals in their twenties

remain violent in their fifties. When this attrition does occur it often results from simple

maturation. In general, aggression and other anti-social personality traits tend to

dissipate during the fourth decade.

24

Prison Industries. All Australian corrections departments provide some vocational

opportunities for prisoners. Only a few years ago, following a national survey of prison

education and work programs (Braithwaite 1980), Australian prison industries were

described as 'among the most inefficient and unbeneficial for inmates in the world,

and….getting worse'. (Braithwaite 1984, p. 56). Given the overriding concerns of prison

administrators - security and cost control - this may not come as a surprise.

Workshops exist in most institutions, and some prisoners in rural areas are engaged in

primary production. Among typical prison industries are the production of automobile

number plates, and various products for internal prison consumption, such as clothing,

farm produce, and baked goods.

Victoria is the only Australian state to have created a special Prison Industries

Commission, directly responsible to the state's Minister for Corrections for the

management of prison industries and farms, and for the vocational training of prisoners.

The Commission is also engaged in the development of new industries and in the

marketing of products.

The difficulties inherent in providing meaningful work for prisoners are compounded by

the fact that most prisoners are poorly educated, lacking in vocational skills, and come

to prison with a history of unemployment which may reflect choice as well as

circumstance.

Since Braithwaite's critical comments in the early 1980s, significant increases in the prison populations of most Australian jurisdictions have heightened the difficulty of providing appropriate vocational training and meaningful work for all prisoners.

The capital costs of manufacturing equipment are not trivial. Space constraints in overcrowded, antiquated facilities, many well over a century old, further limit the kinds of production processes which may be housed there. Minimal remuneration for prison labour may not provide sufficient work incentives. The operational rhythm of prison systems, which can entail frequent interruptions of daily routine and indeed, frequent transfer of prisoners between institutions, militates against productivity and ultimately

the profitability of prison industrial enterprise. The suggestion that award wages be paid, at least in those activities which are productive, offends the values of many who would subordinate rehabilitation to retribution.

Well over a decade ago, Australia's foremost penologist advocated that private businesses establish branches within correctional institutions (Hawkins 1976, p. 125).

The possibility of vocational training, meaningful employment, and eventually a post-release career with the employer remains an elusive ideal, however.

Special Programs - Sex Offenders. In some jurisdictions, one still sees vestiges of the

old sexual psychopath laws, under which offenders deemed to have uncontrollable

sexual instincts may be detained at the Governor's pleasure (See, for example, South

Australia, Criminal Law (Sentencing) Act 1988, s. 23 (3) which has the same effect as

the recently repealed Criminal Law Consolidation Act, s.77a).

A more recent model for the rehabilitation of sex offenders has been presented by a

joint working party of the South Australian Health Commission and Department for

Community Welfare (South Australia 1988).

25

Under the proposed South Australian model, the first step in the rehabilitation of a sex

offender, as is the case with violent offenders in general, is an initial assessment of the

individual. This will identify those psychological and physiological properties which

may impede or facilitate successful completion of a treatment program.

The offender then must acknowledge responsibility for his crime, and begin to acquire

an understanding of the stimuli, thoughts, feelings and circumstances which tended to

precede his aggressive acts. Having developed the ability to recognise the antecedents

of aggressive behaviour, the offender must then learn to intervene as these antecedents

emerge, and to gain control over the process.

At this point, the offender and therapist begin to construct an alternative behavioural

repertoire. The development of a positive self concept is the foundation for this process.

The offender then learns the replacement of anti-social thoughts and behaviours with

pro-social ones, and acquires new sexual and social skills which will permit satisfying,

positive, and non-aggressive relationships with others.

Reintegration into society may well be a gradual process. At this stage, and for a

considerable period thereafter, the offender can benefit from a post treatment support

group and access to therapeutic treatment when needed.

In June of 1987 the Western Australian Department of Corrective Services established a

pilot program for the treatment of imprisoned sex offenders (French 1988). Operating as

a therapeutic community within Fremantle Prison, the program accommodates twelve

prisoners at a time. The average number of participants between June 1987 and October

1988 was ten per month. Participants include persons convicted of sexual offences

against children as well as sexual assault against adults.

The program includes both individual and group counselling, and includes sessions on

sex education, social skills, relaxation skills and anger management, negotiation and

conflict resolution, victim empathy, and dealing with depression and low self-esteem. It

provides for recreational opportunities as well. A review of the program was conducted

in 1988, and a full evaluation, including an assessment of the effectiveness of the

program, is planned after two years of operation (Indermaur 1988). It is envisaged that

the program will be extended to enable graduates to have access to periodic guidance

and therapeutic services from general correctional facilities throughout the state, as well

as during the period prior to their release from custody, and the period following their

discharge from prison.

Special Care Unit. Until well into the 1970s, unco-operative, 'difficult', or otherwise

intractable offenders in New South Wales received systematic beatings by prison

officers at the notorious Grafton Gaol (New South Wales 1978). At the time,

correctional authorities were less inclined than their counterparts today to recognise the

principle that if prisoners are treated like animals, they will behave accordingly. Today,

arguably more appropriate means are employed to deal with those prisoners who

experience difficulty in adjusting to the experience of incarceration. Established in

1981, the Special Care Unit exists within a maximum security setting at Long Bay

Correctional Centre, Sydney. The Unit is described as a therapeutic community, and at

least two-thirds of prisoners participating in the program have had previous convictions

for violent offences. Inmates agree to identify and to work on five self- nominated

personal issues; aggression management, impulse control, conflict resolution and nonviolent

negotiation are among those most often emphasised. The basic counselling

26

strategies employed by staff are the encouragement of cognitive self-control and

stress/relaxation management. In addition, a variety of educational and recreational

activities are available including creative writing, pottery and sport. These serve the

purpose of training the individual to develop patience and of enhancing self- esteem.

Participation in the Unit program, which lasts four months, is voluntary and selective.

Prisoners are received into the program from prisons throughout New South Wales.

Since 1981, over 605 male prisoners have been admitted to the program, and at least 50

percent have completed it successfully. During the eight years of the program's

operation, there have been only three incidents involving violence against staff, none of

which entailed serious injury (Hely & Propper 1989). The program is also envisaged as

a vehicle for training prison officers in counselling and leadership techniques. Between

1981 and 1988 approximately 240 officers were rotated through the Unit.

Although participation in the NSW special care program does appear to have a

beneficial effect on prisoner adjustment to the custodial setting, the question remains

whether participation in such programs provides any measureable long-term benefits to

those prisoners who are eventually discharged from custody. No such evaluation has

been published. Indeed, there is a dearth of rigorous, objective evaluation of

correctional programs in Australia generally.

Intellectual Disability, Mental Illness, and the Violent Offender. Much as one might

be tempted to regard violence as a clear-cut matter of good and evil, life is not always

that simple. Some of the most heinous and repulsive acts may be perpetrated by

individuals who, by virtue of their mental incapacity, may be less than entirely

blameworthy. Nor is mental incapacity an 'either-or' situation. It is perhaps more useful

to conceive of a continuum, between, at one extreme, the person fully in possession of

his faculties and at the other, the mentally ill person who may be unaware of the

wrongness of his actions. In between are a range of people with varying degrees of

disability, arising from brain damage, congenital handicap, or mental illness. The vast

majority of individuals on this continuum, regardless of their disability, can still be

found criminally responsible for acts of violence which they may commit.

