The perils of penal reform

horrellThe effective sacking of NT Corrective Services Commissioner Ken Middlebrook is sad but politically inevitable.  It came in the wake of the escape and subsequent voluntary surrender of axe murder and rapist Edward Horrell from a Sentenced to a Job work gang near Nhulunbuy.

Minister John Elferink had emphasised after some earlier Sentenced to a Job escapes that only low security prisoners were permitted to participate in the program and that sexual assault offenders were absolutely banned.  In view of that promise, Horrell should not have been on the program and it was appropriate that Middlebrook as the Commissioner should tender his resignation in those circumstances.  A Prison Officers’ Association spokesperson asserted that Horrell’s admission to the program could only have been personally approved by the Commissioner.

Some have suggested that Minister Elferink should also have resigned or been sacked as a result.  However that does not reflect the modern Australian concept of Ministerial responsibility unless Elferink knew Horrell or other sex offenders were being allowed to participate, or unless personal not just organisational organisational responsibility could be sheeted home to him for some other reason.  As Richard Mulgan explains:

Whether ministers do resign depends on a range of factors, including the seriousness of the alleged failure, the extent of the minister’s personal responsibility and a political calculation (ultimately by the prime minister) about the consequences for the government’s standing of either accepting or rejecting the resignation.

The fact that Elferink had felt compelled to promise that sexual assault offenders were banned from the program was no doubt politically necessary to maintain public confidence in Sentenced to a Job, but that doesn’t mean an absolute ban on rapists (or for that matter murderers) actually makes sense from a rational policy perspective.  Almost all of them will eventually be released into the community, hopefully initially under reasonably stringent parole supervision, and so reducing recidivism (re-offending) is a critical aspect of any effective crime reduction strategy.  NT recidivism rates typically run at more than 50% after 2 years.  In other words, half of all prisoners released will have committed another crime serious enough to land them back in prison within 2 years of release.

In those circumstances, clearly any well designed program aiming at providing prisoners with job skills and on-the-job experience and life skills (like Sentenced to a Job) is a good idea and should be endorsed and supported by the public.  Similarly with parole supervision programs that provide appropriate levels of support after release to give offenders a good chance to “go straight” and settle into a productive, law-abiding life in the community.

That objective is at least as valid and important for rapists and murderers as for any other offender, although obviously community protection will assume a higher priority as against rehabilitation than with less potentially dangerous categories of offenders.  However, it would appear that Horrell had already served 20 years imprisonment, had been well behaved in prison, and was classified as low security.  That would suggest he may well have been an appropriate candidate for a work release program, rather than releasing him directly into the community without any such preparation, had it not been for Minister Elferink’s promise that no sexual assault offenders would ever be allowed to participate.

A version of Daniel’s Law (publication of names and contact details of convicted and released serious sex offenders) is proposed for introduction in the NT.  It raises similar concerns about its effect on recidivism, as criminal lawyer Russell Goldflam persuasively argues.

It will always be politically difficult to implement and maintain public confidence in programs aimed at reducing recidivism, even though they are demonstrably important aspects of crime reduction, an objective everyone professes to support.  It is always easy to whip up a “soft on crime” scare campaign when a prisoner or parolee escapes or commits another high profile crime (as will inevitably occasionally happen in the best designed and administered system). Oppositions seldom resist the temptation to run an expedient “law and order” campaign in those circumstances.

Minister Elferink deserves credit for introducing and continuing to support Sentenced to a Job despite media and public controversy.  He deserves no credit at all for introducing Daniel’s Law: a stupid, populist measure which will ultimately prove counter-productive and make crime worse rather than better.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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10 Responses to The perils of penal reform

  1. GrueBleen says:

    “Whether ministers do resign depends on a range of factors, … the extent of the minister’s personal responsibility… ”

    But the Minister always has “personal responsibility”. It isn’t good enough for a minister just to issue some statement into the ether and then walk away. His “personal responsibility” includes ensuring that his order is being obeyed. Trust, yeah, but also verify – isn’t that the winning formula ? If there’s no process of verification – as very clearly there wasn’t – then it’s just farting into the wind.

