Rogerson verdict: What it's like to be an old bloke in jail

In June 2016, Roger Rogerson and Glen McNamara were found guilty of killing student Jamie Gao for his drugs (Partridge, 2016a). Detectives have variously described the two former police officers and their activities when disposing of Gao's body as "so dumb", "quite bizarre", and "the stars of Amateur Hour" (Ralston and Partridge, 2014; Ongaro, 2014).

With the inevitable life sentences having been handed down last week to Rogerson and McNamara (Partridge, 2016b), they are no doubt painfully aware of the ignominy of spending the rest of their golden years in a 9' x 9' concrete cell. As ex-coppers they will probably spend those many years in protective custody. Both offenders will be categorised as "aged inmates" in the prison system, but it is the older of the pair Rogerson – aged 75 and with a physical disability – who is likely to need much greater support in jail in the foreseeable future.

Roger Rogerson's last few days as a free man were by any measure packed with variety and diversion – mowing the law, a get-together with an old mate, a boat trip, a trip to another state, and according to Ralston and Partridge (2014) "guest of honour at a boxing bout where he enjoyed a seafood dinner and a few beers" – a stark contrast to his cloistered existence since police swooped on Rogerson at his Padstow Heights home in the morning of 27 May 2014. These memories will undoubtedly linger on in Rogerson's mind, a painful reminder of what the final decades of his life might have been like but for the events in unit 803 on 20 May. There won't be any balmy seas or frequent flyer points in Rogerson's life now. As Medlicott (1999) observes:

"prison life consists of endless repetitions, and prisoners are aware that although their free life in society has been suspended, their bodies and identifies continue to age and change" (pp.211-2).

In Rogerson's case, as a 'lifer', time will be everything and nothing as "minutes, hours, days just slip away with terrifying insubstantiality" (Serge, 2014, p.44). In a NSW prison, most of these minutes, hours and days are spent in cells, as NSW has the lowest amount of out-of-cell time per day of any Australian prison (Paget, 2015a, p10). This may not be much consolation to the family and friends of Jamie Gao, whose loss can never be recovered, but in an imperfect system it is at the least fitting that a man who so grossly abused the privilege of moving freely within society is now denied freedom and choice for the rest of his life.

Prisoner classification

An important aspect of prisoner management in every NSW prison is the classification of prisoners according to risk.

Each male inmate is classified under r.12, Crimes (Administration of Sentences) Regulation 2014 (NSW). The highest classification is 'AA' for inmates who pose a risk to national security. Most male inmates will initially be allocated to category 'A1', 'A2' or 'B' which involves confinement using secure physical barriers. A different classification scheme applies to female inmates – see r.13. An inmate may also be designated as high security, extreme high security or extreme high risk restricted, or as a national security interest inmate – r.15. Where an offender has been convicted and sentenced to 6 months or more jail time, the prison is required to prepare a case plan, which is reviewed annually – r.24.

Pursuant to s.3(1) of the Crimes (Administration of Sentences) Act 1999 (NSW), an inmate serving a life sentence is a "serious offender" which means that any proposal to change Rogerson or McNamara's prisoner classification will have to be referred to the Serious Offenders Review Council for a recommendation before the change is decided – r.17, Crimes (Administration of Sentences) Regulation.

Apparently Rogerson is seen as a risk to other inmates, who might be influenced by his "charismatic" personality (Dale, 2016), although he walks with difficulty so he probably won't be leaping any tall fences. At least the community outside is safer now.

Protective custody

Newspaper reports note that for a period Rogerson and McNamara were held in protective custody at Silverwater prison while on bail awaiting trial (e.g., Ongaro, 2014).

Protective custody in prison is permitted under s.11, Crimes (Administration of Sentences) Act in situations where letting an inmate associate freely with other prisoners could represent a threat to the inmate's personal safety. Although an inmate may request protective custody, it can be imposed without any request being made. Accordingly, an inmate's request to 'come off' protective custody will be refused if the General Manager of the prison (as delegate of the Commissioner of Corrective Services) considers that the inmate's personal safety remains at risk (CSNSW, 2012, p.5). To facilitate protective custody arrangements, a prison may have special management areas, limited association areas and non-association cells. Non-protected inmates are typically excluded from these areas.

