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Law and Order or Crime and Punishment?

Image courtesy of smh.com.au

Image courtesy of smh.com.au

Will the tough New South Wales drinking laws work? Wayne Tritton, in this guest post doesn’t think so and presents a strong argument as to why they won’t.

The phrase ‘mandatory sentencing’ immediately sends shivers up my spine. While not condoning the abhorrent behaviour of the ‘one-punch’ louts, I think the issue of ‘alcohol-fuelled violence’ requires much deeper consideration than the simplistic knee jerk reaction of Premier Barry O’Farrell’s ‘mandatory’ sentencing, and ‘earlier/restricted’ operating hours.

Mandatory sentencing has long been a favourite stand-by for beleaguered governments desperate to be seen as ‘listening to the community’ who, ironically, have been ‘fuelled’ into a fervour of fear and outrage by the screaming, sensationalist headlines of the mainstream media. In NSW it’s been, unsurprisingly, that paragon of unbiased ‘journalism’ The Daily Telegraph screaming the loudest, ably abetted by the usual suspects of talk-back and the commercial networks ‘current affairs’ programs. It’s been grand front page and opinion column fodder for weeks now, and if you took them at their word, you’d be forgiven for thinking you’d be better off just staying home and having a few quiet ones in front of the television, rather than venturing into the ‘mean streets’ of inner Sydney. I note, also with no small amount of irony, the number of ads relating to alcohol in said publications and on the networks in question.

So, are our streets really unsafe to walk at night? Nick Evershed provides some interesting stats in his Guardian article ‘Alcohol-related violence: numbers don’t always tally with media attention‘ relating to assaults in NSW.

I am in no way attempting to say alcohol-fuelled violence is not an issue. I am a musician and have spent the better part of my working life in clubs and bars and seen things I would rather not have, but simply declaring mandatory sentences for offenders and ‘curfews’ will achieve little, if anything, in terms of prevention. Mandatory sentencing, as a deterrent, is premised on the belief that:

” . . . people are rational actors who weigh the costs and benefits of committing a crime before deciding to commit that crime” (Australian Institute of Criminology).

Obviously that’s why our local magistrates courts are chock full of people who made a ‘rational’ decision to get behind the wheel after eight schooners and a brandy night-cap. Pretty sure most of us have experienced the ‘I did WHAT last night?’ morning after. Alcohol does odd things to the brain, which is why we like it, but rational thinking isn’t generally one of them so I don’t see mandatory sentencing in anyway affecting the decision-making process of someone who has had too much to drink and is feeling belligerent. (Ask a door guard at any club/pub you like). And yes, there is no question that certain elements do go to the pub with the sole intention of getting smashed and causing trouble, but like the VLAD laws, this just tars everyone with the same brush. Should an otherwise upstanding, first time offender be given no lee-way or have no allowances made for mitigating circumstances? Are all assaults now to be dealt with under these new laws or just those where alcohol is considered to be a contributing factor? What if the victim of the assault is the one ‘intoxicated’ and the offender isn’t? Mandatory sentencing is a black and white ‘solution’ in an increasingly grey world.

Does O’Farrell seriously believe that cessation of service won’t mean people will leave a venue? Not in my experience. Once the booze stops, it’s generally ‘party over’. You think it’s a good idea to put that many people on the street, in various stages of intoxication, at 3am cab change-over time? You’re just asking for trouble. Ever seen footage of the infamous ‘Six O’clock Swill’? And once again, the onus of responsibility is being shunted off to the venues/clubs, most of whom already have gone above and beyond, in consultation and compliance with local authorities, police and the State Government, to ensure their venues are safe and operating in a responsible manner (i.e. following RSA guidelines in limiting the amount of drinks patrons can buy at any one time, no shots after midnight, RSA Marshalls, CCTV, security etc.), and keep in mind that not one of the recently reported incidents occurred on licensed premises. This response from one of the city’s more popular late night venues, Goodgod Small Club, makes some very valid points about pre-loading, and the real risk of simply moving the problem to different precincts, an opinion echoed by Lord Mayor Clover Moore.

And if I’m not mistaken, it’s been successive governments, of both persuasions, that have basically forced venues and patrons into one district via a multitude of noise abatement laws and regulations.

During a recent social media conversation I received this statement:

More intoxicated people on the streets? How did they get intoxicated? Oh yeah, licensed venues served them booze, possibly in breach of RSA guidelines! Mate honestly, STUFF the venues. They are largely the root of the problem and they have fostered the very ‘cultural problem’ you identify.

Yes, they were served booze at a licensed venue (where else?). Why were they on the street? Usually for one of three reasons:

a) they simply left one venue of their own volition to find another venue to try and continue the party

b) because they were intoxicated, they were informed that, while they could stay on the premises they would no longer be served alcohol, so left to find someone who would serve them

c) they were acting in a manner that warranted them being asked to leave.

