When Prisons are
Beyond the Law, The Sydney Morning Herald, October 24, 2002.
There is something seriously wrong when NSW prisons are too dangerous even
for those convicted of violent crime. Yet that is how the prison system
appears to no less a figure than the District Court's acting Judge Donald
Stewart (former chairman of the National Crime Authority, former royal
commissioner and former Supreme Court judge). Judge Stewart has decided
not to send a young carjacker to jail to await sentencing because "what
might, and probably will, face this young man ... does not bear speaking
about". And so Ali El Etri will remain on bail after pleading guilty to
charges including aggravated carjacking which carries a penalty of up to
14 years in jail. El Etri and a 30-year-old accomplice had lain in wait
for a Sydney solicitor then stole her Porsche Boxster at gunpoint.
The community may well feel that those who terrorise others in this
fashion should be off the streets. However, Judge Stewart was clearly
apprehensive about what might befall a good-looking 20-year-old in a NSW
jail. Judge Stewart said he wanted to dispel "any romantic ideas people
have about jail. It is not a cushy number", and noted there had been a
weekend newspaper report on rape in prisons. His Honour may well have been
referring to the Good Weekend cover story which painted a horrifying
picture of jails where the rape of prisoners by other prisoners had become
routine. A NSW magistrate, David Heilpern, told the magazine that up to 25
per cent of young men in NSW jails had been raped, some every day. Other
experts interviewed by the Good Weekend thought Mr Heilpern's figure was
conservative. Yet those who are sexually assaulted are reluctant to
complain to authorities for fear of retribution from other prisoners. And
all this in a state which jails more than 15,000 people a year - almost
twice the per capita rate of Victoria, for example.
"People are not sent to jail to be punished, they are sent to jail as
punishment," Judge Stewart said on Monday when continuing El Etri's bail.
It is not clear what the judge may do when the time comes to sentence El
Etri on December 13. Meanwhile, he has made a valid point. While
governments may introduce tough laws against crime, respect for the law
also means that they must accept full responsibility to protect criminals
from punishment beyond what the law prescribes.