# Report of the Commission Appointed to inquire into the Penal System of the Colony/First Progress Report

Perth, Western Australia: By authority: Richard Pether, Government Printer
PENAL COMMISSION.
FIRST PROGRESS REPORT.
To
Order of St. Michael and St. George, Governor and Commander-in-Chief in and over the Colony of Western Australia and its Dependencies, etc., etc., etc.
Sir,— We, the Commissioners, appointed by Commission dated the seventh day of September, 1898, to enquire into the existing conditions of the Penal System of Western Australia and to report upon the method now in use for the punishment of criminals, their classification, the remission of sentences, and the sanitary condition of Fremantle Gaol, as well as to enquire into all contracts for supplies of food and other materials for use in the said Gaol, have the honor to respectfully submit our First Progress Report as follows:—
PRELIMINARY WORK OF THE COMMISSION.
Your Commissioners deemed it advisable at the outset to secure all the evidence obtainable from the prisoners in Gaol at Fremantle. For this purpose they caused it to be notified that every prisoner who cared to do so might present himself or herself for examination, and tender such evidence as the prisoner might deem fit, whether relating to personal grounds of complaint or to suggestions for the general welfare of prisoners. Of this opportunity an unexpectedly large proportion of the inmates of the Prison availed themselves, with the result that the Commissioners were enabled to procure a great deal of valuable evidence, which will serve as the groundwork for their future investigations into the penal system of the colony. That evidence is now being printed, and will, in due course, be presented to your Excellency. Your Commissioners have found it convenient to follow the general lines of examination adopted by a Queensland Commission appointed for a somewhat similar purpose. Due regard has, however, been had by them to the special circumstances of this province, and wherever prisoners made out what seemed a reasonably strong prima-facie case of injustice, or preferred any complaint of harsh treatment subsequent to the arrest, your Commissioners gave the complainants every latitude for the purpose of enabling them to state their case.
The Fremantle Gaol is structurally in no way adapted to meet the very varied purposes which it is now required to serve. The sanitary arrangements are in many particulars defective, and much behind the hygienic requirements of the present day, while the general plan of the prison is such as to needlessly increase the work of supervision and of maintaining discipline among the inmates.
The air space in the cells, being only one-third of the space allotted at, e.g., Pentridge or Wormwood Scrubs, is too limited under any circumstances for the health of the prisoners, particularly in the case of youths who spend 20 or more hours out of every 24 in these cells in a condition of enforced idleness. The ill-effects of the want of space are not so much felt by the adult prisoners, owing to a comparatively large proportion of their time being spent in the open air, under the associated system.
The mode of ventilation of the cells is extremely bad. A strong upward draught from the floor makes itself constantly and very unpleasantly felt, and naturally produces injurious effects upon the health of the prisoners.
Your Commissioners propose in a later report to submit some detailed suggestions for the structural adaptation and improvement of the Gaol buildings.
Meanwhile, in view of the separate system of treatment which the Commissioners propose to recommend, under which prisoners will be provided with work to do in their own cells, under competent instructors, it will be necessary, as a preliminary, to at least double the air space by knocking two cells into one. This will reduce the accommodation, immediately available by one-half, but your Commissioners believe that the circumstances, which, during the last few years have accidentally swelled the number of inmates by a foreign criminal population, are not likely to recur. It is satisfactory also to note that the number of criminals for whom accommodation has to be provided, is both steadily and rapidly diminishing, while the Commissioners confidently hope that the suggestions as a whole, which they submit, will permanently reduce the number of prisoners, and lessen the probability of their future return to prison after release.
CLASSIFICATION.
There are in Fremantle Gaol a vast variety of prisoners, these comprise among others:—
    (a) Trial prisoners, i.e., prisoners awaiting trial.
    (b) Civil offenders—debtors, etc.
    (c) Vagrants.
    (d) Lunatics whose mental condition is under observation.
    (e) Lunatics not under special observation, but who are persons of weak intellect, undergoing imprisonment for some breach of the laws.
