Bars, Brutality and Tagged Teens

The latest Australian Bureau of Statistics (ABS) report on incarceration in Australia indicates that the number of adults in Australian prisons increased by 6% (1,700 prisoners) over the year to 30 June 2009.

As at 30 June this year some 29,300 prisoners were held in 'corrective services adult custody', ie an imprisonment rate of 175 prisoners per 100,000 adults. Eight in 10 of those prisoners were born in Australia. (Recent figures on adult and juvenile crime are highlighted here and here.)

The proportional increases were greatest in Western Australia (up by 17%) and the Northern Territory (11% increase). Those jurisdictions also had the highest imprisonment rates (260 and 660 prisoners per 100,000 adults respectively).

56% (ie 16,270) of all prisoners had served a sentence in an adult prison prior to their current incarceration. The most serious offence or charge for nearly 1 in 5 prisoners (5,600 people) was 'acts intending to cause injury'. The most serious offence or charge for older prisoners (those aged 55+) was sexual assault and related offences. The ABS doesn't give a breakdown of sexual and other offences committed by inmates against other prisoners, highlighted in last month's 59 page Predator or Prey? An Exploration of the Impact & Incidence of Sexual Assault in West Australian Prisons [PDF] by Brian Steels & Dot Goulding. (Recent figures on juvenile incarceration are highlighted here; context is provided in the recent Offending Youth: Sex, Crime & Justice (Federation Press, 2009) by Kerry Carrington.)

Prisoners were sentenced to an average prison term of 4.8 years, with an average expected time to serve (the earliest date of release taking into account the type of sentence, good behaviour, time already served, etc) of 3.5 years.

The rate of Indigenous imprisonment continued to rise; the rate was 14 times higher for Indigenous prisoners than non-Indigenous prisoners. However, their average sentence length was less than non-Indigenous prisoners (3.6 years compared to 5.3 years). The ABS notes that the number of women prisoners increased by 57% between 1999 and 2009 compared with a 35% increase in male prisoners during that period.

The Steels & Goulding study, drawn from interviews with 150 ex-prisoners and with prison staff, is consistent with research such as Heilpern's Fear or Favour (1998) which noted that one in four males between 18 and 25 years reported that they had been sexually assaulted while in NSW custody. It indicates that -

• 81 or (54%) of the participants interviewed said they had knowledge of sexual assault in WA prisons.
• 35 or (23.3%) of the participants interviewed disclosed that they had been placed under pressure at some time during their sentence in a WA prison to provide unwanted sexual acts. Most claimed that the incidents occurred within the first six months of their sentence.
• 116 or (77.3%) had knowledge of an assault and had experienced a degree of pressure to perform some kind of sexual act.
• 21 or (14%) of participants said they had been sexually assaulted whilst held in a WA prison.
• 6 or (4%) acknowledged predatory sexual behaviour in prison. 4 of these said they had previously been sexually assaulted in prison themselves.
• 7 or (4.6%) were unsure if sexual assault occurred in prisons or not.
• 4 (2.6%) claimed that sexual assault incidents do not occur in prisons.

The authors comment that Australia as a society is -

measured by our capacity to apply basic human rights, even to those that are being sanctioned by the community, in an institutional setting. That prisoners are the victims of sexual abuse and assault in those very institutions is an indictment on the system that turns a blind eye. This research is confronting. It is by its very nature, shocking.

Sadly, its findings - other than information about the distress experienced by some custodial officers who deal (or in practice don't deal) with the assaults - are not new and one might be sceptical about whether much is going to change in dealing with an environment where -

Prison sexual assault remains largely hidden from public view, is usually left out of corrective services’ annual reports, is frequently ignored by senior policy makers, and goes largely unchallenged by judges and lawyers, creating little more than a disinterested whisper outside of prison walls.

Meanwhile the BBC reports that "the number of young offenders ordered to wear electronic tags in England and Wales has seen a steep rise", with around 20,000 15 to 17-year-olds being tagged last year. More than half of those teenagers - unsurprisingly - "breached their restrictions, either by removing the tags or breaking curfews". Tagging has been adopted for people as young as 10, ostensibly both as a cost-effective alternative to custodial sentences and "to deal with the problem of youngsters who made the lives of others a misery through anti-social behaviour".