That’s what RSA is! There are big posters all over every venue in Sydney that say ‘This is what will happen, because it’s the law, and you will be fined a sizable amount if you don’t leave when asked’. So a venue does as much as it possibly can, follows the law, and then gets lambasted for doing it! If I have 3 schooners in an hour and get behind the wheel, I am legally ‘intoxicated’ to the point where I will be arrested for doing so, but does that mean I’m ‘drunk’, and should have been refused service? Is the barman who served me held accountable for my bad decision making?

This is an extract from the NSW Responsible Service of Alcohol Training Course:

Intoxication Defined

The liquor laws contain a definition of intoxication to assist industry comply with their responsible serving obligations and enhance enforcement efforts by police and inspectors.

For the purposes of the liquor laws, a person is considered to be intoxicated if:

  • the person‘s speech, balance, coordination or behaviour is noticeably affected; and

  • it is reasonable, in the circumstances, to believe that the affected speech, balance, coordination or behaviour is the result of the consumption of liquor.

In addition to this statutory definition of intoxication, the Director General, Department of Trade and Investment, Regional Infrastructure and Services must also issue guidelines to further assist the industry determine whether a person may be intoxicated. Those guidelines are attached in Schedule B.

The Director General‘s guidelines for determining whether a person may be intoxicated include the following:

Speech – Slur words, talk in rambling or unintelligible sentences, are incoherent or muddled in their speech.

Balance – Are unsteady on their feet, stumble or bump into people or objects, sway uncontrollably or cannot stand or walk straight.

Coordination – Fumble to light a cigarette, have difficulty in counting money or paying, spill or drop drink, have difficulty in opening or closing doors. (Responsible Service of Alcohol Course Notes – November 2012:22)

Behaviour – Become rude, aggressive, or offensive, are unable to concentrate or follow instructions, become boisterous or pester others.

Notwithstanding the prescribed definition and the availability of the Statutory guidelines, a degree of judgement is still required by licensees, serving staff and security officers in determining whether a person is intoxicated, or approaching the point of becoming intoxicated.

This judgement should be based on observations of the person‘s behaviour, coordination, appearance and speech. Further information on the common indicators of intoxication is outlined in element 4.

If we really want to make an impact on alcohol related violence, education is a good place to start. The liquor industry spends millions advertising their product, doing its best to make it look fun, glamorous and generally cool. But apart from small, almost invisible ‘Drink Responsibly’ signs, it does sweet FA in terms of educating people, especially the most-at-risk (i.e. young males) about the consequences and dangers of binge drinking etc. Then again, it also generates enormous amounts of tax revenues for the government, so perhaps there’s a ‘don’t-bite- the-hand-that-feeds-you’ mentality at work here. Nor does the government do anything to encourage and support venues to provide better transport options for patrons of late-night venues. Tried getting a train out of the city after midnight on a Saturday/Sunday recently?

As a culture, alcohol is embedded in our psyche whether we like it or not. Be it sponsoring our national sporting teams or mythologising and glorifying an ex PM for his exploits with a yard-glass, we like a drink. But the vast majority of us do not drink to excess and become violent. The threat of a mandatory jail sentence is not going to prevent heinous acts of unprovoked violence against innocent bystanders from happening, nor will ineffectual ‘lock-outs’ and drinking curfews (what a wonderful success prohibition was!). I firmly believe that these new laws, like VLAD, can and most probably will be used for far more than what they were originally intended to do, while really doing nothing to prevent it.

Lastly, a quote from a manager of one of the venues I regularly work at:

If cigarettes were glorified and advertised again like liquor is, the world would be in uproar. Thirty years has made a huge difference to how that vice is perceived. The smart solution would be to take the same approach with drink – allow it, tax it, protect our kids from it, protect community from passively being affected by it, tolerate it but don’t glorify it, and make legislation to ban others glorifying it. (Damien Irvine, Bald Rock Hotel – Balmain).


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  1. John Fraser


    The final quote from the Manager is on the money.

    But the likelihood of a conservative government doing it is zero.

    Too much in donations for it to happen (and don't forget the pokies).

  2. Sue Hanley

    Responsible service of alcohol initiatives are only moderately successful. The most recent research (BOSCAR) in 2006 showed that one in four (25%) intoxicated young people were refused service or advised to go home. That means, of course, that no action was taken in respect to the remaining 75%, hardly a ringing endorsement of the effectiveness of RSA initiatives. The author of this opinion piece should done a bit more research. The lock out measures have been called for on the basis of the evidence, not conjecture. Nor is it knee jerk. Organisations such as FARE have been advocating for it for some time – see http://www.fare.org.au. The mandatory sentencing provisions are concerning and the evidence is that they are unlikely to have an impact. We will see.

  3. Wayne T

    @ Sue Hanley

    That was actually the whole point I was trying to make re mandatory sentencing Sue. I am fully aware of FARE, and applaud, up to a point, it’s aims and objectives. To the best of my knowledge though, FARE was established in the ACT, to deal with problems in the ACT, and the ACT have a completely different set of laws and regulations. I live and work (mostly) in Sydney, which is what/where this piece was about. If I have that wrong, humble and sincere apologies.