Needless to say, offenders suffering from one or more handicaps or disorders have

certain vulnerabilities and special needs. A recent review of these issues in New South

Wales (Hayes 1988) has called attention to the importance of identifying intellectual

disabilities and implementing special educational, welfare, and vocational programs for

intellectually disabled offenders. These not only serve the interests of intellectually

disabled offenders, facilitating their adjustment to prison and ultimately, to life back in

the community, but can help to reduce problems of prison management in the long run.

In other cases, there are those persons who may have been of normal mental condition

at the time of committing an offence, but who may become mentally ill whilst in prison.

The stressful experience of incarceration, it should be noted, may also have adverse

effects on a prisoner's physical health. For example, upon occasion it can induce

prisoners to maim themselves and to take their own lives (Walker 1987).

Of the small number of offenders who can be identified as very dangerous, at least in

certain situations, there are some who may be detained indefinitely because of unfitness

to stand trial or because of a finding of not guilty by reason of mental illness or insanity.

Most (but not all) accused persons who are found unfit to stand trial suffer from a

psychiatric disorder or mental retardation. A few will never be fit to stand trial. Their

27

indefinite detention at the Governor's pleasure or its equivalent raises particular

problems. These were addressed by an inquiry in New South Wales, and by special

provisions made in that state's Mental Health Act of 1983. (University of Sydney 1986).

Detention at the Governor's pleasure of those found not guilty by reason of insanity also

raises issues regarding the institution or institutions at which they may be detained, and

the procedures and criteria to be used when they are considered for release. Practices

vary from state to state.

One might envisage a hospital inside a prison or a secure ward inside a 'civilian' mental

hospital. Commentators have suggested that prisons should be reserved only for those

persons who have been adjudged guilty of having committed a crime. Persons who have

been adjudged not guilty by reason of insanity, they argue, should be confined in a non-penal

setting (Potas 1982, p. 58).

CASE FOUR

A middle-aged man who was the successful manager of a branch of a

national organisation returned home one evening from a social

occasion and shot and killed his wife and two children. He turned the

rifle on himself inflicting a serious head wound with brain injury.

After emergency treatment and some weeks in a general hospital he was

transferred to a psychiatric hospital where he remained for three years.

There was complete amnesia for the shootings and for his mental state

in the weeks leading up to them. His gait had been affected by the brain

injury and neurological recovery took the best part of several years.

When he was considered well enough to stand trial, assessment

revealed a man still without memory for the events and his mental state

at the time, whose intelligence was in the superior range and

apparently unaffected by his brain injury; and who was conspicuously

lacking in insight and social judgment. At trial, evidence was given by

friends and associates strongly supporting the diagnosis of severe

depression for some time before the shootings. This along with

psychiatric evidence led to his being found not guilty on the grounds of

mental illness.

He was unconcerned about his transfer from hospital to prison. (In the

jurisdiction concerned, patients who are found not guilty by reason of

mental illness at the time of the offence may serve their detention in

prison rather than a psychiatric hospital). His financial position was

satisfactory but his proposed plans for life after release were

inappropriate, especially for presentation to a Parole Board. After a

few years he was released to f a nursing home where he would have

adequate supervision. There had been no return of the severe

depression which led to the murders and the f attempted suicide.

Medical and Psychiatric Treatment. With some violent offenders, medical and

psychiatric assessments may be important in understanding and attempting to treat their

violent conduct. The results of medical and psychiatric assessment pre-trial and presentence

may influence the course of legal proceedings, the defences raised, and the

28

final disposition of the offender. Subsequent treatment, if available and effective, and

psychiatric opinion may, in some jurisdictions and for some offenders, affect the

decision to release on parole or licence and the conditions imposed for supervision.

Psychiatric assessments of dangerousness may be problematic but are often sought,

quite often on offenders without psychiatric disorder.

It is important to note that not all violence, even if extreme or bizarre, has a psychiatric

or medical basis. Although assessment is often appropriate - if only to exclude medical

or psychiatric diagnosis - explanations of violent behaviour usually lie elsewhere and

interventions, not to mention judicial responses, will be non-medical. Even when a

disorder is present, social, situational and personality factors may not only be important

but predominant in any explanation of what has occurred.

Mental illness is a relatively weak predictor, statistically speaking, of future violence

when compared to a history of violent acts; no matter what the cause of violence may

appear to be, a careful history of violent conduct is essential. However, mental illness

may be a crucial factor in individual cases and particular psychiatric diagnostic groups

present higher than usual risks for violence (Mullen 1984).

CASE FIVE

A man in his early twenties who had migrated to Australia from

Europe with his parents was charged with their murders. He had no

other relatives in Australia and at his trial psychiatric evidence was

supported by observations made by work mates.

He gave a history of slowly developing paranoid beliefs involving his

parents. At first they were thought to be talking about him and

laughing at him behind his back. Slowly he began to fear for his safety

and took precautions so they could not enter his bedroom at night.

Later he began bringing food home to avoid eating what his mother

had cooked. His fears increased and he moved out of the house

although continuing to visit. On one visit he ate a stew prepared by his

mother, only to develop vomiting and diarrhea.

He decided he had to kill his parents, waited until the next pay day and

then on a Saturday morning bought an expensive rifle. Not wishing to

use an unlicensed firearm he obtained a shooters' licence from the

local police station and informed the gun shop of its number.

That afternoon he visited his parents and shot them both as soon as the

door was opened. He then rang the police, giving his name and

address, saying he had shot his parents, the door of the flat was open,

the firearm was on the coffee table and that he had to go and feed the

budgerigars.

On arrival the police found everything as he had stated and noted his

complete unconcern.

Psychiatric assessment found him to be suffering from a schizophrenic

illness of more than a years duration. The trial for the murders resulted

in a jury returning verdicts of not guilty on the grounds of mental

illness. He was detained indefinitely in a psychiatric hospital at the

29

Governors pleasure. Despite treatment he remained virtually without

insight into his illness or his actions for several years. His suicide in

hospital appeared to coincide with the development of some

appreciation of what he had done.

Medical or psychiatric intervention with violent offender is usually by the offering of

treatment or, if the person is facing sentence, by offering recommendations about

treatment a sentence. The basis of the intervention must be an assessmen1 least

adequate to the legal, medical and psychiatric issues presen1 by the individual offender.

While this may not be too difficult w an offender who can attract, or obtain, the

necessary resources pre-trial or pre-sentence, real problems arise in providing

assessment services for the offender population as a whole.

Assessment procedures will depend upon the stage which proceedings have reached,

what is already known of the violent person and the setting and resources available for

the assessment. The referrals from courts, correctional authorities and parole boards are

often dealt with by small, under-resourced services or professionals with little

experience of the criminal justice system Assessment may lead to a treatment dead-end:

recommendations cannot be implemented if treatment programs are unavailable the

community or in prison. This is particularly so in the case of offender with complex

problems but no clear cut diagnosis of a disorder amenable to a specific line of medical,

psychiatric correctional management, including admission to a particular institutional

program. These problems were addressed Dame Roma Mitchell (1985) when she

examined services to such persons in South Australia. As a result of her

recommendations the Management Assessment Panel was established and now assesses

individuals and negotiates management programs, often with multiple agencies.