    “…to give offenders a good chance to “go straight” …” “That objective is at least as valid and important for rapists and murderers as for any other offender …”

    Are you one of those of “the left” who valorize victims ? In this case, the “victims” of a process of law which has convicted them of serious anti-humanity crimes. I think you should spend some time talking to Nicholas about that: even if there’s much less than the 50% chance of recidivism you’ve stated, then Nicholas – and, I confess, me – would want the convicted criminal shut away for his or her lifetime ie, until they actually die.

    But then, I guess that makes me and Nicholas of “the right”, yes ?

  2. derrida derider says:

    Yes, that is a horrific recidivism rate, and if it holds for very serious offenders – something I doubt as it is probably Territorians getting into drunken brawls who account for the bulk of that figure – then that rate should be lowered by simply not releasing them. Incapacitation is the sole method by which prison reduces crime.

    But as long as you are going to release them then putting them into something like Sentenced to a Job when they are near the end of their time seems sensible – after all only a fool would escape if they had less than a year left. How long did Horrell have to go?

    • GrueBleen says:


      Yes I agree that probably the dominant component of the recidivism rate would be the kind of stuff you’ve listed. But then, even that can have dire consequences as, for example, if a recidivist drunkard insists on driving a car or when street brawls end up with ‘one punch’ deaths.

      As to Horrell, that he was in the Sentenced to a Job scheme indicates that he probably didn’t have all that long to go (though I don’t know the actual time and Ken’s link didn’t give details), but by absconding he’s shown that he might just have a tendency to be undisciplined. Not a real good attribute for a rapist and axe murder who’s about to be loosed back into society.

      Australia does seem to get its fair share of serial rapists and/or killers which our judiciary appears to delight in releasing to see if they’ll do it once again.

  3. ChrisB says:

    Well, to be fair, while I’m left enough to think that never-to-be-released is a rotten idea a back-of-the-envelope calculation based on ABS figures ([email protected]/mf/4517.0) suggest that it wouldn’t make that much difference in incarceration rates when compared to the ever-upwards secular trend.

    • GrueBleen says:

      Yeah, ChrisB, I reckon never-to-be-released is a rotten idea too. It’s just that I think that to-be-released-so-they-can-do-it-again (and again and again – how many women had Jill Maher’s killer raped while on parole ?) is a much rottener idea.

      So much rottener, indeed, that I’m totally against it.

  4. ChrisB says:

    OK, GB, just to get some kind of an idea how your plan would work without the wisdom of hindsight, what proportion of offenders are “not to-be-released-so-they-can-do-it-again”?
    Given that 50% reoffend, and approximately 25% presumably re-reoffend, and 12 1/2% rrro – (again and again and again) – what proportion of them?
    Before we discuss any of the philosophical or moral issues, let’s check out the actual proportion of cases where you know better than the judges and the parole board.

    • GrueBleen says:

      Ok ChrisB, why are you trying to get me to identify a number when I’ve made it abundantly plain that what I object to is releasing people convicted of anti-humanity crimes.

      So, simply, nobody convicted of murder and nobody convicted of rape (especially those convicted of rape with violence) are to ever be released.

      Is that clear now ?

      As to your attempt to drag that delusion of human imagining, “morality” into this very simple matter of basic ‘self protection’, well that’s your issue. But feel free to attempt to describe where “morality” comes into this or any other human judicial activity.

  5. Ken Parish says:

    A few points relevant to my primary post (and an earlier comment by GB):

    (1) Murder in the NT carries life imprisonment with mandatory minimum non-parole period of 20 years in most cases (more for cop killers etc).

    (2) The NT is the heaviest sentencing jurisdiction in Australia and also has by far the worst crime rates.

    (3) Horrell committed murder and rape and has served 20 years. News stories said he had been well behaved in prison with a couple of exceptions years ago. On those facts it is likely he would be up for parole soon.

    (4) In those circumstances, suggesting the potential desirability of supervised work release and other programs to prepare him for release into the community on parole is logically sensible and neither “left” nor “right”. The alternative would be to release him into the community with no preparation at all, thereby failing to address the risk of recidivism.

