32

28 02 2014

Meet Marika Ninness.

Marika died in John Hunter Hospital on Saturday, 21 December 2013, from injuries sustained after she was allegedly king hit and allegedly knocked to the ground outside the George Tavern near Stockland Green Hills shopping centre in East Maitland on 7 December 2013.  Marika’s husband & sister held her hand as she died, 80 hours after life support was withdrawn.  Marika’s funeral was attended by more than 350 mourners.

Marika’s boyfriend, Ross Albert Merrick was arrested at the scene and charged with causing grievous bodily harm by an unlawful act, recklessly causing grievous bodily harm and causing grievous bodily harm with intent.  A statement of facts tendered in court accused Merrick of elbowing Marika to the head during an argument before midnight. He was subsequently accused of punching her and was bailed at a hearing on 13 December 2013.  The charges were upgrade to murder on 22 December 2013.  Merrick was remanded in custody until 23 December, when he was granted bail unopposed by the prosecution.  Merrick missed a scheduled court appearance on 12 February due to ‘miscommunication’ between the defence, prosecution & court.  That is the last report I’ve been able to find on Merrick’s case online.  Apologies to the Hunter region media if they reported on the matter (the next hearing was set for 19 February), but it looks as though the case is not newsworthy enough after just three months.  Marika Ninness died just 10 days before 18-year-old Daniel Christie was attacked in King’s Cross, but barring five paragraphs on 22 December, her case wasn’t reported by the Sydney Morning Herald (she didn’t even rate a mention in the Daily Telegraph).  I understand that Sydney news editors might deem the death of a 35-year-old woman from a Hunter Valley town as of little interest to their readers, but that didn’t stop the Herald using her beautiful face in a gallery of 15 victims of street violence attached to this article calling for a political response to an ‘epidemic of street violence’ after Daniel Christie’s death.  The O’Farrell government’s ‘one punch’ legislation, drafted on the back of a fag packet after a media campaign focused on the deaths of two Sydney teenagers,  is inner city-centric (barring the statewide mandatory band of off-license alcohol sales after 10pm) & will do nothing to prevent the ‘epidemic’ from affecting women, men and children in suburban, regional and country areas.  Of the 15 people the Herald refers to as victims of ‘king hit punches’, two (Thomas Kelly & Daniel Christie) lost their lives within the O’Farrell government’s ‘CBD Precinct’.  Six of those pictured died in Victoria; one in Queensland. Of the NSW victims, two died in Maitland (including Marika Ninness); one in Windsor; one in Woolooware in Sydney’s south; one at Kingscliff, near Tweed Heads; one in Coffs Harbour and one in Griffith:

  • Christopher Leicester died in Woolooware, near Cronulla in 2007 after he was punched, knocked to the ground &  kicked in the head repeatedly by three youths who thought he had insulted them. They were found guilty of manslaughter in 2009.
  • Connan McLeod died after he was punched by Michael Ryan in the car park of Windsor KFC in May, 2011. Both men were heavily intoxicated. Mr Ryan was acquitted of manslaughter in 2012, the jury deeming the punch self-defence. Mr McLeod and his brother-in-law (who, the court heard, has a long history of violence) had been involved in a scuffle inside a pub. A few minutes’ later, Mr McLeod chased Mr Ryan through a shopping mall, shouting, ‘I am going to kill you’. Mr Ryan punched Mr McLeod once, & pushed him away. Mr McLeod lost his balance and fell.
  • Scott Snodgrass died after an altercation with a 20-year-old man at a taxi rank in Coffs Harbour in May 2013. The man was questioned by police and released without charge & the matter remains under investigation.
  • 50 year old Kelvin Kane died at Kingscliff, near Tweed Heads. His alleged killer, Craig Field, has been charged with murder, with the case adjourned until 7 March.
  • Jamie Purdon died after he & his friends were chased by a 17-year-old & 15-year-old at Maitland Show. The 17-year-old’s custodial sentence was reduced to periodic detention for giving evidence against the 15-year-old, whose conviction for manslaughter was overturned as a miscarriage of justice by the Court of Criminal Appeal (he awaits a re-trial).  The teenager who punched Mr Purdon was subsequently charged with assaulting another man a year later.
  • Andrew Farrugia‘s teenage killers were convicted of manslaughter.  It is a monument to the Sydney Morning Herald that the dreadful, racist ranting of columnist Paul Sheehan was picked up by the ‘white nationalists’ at Stormfront. Really, what a feather in your cap.