Problems of assessment and treatment a compounded by the often poor flow of relevant

information within the criminal justice system.

The Australian states and territories each have their own criminal laws, correctional

services and health systems. There is no one way by which medical and psychiatric

services are delivered to our criminal justice systems and to offenders within the

community, and it is not the intention of this monograph to attempt to review the

differing systems in the states and territories. It is difficult to decide whether differences

in service delivery have arisen at times more because of the influence of particular

events, such as escapes, and personalities rather than the rational adoption of sped

models.

Certain medical and psychiatric conditions may be important violence and require

mention here in broad groupings, rather the in detail. Treatment approaches, which are

often obvious on diagnosis is made, are dealt with similarly. Reviews of the subject

(Roth 1987; Tardiff 1988) and practical approaches to the problem (Reid 1988) are

readily available.

In assessing violent patients a decision tree has been suggested (Reid 1988). It is also

useful for violent offenders generally, although the incidence of medical and psychiatric

disorder will be lower. Assessment takes place sequentially from first to the third

category.

The first category is that of organic, or physical, conditions leading to dysfunction of the

central nervous system. Included here are substance abuse (such as of alcohol, sedatives

and amphetamines), the effects of prescribed medication, intracranial pathology

(including head injury, tumour or vascular disorders), seizure or seizure- like syndromes

30

('epilepsy') and systemic disorders (medical conditions including infections, diabetes

and endocrir disorders).

A second category includes psychiatric disorders such ( schizophrenia,

schizophreniform and paranoid disorders. Mood, or affective disorders, require special

consideration, as severe depression can be associated with violence or suicide.

The third and final category includes personality and developmental disorders, and

reactions to stress and to emotional trauma. These are frequently important in both first

offenders and recidivists.

Reviews of the psychiatric health of prison populations (Gunn 1978) show that while

the incidence of psychosis, schizophrenia or severe depression is about the same or a

little more than in the general community, alcohol and drug abuse is much higher. Many

prisoners believe they need some form of help. Varying diagnostic criteria make

estimates of personality disorder in prisoners difficult to assess.

Mentally ill persons seem not to make an undue contribution to violent crime but some

subgroups present an increased risk of such conduct, conduct which when it occurs

largely within institutions or families, may not always be reported to the police, and if it

is, may not lead to further action by the criminal justice system. A small number of

patients exhibit repeated, even frequent, episodes of sometimes serious violence, testing

the resources and therapeutic imaginations of those caring for them. They are, it is

stressed a minority amongst psychiatric patients. Their careers may include periods in

prison and their sentencing may pose great difficulties. A few persons who commit

homicide or serious violent offences may be found not guilty on the grounds of mental

illness and ordered to be detained indeterminately in a prison or psychiatric hospital,

depending on the jurisdiction (Wallace, 1986).

Psychiatric disorders which may have an association with violence are many but it is not

an essential diagnostic feature of most. It is, for example, with some personality and

conduct disorders. With schizophrenia, some other psychoses, and mental retardation,

violence is an associated feature. It is an infrequent feature of mood disorders and some

other conditions.

The treatment of medical and psychiatric disorders in violent offenders is, in the first

instance, treatment of the disorder itself with special efforts to control violence if it is

continuing or threatens to recur. Some disorders may not be amenable to treatment, for

example dementia or a longstanding paranoid psychosis, so symptomatic and

behavioural control may be a prime aim with due respect for the comfort, rights and

liberty of the person.

Important treatment approaches include, often in combination, pharmacological,

behavioural and psychotherapeutic techniques and, in psychiatric hospitals, the

occasional use seclusion and restraint. Psychopharmacological treatment commonly

involves, in the mentally ill, use of antipsychotic drugs (the major tranquillisers),

antidepressants and lithium. The latter drug has been used with some success for violent

patients and offenders who do not have a diagnosis of mood disorder, a disorder for

which it is primarily prescribed. Long-term use of the major tranquillisers is not

advocated for the control of violent offenders who do not have an appropriate

psychiatric diagnosis.

31

The use of drugs in the treatment of sexual offenders is controversial and relatively

uncommon in Australian institutions. Antiandrogen drugs have been used.

Indeterminate detention of certain sexual offenders is available in South Australia

despite recommendations for its abolition. It is rarely combined with psychiatric or

medical treatment due to the nature of the f offenders detained.

It is fair to say that medical and psychiatric approaches to the assessment and treatment

of violent offenders are hindered by imprisonment because of the prison environment

and reduced access to services and professional staff, including psychologists. Mentally

ill offenders may be transferred to psychiatric hospitals or special units, where treatment

can be offered, for at least part of their imprisonment. When those who commit serious

violent offences are sentenced, other considerations may outweigh those of

rehabilitation and treatment. Where it is possible to provide treatment for a violent

offender; in prison or in the community, it should be given in an appropriate setting with

proper legal and procedural protections, especially for those who have chronic disorders

or disabilities or who are subject to indeterminate detention. Appropriate attention must

be given to personal and social problems, to supervision conditions and to compliance

with long-term drug therapy.

The unintended consequences of imprisonment. While there may be good reasons to

imprison violent offenders, rehabilitation is not one of them. Despite the occasional (and

patently erroneous) reference to the 'motel- like accommodation' of prisons, the prison

environment can be highly threatening. The self-doubt and low self-esteem which often

give rise to violence tend to be reinforced. Prisons have been described as analogous to

jungles, where power and exploitation are dominant values.

Almost invariably, prison has serious adverse consequences for the offender. The

deprivation of liberty can be an extremely stressful experience. Many prisoners, whose

propensity to maladaptive behaviour may have landed them in trouble in the first place,

experience great difficulty in adjusting to a prolonged period of custodial confinement.

The stresses induced by confinement may have adverse effects on a prisoner's physical

and mental health. These stresses may be compounded by separation from family and

friends. Indeed, it can be argued that the subculture of most Australian prisons

emphasises aggression as a coping strategy. Assault, rape, self- mutilation and suicide all

occur within prisons. Threat, intimidation and force are common currency. The popular

injunction 'if you can't do the time, don't do the crime' obscures the fact that the prison

setting may be a futile environment in which to seek to instil such values as warmth,

trust and empathy, precisely those qualities which are appropriate to life as a respectable

member of the community.

Non-custodial options. In certain cases, usually involving relatively minor violent

offences or significant mitigating circumstances, it may be deemed appropriate by the

sentencing authority to impose a sanction other than a term of imprisonment.

Considerable attention has been accorded non-custodial options in recent years, in part

because they appear to offer greater (or at least no less) rehabilitative potential than

imprisonment, at a fraction of the cost per offender.

Non-custodial sentences can include one or more of a variety of options, including

probation, a monetary fine, a good behaviour bond, community service orders,

restitution, or a suspended sentence of imprisonment. Probation may entail a number of

conditions, including the requirement that the offender undergo medical or psychiatric

32

treatment, or that he participate in a drug or alcohol rehabilitation program. A monetary

fine, which entails the payment of a specified sum to general revenue, is an uncommon

sentence for violent offenders, given the relative severity of the offence and the fact that

many violent offenders are drawn from relatively disadvantaged backgrounds.

