Overcrowded prisons, lack of rehabilitation services, a government that boasts that prisoners are less than human and that it doesn’t give a toss about the conditions they are kept it in, all matters one might think are relevant to whether or not a court sends an offender into the clink. Not so, according to Justice Michael David, of the South Australian Supreme Court.

Justice David on Monday this week overturned a decision by South Australia’s Deputy Chief Magistrate to suspend fully a term of imprisonment on an offender because of the adverse impact on his rehabilitation that the chronic overcrowding in South Australia’s prison system would have.

The decision by Dr Cannon outraged Michael Atkinson, the Rann government’s law and order crazed Attorney-General, who in May this year described Dr Cannon’s approach as “delusional” and “daft”. Dr Cannon is now suing the A-G for defamation.

Mr. Atkinson took the step of releasing Justice David’s judgment, with his media adviser, Jayne Stinson, justifying this course of action to Crikey this morning by saying that the “judgment covers the relevance of prison conditions in the sentencing of offenders. Factors considered in sentencing and prison conditions are both topics that the SA media has demonstrated a high degree of interest in.”

Another way of looking at it, might be to suggest that Mr. Atkinson is cynically trying to shore up his defence to the defamation litigation by highlighting an opinion that is at odds with Dr Cannon’s.

It is far from clear that Justice David is right in what he says about prison conditions and sentencing. His short judgment — it is only eight pages — seems to split hairs and does not deal with the case law in this area in other than a cursory fashion. He says that while prison conditions might be relevant to the case of an individual offender, there is no role for prison conditions to pay in the sentencing process. Prison conditions, he says, are a matter for the Executive government.

Justice David’s view of the world is by no means accepted by all judges around Australia. As Western Australian Supreme Court Judge, Chris Steytler put it last year, There are a number of important case s from various courts of appeal in Australia that deal “with conditions of imprisonment that are more severe than those that might ordinarily be anticipated for reasons having nothing to do with subjective matters that are personal to the offender (in the sense, for example, of illness or disability).”

In short, Justice David might, if the case goes to an appeal, be proved wrong in his view of the law.

While Mr. Atkinson is grinning today, he still has to justify calling a senior and respected judicial official “daft” and “delusional” if he is to beat the defamation action brought against him. There is nothing in Justice David’s judgment that justifies Mr. Atkinson’s nasty personal attack on Dr Cannon earlier this year.

Meanwhile, South Australia’s prisoners suffer at the hands of an Attorney-General and a government that cares little for human rights.

Peter Fray

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