These are stories of Australian men and boys – at homes, in parks, at restaurants, at parties, at pubs and clubs.  Verbally & emotionally abusing, harassing, stalking and physically attacking people.  Kicking them, stomping on them while they’re on the ground. Assaulting strangers, acquaintances, friends, and at least once a week, killing female partners.  It’s symptomatic of a pervasive culture of impunity, a word Westerners are more comfortable assigning to African warlords.  People who think that it is OK to do as they see fit, whether it’s getting into a fight with a stranger or verbally degrading the person they ‘love’.  They aren’t cowards. ‘Coward’ implies they lack the courage to do or endure dangerous or unpleasant things.  Instead, they rely on a cowardly society which is uncomfortable with intervening in ‘unpleasantness’.  We fail to stand up & say, ‘hey, you: if you want to behave like that, you’re not welcome here.  You do not meet the standard we as a society expect of you’.  We set the ‘what’s acceptable’ bar so low, & make it pointless by looking away when it’s breached. As Sydney city’s top cop, Commander Mark Murdoch told the Sydney Morning Herald, ‘you could close every pub in Sydney at midnight and have a million cops on the street, but it won’t do anything when people believe they can behave in that fashion and get away with it’.

People convicted under the new NSW government ‘one-punch’ laws may not ‘get away with it’ thanks to mandatory minimum sentences, but it is my view that mandatory minimums will prove as useful in preventing assaults as antibiotics are in killing a virus.  Keeping people in prison for a set period of time, with no prospect of leniency, mitigation or change removes any incentive to learn and practice good behaviours.  As I wrote previously, imposing mandatory minimums as a deterrent is based on the assumption that people are rational actors when they commit a crime.  Randomly assaulting a person on the street is right up there with the least rational crimes. In what fresh hell could Wally Hung, who killed Scott Parnell be deemed ‘rational’? Both men were drunk at a 21st birthday party at Moreton Bay’s Bribie Island Rugby League Football Club. Parnell had previously hit Hung’s friend. While on bail for manslaughter, Hung delivered another single-punch assault while drunk. Hung was convicted of manslaughter in the Parnell case & assault occasioning bodily harm in the second case. Wally Hung is a violent man from the Planet Stupid or Ignorant. What he is not is ‘rational’, nor are the men & boys who killed the other people named in this article.  If charged & convicted under the new mandatory minimum laws, they would have been locked up for longer periods, but would their behaviour have changed?  Would a 15-year-old sentenced to eight years leave adult prison in his early 20s a reformed character? As Richard Ackland notes in The Age, there are no studies to assess the effectiveness of mandatory minimum sentences as a deterrent to crime in Australia, but US Attorney General Eric Holder (with a wealth of data & research available to him), last year issued a memo urging prosecutors not to lay charges that would trigger mandatory minimums for certain non-violent drug offences.

Worse, we have these bright & shiny punitive measures while services which attempt to address the causes of violence, drug & alcohol abuse are being cut back, or are thin on the ground (NB: I’ve attempted to source this information as widely as possible, if any readers know of preventative or educational strategies & services specifically targeting alcohol, please let me know, I will publish an update).  According to NSW Health’s Mental Health and Drug and Alcohol Office (MHDAO), the NSW Government Drug and Alcohol Budget for the 2013/14 financial year is $170 million, with more than $120 million allocated to Local Health Districts to provide frontline drug and alcohol services, almost all focused on treatment. The rest is farmed out to non-government organisations and other agencies to provide:

  • residential rehabilitation services;
  • education and prevention services; and
  • encouragement to pharmacists to engage with the pharmacotherapy program

NSW Health’s Your Room project produces a fact sheet on alcohol abuse and the ‘Your Guide’ series on dealing with alcohol & how to have a good night out, available here.  Programmes delivered through Life Education NSW cost $20 per student. Receives $1.8 million NSW Government funding (approximately $6 per student); The Department of Education & Communities (DEC) chips in $4 through ‘fundraising and other initiatives’, leaving parents to pick up the rest of the tab. For some people, $10 for a non-compulsory school activity is unaffordable; for many, it’s a disincentive.