Previous employment as a police officer is identified as a reason why protective custody may be necessary in a particular case (CSNSW, 2012, p.21). Dale (2016) notes that Rogerson's "arch-nemesis" Neddy Smith is located near to Rogerson's current cell in the Long Bay Correctional Complex, but presumably he is kept far enough away to avoid nasty incidents.

"Trouble? I'm too old for that s**t"

Apparently these were Rogerson's candid words during the last interview he gave (Ongaro, 2014). However, age is no barrier to crime, and NSW prisons are full of old blokes like Rogerson and McNamara. In part this is a product of an aging population generally, "mirrored in the prison population" (Paget, 2015b, p.5). However, Paget also notes that "aged" in prison terms represents a much lower age threshold than in the broader community – 55 and over for non-Aboriginal inmates, 45 and over for Aboriginal and Torres Strait Islander inmates – as "many in prison are worn beyond their years by accumulated adverse life experiences." The incarceration of men over 65 in particular has grown at an extraordinary pace in recent years, much faster than other age groups – e.g., up by 225% in the period 2010-14 (Paget, 2015b, p.5). The effect of this aging prison population is that prisons have been forced to expend resources on age-related health conditions that are not so prevalent among younger inmates. A good example of this problem is in the construction of cells, beds and walkways in NSW jails, which were designed many years earlier. Paget notes that:

"The majority of frail inmates have functional difficulties in the prison environment. This is not surprising, as prisons are designed primarily for young, male able-bodied inmates. At MSPC 3 [an area within Long Bay Correctional Complex] there was a notable lack of seating and shade for all inmates in communal areas, as well as bunk beds with no railings or ladders, making access particularly difficult for the elderly and safety a concern. Mobility around the centre is difficult for aged inmates due to the number of steps, uneven surfaces, steep gradients and narrow doorways... There are also a number of trip hazards from uneven flooring and broken tiles. Further, the cells in 19th-century facilities... are cold and draughty, and too small to accommodate mobility aids in-cell. This creates a heightened risk of falls in cells, which is currently where most falls occur, due to long lock-in hours" (pp.9-10).

These issues have been partially addressed in some areas, such as at the Long Bay Hospital Aged Care and Rehabilitation Centre, but the procedures used to determine where inmates are placed do not include routine assessments for age-related frailties. This means that older inmates will often find themselves mixed in with younger inmates, and will be more vulnerable as a result (Paget, 2015b, p.10). Nonetheless, Corrective Services NSW does officially acknowledge its duty of care to inmates, and requires its staff to implement policies designed to "provide a safe, secure and humane environment" for aged and frail inmates (CSNSW, 2015a, p.2). The operations manual notes that Justice Health and the Forensic Mental Health Network ("JH&FMHN") are involved in clinical support for aged inmates, including referrals to specialists where required, and EnableNSW provides "assistive technology devices and specialised support services" (p.4). Representatives of CSNSW and JH&FMHN comprise the Aged Care Bed Demand Committee which makes placement decisions regarding aged and frail inmates. Adapted housing options include:

? Long Bay Hospital Aged Care and Rehabilitation Centre (15 beds for male and female inmates).
? Kevin Waller Unit at Long Bay Correctional Complex (23 beds for male inmates, but not inmates at risk of self-harm or psychotic).
? Special areas within mainstream correctional centres.

However, adapted housing options are not available in all centres and most aged inmates are maintained in mainstream non-adapted accommodation. Rural options may be particularly limited (CSNSW, 2015a, pp.5 & 9).

Since Paget's Old and Inside report was issued in September 2015, Corrective Services NSW has updated its operations procedures regarding inmates with a disability, but identifying affected inmates relies heavily on observable dysfunction:

"If an inmate is seen to have a disability (i.e. the inmate has a visible disability such as an amputation or is in a wheelchair), or is suspected of having a disability (e.g. the inmate does not seem to understand instructions or seems to have a problem hearing) or there is information that the person has a disability (e.g. a report is available, or disability support workers visit the inmate) then the staff member should enter a referral on the OIMS Disability screen together with a comment about why the referral is made" (CSNSW, 2015b, p.4).