    (f) Imperial convicts who, having been released on ticket-of-leave, have subsequently been re-convicted.
    (g) Colonial prisoners undergoing penal servitude.
    (h) Local prisoners serving sentences up to two years, with or without hard labor.
    (i) Youthful offenders.
To these may be added such sub-divisions as are created by sex, nationality, creed, and language.
DIFFICULTY OF CLASSIFICATION.
No attempt has hitherto been made at Fremantle to classify these different kinds of prisoners. Without some kind of classification, discipline is impossible, and it is therefore not surprising to learn that the only code of rules and regulations which is supposed to guide the officers and prisoners is systematically disregarded by both, for the simple reason that it is wholly inapplicable to existing circumstances. It was originally framed to meet conditions which no longer exist, so far as Fremantle Gaol is concerned.
For the purpose of actual classification, regard must be had not merely to these sub-divisions but to various gradations in the nature of the offences for which prisoners have been convicted.
It is a moot point whether the classification of prisoners should, as in some countries, follow strictly the period of incarceration, and the number of previous convictions, or, as in other countries, be determined by the nature of the offence.
On the whole, the Commissioners are of opinion that classification should follow the nature of the offence rather than the term of the sentence, thus grouping together for the purpose of prison treatment, criminals who commit the same class of crime, rather than those who have been sentenced for similar periods. This subject it is proposed to deal with more fully in a subsequent report, when your Commissioners are in possession of more detailed information as to the actual procedure in other countries, which have endeavored to bring themselves into line with the latest teachings of criminology.
THE SEPARATE SYSTEM.
The first six months of imprisonment in every case should be strictly on the separate system. Whilst undergoing separate treatment, no prisoner should be allowed any communication whatever with his fellow inmates. After six months separate treatment, prisoners whose conduct has been good should be classified in such associated groups as, in the circumstances of the prison, and the character of the work to be done, may be deemed convenient.
Of course the effect of the separate system being greatly to increase the severity of the punishment inflicted, regard must be had to this fact in the sentence awarded. The result must inevitably be to decrease the burden thrown upon taxpayers for the maintenance of prisoners.
EMPLOYMENT OF PRISONERS.
There is a very common prejudice against the employment of prisoners on remunerative work, on the ground of the supposed conflict of interests between prison and free labor. Your Commissioners are, however, of opinion that with a little attention to the class of industries selected for the occupation of prisoners, there need be no apprehension whatever on this score, so far as Western Australia is concerned.
The labor of the prisoners should, in the first place, be almost, if not entirely, directed to the supply of the wants of the various Government departments. For instance, it is not at all probable that the exertions of the whole of our prisoners would be sufficient to meet the wants of the different Government departments in the matter of mats alone for offices and railway carriages. It may be interesting here to note that while many people theoretically object to the manufacture of such articles as mats and brooms by our prison labor, they view, with complacency, the importation of these articles, although they are notoriously the product of the prison labor of other countries.
A certain number of prisoners might also be profitably employed in gardening, and growing vegetables for prison use. At the present time a number of prisoners are always kept employed in the pump yard, turning a crank for the purpose of raising water. This work could be very much more economically done by means of the available steam plant of the prison. Each prisoner in the pump yard only does a few minutes actual work in each hour, the rest of his time being filled up by playing draughts, or by engagement in other forms of recreation.
This want of proper employment is one of the greatest evils of the prison system at Fremantle Gaol. It is inevitable that where men are not kept fully employed, they become demoralised, and on their release from Gaol, are less than ever fitted to become decent members of society.
INSTRUCTION OF PRISONERS IN SEPARATE CONFINEMENT.
Where the separate system obtains in other countries no practical difficulty is found in teaching the prisoners in their own cells the work which they will be required to perform in those cells. For this purpose some of the warders have to act as instructors, and your Commissioners are glad to note that some of the officials now employed at Fremantle have the necessary qualification in this direction.
ORIGIN OF THE SEPARATE SYSTEM.