Department of Education & Communities’ Drug Education Unit: closed. The Australia Drug Law Reform Foundation’s submission expressed reservations as to whether the Unit’s role had been effectively replaced:

“The highly regarded NSW Alcohol and Drug Education Programme (in the Education Department) has recently been closed. The work on alcohol previously undertaken by this department is now being undertaken by Drinkwise, an organisation which is, in effect, a branch of the alcohol beverage industry.”

DEC responded to the Foundation’s concerns with bureaucratese: the Unit hadn’t closed, it had been recalibrated. Screw that: a dedicated unit established & funded has been abolished, its work now delivered as part of the Personal Development, Health and Physical Education (PDHPE) curriculum. Individual teachers decide how much time is spent on alcohol & drug education. Over years 7 – 10, students undertake 300 hours of PDHPE, while in years 11 and 12, Government school students must participate in the Crossroads program for 25 hours.

According to its website, Drinkwise is funded by the following companies:

  • Accolade Wines Australia Ltd
  • Aldi Stores
  • Bacardi Lion Pty Ltd
  • Beam Global Australia Pty Ltd
  • Brown-Forman Australia Pty Ltd
  • Coles Group Ltd
  • Coopers Brewery Ltd
  • Diageo Australia Ltd
  • Carlton & United Breweries
  • Lion (Lion-Beer, Spirits & Wine Pty Ltd)
  • Moet Hennessy Australia & New Zealand Pty Ltd
  • Premium Wine Brands Pty Ltd
  • Suntory Australia Pty Ltd
  • Treasury Wine Estates Australia Ltd
  • Woolworths Ltd

In 2006 the Howard Government contributed $5 million over 4 years. In 2012 the Gillard Government contributed $600,000 for point of sale educational material to highlight the message ‘it is safest not to drink while pregnant’.  Terrific. We have an ‘epidemic of alcohol-fuelled street violence’ and the body largely entrusted to deliver a preventative strategy is funded by grog merchants and a piss-ant government handout. Six of the 13-member Drinkwise board represent the alcohol industry.

On 31 January 2013, the University of NSW’s National Drug & Alcohol Research Centre announced a new school-based drug & alcohol study of 3,000 Victorian & NSW Year 8 students, one of several projects conducted by a new $2.5 million National Health and Medical Research Council (NHMRC) Centre for Research Excellence (CRE) in Mental Health and Substance Use, launched by then federal Minister for Health Tanya Plibersek and federal Minister for Mental Health and Ageing Mark Butler. Given the Abbott government’s approach to science, research and y’know, facts, we’ll see how long that lasts, and what, if anything, is done with the baseline data.

As for the ‘Newcastle Solution’ and the drop in assaults in non-domestic settings in the ‘CBD entertainment zone’, much is made of the non-displacement of violence, i.e. that drunks aren’t strolling off to venues with close proximity to the lock-out area to continue drinking.  This straw man argument fails to give proportionate weight to the fact that venues in neighbouring suburbs are in largely residential areas & close before the lockouts enforced under the ‘Newcastle Solution’ take effect.  In this eight-page report by researchers from the University of Newcastle & the NSW Bureau of Crime Statistics & Research, only one paragraph acknowledges this as a factor in the non-displacement argument.  Ugly exceptions to the ‘Newcastle Solution’, such as the near fatal assault of 23 year-old Kelsey Johnston on the night Marika Ninness died, are swept under the carpet by its advocates.  Kelsey suffered bleeding on the brain from an alleged single-punch attack outside the Prince of Wales Hotel at Merewether.  Merewether is a few minutes away from the Hamilton end of the lockout zone.  The Prince of Wales closes at midnight.

