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.