Another crime-friendly DPP -- in Western Australia

The NSW DPP is notorious. Prosecutors are bureaucrats and bureaucrats don't try hard. They just want an easy life

THE State's prosecution lawyers have been accused of downgrading, downplaying and interfering in serious criminal charges, undermining the justice system.

[Police prosecutors] have presented their allegations to the WA Police Union, saying they have been driven to raise ``concern and dissent'' because of the number of ``correctly laid'' charges downgraded to lesser crimes by lawyers from the Office of the Director of Public Prosecution in recent months. The police prosecutors say offences are being downplayed and then sent from higher courts to magistrates courts where penalties are lighter. This is happening without the knowledge of victims.

In a document prepared for their union and obtained by The Sunday Times, police prosecutors claim DPP prosecutors ``are interfering in the autonomy of charging officers by amending correctly laid charges''. The police officers say the Office of the DPP is meeting the needs of an overburdened District Court, ``rather than representing the interest of the victim and the community they are supposed to represent''.

The union yesterday called for a parliamentary inquiry and the Opposition demanded a review of all indictable cases from the last year. Union president Mike Dean said he was appalled. ``It's deceiving the courts and interfering with justice,'' he said. Opposition police spokeswoman Margaret Quirk said last night: ``If the (Office of the) DPP is deflating the seriousness of offences so they are more likely to get a guilty plea, then it seriously undermines the justice system.'' Police Commissioner Karl O'Callaghan has also called for a report from his senior court prosecution staff.

In their complaint police prosecutors have highlighted several cases in which they claim charges have been downgraded: A charge of possession with intent to sell and supply 200 dexamphetamine tablets (40g), reduced to a simple possession and sent back to a magistrates court. In a theft case a $60,000 boat was amended to a $9999 dinghy. This meant the matter could be dealt with in a lower court because the value was under $10,000, but the owner of the stolen property could not recoup his money. Other charges reduced included:

* Sell and supply 6.85g of amphetamine reduced to possession.

* Sell and supply 4.53g of amphetamine reduced to possession.

* Stealing a motor vehicle and reckless driving sent to magistrates because department prosecutors did not think it was serious.

* Aggravated burglary and stealing charges reduced to trespass and stealing.

* Stealing with violence reduced to assault and stealing.

* Aggravated burglary and assault reduced to trespass and assault.

A spokeswoman for the Director of Public Prosecutions Robert Cock said: ``This office would not be a party to misleading a magistrate about an offence or the true value of property. "These issues are not as clear or straightforward as they appear. The boat matter had been brought to his (Mr Cock's) attention and he has asked police prosecution to provide details. He has still not received the details.''

The document states one police prosecutor ``vehemently opposed'' a change so much that the DPP prosecutor returned to the office and laid a complaint.

There are about 80 police prosecutors who say they are now being forced to handle the same complex matters dealt with by DPP prosecutors in the District and Supreme courts. They say they will become overburdened, with indictable matters being amended by DPP prosecutors and sent back to magistrates courts. They also believe the police service will be put at risk of legal action by victims of crime who believe they have not been fairly represented.

Opposition police spokeswoman and former National Crime Authority lawyer Margaret Quirk said: ``The Government needs to audit all indictable cases from the last 12 months to see how widespread the problem is. ``Hopefully, it is not happening on a wide scale, but the indications are that it may be. ``It's extremely disturbing and little wonder that the community is somewhat disillusioned with the criminal justice system. Frustration will only grow if charges do not adequately reflect the true level of criminality of an offence.''

Ms Quirk said repeated downgrading of serious criminal charges was seriously undermining the justice system. ``This is a betrayal of community trust,'' she said.

Mr Dean said: ``These cases are designated to be dealt with by the (Office of the) DPP in the upper courts, they should not be dealt with in such a frivolous matter.'' Attorney-General Christian Porter said he would consider the report when it was made available to him.

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Welfare reform coming?

DISABILITY pensioners will face stronger pressure to return to work under reforms flagged by the Treasury Secretary, Ken Henry, as the Federal Government faces a blow-out in welfare costs. Dr Henry told a conference in Sydney yesterday that the pension and the public housing system discouraged people from joining the workforce.

A clearer picture is emerging of where the Henry tax review - the broadest inquiry into the system ever held - is heading. Tax on business is likely to fall, while the review will suggest to the Government that it takes a knife to anomalies within the network of taxes and family and welfare payments.

In his speech yesterday Dr Henry emphasised the aim was to make the system fairer - by minimising quirks as well as providing for the disadvantaged. He highlighted as a concern the gap between the Newstart Allowance for the unemployed and the disability support pension. The disability pension is worth about $70 a week more than Newstart, and recipients can earn more before losing payments. "In fact, if you are in the grey area between unemployment and disability it seems better in every way to be on DSP."