On International Women’s Day, and the first real test of the new arrangements in inner-city Sydney, I remember Marika Ninness.  While she died outside her home, her alleged killer was her partner.  I remember that among the backflips Barry O’Farrell has performed on mandatory minimums was dumping them for sexual assaults.  I remember that the deaths of 32 women in NSW in domestic violence situations last year sparked… a framework & a task force.  If the epidemic of violence against women in NSW incited a response equal to the moral panic over street violence, we’d remember those 32 names – but it doesn’t, & we don’t.

UPDATE:  Marika’s sister, Charnie Braz, contacted me this week.  Merrick’s next court appearance is scheduled for 9 April 2014.  In Charnie’s words, ‘the best thing you can do for us is promote fair and responsible reporting of violence against women’.  This report by Nick Ralston, Amy Corderoy & Inga Ting in today’s SMH is a step in the right direction. I hope the editors feel their work is worthy of a broader campaign – & at least devote the same coverage to Merrick’s trial as it will Shaun McNeil’s (the man charged with murder over the death of Daniel Christie).

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Killer facts

7 02 2014

There are no facts, only interpretations.

Friedrich Nietzche

On 23 January 2014, the ABC reported the following quote from NSW Bar Association president, Mr Phillip Boulten SC:

“There’s no evidence at all that mandatory sentencing ever decreases the amount of crime that’s committed and it has the ability to act unfairly on vulnerable and disadvantaged groups.

“It isn’t effective, it’s not a deterrent, it just leads to more people being locked up for no good purpose.”

On 5 February 2014, the ABC’s Fact Checking Unit found Boulten SC was ‘overreaching’ in his claim. In determining its ‘verdict’, Fact Check relied on five examples of the outcomes of mandatory minimum sentencing.

Fact Check example: The 1997 Northern Territory Sentencing Act for certain property crimes – repealed in 2001 (property crime went up).

The Act provided a mandatory minimum term of imprisonment of 14 days for a first offence, 90 days for a second property offence and one year for a third property offence (the Act was amended in 1999 to provide for alternatives to sentencing in ‘exceptional circumstances’). The Juvenile Justice Act provided that a person aged 15 to 18 who has been convicted for a certain property offence and has at least one prior conviction for such an offence, must be detained for at least 28 days (with additional measures applicable on top of the mandatory minimum). Until 2000, children between 17-18 years were treated as adults under the Sentencing Act rather than under juvenile justice legislation.

The result was an explosion in incarceration rates, with associated costs, particularly among the Indigenous population, largely due to the inconsistencies of the mandatory sentencing regime. For example, the theft of petrol from a bowser attracted a mandatory sentence, the theft of a tankful of petrol through the use of a fraudulent credit card – a ‘white collar crime’ more likely to be committed by non-Indigenous offenders – did not. In this submission to the UN Human Rights Commission, the Australian Human Rights Commission details research findings & case studies including:

  • Two 17 year old girls with no previous criminal convictions both sentenced to 14 days in prison for theft of clothes from other girls who were staying in the same room.
  • A 15 year old girl was detained for 28 days for unlawful possession of a vehicle – she was a passenger.
  • A 17 year old petrol sniffer from an Aboriginal community was sentenced to seven months plus 120 days for stealing food, alcohol, cigarettes, soft drink and petrol and causing associated minor property damage. The stolen items were consumed with friends. His sentence was based on the mandatory detention formula (120 days) with an additional seven months. He had very little family support and his record was clean until June 1998.
  • A 15 year old Aboriginal boy attempted suicide while in police custody, having been arrested for a mandatory detention offence (property damage). He broke a window after hearing about the suicide of a close friend.
  • A 27 year old white teacher disputed the quality of a hotdog at a Darwin fast food bar and poured water onto the till. She paid in full for the damage she caused. She was sentenced to 14 days in prison.
  • A 29 year old homeless Indigenous man wandered into a backyard when drunk and took a $15 towel. It was his third minor property offence. He was imprisoned for one year.
  • An 18 year old man was sentenced to 90 days in prison for stealing 90 cents from a motor vehicle.