The BBC quotes a UK Ministry of Justice spokeswoman as claiming that -

Electronic monitoring provides the courts with a credible alternative to custody. It can be used alone, or as an enhancement to other community interventions. Curfews introduce regularity into what are often chaotic lifestyles. They enhance supervision and can disrupt the pattern of offending behaviour.

The spokesperson did not refer to past criticisms of the way that tagging has been implemented, with for example instances where private security services either ignored automated alerts when tags where removed or simply did not bother to follow-up when tagged teens moved out of a designated precinct.

By the pricking of my thumbs

A woman, according to the ABC, is to appear in a Canadian court "on Christmas Eve" after allegedly posing as a witch "in order to defraud a grieving Toronto lawyer".

The case is attracting attention as a curiosity (grieving lawyer - and you thought they had cheque books rather than hearts - meets fake witch) and for use of a statute that non-specialist assume had vanished through desuetude. One contact responded "... ah, those crazy Canadians - it's a Canadian thing, like Mackenzie King channelling the spirit of his dead mum through his taxidermied dog".

Supposed faux witch Vishwantee Persaud -

was charged under a rarely used section of Canada's criminal code for allegedly pretending to practice witchcraft to convince a man that she was the embodied spirit of his deceased sister. 

She did so, police say, in order to defraud him of tens of thousands of dollars.

"Witchcraft is how she got her hooks into him to commit a larger series of frauds against him," said Detective Constable Corey Jones, who investigated the case. "She claimed to have come from a long line of witches and could read tarot cards, then told him his deceased sister's spirit had returned and inhabited a feminine form close to him - intimating it was her - and that she was going to guide him to financial prosperity and business success."

This allowed her to befriend the victim and become involved in his business dealings, setting the stage for the fraud that was to follow, including fictitious expenses for law school tuition and cancer treatments.

In Canada, as in Australia, it is not an offence to be a witch: providing you meet obligations under food safety, public health, cruelty to animals and other statutes you can cook as many newts and bats in your big black pot as you like and persuade yourself that kissing The Dark Master's hairy btm will confer sundry powers.

It is an offence to defraud people by fraudulently pretend to exercise sorcery, witchcraft or enchantment. The current Canadian 'bogus witching law' reportedly dates from 1892 and has been rarely used. It is presumably Section 365 of the Canadian Criminal Code, which provides that -

Everyone who fraudulently -

a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration
b) undertakes, for a consideration, to tell fortunes, or
c) pretends from his skill in knowledge of an occult or crafty science to discover where or in what manner anything is supposed to have been stolen or lost may be found

is guilty of an offense punishable on summary conviction

A police representative commented that "the law is not directed at witches, but rather at using the pretence of witchcraft to separate someone from their money". Persaud faces up to six months in jail and a fine of C$2,000 for sham witchcraft, along with stiffer penalties under conventional fraud charges.

The shape of Australian 'bogus witch' law has changed in the past two decades. The Vagrants, Gaming and Other Offences Act 1931 (Qld), repealed by the Summary Offences Act 2005 (Qld) for example indicated that anyone "who pretends or professes to tell fortunes for gain or payment of any kind shall be deemed to be a vagrant and shall be liable to a penalty of $100 or to imprisonment for six months". The Justice and Other Legislation (Miscellaneous Provisions) Act 2000 (Qld) removed the offence of "pretending to use witchcraft, sorcery, fortune-telling or other occult science" from the state's Criminal Code of 1899.

Section 432 of that Code was concerned with the offence of "Pretending to Exercise Witchcraft or Tell Fortunes". It provided that -

Any person who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult science to discover where or in what manner anything supposed to have been stolen or lost may be found, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for one year.

Section 40 of the Summary Offences Act 1953 (SA) regarding 'Acting as a spiritualist, medium etc with intent to defraud' stated that -

A person who, with intent to defraud, purports to act as a spiritualist or medium, or to exercise powers of telepathy or clairvoyance or other similar powers, is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years.