The separate system had its origin in a report of a Select Committee of the House of Commons, dated as far back as the year 1832. That committee expressed the opinion that a prison "should offer the prospect of diminishing the amount of crime, either by the severity of its discipline or by reforming the morals of those committed to it. In both of these essential particulars many of the prisons are lamentably deficient. They hold out scarcely any terrors to criminals, while, from the impossibility of separating the most hardened malefactors from those who for the first time find themselves inmates of a Gaol, they tend to demoralise rather than to correct, all who are admitted within their walls. . . . . . Your Committee see no alternative but that of the separation of prisoners, both before and after trial. They therefore recommend that prisoners, when committed for trial, should be placed in light solitary sleeping cells, and provided with employment when practicable. . . . . If your Committee felt any difficulty in a treatment approaching solitary confinement in the case of untried prisoners, they have none whatever in urging its adoption with reference to those hitherto sentenced to imprisonment, with or without hard labor."
REMUNERATION OF PRISONERS.
Every prisoner should be placed in a position to earn something by his own industry in Gaol, to prevent his leaving the prison in a destitute condition, as is now too often the case. Your Commissioners recommend that for the labor of each month in Gaol each prisoner should be credited with a definite and fixed amount of money, to be placed at his disposal on his discharge. With the approval of the authorities ​each prisoner should be permitted to dispose of a definite proportion of the amount at any time to his credit by way of remittances for the relief of relatives dependent upon him.
OFFENCES WITHIN THE GAOL.
Your Commissioners regard it as an altogether undesirable state of affairs that it should be possible for a man, originally sentenced for a short term of imprisonment, to be further imprisoned for offences within the Gaol for an indefinite period within public trial. Yet such is at present the case. In England no prisoner can have the original term of his sentence increased under any circumstances, except by order made in open court. No punishment, unless inflicted in open court, should take the form of lengthening the original term of sentence.
The present practice of lengthening the sentences of refractory prisoners at the discretion of the visiting magistrates is a very much more serious matter than might at first sight be supposed. With every desire to do abstract justice, it is obvious that the magistrates who are called upon to punish offences against prison discipline have a tendency to view with exceptional severity offences which the general public would not regard as deserving of particularly harsh treatment. For instance, to take the familiar case of an escapee. To the Gaol officials, and to those accustomed to deal with prisoners, the offence of escaping from Gaol presents itself as one of special enormity, and as one, therefore, calling for exceptionally severe punishment. Your Commissioners confess that they do not in any way share this view, The desire to regain liberty is a perfect natural one, and is generally possessed most keenly by the best class of prisoners, i.e., to men of whom the greatest hopes may be entertained that they will, when reformed, prove the most energetic and useful citizens. If a prisoner escapes, it is clearly the fault of those to whom he was committed for safe custody, and to punish the escapee by flogging, as has been done in some cases, or by 12 months in irons, as has been done in others, appears to the Commissioners to be merely a judicial brutality, not in accordance with the logical and merciful tendencies of our age and times.
DARK CELLS.
In the opinion of your Commissioners much too frequent use is made of the dark cells as a mode of punishment. This form of punishment is to many prisoners a cruel form of torture, whilst on others it admittedly produces little or no effect. For its results it depends entirely upon the temperament of the individual, Some authorities have laid it down that it presses most severely upon the educated or imaginative criminal, but this is very doubtful. Men of phlegmatic temperament seem to be very slightly, if at all, affected by it. They are much more readily brought to submission by a reduction in their dietary scale. In fact, it appears from the evidence that there are men who would rather do three days in the dark cell than work one hot day in the quarry. But on some men of excitable temperament, the effect is distressing, and almost maddening, whilst in every case there is the obvious danger of the visual organs being permanently and dangerously affected.
It is the practice at Fremantle for a sentence of three days' bread and water to carry with it as a matter of course "dark cells." We think this both unnecessary and undesirable. The punishment of "dark cells" should never be given, except on the written order of the authorities having power to inflict it.
It is the opinion of your Commissioners that there will be very few offences against the discipline of the Gaol rendering any such extreme measures as the "dark cell" necessary if their recommendations are carried out.