Confession: the 90 days for 90 cents’ worth of petrol is probably the most useful case study I have found to use against the introduction of mandatory minimum sentencing on cost-effectiveness grounds. For this one-cent-a-day crime, taxpayers coughed up about $15,ooo (based on estimates contained in the 1995-96 NT Correctional Services Annual Report).

Fact Check example: Western Australia’s “three-strikes and you’re in” law for home burglaries in 1996.

Fact Check doesn’t assess the efficacy of the 1996 laws at all. Handy. As the adage goes, if you want something done (properly), do it yourself – so I did. The AHRC submission states:

“The Western Australian laws provide that when convicted for a third time or more for a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months imprisonment or detention. This is regardless of the gravity of the offence.”

If the results of research detailed here were not so serious, they’d be laughable:

  • Aboriginal children constituted 80 per cent of the three strikes cases in the Children’s Court of Western Australia from February 1997 to May 1998.
  • In the four months after the amendment of the Act, an average of seven children a month were given mandatory sentences.
  • In 93 per cent of cases where the juvenile was from a non-metropolitan area, the juvenile was Indigenous.
  • 34 per cent of all prisoners in WA were Indigenous.
  • The rate of imprisonment of Indigenous people was 21.7 times higher than that of the non-Indigenous population.
  • Aboriginal juveniles comprise approximately one-third of the Children’s Court caseload.

Fact Check example: mandatory minimum sentences for any assault on a police officer, introduced by WA’s Barnett Government in 2009. Fact Check appears to have relied on this WA Government media release to support its statement that:

“… the results indicate crime decreased under the 2009 legislation which introduced mandatory minimum sentences for police assaults. The then police minister Rob Johnson and attorney-general Christian Porter announced a 28 per cent decrease in assaults on police officers one year after the laws were introduced.”

It’s one thing for a government to trumpet a percentage, but for a fact checking service to report one figure at the top of a press release without any context is inexplicable – particularly when the information is contained on the same page.

Of the 377 offences reported between September 2009 and September 2010 (following the introduction of the mandatory minimum sentence) only 14 charges were brought (12 for bodily harm or grievous bodily harm to a police officer; one against a prison officer, and one against a transit officer approved by police prosecutions central division). At the time of the media release, five offenders were in remand awaiting trial; one offender was subject to a bench warrant; one case was downgraded by the DPP to assault public officer and the other two cases were discontinued. Below is a list of the offences and sentences of five offenders who were found guilty of, or pleaded guilty under the mandatory minimum sentencing laws:

  • Female offender at Kelmscott Train Station bit right arm of a female transit officer causing swelling, bruising and bleeding. The victim was conveyed to hospital for treatment and underwent a blood test due to bodily fluid exposure. Imprisonment nine months
  • Female offender in Rangeway punched a male police officer to the right side of the face causing immediate pain and swelling. The victim required analgesics and pain-killing injection. Imprisonment nine months
  • Male offender on Roe Highway punched a police officer to the mouth causing a large split in the lower lip, which required five stitches, as well as swelling and soreness to the area of his jaw. Imprisonment six months, one day
  • Female offender at Broome Police Station struck a police officer to the face causing bleeding and swelling to the nose. Medical treatment was sought for possible broken nose. Imprisonment six months, one day
  • Female offender in Northbridge punched female police officer to the face causing sustained fractures to left cheekbone, severe soreness in the face with suspected dental complications. Victim will require ongoing treatment. Awaiting sentencing.

Fact Check then takes our mandatory minimum tour to the United States.

Fact Check example: “In 1992, mandatory sentences were introduced for firearm offences in Michigan, Florida and Pennsylvania.”

Hello, Fact Checkers! Anyone home? The Northwestern School of Law study cited was published in 1992. It is based on differing gun laws introduced in 1977 (Michigan, two-year sentence for the possession of a firearm while committing any felony); 1975 (Florida, three-year sentence for persons convicted of committing any of 12 specified felonies while in possession of a firearm), and 1982 (Pennsylvania, five-year minimum sentence for any of seven violent crimes if (1) the offense was committed with visible possession of a firearm; (2) the defendant had been convicted of the same offense within the past seven years; or (3) the crime was committed in or near public transportation facilities).