Some people were not able to work, but "I wonder whether we couldn't redesign the system to reduce disincentives to workforce participation", Dr Henry said at the Australian Council of Social Service national conference. Redesigning the system could mean making it more difficult to receive the pension, along the lines of policies introduced by the Howard government.

The president of ACOSS, Lin Hatfield Dodds, said Dr Henry made it clear there were preferable options to leaving people parked on a disability pension. "At the moment there is a perverse incentive for Australians on pension payments to prove they are unable to work so they can stay on the higher rate pension of around $300 a week rather than be moved to a lower-paid allowance of around $225 a week," she said. She hoped the Henry review would endorse the council's proposal for a single adequate payment for all Australians on welfare to end the distinction between pensions and lower-paid allowances.

Dr Henry said his review had not reached any conclusions about the distinctions between various payments. The disability pension looms as a problem for the Government as unemployment increases. Between 1990 and 1993, in the previous recession, the number of recipients rose from 300,000 to 400,000. At present there are about 725,000 recipients.

Dr Henry warned yesterday that unemployment would climb above the forecast 7 per cent. He also highlighted a gap between public housing and rent assistance payments. While the public housing system is more generous, it discourages people from working as rents are linked to income. Dr Henry said it was not obvious why there should be two different sets of policies for the one purpose of subsidising housing. "Perhaps it would be better if low-income earners received the same assistance, irrespective of whether their landlord was the state or in the private sector," he said.

The parliamentary secretary for disabilities and children's services, Bill Shorten, said employer attitudes played a big part in keeping people with disabilities out of the workforce. "There's an inbuilt prejudice there," he told the Herald. Mr Shorten said the Government was working on ideas to encourage businesses to take on disabled employees.

Another member of the Henry tax review, Greg Smith, this week told an Australian National University conference that business taxes would form the thrust of the review. "The big issue is whether we should reduce the tax burden on business." The Henry review will report by the end of the year. It is expected to emphasise a long-term vision for reform rather than policies that can be adopted immediately.

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Fathers getting more recognition

It was once widely assumed that children were better off with their mothers, especially after divorce. In part, that was because mothers did most of the child-rearing. They got pregnant, gave birth and did most of the heavy lifting - nappy changes, toilet-training and school pick-ups - as the children got older.

The role played by fathers, for many years, was assumed to be mainly financial: he was the breadwinner and often the person who provided the discipline.

Things have changed. This week, The Australian reported on an extraordinary Family Court decision - in the sense that it was completely out of the ordinary - to remove two children who had been living with their mother in Tasmania since their parents separated in 2005 and send them to live with their father and his girlfriend in Melbourne. There was no suggestion of physical abuse or neglect in the case known as Irish and Michelle (2009).

The facts are this: The couple separated in 2005; the father met a woman and moved to Melbourne to be with her in 2006; his children (a daughter, then aged six, and a son, then four) stayed with their mother in a Tasmanian country town. The mother - known in court documents as Ms Michelle - reorganised her working day so she could spend more time with the children. She had a limited income (less than $500 a week) but the father didn't earn much more (he works as a firefighter and makes about $50,000 a year, minus child support for two children).

The mother has a house with a front garden and a back yard for the children to play, and they live next door to their grandparents, who help out. Her father is a well-known, successful Tasmanian businessman.

The children's father - known in court documents as Mr Irish - works shifts: four days on, four days off, and often through the night. He has always had access to his children, but recently the change-overs had become difficult. He would turn up in Tasmania to take the children for holidays, and they would say: "I don't want to go" or "I don't have to go". On one occasion, witnessed by a child psychologist, the girl tried to climb out of his car window rather than go with him for a weekend. The father believed his relationship with the children was being eroded, that his daughter, now nine, was becoming estranged from him, and that their mother was responsible for these problems. He took the case to the Family Court and, to the utter shock and devastation of the mother, who has been the primary carer of the children all their lives, he won.

Justice Robert Benjamin accepted the court-appointed lawyer's evidence that "both children have consistently maintained that they wish to continue living with their mother".

"They have a close and intimate relationship with the mother and want to be with her," the psychologist said. "They identify their mother as their primary emotional support. As much as the children enjoy spending time with their father, both the children verbalised that they become distressed and miss their mother when they are separated from her."

But he also believed that the girl, in particular, did not understand how important it would be, in later life, to have a relationship with her father.

He said the child, known as B, was becoming emotionally estranged from her father and "either suffered, or was at risk of suffering, serious psychological damage if not psychiatric damage" if the mother didn't encourage her to have a relationship with her father.

There was nothing in the judgment to suggest the mother had denigrated the father, only that she hadn't encouraged a good relationship between the children and their father. The girl told her court counsellor that she didn't like that her father had left the family and now had a new girlfriend, whom she didn't like either.