LONG SENTENCES.
Your Commissioners would direct attention to a fact which is perhaps not publicly known, that owing to an important alteration in the scale of remissions, the same nominal sentence to-day carries with it practically double the term of imprisonment that it would have done if given before the end of the year 1897.
On the general question of long sentences your Commissioners are of opinion that the sentences given by the courts are unduly long, regard being usually had to the length of the sentence rather than to the quality of the punishment inflicted. They are probably a legacy left to us by the old convict system of the colony. Long sentences fail altogether in their object, and press most severely on the taxpayers who are responsible for the maintenance of the prisoners during their incarceration. Beyond a certain point which is very soon reached, no sentence of imprisonment is either punitive or deterrent, although under a proper system it may possibly, in some circumstances, be reformative. So far as the average prisoner is concerned, the worst part of the punishment is endured during the first few weeks of incarceration. If he feels any sense of humiliation or shame, that rapidly disappears by association with others who are all in like case. The deprivation of liberty presses hardly upon some—usually the very best of the prisoners—but after a time all persons, whether in Gaol or out of it, adapt themselves to their surroundings. In the result, the imprisonment at a very early date reaches the limit of the punitive stage. That in the majority of cases our system of punishment is neither deterrent nor reformative is shown by the fact that "once a prisoner, always a prisoner," is the accepted axiom of the Gaol, and that the great majority find their way back again sooner or later.
PUNISHMENT SHOULD BE SHORT, SHARP, SEVERE, AND EFFECTIVE.
In every case it should be the object of the authorities to make the punishment sharp, severe, and effective, so that, while the first sentence shall be inflicted at the minimum of cost to the taxpayer, and the maximum of discomfort to the criminal, consistently with humanity, there shall be as little probability as possible of the taxpayer being called upon at an early date to pay for the second or third punishment of the same offender.
It is an undoubted hardship that an offender should be brought down from some remote part of the province for incarceration, and eventually be discharged at Fremantle without any means of returning to his home. To some extent this has been dealt with with under the heading of "Remuneration of prisoners," but it is urged that every discharged prisoner who desires it should be provided with a second-class ticket to any point on the railway system.
​Aliens, or prisoners hailing from the other colonies, should have every inducement and encouragement held out to them to return to their native homes. Your Commissioners have examined a number of prisoners, who comes from India, Africa, or South America. They have rendered themselves subject to our laws, of whose principles they usually understand little or nothing. They are usually persons whose ethical code, if any, is not in consonance with Australian ideas, and their antecedents do not point to the likelihood of their ever becoming desirable Australian colonists.
Many of these men have the means to leave the country, and are extremely desirous of doing so. Your Commissioners do not consider that, in the interests of the community, it is at all desirable to discourage this wish. On the contrary, it would be wise policy to facilitate the departure of these persons by remitting the balances of their sentences conditionally on their leaving Western Australia.
TICKET-OF-LEAVE REGULATIONS.
Your Commissioners strongly urge the complete abolition of the "ticket" system. Every prisoner when he leaves the Gaol should be a free man.
These regulations are altogether obsolete, dating back from April 26, 1870, and are no longer in many ways adapted to the requirements of the colony. The ticket-of-leave system, as practised, throws far too much power into the hands of the police, and your Commissioners have evidence that this power is frequently indiscreetly used by officials, so as to make it almost impossible for a ticket-of-leave man to obtain employment in open competition with free labor.
TRIAL PRISONERS.
Trial prisoners are now brought to Fremantle and marched through the streets from the railway station to the prison handcuffed. This is an indignity to which no presumably innocent person should be subjected. A van ought to be provided for the conveyance of such prisoners, and the same vehicle might doubtless be utilised for the conveyance of any sentenced prisoners as well. As far as possible, all prisoners should be handed into custody at the Gaol at approximately some fixed hour of the day, so as to facilitate the work of inspection by the medical officer.
LUNATICS.