The authors’ methodology for concluding that mandatory minimum sentencing has reduced gun crime in the three States has been widely criticised. When evaluating data from the sample cities – Detroit (MI); Jacksonville, Tampa, Miami (FL), Philadelphia and Pittsburgh (PA) – specifically, the authors found the following:

  • A statistically significant decrease in the number of gun homicides in Detroit, but no significant change in other offenses. We concluded from this study that the results best fit a model in which the mandatory sentencing law did not have a preventive effect on crime.
  • Significant decreases in Tampa gun homicides and Jacksonville gun assaults. Unarmed robberies increased significantly in Tampa and Miami, but armed robberies did not change. In addition, there was a significant increase in Tampa gun assaults. Again, we concluded that the results did not support a preventive effect model.
  • Statistically significant decreases in gun homicides in both Pittsburgh and Philadelphia. The decrease in Philadelphia gun homi-cides was mirrored by a reduction in non-gun homicides, however, and there was no change in gun assaults or robberies in the state of Pennsylvania. Alone, the Pennsylvania estimates do not strongly challenge the conclusion that the statutes have no preventive effect.

McDowall, Loftin and Wiersema went on to standardise & pool the data they had collected over relatively short & differing post-intervention periods & offences, ranging from twenty-four months for Detroit to sixty-three months for assaults and robberies in the Florida cities.

BADA BING: THEY WERE ABLE TO REACH THE CONCLUSION THAT MANDATORY MINIMUMS WORK IN DECREASING GUN CRIME BY ADDING THE FIGURES TOGETHER.

Venturing out on a limb, the decreases in gun homicides might correlate to advances in medical intervention saving the lives of more gunshot victims in the period between the introduction of mandatory sentencing. Maybe the results are skewed by the short-term nature of the periods studied. Maybe they don’t take into account external factors such as a spike in poverty in Detroit, homelessness & job insecurity, or drug-related crime. Have a look at some more recent state-by-state data: gun homicides are up in Michigan and Pennsylvania, and comprised almost 75 per cent of all homicides in both States. The rate of robberies with firearms was above 50 percent in both States. The rate of assaults using a firearm were an incredible 86 per cent in Michigan (yep, people are shooting each other, but not dying), and 39 per cent in Pennsylvania. As Tony Abbott would say, “baddies” are overwhelmingly the victims: in Philadelphia, the percentage of those killed in gun homicides that had prior criminal records increased from 73 per cent in 1985 to 93 per cent in 1996. Detroit – declared America’s most dangerous city by Forbes magazine four years’ running – is bankrupt. In 2010, 32 children died in gun violence. Of the 500 child homicide deaths in Detroit since 2000, a Detroit News investigation claimed most were gun-related. This data set (from the FBI Uniform Crime Reports) does not contain information from Florida (or Alabama, for that matter). I tried the Florida Department of Law Enforcement, but the website didn’t want to play ball, but as these reports show, while the overall homicide rate in Florida is falling, gun murders are increasing. Between 2007 and 2010, more than 9,000 people died in gun-related violence in the State, which has a population of around 19 million and three times as many gun dealers than post offices.

Fact Check example: “California introduced a three-strikes policy in 1994, which imposed a life sentence for a list of serious and minor crimes if the offender had two previous convictions for crimes defined as serious or violent.” Fact Check refers to a 2007 study to reach its conclusion that the three-strikes policy resulted in a measurable decrease in crime:

“Researchers at George Mason University in Virginia found arrest rates were 17 to 20 per cent lower for the group of offenders convicted of two-strike eligible offences, compared to those convicted of one-strike eligible offences. The authors concluded this indicated that the three-strikes policy was deterring recidivists from committing crimes.”

None of this research (or ABC’s Fact Check) take into account whether mandatory minimums are the best way of curbing crime.