    The BOSCAR research you mention is now at least 8 years out of date, and the laws pertaining to RSA for licensees, specifically in the so-called ‘high risk’ areas of inner-city Sydney, have been dramatically altered and changed, as late as 2012. I suggest you read the entire link I provided to the RSA Training course, which was also released in 2012, especially the section relating to licensees in ‘high risk’ areas and their responsibilities and obligations under the amended laws. Can I also ask, if you think RSA is only moderately successful, what is YOUR solution?

    If there is more recent available data/research from BOSCAR available, by all means please provide the links, I would love to read it.

    Can you also please provide the ‘evidence’ you mention for lock out measures, again I would be more than interested to read it. And could you also let me know exactly what ‘conjecture’ i used in my piece?

    I am seriously not trying to be defensive or confrontational, this is just my opinion, (which is no more or less valid than anyone else’s) which I have based on 28 years experience of working in the industry. All I’m trying to say is that the threat of mandatory sentencing, as a deterrent, is completely useless when it comes to prevention of this sort of offence, and blaming the venue is non-sensical.

  4. Wayne T

    Also Sue, why should I be made to feel like an inept adolescent/criminal because of the actions of a small minority?

  5. PK

    I don’t consider this an alcohol issue but a social issue. As lads we got blind and never started fights or hit people…. Where has all this anger come from, road rage, car park rage, crashing parties to start a fight……There is much more to this problem and it is not black and white…. I agree knee jerk reactions are ineffective…..

  6. Wayne T

    AAAGGGHH!! Then we get the Irish boy given a sentence of 8 months in jail today, for a minor scuffle that resulted in the door guard having a split lip and sore gonads.OMG, lock this lunatic up for ever, he’s obviously a recidivist and deserves harsh treatment, while WAY more serious offenders, albeit in a higher court, get a slap on the wrists, a suspended sentence, and are allowed to continue on

  7. Wayne T

    Thanks for reading and commenting, but DON’T get me started on the pokies lol.

  8. Quint

    Hear, hear Wayne T.

    Just another step on the path to becoming the most ridiculously overzealous nanny state on the planet.

  9. diannaart

    Sending drunks home is not a solution – speaking as a survivor of an alcoholic father (at least he was only verbally abusive) to an alcoholic husband (he availed himself of all varieties of abuse).

    This is not meant as a slur on all men just the drunk aggressive ones. For that matter drunk aggressive women should not be let loose on their families either.

    The first 30 years of my life my experience of men was one of aggression – fortunately I managed to meet men after those decades of fear who are the decent, caring men society has a right to expect. However, much damage has been done – that I am still alive is a testament to my survival skills and the help of real human beings who actually do care about others.

  10. rossleighbrisbane

    The trouble with the idea that harsher sentences are a deterrent is logically flawed. While it’s true that if the fine for travelling without a ticket were only twice the cost of the ticket, people might be tempted to play the odds. But I doubt that anybody thinks, “Mm, if I get caught for this, it’s only two years in jail, but ten would stop me from doing it.” Most crimes are committed by people in the mistaken belief that they won’t get caught.

  11. olddavey

    We need to get rid of this silly term “alcohol-fuelled violence” which makes these people sound like dragsters at Eastern Creek or Calder Raceway and call it what it is. “Drunken Thuggery”

  12. Michael Webster

    Good stuff Wayne. I’d just add a couple of points.

    I believe there is a cultural issue where people tolerate bad behaviour. I would define bad behaviour in this instance, not as being drunk, or happy, but as being annoying, loud and confrontational. Intoxication isn’t the problem, as just about 90% of the people in any pub I go to are in some state of intoxication. It is bad behaviour. How do you deal with bad behaviour? I think educating people to ostracise those who behave badly when they do – or for friends to learn to pull their other friends into line.

    As to the particular problems in Kings Cross and the City – one friend of mine suggested more pubs is the answer, not less. The big problem is masses of people coming from all over the city and being funnelled into one or two very small precincts. Most places I go to, I see less of the previously very common fights between 2 similar size and aged individuals. When I’ve recently wandered up to Oxford street Darlinghurst for a burger on the way home late at night, it’s frankly bloody dangerous. It’s not the locals, it’s the mass of young and extremely aggressive people who’ve filtered in from other areas who are threatening the violence.

    So what we need are cultural changes, a push to favour small venues over big drinking barns, and remove the honeypot effect that draws so many people into the city and the Cross.

    As to sentences for violence – I’d be very happy if they were much harsher a lot of the time. But mandatory sentencing is garbage. It leads to situations like people getting 90 years in the US, for stealing a slice of pizza because they’re hungry. It can fill the jails, and make no effect on the actual number of offences. We didn’t get rid of the death penalty simply because we didn’t like killing people. We got rid of it because it doesn’t reduce crime, and we end up executing the innocent. Similar arguments are why mandatory sentencing is always a bad idea.

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