The Vagrancy Act 1966 (Vic) more colourfully provided that -

Any person who pretends or professes to tell fortunes or uses any subtle craft means or device by palmistry or otherwise to defraud or impose on any other person or pretends to exercise or use any kind of witchcraft, sorcery, enchantment or conjuration or pretends from his skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels stolen or lost may be found shall be guilty of an offence.

Blinded by the light

The BBC reports on prosecutions regarding misuse of laser pointers, eg pointing one at a police helicopter rather than at the ppoint slide.

The item rather chirpily comments that UK -

courts have never been busier. On Thursday 9 December Liam Coe, 21, from Hollingworth in Greater Manchester, was jailed for four months for shining a beam at a police helicopter during observations.

While on Friday 10 December, Jomir Ali, 20, from Oxford, was given 200 hours community service for directing a laser at a police helicopter over the city, temporarily blinding the crew.

And last month 25-year-old Richard Wakeman, of Fareham in Hampshire, was given a suspended jail sentence for targeting a police aircraft.

Those caught are charged under article 73 of the Air Navigation Order for recklessly endangering an aircraft - a penalty carrying a maximum five-year jail term. It is the same charge used in air rage cases

Concerns about laser pointers in Australia have been reflected in proposals such as the Police Offences Amendment (Laser Pointers) Bill 2009 (Tas), Criminal Code (Rock Throwing and Laser Pointing) Amendment 2009 (WA) and Criminal Code Amendment Bill (No. 2) 2009 (WA).

Clause 4 of the WA Crim Code Amendment Bill for example provides that it would be a crime to cause a person fear or alarm by "shining a laser or other narrow beam of light at the person without lawful excuse", attracting a maximum penalty of 7 years imprisonment. The amendment indicates that the offence typically occurs when a laser pointer is directed at an aircraft.

Misuse of lasers against aircraft would presumably be caught under statutes such as the Aircraft Offences Act 1971 (SA) s 10, Law Enforcement (Powers & Responsibilities) Act 2002 (NSW). Some jurisdictions have moved to characterising hand-held lasers as prohibited weapons, analogous to bans on knives.

Section 11FA of the Summary Offences Act 1998 (NSW) - discussed here - provides for an offence of possession of any kind of laser pointer in a public place without a reasonable excuse, with a penalty of up to two years imprisonment or a fine of up to $5,500.

Importation of laser pointers is controlled under the Customs (Prohibited Imports) Regulations 1956 (Cth).

Dead fish and rotten reviews

I'm reading Matthew Evans' Never Order Chicken On A Monday: Kitchen Chronicles of an Undercover Food Critic (Random House, 2007), an engaging addition to the genre that features works such as Mimi Sheraton's Eating My Words: An Appetite For Life (Morrow, 2004) and other accounts by reviewers.

A reader has pointed out a spirited and astute review by David Rieff of Daniel Goldhagen's Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity (PublicAffairs, 2009).

Rieff comments that -

It is hard to believe that the erstwhile–Harvard political scientist turned full-time moralist, pro-Israel polemicist and amateur historian Daniel Jonah Goldhagen could have a more devoted admirer than, well, Daniel Jonah Goldhagen. In his first book, Hitler’s Willing Executioners, he stated baldly that explaining why the Holocaust occurred required a radical revision of “what has until now been written” and that his book was that revision. His next effort, A Moral Reckoning, claimed to expose the malign role of the Catholic Church not only during the Holocaust but pretty much from its inception, since, according to Goldhagen, the Church had been the central locus of Western anti-Semitism almost from its founding.

Having, by his own lights, first single-handedly rebutted what he called the "false paradigm" about the Holocaust, replaced its mendacities with his true rendering, before finally unmasking the Catholic Church and its clergy’s enormous “crimes and transgressions,” the historical contours of which, he has said, "no one can rightly deny", Goldhagen has now written Worse Than War, a book whose modest goal is to "reconceptualize, understand anew, interpret differently, explain adequately, and to propose workable responses to [the] catastrophic and systematic problem of eliminationism".

And on the seventh day, He rested.

Worse Than War is, depending on your point of view, either the logical conclusion of the path Goldhagen has been taking for the past fifteen years or its reductio ad absurdum. Despite Goldhagen’s extraordinary claims, he himself concedes in his unwittingly revealing afterword that he is not presenting much in the way of original research. That, however, is just fine with him since, as he puts it, the book "is not meant to be an exhaustive documentation of any individual mass murderer, let alone a history of our time’s sweep of mass murders, let alone eliminations".