The current approach appears to be that being 55 or older (45 or older if Aboriginal or Torres Strait islander) makes an inmate "eligible for identification as aged and frail" – my emphasis – but does not trigger any specific process for measuring disability or decline. It is up to prison staff to observe that an aged inmate has a relevant disability, and to flag that in the prison's OIMS system (CSNSW, 2015a, p.10).

Medical care

As prisoners age, medical issues are more likely to arise. Under the heading 'medical attention', s.72A, Crimes (Administration of Sentences) Act 1999 (NSW) provides that:

"An inmate must be supplied with such medical attendance, treatment and medicine as in the opinion of a medical officer is necessary for the preservation of the health of the inmate, of other inmates and of any other person."

Hutchins (2014) informs that medical attention is usually dispensed by nursing staff at prison clinics, and medical doctors who visit the prisons (p.1118). Long Bay Correctional Complex has a hospital, but Hutchins says that surgical operations are not carried out there (p.1119). Section 73, Crimes (Administration of Sentences) Act allows the Chief Executive Officer of Justice Health to override an inmate's objection to medical treatment if the treatment is needed to save the inmate's life "or to prevent serious damage to the inmate's health."

EnableNSW administers NSW Health disability support and other inmate assistance programs, including equipment and services to inmates with "chronic health conditions or a disability" (CSNSW, 2015b, p.7). In some cases psychometric assessments are conducted (presumably by clinicians or other qualified providers), and prison staff may administer the 'Basic Aged Care Assessment Tool' ("BACAT") to an inmate where age or frailty has been identified (CSNSW, 2015b, p.5). The BACAT form can be found at Appendix 1 of CSNSW (2015a, pp.13-15).

Paget (2015b) also highlights the mental health aspect, and the hygiene needs of older inmates many of whom suffer varying degrees of incontinence. Paget's team learned of inmates requiring daily help from other inmates in the absence of appropriate professional services in the prison:

"Sweepers – that is, inmates assigned to maintain communal areas in accommodation wings – act as pseudo carers for inmates with incontinence, cognitive impairment and/or mobility issues who need support with hygiene, laundry, cleaning and general personal care. At [Kevin Waller Unit], inmates consider that the support they receive from sweepers is crucial to their daily functioning. While this is commendable, it should not be expected that inmates look after one another in this way. In addition, this assistance, combined with prison routine and lack of autonomy, can mask the declining functioning of some aged inmates" (p.11).

Inmates who soil themselves in their cells during lock-in periods may have little assistance until the lock-in period ends, which Paget notes can cause issues between inmates and impacts on the dignity of aged inmates caught in this situation (2015b, p.12).

Despite significant increases in the number of inmates, the funding for specialist medical areas has not increased proportionately. Paget (2015a) reports that prison clinical staff numbers decreased from 4.9 FTE per 100 inmates to 4.5 FTE between 2011 and 2014, a period when there was a massive increase in the number of inmates aged 65 and over. For aged and frail inmates, this means that non-urgent medical and psychiatric needs may not be met, or there may be considerable waiting time. The average waiting time for an inmate to see a general medical practitioner was over a month in the prisons inspected by Paget (p.12).

Overcrowding and lockdowns

Nearly half of NSW prisons are over-capacity due to significant increases in the inmate population (Paget, 2015a, p.10; Weatherburn et al., 2016), which has adverse implications for inmate programs and rehabilitation (Paget). In addition, due to this overcrowding problem, more than three-quarters of inmates are placed in a prison outside the region where they lived before their incarceration (Paget, p.11), which impacts on family visits and inmates' connections to the outside world.

The difficulties affecting older and frail inmates are exacerbated by lockdowns, which are generally related to CSNSW staff levels and the number of inmates under management. Medical staff and other care providers cannot access inmates during a lockdown period. By way of example, Paget records:

"The lunchtime lockdown that is in place at all centres means that although the [JH&FMHN] staff are onsite, they are unable to see inmates. This is a noteworthy disconnect. General lockdowns, largely due to custodial staff shortages, also result in appointments for inmates being cancelled and rebooked. This not only has time and cost implications, but may also be detrimental to inmate health" (p.12).