    (5) Of course it’s true that society would not face that practical dilemma if you simply kept all murderers and rapists in prison until they died. However that is not the situation in any part of Australia (or any other western nation to the best of my knowledge).

    (6) Moreover it would raise a host of other major problems, not least the cost burden of doing so, including cost/benefit analysis (as DD mentions). I’m not sure how ChrisB managed to conclude that locking all of them up for life wouldn’t make much difference in cost terms. Relatively recent figures indicate that the average actual term of imprisonment for sexual assaults in Australia is around 7 years, and the average age of offenders is 39 years old. Given that the average male lifespan is now around 80 years, you are talking about multiplying the average term of imprisonment by 600%. It costs around $100,000 per year to keep an offender in prison. Thus current sentencing practices cost the taxpayer around $700,000 per rapist. GB’s proposal would increase that to $4.2 million per rapist. And since only around 15% of offenders keep committing such offences beyond about the age of 50, most of that money would be spent for a fairly marginal practical purpose.

    (7) BTW If you had read my posts here at Troppo for any significant period of time you would not refer to me as a “lefty” on most issues and especially not on this one. In fact my family have been victims of a murder as horrible in its own way as that committed by Edward Horrell. Like Horrell, the murderer has also now served 20 years and is also eligible to seek parole. Fortunately he is 80 years old and apparently intends going straight to Queensland to live when released so he probably doesn’t pose a threat to us. But we can’t be sure and we are quite nervous. It was such a bizarre and inexplicable homicide; the explanation might be true but makes no rational sense. We’ll certainly be watching our backs when he’s released at least until we’re sure he’s gone to Queensland. It’s a good idea to know who you’re talking to if contemplating making grossly offensive comments like the first on on this thread by GB.

    (8) Though not as offensive to me in a personal sense, IMO GB’s attempt to characterise a single homicide (however violent) as a “crime against humanity” analogous to the Nazi Holocaust is also deeply offensive.

    Nevertheless I’m reasonably confident that GB is not a calculating troll, just a bloke who opens his mouth without thinking very much.

    Note I have previously written about murderer/rapists and parole in the specific context of the murder of Jill Meagher here. Incidentally, Dr Allen Bartholomew, quoted in my post in relation to serial child killer Derek Percy, was also the key Crown witness whose evidence ensured that my wife’s mother’s killer got life for murder rather than 4 or 5 years for manslaughter due to “diminished responsibility”.

    • conrad says:

      Just as a random comment on your point (6), it’s curious how old the median age and how wide the range is for sexual assault — This gives some reasonable evidence for the comments on your linked article about Jill Meagher versus just psychological profiling. This really suggests that the profiles of different crimes and criminals are very different, and so presumably should affect how long you keep people in until you can consider them safe for the community. In this respect, this type of crime might need longer sentencing than the senseless violence only type crime which generally is far more restricted in its age range.

    • ChrisB says:

      I didn’t say it wouldn’t make any difference: I said it wouldn’t make much difference compared with the secular trend, which is rising sharply. I was working on the back-of-the-envelope calculations of 3% of offenders going from 10-year sentences to never being released, and that would mean that each year 10% of that 3% of offenders – approximately .3% – were added to the eternals. That compares to a p/a increase in imprisonment stats over the last decade of 3.4%, approximately 10 times the size.
      Mind you, I said 3% on the basis that only a tenth of sex offenders/murderers would fall in the nevertobereleased category; now GB has upped it to ‘nobody convicted of murder and nobody convicted of rape” that raises the base rate to 21% (murders and sexual assaults Australia-wide) and therefore the p/a increment to 2.1%.
      All these are very rough figures, and at that rate would need quite a lot of adjustment to allow for reoffending rates; I’m just talking order-of-magnitude figures here. A rough guess, still, is that (if all murderers and rapists were lifers) instead of going up by 39% 2004-14 (19% adjusted for population growth) incarceration would have gone up by 72% (46%) – very roughly an extra 8,000 people. On KP’s figures, 800 million extra dollars every year, compounding. That figure’s overstated, for several reasons, but I’d say that half a billion was fair.
      So the question for GB is whether he thinks more lives would be saved by using that half a billion dollars for locking people up or on something else.

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