CASE SIX

After pleading guilty to an armed robbery; a man in his thirties

remained on bail while a probation pre-sentence report was prepared.

The probation officer referred him for psychiatric assessment,

although there was no history of psychiatric disorder: However; his

wife was receiving outpatient treatment and there were long- standing

financial and family problems. When asked about himself, the man

stated that he was a pauper; always would be and would not know

how to spend one thousand dollars if he had it. He had been working

but had taken much time off to care for his children and accompany

his wife to the psychiatric outpatient department of a large hospital

where she was receiving long-term and frequent treatment. Little

money was available and while his wife and three young children ate

what more nutritious food might be in the house, he ate mashed

potatoes flavoured with meat extract.

The armed robbery occurred one day when he had sufficient money to

spend 60 cents on a green and orange water pistol for his 6 year old

son whose birthday it had been three weeks before. While returning

home on a borrowed motorcycle he noticed a bank. He thought of

money and returned shortly after, having altered the motorcycles

number plate with adhesive tape. With the water pistol in his pocket

and its paper bag in his hand he asked the female teller for money.

After she had placed some in the bag he told her that was sufficient

and left, accidentally dropping the bag in the street. He returned later

to retrieve it. Of the $180 taken he banked $100 and spent $80 on

baby food.

The sentence was a bond with probation supervision.

A good behaviour bond requires the offender to comply with certain conditions, not the

least of which is obedience to the law. Good behaviour bonds may be accompanied by a

financial surety, the breach of which can entail the forfeiture of a specified sum.

CASE SEVEN

Following a brief argument in a place of entertainment this heavily

intoxicated man in his early twenties picked up a sharp cooking

utensil and attacked a relative stranger: He was restrained after

injuring his victim and the police called.

He was unable to explain the reason for the attack and remembered it

poorly. For some days he had been drinking in excess of a bottle of

whisky a day. His past history revealed he had been a

33

hyperactive child, had experienced difficulties towards the end of his

schooling but had received no special attention or treatment. Five

years in professional sport were successful but this ended after severe

injuries in a motor vehicle accident which occurred while he was

drunk. After this his drinking became seriously out of control, he had

self-destructive urges and became impulsively violent as well as oversensitive

and lacking in self- esteem. A series of sexual involvements

caused conflicts and more drinking. Symptoms of alcohol dependence

were apparent. He had not worked since his motor vehicle accident.

He had become abstinent after the assault but remained distressed

about the conduct of his life. After pleading guilty he was given a

suspended sentence, probation supervision and referred for

psychiatric treatment aimed at his rehabilitation.

Community service orders require offenders to devote a specified number of hours to

constructive activity in the community. It may enable them to acquire work skills which

they might not otherwise develop. This form of generalised restitution is now available

in all Australian jurisdictions (Australian Law Reform Commission 1987). Used

primarily for minor offenders, it is generally regarded as unsuitable for perpetrators of

serious violent crime. In cases where they are used as a sentencing option, community

service orders appear to be no less effective a rehabilitative response than

imprisonment.

Restitution entails the payment by an offender to a victim, in cash or in kind, to

compensate for injuries or loss inflicted in the course of a crime. The concept is hardly a

new one; its roots are dearly visible in the dispute settlement practices of pre- industrial

societies. The principle of restitution has been incorporated in the sentencing law of

most Australian jurisdictions. Of course, the common law has long provided victims

with a course of action in cases of injuries arising from intent, as well as from

negligence: a victim can sue the offender for damages.

Laudable as these remedies may seem, they are largely peripheral. Most violent

offenders, by choice or by circumstance, were either out of the workforce or employed

in relatively menial occupations at the time of the incident leading to their conviction.

Their ability to pay restitution or damages for the losses which they may have inflicted

is thus limited. Most state criminal injuries compensation schemes provide for recovery

from the convicted offender of monies up to the amount awarded to the victim under the

scheme. (For a more detailed discussion of criminal injuries compensation, see

Grabosky (1989)).

A suspended sentence of imprisonment may be imposed in some jurisdictions, subject

to revocation in the event of subsequent offending or breach of specified conditions. In

such circumstances, the offender would serve the term of imprisonment originally

specified by the sentencing authority.

One recent innovation in Australian corrections is home detention. Home detention

requires offenders to remain at home during those hours when they are not at work or

engaged in approved study, religious activity, or rehabilitation programs. It is used as a

sentencing option in its own right in the Northern Territory, and as the basis for early

release from prison in South Australia and Queensland. It appears likely that a number

of jurisdictions will complement this alternative with electronic surveillance and

34

monitoring technology. Some commentators have cautioned that excessive reliance on

electronic monitoring, at the expense of personal contact, can have adverse implications

for rehabilitation. Fox (1987), for example, has suggested that such measures may be

more appropriate as alternatives to custodial remand than to a fixed term of

imprisonment.

Non-custodial sanctions may also be employed at the end of a period of imprisonment.

Indeed, the option commonly referred to as parole entails release from custody prior to

the expiration of a prison sentence.

These non-custodial options are usually accompanied by binding conditions, which may

be tailored to suit the rehabilitative needs of the offender. They may, for example,

include the requirement that the offender abstain from alcohol or drugs, that he refrain

from contact with the victim or with other specified persons, that he pay restitution to

the victim, or that he participate in a specified counselling or treatment program.

Conditions usually require regular reporting to probation and parole officers.

In recent years, state and territory corrections authorities have expanded probation and

parole services to accommodate a growing number of non-custodial clients. For

example, the New South Wales Department of Corrective Services has established a

number of Attendance Centres which provide programs for probationers, parolees, and

those offenders sentenced to community service.

These programs do not focus on violence per se, but rather on general skills, as many of

the clients lack the ability to read and write, and are unable to perform the simple

arithmetic necessary to budget their income. Among the programs offered are basic

literacy, job seeking and interviewing techniques, money management, and general

communications skills.

The economics and relative flexibility of non-custodial options make them attractive, at

least in those cases where the offender in question poses no danger to the public, or

where the offence may not be so heinous as to militate in favour of a more punitive

response. Non-custodial options are often less injurious to the offender; and thus

potentially more conducive to rehabilitation.

Domestic Violence Offenders. In recent years specialised programs for perpetrators of

domestic violence have been developed under various auspices in Australia. In some

cases, these programs have been established within the community, and are available to

violent men on a voluntary basis. In others they have been established as an adjunct to

the probation and parole services of state or territory corrections departments.

Participation in these programs may be voluntary for probationers and parolees in

general, or may be made an explicit condition of probation or parole. As with other

rehabilitation strategies, the basic principle of these programs is to enable participants to

recognise stress and anger, to develop skills for control of anger and to assist in self-image

building. Despite the proliferation of these programs in recent years, none has

been subject to systematic evaluation. It thus remains to be seen which, if any, of these

programs actually work, and which operate most effectively and most efficiently.

That Australian correctional rehabilitation programs in particular; and public policy

initiatives in general, have escaped rigorous evaluation is unfortunate. It may be

explained in part by the fact that administrators and policy- makers tend to invest their

35

reputations in programs per se, and can ill afford the risk of a demonstrably

unfavourable outcome.