Firstly, mandatory minimums are inconsistently applied: perhaps the most infamous of California’s ‘three strikes’ cases involved Jerry Dewayne Williams, who was sentenced to 25 years in prison just months after the laws were passed. His ‘third strike’? Stealing a slice of pepperoni pizza. In 2010, the Los Angeles Times reported that Williams went back to court following a California Supreme Court ruling that judges could reduce life sentences handed out to ‘third strikers’ by overlooking previous convictions, and was released in 1999. While he claims to ‘live on eggshells’, Williams has skated on incredibly thin ice since his release, with prosecutors not treating a 2003 felony charge of making a criminal threat as a third strikes. Barred from leaving the county following his release from 17 days’  jail, he moved and triggered an arrest warrant which remains active. Since moving, he has been arrested once for being drunk in public but was released without charge.

Secondly, mandatory minimums are not cost-effective: there are increased costs in the court system as more defendants contest charges to try to avoid mandatory penalties where they otherwise may have pleaded guilty. In 1999, Nicholas Cowdery estimated the cost of keep a prisoner imprisoned for a year at about $60,000 and approximately $200,000 to build a new cell. That money could be spent on crime prevention by investing in improving education, pre-school care and health care, especially if targeted at those at risk of offending.

Finally, mandatory minimums do not act as a deterrent (generally or specifically), given that deterrence rests on the assumption that people are rational actors who do a cost/benefit analysis before committing a crime. Much crime, especially violent crime, is impulsive. Mandatory minimums are of little deterrence to the poor & minority groups, leading to over-representation in custody and mandatory minimum sentences applied following relatively minor crimes. In the NT in 1999, an Aboriginal man was sentenced to jail for a year for stealing $23 worth of biscuits & cordial from a Groote Eylandt mine site smoko room (his two previous convictions were for property crimes). In California, about 40 percent of three-strikers are either mentally retarded or mentally ill, & also likely to be black. Blacks make up seven percent of the population, 28 percent of the prison population and 45 percent of the three-strikers (source: Rolling Stone, 27 March 2013. If this compelling Matt Taibbi article does not make you decry mandatory minimum sentences, you should be sentenced to a week in 3rd class to work on reading comprehension).

Fact Check’s final piece of evidence on the ‘overreach’ claim is this 2007 study by the Vera Institute of Justice in New York, which examined the effectiveness of incapacitation (i.e. depriving criminals of the opportunity to offend under all forms of sentencing, mandatory or otherwise). The study estimated that a 10 per cent increase in incarceration rates is associated with a 2 to 4 per cent drop in crime. Fact Check leaves it there. The report goes on to state:

“… the most sophisticated analyses generally agree that increased incarceration rates have some effect on reducing crime, but the scope of that impact is limited… moreover, analysts are nearly unanimous in their conclusion that continued growth in incarceration will prevent considerably fewer, if any, crimes than past increases did and will cost taxpayers substantially more to achieve.

Fact Check sought expert opinion on incapacitation from the chair of the Victorian Sentencing Advisory Council, Arie Freiberg, (incapacitation); on rates of crime from Don Weatherburn, director of the NSW Bureau of Crime Statistics (and Research) and from Professor Geraldine Mackenzie, Dean of the Faculty of Law at Bond University (deterrence). Their verdict? “…there is not much evidence that mandatory sentencing reduces the level of crime being committed, but there is some.”

My verdict? The ABC published Boulten’s ‘none, nyet, nada evidence’ remarks on 23 January. The Fact Check unit chose to examine those words and published its response yesterday. Given the time that elapsed, surely it should have provided further context, such as remarks made by Cowdery in the same piece – (mandatory minimum sentencing) is ‘naive and not supported by research and a lot of work that’s been done in that area’ and/or remarks & statements made by Boulten and others in the intervening period. Yesterday, the Newcastle Herald published an excerpt from an address to Newcastle Court for the opening of the law term by Peter Cummings SC, president of the Newcastle Bar Association as an opinion piece. Cummings SC joined Boulten SC, NSW Supreme Court Chief Justice Tom Bathurst and former Director of Public Prosecutions Nicholas Cowdery in slamming the introduction of ‘one punch’ laws or mandatory minimum sentences.