Why his decision to write books that, to use a self-description he employed at the time of the publication of A Moral Reckoning in 2003, are "primarily about morality, not history", while simultaneously claiming for himself the authority to denounce or condescend to (condescension being a Goldhagen trope) the work of many of the finest historians working today should be just fine with us is another subject matter.

Rieff notes that -

This pattern began with Hitler's Willing Executioners, where, when he wasn’t busy laying down the moral law, Goldhagen was largely arguing against the historiographical consensus about the Holocaust (the great Holocaust scholar, Raul Hilberg, drew his particular scorn). If he had an essentialist view of German history from the early nineteenth century to the fall of Berlin in 1945 (that essence, broadly speaking, being what he calls eliminationist anti-Semitism), Goldhagen felt equally confident in his ability to discern and lavishly praise the moral regeneration of the post-Nazi German state and society.

The problem, whether when he was doling out praise or blame, as the historian of Nazism Christopher Browning (Goldhagen's bête noire in Hitler’s Willing Executioners) pointed out more than a decade ago, is that Goldhagen has shown a tendency in his work to claim to be blazing new trails in understanding when, in reality, his own views are not so far as he imagines from the conventional wisdom he so excoriates and about which he claims to be writing to correct and reform.

Further -

Worse Than War has some of this same reinvent-the-wheel quality to it. In fact, while Worse Than War is both long and turgid, it is rather less of an accomplishment than either its length or Goldhagen's claims for the work might lead the reader to assume.

As with his analysis of what he called German eliminationist anti-Semitism in Hitler's Willing Executioners and the Catholic Church's systemic culpability in A Moral Reckoning, in Worse Than War, Goldhagen again makes the sweeping claim that pretty much every government, institution and even most individuals have been unwilling to face the problem of genocide forthrightly and, more crucially, to understand its real nature. Enter Daniel Jonah Goldhagen, explanatory key and, in this case, institutional responses and policy solutions in hand. The man really does give self-love a bad name.

If Goldhagen was grandiose in his earlier books, the terms of reference he lays down in "The Choice", the stentorian title of his preface to Worse Than War, make his previous claims seem paltry by comparison ....

Unsurprisingly, in his own eyes he has succeeded brilliantly. In an afterword entitled "Thoughts and Thanks" — which is part self-promotion, part the conventional contemporary writer's boilerplate (thanks to nearest, dearest publishers, agents and institutions), and part childish score settling with critics and academic specialists with whom he has crossed swords in the past — Goldhagen claims to have "substantially recast our understanding of the phenomenon".

And on it goes.

Australian judiciary

The Senate Legal & Constitutional Affairs Committee has released its 148 page report on Australia's Judicial System and the Role of Judges. The document is now attracting attention regarding recommendations on appointments to the bench.

In Recommendation 1 the Committee suggests that the High Court adopt a written complaint handling policy (which would be made public). The recommended timeframe for action is within 1 month of the tabling of the Committee's report.

As its second recommendation the committee suggests that all federal courts publish quarterly complaint-handling summaries on their websites. The summaries would record the number of complaints received, the date each complaint was received, the nature of the complaint, the date on which it was resolved and an indication of any action taken in response to the complaint. No personal details of the complainant or judicial officer would be identifiable.

In dealing with the contentious matter of judicial appointments (perhaps one of the more astute senators or their minders has been reading comments by Bede Harris) the committee recommends that when appointment of a federal judicial officer is announced the Attorney-General should publish the number of nominations and applications for each vacancy. If the government or department prepared a short-list of candidates the number of people on that list should also be made public.

Under recommendation 4 the committee suggests that -

the process for appointments to the High Court should be principled and transparent. The committee recommends that the Attorney-General should adopt a process that includes advertising vacancies widely and should confirm that selection is based on merit and should detail the selection criteria that constitute merit for appointment to the High Court.

It goes on to recommend that all jurisdictions set a nationally consistent compulsory retirement age for judicial officers, and encourages each jurisdiction to implement that standard within the next four years. At the next Commonwealth referendum section 72 of the Constitution should be amended to provide that federal judicial officers are appointed until an age fixed by Parliament.