With regard to correctional rehabilitation strategies, this concern is compounded by the

knowledge that the vast majority of overseas rehabilitation programs which have been

subject to evaluation have been shown to be unsuccessful. The apparent failure of

rehabilitation may arise from inadequate design and funding of programs, from the

immutability of many anti-social personality traits, and from the persistence of social

conditions which help spawn criminal behaviour. If anything does work to rehabilitate

violent offenders in Australia, the current lack of investment in planning and evaluation

will militate against its early discovery.

36

INCAPACITATION

Incapacitation is, quite simply, the removal of an offender from society. Today, the

most common form of incapacitation is imprisonment, such earlier forms as execution

and transportation having been abandoned. The logic behind incapacitation is simple: a

violent person who has been incapacitated is no longer able to offend against innocent

members of the community. If enough chronically violent people are identified and

incarcerated, there will be fewer violent people at large. It is thus assumed that

incapacitation will reduce the level of violence in society.

The incapacitated offender is, however; often able to offend against his fellow prisoners,

and against prison officers. Indeed, because of the concentration of violent people in

prisons, these institutions are among the most violent places in Australia today.

The extent to which incapacitation can affect the incidence of violence in Australia

depends on a number of considerations. The biological, social, economic, cultural and

other factors which produce violence are many and varied. A policy of incapacitation

focuses on the aftermath of violence, not on its causes. For every violent offender who

is incapacitated, there may be another growing up to replace him. Of course, the

assumptions which underlie incapacitation would hold that in the absence of such a

policy, the incidence of violence would be even greater.

Sooner or later most people who are sent to prison return to society. Hopefully, they

will be no more violent upon release than they were upon admission; ideally they would

be less violent. But prisons themselves can be extremely violent places. Ironically, they

may in some circumstances provide the opportunity to develop or expand a repertoire of

violence.

Not all violent offenders are chronically or intractably violent. For some, the

commission of a violent act may have been a once- in- a-lifetime episode, occurring in

response to extreme threat or provocation. In the case of these individuals,

incapacitation is an extremely inefficient response. Incapacitation is no more efficient in

the case of the offender who is amenable to some form of rehabilitation, and whose

propensity to reoffend might thereby be minimised.

The utility of incapacitation is thus limited to those violent offenders who are likely to

re-offend. These constitute an undetermined subset of all violent offenders, and the

precise determination of this likelihood is problematic.

This problem of identifying the chronic violent offender is of more than intellectual

interest, since, under the present state of knowledge, a very large increase in the number

of imprisoned offenders would be likely to achieve only a marginal decrease in the

incidence of violence. Despite recent improvements in the techniques of clinical and

actuarial prediction, the likelihood of recidivist violence still defies accurate estimation

(Monahan 1984). Mental illness alone is of little use in predicting violent behaviour

(Mullen 1984; Collins et al. 1988).

Table 1 reflects the state of prison overcrowding in Australia at the beginning of 1987.

Although a number of additional prisons have been built since that time, so too has the

number of prisoners increased. Table 2 shows the numbers and percentage of prisoners

by gender and most serious offence or charge as at 30 June 1988. The daily average

number of prisoners held in custody throughout Australia during March 1989 was

11,896 (Walker 1989a).

37

In light of the serious overcrowding which exists in Australian prisons today, and the

significant expense entailed in building and operating additional prisons, incapacitation

may be a relatively inefficient response to violence.

Recidivism. The question of whether violent offenders will commit further crimes of

violence upon their return to the community is one which is central to policies of

sentencing and parole. It does come as somewhat of a surprise, therefore, to learn that

systematic information on re-offending rates of Australian violent offenders is not

regularly published. To be sure, statistics on the re-arrest, re- conviction, or reimprisonment

of violent offenders may not encompass those offences which are not

reported to or cleared by police. Nevertheless, those statistics which are available

suggest that repeated violent offending may be more the exception than the rule.

Burgoyne (1979a; 1979b; 1979c;1979d) observed the records of 664 Victorians released

from prison in 1972 and 1973 after serving sentences for homicide, assault, robbery or

rape (see Table 3). He found that whilst a majority were reconvicted of some offence

within five years of their release, less than 30 per cent were convicted of subsequent

crimes of violence.

A recent South Australian study (Morgan 1989), based on reconviction rates of 866

offenders released over a three- year period, showed that 19 per cent of those originally

imprisoned for

38

TABLE 1

Occupancy rates of Australian prison systems, by state, January/March 1987

State Total

capacity

Highest

number

of prisoners

Percentage

occupancy

NSW 3,821 4,081 106.8

Victoria 2,038 1,975 96.9

Queensland 2,107 2,278 108.1

Western Australia 1,800 1,684 93.6

South Australia 850 841 98.9

Tasmania 449 273 60.8

Northern

Territory

363 463 127.5

Australian Capital

Territory

18 20 111.1

AUSTRALIA 11,446 11,615 101.5

Source: Biles, D. 1987, ‘Prison Accommodation and Occupancy’ April (Revised), Australian

Institute of Criminology, Canberra.

TABLE 2

Numbers and percentage of prisoners by gender and most serious offence or charge

Australia, 30 June 1988

Offence/Charge Males Females Total Percentage

Homicide 1183 71 1254 10.2

Manslaughter -Driving 61 4 65 0.5

Assault 903 22 925 7.5

Sex Offences 1150 7 1157 9.4

Robbery/Extortion 1520 69 1589 12.9

Break/Enter 1861 77 1938 15.7

Fraud/Misappropriation 436 107 543 4.4

OtherTheft 1266 95 1361 11.0

Possess/Use Drugs 221 17 238 1.9

Manufacturing/

Trafficking Drugs

1025 88 1113 9.0

Unidentified 2044 94 2138 17.3

Total 11670 651 12321 100.0

Source: Walker, J. 1989b, Australian Prisoners 1988, Australian Institute of Criminology,

Canberra.

39

TABLE 3

Reconviction rates of violent offenders released from prison, Victoria, 1972-3

Original Offence Per cent with at least one

subsequent conviction, any

charge

Per cent with at least one

subsequent conviction, violent

offence

Homicide (N=150) 30.1% 10.7%

Assault (N=249) 65.1 32.9

Robbery (N=195) 63.1 22.1

Rape (N=115) 58.3 31.3

Source: Burgoyne, P. 1979a; 1979b; 1979c; 1979d;

violent offences (homicides, offences against the person and robberies) were

reconvicted for violent offences (see Table 4). Reconviction rates for violent offenders

released from prison were lower than for those who had originally been imprisoned for

non- violent offences. Those few South Australian murderers released during the three-year

period showed no reconvictions of any kind. These cases were too few in number

to make any reliable inferences, however.

TABLE 4

Reconviction rates of violent and non- violent offenders, released July 1982 – June 1985,

South Australia

Reconvicted

Original

Offence

Violent Non-violent

Not

Reconvicted Total

Violent 19.0% 34.3% 46.7% 100%

Non-violent 16.7% 49.9% 33.4% 100%

Total 17.7% 43.3% 39.0% 100%

Source: personal communication, South Australia, Department of Correctional Services.