But Benjamin made the decision to move the children with amendments to the Family Law Act in mind. These amendments, colloquially known as the "shared parenting" provisions, were introduced by the Howard government in 2006. They say that children "have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never been married or have never lived together".

Children also have a "right to spend time on a regular basis with, and communicate on a regular basis with, both their parents".

The case of Irish and Michelle suggests that mothers must now encourage their children to have a good relationship with the father; they must facilitate access; and they aren't allowed to talk down the father. If they do, the children will be removed from their full-time care.

Wayne Butler, president of the Shared Parenting Council of Australia, established in 2002 by fathers frustrated at the perceived bias of the Family Court, says the decision "has given us hope. There's a feeling now that if you want a substantial amount of contact with your children, you should wait and go to the Family Court because there is a good chance you'll get it. We strongly believe that children need a relationship with their father. There's a whole change in society's view of a father and that's being reflected in the Family Court."

That view isn't being encouraged by Family Court Chief Justice Diana Bryant, who told The Australian yesterday that Irish and Michelle shouldn't be read "as a marker for anything". "I've read the judgment closely and it seems to me that the judge took into account what the experts said, which is that the children, especially the girl, were at risk of psychological harm if they stayed with their mother. Some people won't agree with the decision." She noted that the mother could appeal within 30 days. Bryant promotes a view of the court as bias-free and transparent. She authorised the release of data on court orders made since the Family Law Amendment (Shared Parenting) Act came into force. The data isn't comparative - that is, it doesn't say whether fathers are now likelier to get access than they were before the amendments - but the Shared Parenting Council's Jim Carter says the data is nevertheless "encouraging for fathers and their children" because it shows that fathers are likelier to get substantial access to their children if they go to the Family Court than if they negotiate directly with their former wives.

"The situation since 2006 is that 17 per cent of fathers were granted primary care of their children and another 15 per cent were granted equal parenting time," Carter says. "That's a total of 32 per cent of fathers in litigated cases (getting substantial access)."

Mothers still get the bulk of the orders in their favour - 60 per cent get primary care of their children - but the Shared Parenting Council suggests that fathers who want "substantial access" to their children after divorce go to court because there is a reasonable chance they'll get it.

At a Senate estimates hearing on February 23, Family First senator Steve Fielding asked the chief executive of the Family Court, Richard Foster, about the amendments and he, too, was told there had been "a change in the orders that impact specifically on fathers".

Bryant says the data shows that fathers were given residence (or full-time custody) of the children in 19 per cent of litigated cases in 1999-2000, compared with 17 per cent of cases after 2006, "so that's actually gone down".

"We can speculate as to why. I think what's happened is that, rightly or wrongly, there was a prevailing view that orders were likely to favour mothers, and fathers would only litigate when they thought they had a good case," Bryant says. "It's possible that view has changed, so more (men) might litigate."

The number of orders for shared parenting is certainly up, from 6 per cent to 15 per cent, which means fathers get at least equal access in 32 per cent of the cases.

Women's groups are worried about the perceived new direction of the court. An online petition, started last month, has gathered 2300 signatures, and a coalition of women's groups will host rallies in all states next month, to highlight the plight of women whose children have been killed by their ex-partners on access visits. Victims of crime will speak, wearing red hoods over their faces, to circumvent laws that make it a crime to identify any party to a Family Court matter. Organiser Barbara Biggs says: "Our speakers have children who were killed after bad Family Court decisions. Some of them are very well known, with the cases all over the media already, but they can't be identified because that's a breach of the Family Law Act."

On publishing the Irish and Michelle story, The Australian received many calls from fathers who intend to try the Family Court system again. One such father, who hasn't seen his 12-year-old girl for two years, despite there being a Family Court order for access in place, says: "I'm supposed to see her this Easter but the orders were made in her absence. (The mother) doesn't show up for court. She doesn't acknowledge the orders. She has changed her telephone number so she can't be reached."

The couple separated when the child was five. "For a few years after that, I got good access. That changed when I got remarried. It dwindled away to nothing. When I read that case (Irish and Michelle) I thought: 'That's exactly what happened to me.' My daughter started to say: 'I don't want to see you' and 'I hate you', and of course that's not the case. We had a good relationship. I would try to speak to her on the phone and maybe I'd get her when her mother was in the shower, but she'd say: 'I can't talk to you. I've got to go."'

At the other extreme are women such as Kelly, a mother and a lawyer from Queensland, who was amazed when the court ordered a 50-50 custody arrangement with her ex-partner even though he'd been convicted of assaulting her.

"The lawyers kept saying: 'It has to be 50-50,"' she says. "He assaulted me when I was holding (the baby), but they say that's not the same as assaulting the baby, so the court says he isn't hurting the child. They said I had no choice under the new laws to hand the baby over one week on, one week off."