It also recommends that by 30 June 2010 the Attorney-General develop and implement a protocol that provides "guidelines to federal courts for the appropriate use of short and long term part-time working arrangements for judicial officers", with that protocol being discussed at the first meeting of the Standing Committee of Attorneys‑General after 30 June 2010.

The committee recommends that the Commonwealth government establish a federal judicial commission, modelled on the Judicial Commission of New South Wales. The new body would have three functions: judicial education, complaints handling and assisting courts to achieve consistency in sentencing. Functions of the National Judicial College of Australia would be incorporated into the new judicial commission.

In Recommendation 16 the committee recommends that by 30 June 2010 the government -

* implement a federal process enabling it to establish an ad hoc tribunal when one is needed to investigate complaints of judicial misconduct or incapacity;

* establish guidelines for the investigation of less serious misconduct or incapacity issues; and

* implement the Family Court and Federal Magistrates Court proposal for an oversight committee.

Red, sweet and confusing

Mars Confectionary - the local arm of the US-based sweets & petfood conglomerate - has lost an appeal in the Federal Court over the decision in Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606 regarding alleged infringement under the Trade Marks Act 1995 (Cth) [here] and passing off under the Trade Practices Act 1974 (Cth).

Mars had claimed that the packaging and the name of 'Malt Balls' from competitor Sweet Rewards of represented passing off, misleading conduct, false representations and infringement of trade marks regarding its 'Maltesers' mark. Perram J, in the court of first instance, was unconvinced.

In a judgement that cited standard cases such as Conagra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159; (1992) 33 FCR 302, Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd (2004) 61 IPR 212, Reckitt & Colman Products Ltd v Borden Inc (1990) 17 IPR 1 and
TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43 Perram noted that "The marketing of Maltesers is a serious business reflecting the very large revenues at stake in the bite-size confectionary market in this country".

Mars criticised packaging of the 'Malt Balls' in jars with red and orange labels, claiming that -

first ... their distribution is unlawful because, broadly speaking, the jars wrongly suggest a connexion between the Malt Balls product and the Maltesers product which does not exist; secondly ... both jars represent to consumers that their contents are the same as Maltesers when, in fact, they are not; thirdly ... the use on the jars of a label with floating chocolate balls, some of which are sliced through showing a yellow filling, misleadingly suggests to consumers much the same thing; finally ... the jars infringe two registered trade marks owned by it.

In dismissing an appeal the court agreed that Maltesers are so well-known that consumers would not confuse the two products.

The judgement from earlier thgis year is worth reading for Perram's dry wit, some of the explanations ("During a slow part of the trial" one witness testified that a particular label was chosen because the others were "hideous"), and discovery of marketing of a chocolate-covered lentil with the name Cha-Cha. Beats chocolate-covered ants and cockroaches but I do hope that no-one is planning to give me a jar of chocky lentils for Christmas.

There was an old man named Lear ...

After a night preparing a lecture on the Foreign Acquisitions & Takeovers Act 1975 (Cth) I can't resist the following para from the DNB biography of economist Joan Robinson -

Joan Robinson was a fellow of the British Academy from 1958 to 1971. She was elected to an unofficial fellowship at Newnham College, Cambridge, in 1962 and to a professorial fellowship in 1965. She became an honorary fellow of Girton in 1965, of Newnham in 1971 when she retired from her chair, and of King's College, Cambridge, in 1979. A strict vegetarian, in her later years she slept all year round in a small unheated hut, open on one side, at the bottom of her garden at 62 Grange Road, Cambridge. In spring the tits would wake her by pecking at her long grey hair for material for their nests.

Nicer, I think, to be woken by your dog licking your hand but 'woken by nest-builders' (particularly if they sing while extracting your hair) is a good way to start the day.

On the subject of sleep (or lack of it, once you are chased by lawyers rather than small birds) I note Warwick Rothnie's post on Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2009] FCA 1163, in which Jessup J found that Chiropedic's design for a mattress and base was protected under the Designs Act 1906 (Cth) and had been infringed by some of Radburg's competing mattresses.