Australian research on criminal careers and recidivism remains in its infancy. Maller

and Broadhurst (1989) have found that between 30 per cent and 50 per cent of Western

Australian offenders imprisoned on numerous occasions have tended to commit

progressively more serious offences. The likelihood of recidivism for serious sex

offenders was even greater. In general, the authors conclude that the more frequently an

offender has been imprisoned, the greater the likelihood of subsequent incarceration

(Broadhurst & Maller 1989).

Available data suggest that there are a relatively small number of violent offenders

whose continued incarceration would indeed prevent some violence in the community.

But the identification of these offenders remains the problem. Authorities in Australia

have yet to engage in systematic thinking about the logic of incapacitation, or about the

costs and benefits of incapacitation as a crime control policy, or about identifying the

minority of violent offenders who will continue to commit violent acts when released.

CASE EIGHT

A man in his early twenties was received into prison following

conviction on several charges of assault. He had a past history of

offences associated with drinking.

40

Early in his imprisonment he asked the prison medical officer to refer

him to a psychiatrist. When seen for psychiatric assessment he

complained of having 'black outs' which, on enquiry; suggested a

diagnosis of epilepsy; There was no prior history of epilepsy in the

patient or his family; He had a long history of what might be called

social fighting while out drinking with friends. Many of the fights were

in fact with acquaintances and involved no serious injury or long

disruption of friendship.

However, in one street fight he had fallen, striking his head with brief

loss of consciousness. Following this, and before the onset of his

'black- outs', his fighting behaviour changed. He fought when sober

and not when intoxicated. He also began losing control in fights,

using anything as a weapon. There was amnesia for his actions when

fighting and afterwards he was remorseful. His friends noticed the

change, considered his behaviour abnormal and advised medical help.

On neurological investigation epilepsy was diagnosed and attributed

to brain damage following head injury. The episodes of violence were

not occurring in close association with his seizures, but were related

to the brain damage. Anticonvulsant treatment controlled his epilepsy

and there were no problems with violence in prison.

41

RETRIBUTION

As every man doth, so shall it be done to him, and retaliation seems to be the great law

that is dictated to us by nature. (Adam Smith 1759)

Another principle of punishment is that of retribution. One of the oldest responses to

violence in the repertoire of human civilisation, retribution underlay the biblical

injunction of 'an eye for an eye, a tooth for a tooth' as well as the 'payback' which served

as the basis for dispute resolution practices in pre-industrial societies. Retribution

embodies the principle of equivalence in social exchange. The contemporary term for

retribution is 'just deserts'. Stated simply, a person who inflicts harm and suffering upon

another should be made to experience suffering him or herself, commensurate with the

degree of harm inflicted and with the degree of culpability or blameworthiness which

the act entailed.

Unlike principles of deterrence, rehabilitation and incapacitation, which are

fundamentally concerned with the prevention of violence, retribution is concerned with

basic morality. And unlike deterrence, which is concerned with the prevention of future

offending, retribution focuses on the past. It is the seriousness of the offence and the

culpability of the offender which serve as the basis of the penalty to be imposed.

Contemporary Australian governments are constrained in their ability to exact

retribution against perpetrators of violence. Capital punishment is strenuously opposed

by human rights organisations such as Amnesty International, and Australian public

opinion tends to be divided on the issue. Torture, and less draconian forms of corporal

punishment are contrary to international human rights agreements to which Australia is

a signatory.

The main vehicle for retribution in Australian criminal justice systems is thus

imprisonment. It is the basic retributive inclination, rather than any possible deterrent or

rehabilitative effect, which appears to underlie public demands for more severe prison

sentences.

Retribution may be comforting in theory, but as a principle of response to the violent

offender; raises a number of practical questions. A variety of considerations, not least of

which may be the offender's relative youth and potential for rehabilitation, can militate

in favour of a more lenient sentence. Again, it should be noted that imprisonment is a

very costly punishment. Full retribution may be very expensive to implement.

Proponents of capital punishment as a retributive response to murder often overlook

important considerations. One of these is the possibility of wrongful conviction and

execution of an innocent person. Execution is an irrevocable punishment. The belated

discovery of exculpatory evidence, and the granting of a posthumous pardon will not

console the deceased.

It might also be suggested that in many ways, the state should be regarded as a moral

exemplar. That is, activities undertaken in the name of the state should serve as a model

for the general public. When the state itself uses violence to further ends which it

perceives as legitimate, this is an implicit invitation to some members of the public to

do likewise.

42

DENUNCIATION

An act of criminal violence affects more than a victim. As noted above, it is regarded by

law as an offence against the state. Depending on its severity and unpredictability, it

may instil fear and insecurity among members of the public. Depending on the degree

of heinousness which it entails, it may be regarded as an affront to public morality.

One way of re-affirming those values embraced by a widespread majority of citizens,

and which have been violated by an act of criminal violence, is to repudiate the act in

question, and to denounce it publicly, both officially and informally. Remarks made by

judges in imposing sentences on convicted offenders constitute the formal denunciation

of the criminal act. Moralising statements by police and by elected officials represent

informal denunciation, as does much of the commentary which accompanies news

media coverage of violent crime.

Denunciation has an educative purpose, as well as an expressive function. By

communicating society's abhorrence of a given act, a statement of denunciation sends a

message which highlights a boundary between acceptable and unacceptable behaviour.

Braithwaite (1989, p. 77) describes how it can serve as the basis for the moral

development of children. It 'supplies the morals which build consciences' (Braithwaite

1989, p. 78). To the extent that this purpose is achieved, denunciation can further the

aim of prevention.

Thus it has been suggested that denunciation can perform a utilitarian role as well as an

expressive one. Braithwaite (1989) contends that a society which shames an offender

without stigmatising him will be a less violent society. He advocates that states give

more prominence to moralising social control than to punitive social control.

Shaming, when it serves to stigmatise an offender; can reinforce a criminal self-image,

perpetuate a criminal career; and create a class of outcasts. Persons who have been so

'branded' tend to gravitate toward a criminal subculture.

By contrast, shaming which is reintegrative, in other words, followed by re-acceptance

of the offender into the community of law-abiding citizens, can have a rehabilitative

effect. Braithwaite refers to a 'family model' of the criminal process where punishment

is imposed within a framework of reconcilable interests rather than within a context of

disharmony and fundamental antagonism (Braithwaite 1989, pp. 54-6). Braithwaite

argues that societies have less crime when they deliver potent shaming at wrongdoers,

and where that shaming is reintegrative rather than stigmatising.

There are those violent offenders who may be characterised as remorseful and contrite,

and those who can be described as 'shameless'. Formal denunciation mayor may not

instil a sense of shame in the latter group of offenders, but it can serve to reinforce in

the general public the shamefulness of violence.

There are, nevertheless, those individuals who remain impervious to moral reasoning

and to societal injunctions; indeed, there are those who positively and enthusiastically

embrace a mean and tough identity, A few go even further and revel in a self- image of

evil (Katz 1988). Stigmatisation, according to Braithwaite, actively encourages the

formation of such self- images. If this is a transient phase, they may be yet amenable to

reprobation. If it is not, moralising injunctions serve little purpose, whether for the

43

individual in question, or for citizens in general. Society should nevertheless guard

against responses to violence which may reinforce in offenders a criminal identity.