Fact Check states on its website that its ‘focus will be on statements likely to influence the public debate, rather than minor errors or gotcha moments involving trivial gaffes. Opinions and exaggerated rhetoric will be avoided. Our aim is to be 100 per cent accurate. But if a mistake is made, the item in question will be corrected and the verdict revised. Statements can be both right and wrong, depending on when they were said. Determinations are therefore based on evidence available at the time’.

On these criteria, was Boulten’s claim the most important made in the highly contentious and much-publicised issue of mandatory minimum sentences to be introduced in NSW? Is his voice more likely to influence public debate than the Premier of NSW? Fact Check has not checked other claims on the NSW mandatory minimum sentencing debate, even the claim that Sydney is in the grip of an ‘epidemic of street violence‘.

Yes, pedants: Boulten SC should have replaced ‘none’ with ‘scant’, ‘little’, ‘minimal’, ‘limited’, ‘negligible’, or ‘insufficient’; but in ignoring the content & context of his entire quote and the evidence it used to arrive at its ‘overreach’ verdict, this ‘fact check’ is an unsatisfying waste of bandwidth that leads to more questions than it answers.

Disclosure: I applied for a job as a fact checker with the ABC. I failed (not interviewed). Related: I have the time to write 3,000 words on fact checking.





This is how it feels

4 02 2014

TRIGGER WARNING: DISCUSSION OF CHILD SEXUAL ABUSE

This is how it feels when your word means nothing at all.

~ This Is How It Feels, Inspiral Carpets

Writers write because they must. The never-ending whirring of words in the head; a need, an addiction to fill pages with shades of grey. I have previously written about my childhood sexual abuse and destroyed all of it. I know that the act of writing about my childhood was distressing to many people. I’m not sorry I did it. I found my voice. I’ll leave this post here for a week, and then destroy it, because while what happened is part of me, it is not the whole. This is my lived experience, but I’m not the only one with a cleft in my heart. I also did it out of fear that it separates me from you, from ‘normal’. That I’m marked ‘damaged goods’. That you see me as a hapless victim.

You need to trust me that although this left me on the bathroom floor this morning, dizzy with adrenalin mixed with bile, terrorised by my own body, this is not my life every day. It’s part of who I am, as part of me as the great love of my life, my work & travels. I won’t be boycotting any Woody Allen movies, just as I don’t boycott my own family, but I believe Dylan Farrow. I believe she lives this. I believe whatever the circumstances, she has a right to speak about her life whenever, wherever and to whoever she damned well pleases. I believe that responses like this from novelist Stephen King are the surface of a scab on society, a rarely acknowledged but prevailing view that certain types of people are ‘worthy’ victims, people whose testimony against monsters (even if the decision to speak out, like Dylan Farrow’s, stretches back decades) are judged unimpeachable. They fit an ideal of who or what makes you comfortable when you see news reports about child sexual abuse. I’m sorry that it’s difficult to contemplate the evidence which makes plain that most people who sexually assault children are related to them.

Source: Australian Institute of Criminology, September 2011

I’m sorry that it’s unthinkable someone you know, or are related to, or admire, could do this to a child. I’m sorry that this is not tied up in a little bow for you, that you can’t always hurl anger and accusal at serial perverts & paedophiles. I’m sorry that this is confronting for you, that sometimes all people have is their adult voice, that not all of us speak as seven-year-olds; that you think there are types of credible witnesses; that ‘he/she or he said’ only applies if you judge some people to be ‘true victims’ and others “palpable bitches” because we don’t all act alike, or get our traumatic stories straight all of the time for you.

I’m mostly sorry that some of us never speak at all, because I believe it is never too late.

If you or anyone you know who is experiencing a crisis relating to experiences of child sexual abuse, contact the following organisations listed here.

If you suspect a child is being abused, do not walk by. Some occupations (such as doctors, teachers) are bound by law to report suspected cases of child abuse, but you can call these authorities if you suspect a child is at risk of maltreatment, you may call the authority to discuss your concerns and they will decide whether an investigation is required. Remember: you do not need to be absolutely certain that abuse or neglect of a child has occurred to call these authorities.