Of course the other problem with lockdowns and cramped conditions is the people you are stuck with, and how you wile away the time. Dale (2016) notes that some of Rogerson's fellow inmates have dementia, and quotes a Rogerson associate's comments regarding the felon's placement in a prison wing populated by these other oldies: "Roger... would be so frustrated be[ing] surrounded by people with dementia." However, apparently Rogerson has found a piano inside and bangs away at Beatles songs. I wonder if Bad Boy, Chains or I should have known better are in his repertoire.

Conclusion

Serious offenders who are locked up in prison are not usually afforded much sympathy, and Rogerson and McNamara will be no exception to this. As older blokes in an environment that was designed to accommodate younger, able-bodied men, they will certainly struggle to find anything even vaguely approaching the quality of life that is enjoyed by the majority of retirees living on the outside. Medlicott (1999) interviewed 40 male inmates about how they coped in prison:

"They spoke of their previous plans and dreams for the future, of job applications, of winning the lottery, of reunions with long-lost friends in smoke-filled pubs, and family responsibilities... Many speak obsessively about turning the clock back to a time prior to their offence... 'If only...' is a steam of thought which produces its own form of torture, especially for lifers" (pp.215-6).

We can only guess at what's going through Rogerson and McNamara's minds right now. It can't be nice, being an old bloke in prison.

Stephen Bourne

Further articles can be found at:

https://stephen.bourne.lawyer/articles

(Stephen Bourne Lawyer – [email protected])

References

CSNSW (2012). Segregated and protective custody (Chapter 14, v.1.5). Operations Procedures Manual. Sydney, NSW: Corrective Services NSW.

CSNSW (2015a). Placement and management of aged and frail inmates (joint policy with Justice Health & Forensic Mental Health Network). Offender Management & Programs, Corrective Services NSW, 9 June 2015.

CSNSW (2015b). Inmates with a Disability - Identification, referral and equipment issue and return (Chapter 7.25, v.2.1). Operations Procedures Manual. Long Bay, NSW: Corrective Services NSW.

Dale, A. (2016). Roger Rogerson and Glen McNamara sentenced to life in prison. The Daily Telegraph, 2 September 2016.

Hutchins, W. (2014). Prisoners (Chapter 35). The law handbook (13th ed.), 1113-1134. Sydney, NSW: Redfern Legal Centre Publishing.

Medlicott, D. (1999). Surviving in the time machine: Suicidal prisoners and the pains of prison time. Time & Society, 8(2-3), 211-230.

Ongaro, D. (2014). Jamie Gao: The shocking discovery that left cops shaken. The Sunday Telegraph, 2 June 2014, 1-6.

Paget, J.R. (2015a). Full house: The growth of the inmate population in NSW. Sydney, NSW: Inspector of Custodial Services.

Paget, J.R. (2015b). Old and inside: Managing aged offenders in custody. Sydney, NSW: Inspector of Custodial Services.

Partridge, E. (2016a). Roger Rogerson and Glen McNamara found guilty of the murder of Jamie Gao. The Sydney Morning Herald, 15 June 2016.

Partridge, E. (2016b). Roger Rogerson and Glen McNamara given life sentences for murder of Jamie Gao. The Sydney Morning Herald, 2 September 2016.

Ralston, N. & Partridge, E. (2014). Caught on camera: A killing in sin city. The Sydney Morning Herald, 31 May 2014.

Serge, V. (2014). Men in prison. Oakland, CA: PM Press (English translation of Serge's 1931 'Les hommes dans la prison').

Weatherburn, D., Corben, S., Ramsey, S. & Fitzgerald, J. (2016). Why is the NSW prison population still growing? Another look at prison trends between 2011 and 2015: Issue paper no. 113. NSW Bureau of Crime Statistics and Research, Corrective Services NSW, January 2016.