To a significant extent, the denunciation of an act of criminal violence is symbolised by

the sentence which is ultimately imposed on the convicted offender. Maximum penalties

available at law tend to be reserved for only the most heinous offences, and are only

rarely imposed. If sentences are perceived as lenient, that is incommensurate with the

heinousness of the offence, the goal of denunciation remains only partially fulfilled.

On the other hand, there are those commentators who would not equate length of

sentence with denunciatory impact. As Braithwaite and Pettit suggest

Denunciation, we believe, is determined less by the length of sentence

than by whether the trial is reported in the media, whether it is held in

open court in the presence of significant others, how many of the

offender's acquaintances come to know of the conviction throughout the

rest of his life (Braithwaite & Pettit, forthcoming, p. 179).

Fundamentally, Braithwaite's theory of reintegrative shaming, like so much

criminological theory, implies that the most important ways of reducing violence are not

to be found in the design of the criminal justice system, but rather in society's structure

and culture.

Public Perceptions of Criminal Sentencing. Perhaps the greatest source of

contemporary public concern relating to criminal justice in Australia is the widely

shared perception that sentences imposed on convicted offenders, particularly those

convicted of crimes of violence, are unduly lenient. Whilst the argument might be made

that leniency is in the eye of the beholder, and that those who complain most

vociferously about the leniency of sentences have never seen the inside of a prison,

much less been confined in one, there exists a great deal of cynicism with regard to the

sentencing process.

Concern about the sentencing of offenders has focused on two major issues - the

perceived leniency of sentences imposed, and the apparent inconsistency of penalties

imposed on convicted offenders both within and between states and territories. These

concerns have given rise to inquiries at both the Commonwealth and state levels

(Australian Law Reform Commission 1988; Victorian Sentencing Committee 1988) and

to the establishment of a Judicial Commission in New South Wales.

An additional concern arises from the ambiguity which often surrounds the sentence of

imprisonment. In such cases, judges commonly specify a given period of incarceration,

generally referred to as the 'head sentence'. This sentence, however, often bears little or

no relationship to the period of time which the offender actually serves. It addition to

the head sentence, judges may also specify a minimum term of imprisonment, called the

non-parole period, after which the prisoner may, depending upon the jurisdiction, be

released automatically or be released at the discretion of parole authorities. The nonparole

period as a proportion of the head sentence can vary substantially within and

between jurisdictions.

In addition to the possibility of a term of imprisonment being curtailed by parole, state

and territory corrections authorities also provide for remissions of sentence. These may

be granted automatically, or on a discretionary basis for good behaviour. Such

44

remissions may serve to reduce the duration of a prisoner's non- parole period, thus

further decreasing the time served in prison.

Those members of the public who stop to compare the duration of an original head

sentence with the amount of time an offender actually spends in custody might be

excused for expressing cynicism, if not anger. The moral education of both the

convicted offender and society at large which might flow from the imposition of a

sentence, is thus weakened.

A loss of public confidence in the criminal justice system poses more problems than just

a headache for politicians. It can lead to self- help in the form of vigilantism, and

ultimately to an escalation of violence.

Because of public disquiet, the Commonwealth and New South Wales governments,

among a number of jurisdictions, have sought to restore the principle of 'truth in

sentencing' where ambiguity in the calculation of time to be served is eliminated, and

the act of delivering a sentence is clear and accessible to the public.

There nevertheless remain very good reasons for a certain degree of administrative

flexibility in determining the actual time an offender will serve in prison. The

management of prisons is, at the best of times, a difficult task. It can be greatly

facilitated by the co-operation of prisoners, and can be made extremely difficult by their

recalcitrance. The following selective list of prison disturbances in Australia is

illustrative.

· August 1982 Goulburn Training Centre, NSW Numerous fires and serious

damage to internal areas of the building.

· March 1983 Yatala Labour Prison, SA C Division set on fire; three prison

officers taken hostage; 17 prisoners and four prison officers injured.

· November 1983 Brisbane Prison, Qld 129 Cells destroyed during major

disturbance.

· October 1987 Jika Jika Prison, Vic. Five prisoners die in a fire lit during a

protest.

· December 1987 Brisbane Prison, Qld 200 Cells destroyed; one prisoner shot;

one prison officer wounded.

· January 1988 Fremantle Prison, WA Five prison officers held hostage; serious

fire damage to one division.

Source: Australian Law Reform Commission 1988

Skilful management of prisons often entails the constructive use

of inducements. During periods of industrial action by prison officers, Australian

correctional authorities have granted credit towards remission in order to reduce the

potential for prisoner unrest. In addition to various privileges which might be granted to

the well-behaved prisoner, some degree of remission of sentence for good behaviour

can be an important incentive.

In contrast to what might be described as the dilution of denunciation through the

imposition of comparatively trivial sentences, the rhetoric of denunciation has become

devalued through indiscriminate application. To the extent that police, judicial

authorities, public officials and other commentators describe victimless crime and other

45

minor breaches of decorum as abhorrent, the more appropriate condemnation of truly

heinous behaviour carries less denunciatory weight.

46

COST CONSIDERATIONS

One of the more significant considerations in determining an appropriate response to the

violent offender is that of cost. This particularly significant in the current climate of

fiscal constraint, which appears destined to dominate Australian public policy for the

foreseeable future.

Imprisonment in maximum security is an expensive public policy. It costs an estimated

$200,000 per bed to construct a maximum security prison (Australian Law Reform

Commission 1988, p. 25). The cost of operating a prison is also enormous. In order to

prevent escape, and to minimise the risk that a prisoner will injure himself or another,

prisons must be staffed around the clock. Table 5 reports recent statistics of prison

expenditures in Australia. These costs have increased further over the past two financial

years. The cost of operating a maximum security prison has been estimated at $80,000

per prisoner per year; a secure psychiatric facility, $180,000 per prisoner per year.

TABLE 5

Prison Expenditures, Australia 1986-87

Total expenditure Cost per prisoner

NSW $159,631,000 $40,199

VIC 101,043,000 52,084

QLD 45,918,900 20,435

WA 59,445,500 37,015

SA 49,273,000 59,080

TA5 6,921,100 26,019

NT 17,380,200 40,513

Total Australia 439,612,700 38,928

Source: Mukherjee, 5.K. et al. 1989, Sourcebook of Australian Criminal and Social

Statistics, Australian Institute of Criminology, Canberra, pp. 591-642.

Based on these figures, and considering that violent offenders comprise at least 40 per

cent of the national adult prison population, the cost of imprisoning violent offenders in

Australia approaches $200 million per year.

Because the resources available to Australian correctional authorities are limited, the

incapacitation of violent offenders is an extremely difficult undertaking. As already

noted, most state prison systems currently suffer serious problems of overcrowding.

Whilst this no doubt contributes to the discomfort of those imprisoned, it makes the

orderly management of prisons extremely difficult. Most Australian prison systems

have experienced serious disorders over the past decade as a result of overcrowding.