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Islamophobia is a fabrication

I've been considering a request from a post-graduate student who wants to do a thesis on Islamophobia in Australia. She writes: "I am researching the topic Islamophobia, and I am trying to prove whether Islamophobia is based on religion fear or cultural fear of Islam."

What about proving that Islamophobia exists at all? That would be the logical, ethical and scholarly starting point. But it appears the outcome has already been decided. This would fit the prevailing orthodoxy in academia that the default position for Muslims in Australia is victim. The jargon, "Islamophobia" is part of this ideological construct. Literally, it means fear of Muslims.

I reflected on all this while on holiday in Malaysia and the Maldives last week. This was my twelfth visit to Muslim societies because I do not "fear" Muslims and do not "fear" Islam. Yes, there is ample evidence that Australians have become uneasy about Muslims in general and hostile in specific cases, but this is about cause and effect. Consider the series of blows to the image of Muslims in just the past three weeks, where the everyday decency of the majority have been collaterally damaged by the antics of the few.

On March 8, the night of the Sydney Gay and Lesbian Mardi Gras, police say a group of about 100 young Muslim men, allegedly members of a loose gang called MBM - Muslim Brotherhood Movement - moved through the centre of the city intimidating, harassing and beating bystanders.

On March 15, Abdul Darwiche was murdered, shot to death in a shopping centre in the latest hyper-violence involving two warring Lebanese Muslim clans. Police later arrested Darwiche's brother, Michael, for driving around with a loaded pistol. A third brother, Adnan, appeared in the NSW Supreme Court three years ago to be sentenced for a double murder. He and his fellow accused, Nasaem El-Zeyat and Ramzi Aouad, laughed and joked, going out of their way to express their contempt for Australian law. After the three men were all given life sentences they shouted "God is great!" This was the same Adnan Darwiche who purchased rocket launchers stolen from the Australian Army, which have never been recovered.

Hundreds of mourners attended Abdul Darwiche's funeral at the Lakemba Mosque, where, within days, Sheik Taj el-Din al Hilaly was involved in yet another controversy. Channel Nine obtained a copy of a video surveillance tape which shows the former mufti of Australia kicking in a door, then returning soon after in the company of police. Apparently he called police over vandalism which he committed, blaming others who are engaged in a power struggle at the mosque. Sheik Hilaly has been embroiled repeatedly in controversy and provocation, making numerous inflammatory remarks about Australia and Australians.

A few days later, yet another rape sentence was handed down to one of the K brothers, three of whom, during their various trials for gang rape, claimed they were victims of an anti-Muslim conspiracy. Between them, four K brothers have been convicted of gang-raping five girls.

This sentencing followed closely on the conviction of seven Sydney schoolboys for the aggravated sexual assault of a 13-year-old girl in a toilet block in Yagoona in 2007. According to police, the ring-leader was on his phone speaking in Arabic during the assaults and most or all of the boys are of Muslim background.

If this is so, these latest convictions produce a morbid tally of more than 30 young Muslim men involved in serious proven sexual assaults of non-Muslim girls in Sydney, involving the Skaf brothers, the K brothers, the E-M cousins, the Yagoona schoolboys and various others. Because sexual assault is the least reported crime (about 15 per cent of incidents are reported to police) this particular phenomenon was certainly much broader.

Finally, there has been fatal violence between bikie gangs, accompanied by news that there has been an infusion of young Muslim men into the bikie culture. There is now warring between new gangs and traditional Anglo criminal gangs for control of the drug and protection markets. Gang leaders named Mahmoud and Hassan and Ismail have been prominent. Gangs like MBM, Notorious and Asesinoz have flaunted their ethnicity. Overtly racist videos have been posted on YouTube, such as the message that "Asesinoz is now targeting Aussies", with an image of a vandalised Australian flag.

The events of the past week have been a variation on a theme police have been dealing with for years. It erupted spectacularly in 2005 when a self-styled "intifada" by armed Muslim men, travelling in convoys, staged numerous co-ordinated assaults across the eastern beach suburbs of Sydney. The attacks were in response to the most notorious case of anti-Muslim feeling in Australia, the Cronulla riot in December, 2005. The roots of this demonstration was the failure of the police, who for years had preferred to pretend the problem did not exist.

Given the abundant evidence of violent cause and fearful effect, involving a small percentage of antagonists, the general charge of Islamophobia is an ideological fabrication.

As for the criminal gangs, for more than 10 years I have argued that Australia needed anti-gang laws similar to the RICO laws (racketeering influenced corrupt organisations) used in the United States, which smashed the code of silence and solidarity by criminal gangs. Finally, the state Labor Government has begun to stir on this issue.

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