The practice of referring persons of weak mind to the Gaol for observation is one to be deprecated. Such persons should be sent to the Lunatic Asylum, and prisoners who, subsequent to their incarceration, develop symptoms of mental aberration should be similarly disposed of.
YOUTHFUL OFFENDERS.
There are now in the Fremantle Gaol about a dozen youths, whose ages range from 17 to 21 years. As far as the structural arrangements of the Gaol will permit these lads are kept separate from the other prisoners. But the punishment inflicted cannot in their case be said to be either sharp enough to make itself unpleasantly felt, or to be in any sense reformative. There is no work on which they can profitably be employed, and, though for the most part they belong to a deplorably ignorant class, with the exception of one hour's schooling in each week no machinery is provided for their education. The fact is that the Fremantle Gaol is structurally not adapted for the reception of prisoners of this class. In this connection your Commissioners submit for consideration the desirableness of a careful review of the case of each individual youth upon its merits. There are some cases where, from the nature of the crime, it may be necessary that these youthful prisoners should be kept in close confinement; but in the majority of instances your Commissioners are of opinion that the interests of society would be best served and adequately protected by releasing the youths altogether, and placing them under a species of police supervision, such as is contemplated in the "Prevention of Crimes Act 1898."
For instance, to take a typical case, where nothing but the youth of the offenders calls for special sympathy, we would direct attention to the case of the two brothers Leader, who are undergoing sentences of seven and ten years respectively for an offence which, in England, is deemed to be adequately punished by a sentence of two years with hard labor. In such a case as this the only person really punished is the taxpayer, because he is called upon to support in unproductive idleness and for a long term of years two young fellows, who prior to their incarceration were able to earn and did earn excellent wages. As a matter of fact, these two boys up to the time of their trial were the main support of their widowed mother and younger brothers and sisters.
DIET.
As was perhaps only natural, almost every witness had something to say upon thesubject of the prison food. The majority asserted that during the latter part of the year 1897 the food supplied was exceptionally bad in quality. Unless the whole of the evidence of the prisoners upon this point is to be disbelieved, there is no reason to doubt that this condition of things, although in a modified form, continued until quite recently. It is, nevertheless, generally admitted, even by the prisoners, that there is at the present time, no ground for complaint in the matter of the quantity or of the quality of the food supplied. Among the female prisoners no complaints have been made respecting the diet. The better or more careful cooking practicable among a small body of female prisoners has doubtless done much to lessen the probability of complaints as to the quality of the rations. A small minority of the male prisoners also—mostly short-sentence men, or new arrivals—found no fault with the food.
Your Commissioners will submit some suggestions on the whole subject of the food supply and the dietary scale when they have completed their examination of the Gaol officials and of the contractors for supplies. Meanwhile, they desire to record their opinion that it is altogether impracticable to adopt the same dietary scale—as is now attempted to be done—to the requirements of prisoners undergoing sentences which vary greatly in length. For the requirements of short-sentence men the quality and quantity of the food are of a higher standard than is necessary. On the other hand, there is too little variety in the food to meet the necessities of those who are compelled to eat nothing else for a long term of years. The inevitable result is that many of the long-sentence men develop dyspepsia in various aggravated forms, which, under a proper system of diet regime might be entirely avoided without any increased cost whatever, in fact, with economy to the State.
INDIVIDUAL CASES OF PRISONERS.
In the course of the voluminous evidence taken by your Commissioners, a number of cases have transpired, which, in their opinion, deserve the consideration of the Executive for the purpose of the exercise of the Royal Prerogative of mercy. To some of these cases the attention of the Colonial Secretary has been incidentally called.
We have the honor to be, Your Excellency's most obedient, humble servants,
    ADAM JAMESON (Chairman).
    FRANK CRAIG.
    JAMES GALLOP.
    HENRY LOTZ.
    E. W. MAYHEW.
    M. L. MOSS
    HORACE G. STIRLING
       Witness to the signatures of the Commissioners—
THOMAS HARRY,
Secretary.
    Dated at Perth this 23rd day of December, 1898.