47

UNITED NATIONS STANDARD MINIMUM RULES

Regardless of the heinous acts which may have been committed, the violent offender

should be accorded certain rights and be entitled to certain fundamental protection. This

is of more than passing interest, because of the very great potential for abuse of persons

in the custody of the state. The imprisoned offender is in one of the most vulnerable

positions in any society. Australian society is no exception.

Largely beyond the scrutiny of the general public, but ostensibly accountable to

parliament, to oversight agencies such as state ombudsmen and at common law, state

correctional authorities are responsible for the safe and secure custody of their

prisoners.

This mission has not always been fulfilled, in Australia or elsewhere. Whilst Australian

prisoners have not been subject to torture and brutality of the kind practised in many

nations, they have been subject to unwarranted abuse, at the hands of fellow prisoners or

of prison officers themselves. By way of one example, the systematic beating of

prisoners was practised in the prisons of New South Wales until nearly a decade ago. A

modern high-security facility in New South Wales, Katingal, was described in the report

of a Royal Commission as an 'electronic zoo' (New South Wales 1978, p. 121). At

present, it is perhaps more accurate to say that Australian prisoners enjoy very few

enforceable rights. Rather, they may be accorded certain privileges at the discretion of

correctional authorities.

Hawkins (1985) identifies three justifications for concern for the rights of prisoners.

First is their extreme vulnerability to abuse, as has been demonstrated throughout

Australian history, and more recently in the events leading up to the Nagle Royal

Commission (New South Wales 1978). The second justification is the importance of

reaffirming to prisoners, of all people, the importance of the rule of law. To quote the

late Hans Mattick, 'It is perhaps gratuitous to assert that those who have been convicted

of breaking the law are most in need of having respect for the law demonstrated to them'

(Mattick 1972, p. 1). Hawkins' third justification holds that having deprived prisoners of

the most fundamental right in a free society, freedom, 'we are under a moral obligation

to ensure that their other rights are not curtailed more than is absolutely necessary for

custodial purposes' (Hawkins 1985, p. 204).

International concern for the rights of prisoners dates back to the beginning of the

present century. In 1929, the International Penal and Penitentiary Commission

published a set of Standard Minimum Rules for the Treatment of Prisoners. In 1955, the

Rules were adopted in an expanded form by the United Nations. The rules today set out

basic principles for the custody of prisoners in general, such as freedom of religion, the

availability of food and medical services, and the opportunity for exercise. They also

detail special provisions covering such issues as insane and mentally abnormal

prisoners, work, and educational opportunity. The Standard Minimum Rules are

summarised in Table 6.

48

TABLE 6

Summary of United Nations Standard minimum rules for the treatment of prisoners

GENERAL APPLICATION

number title

6 Basic principle

7 Register

8 Separation of Categories

9-14 Accommodation

15-16 Personal Hygiene

17-19 Clothing and Bedding

20 Food

21 Exercise and Sport

22-26 Medical Services

27-32 Discipline and Punishment

33-34 Instruments of Restraint

35-36 Information and Complaints

37-39 Contact with the Outside World

40 Books

41-42 Religion

43 Retention of Prisoners' Property

44 Notification of Death, etc.

45 Removal of Prisoners

46-54 Institutional Personnel

55 Inspection

SPECIAL CATEGORIES

number title

56-64 Prisoners Under Sentence

65-66 Treatment

67-69 Classification and Individualisation

70 Privileges

71-76 Work

77-78 Education and Recreation

79-81 Social Relations and After Care

82-83 Insane and Mentally Abnormal Prisoners

84-93 Prisoners Under Arrest or Awaiting Trial

94 Civil Prisoners

95 Persons Arrested or Detained Without Charge

(Adapted from Loof, P. & Biles, D. 1985, 'Formulation and Application of United Nations

Standards and Norms in Criminal Justice', in Australia Discussion Papers, Seventh United

Nations Congress on the Prevention of Crime and Treatment of Offenders, Australian Institute

of Criminology, Canberra, p. 129).

Since its establishment in 1973, the Australian Institute of Criminology has sought to

assist state and territory correctional authorities throughout Australia in implementing

the United Nations Rules (Loof & Biles 1985). In 1989 the Institute co-operated with

state corrections ministers in developing a set of standard minimum rules for Australian

prisons.

49

CONCLUSION

What basic principles, then, should govern society's response to the violent offender?

Many observers would argue that by the time a violent offender has reached prison, it is too late, and the most appropriate response to violence in Australia is to change those social conditions which give rise to violence in the first place.

It is important to recognise that if a 'solution' to the problem of violence does exist, it is not likely to be found in the criminal justice system. Resources available for the prevention and control of violence in Australia are limited. The National Committee on Violence will give substantial consideration to where these resources might most productively be allocated, whether in areas of family support, employment-based delinquency prevention programs, or more prisons. Of course, police, courts and correctional agencies make some difference. But overall, they constitute a very imperfect means of social control. A massive investment in criminal justice resources may produce some reduction in violence, but the marginal reduction is unlikely to be commensurate with the increased cost.

This is of course no consolation to Australia's correctional administrators, who must receive and manage those consigned to their custody, and do so with meager resources.

The fact remains that deprivation of liberty will continue to be the basic response to cases of serious violence in Australia.

Considerations of economy and justice should dictate that punishment not be imposed gratuitously. New South Wales and other jurisdictions have formally acknowledged that imprisonment should be used only as a last resort. At the same time, there are those offenders who constitute a real risk to society, and for whom there is no alternative to prison. It may thus be said that a significant number of prisoners do not really belong in prison, and a significant number who are in prison belong there for a long time. The challenge is that of identifying in which category a given prisoner might be placed. In light of the trend towards hardened public attitudes and longer sentences, it is important for reasons of justice as well as economy to ensure not only that pre-sentence assessment of violent offenders provides adequate information to the courts, but that appropriate treatment programs be made available, in the community and in the prison system.

For those prisoners who might be termed chronic violent offenders, the task then becomes identifying those who may be amenable to rehabilitation, and determining those rehabilitative treatments which may produce a positive and lasting effect.

Society's response to the violent offender has been characterised by contradiction and ambivalence. This may be explained in part by the fundamental inconsistencies, and indeed, the mutual exclusivity of the principles of punishment. It may also be explained by the absence of current, useful knowledge about the deterrent, incapacitative and rehabilitative effects of those policies which are in place. And by no means least, it flows from the indifference on the part of the Australian public to prisons generally, and their hostility to prisoners in particular.

To the extent that violence is a product of human nature, policies of deterrence and rehabilitation may have a positive effect. To the extent that violence is rooted in cultural and economic circumstances, penal policies will have less of an impact. The Australian public must be made aware, however; that whatever penal policies are likely to be effective will almost certainly be extraordinarily expensive.

It has long been an article of faith among Australian politicians that there are no votes in prisons. In the foreseeable future, penal policies appear destined to be dictated not by hard- headed evaluation, but by ill-informed public opinion, by fads, and by political expediency. Ultimately, it is the Australian taxpayer who will bear the long-term costs of continuing penal programs in the dark. The public and policy-makers alike will lack systematic information about the efficiency and effectiveness of alternative policies.

Meanwhile, it may be most appropriate to reserve imprisonment as a last resort, and to pursue strategies for the abatement of violence not in the criminal justice system but in family, education, and employment policy.

51

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