Russell Marks - Crime Punishment

Other books in the Redbacks series:

Battlers and Billionaires:

The Story of Inequality in Australia

ANDREW LEIGH

Why We Argue about Climate Change

ERIC KNIGHT

Dog Days: Australia after the Boom

ROSS GARNAUT

Anzacs Long Shadow: The Cost of Our National Obsession

JAMES BROWN

www.blackincbooks.com

INTRODUCTION

O ur penalties are a joke, declared Steve in the Victorian Herald Suns letters pages in November 2014. The previous day, the newspapers website had displayed video footage of a sickening assault. While travelling on a bus, a 68-year-old grandfather had asked a much younger man to turn the music down on his mp3 player. The two men got off the bus at the same stop and the verbal confrontation continued. This was when the buss CCTV camera picked it up.

Just as the bus was about to pull away from the kerb, the younger man punched the older man once, sharply, in the face. The victim collapsed, and the attacker walked off. Two schoolgirls sitting on the bus saw the attack and got off to administer first aid. Ultimately, the victim suffered a broken nose, swelling and bleeding on the brain. He also lost four teeth. He was lucky to be alive.

It wasnt the first time the Herald Suns readers had been introduced to this particular assault. The previous month, the papers Leader supplement had reported, misleadingly, that the Grandfather attacker walks free from Dandenong Magistrates Court. I say misleadingly because the twenty-year-old assailant was actually sentenced to a one-year Community Corrections Order one of the highest penalties short of imprisonment available to Victorian courts. This order meant that for the next twelve months the young man would need to attend regular supervision sessions with an officer from the Department of Corrections. Hed also need to attend regular treatment and rehabilitation appointments, probably with a drug and alcohol counsellor and at an anger management course, and would be assessed for a mental illness.

If he failed to attend more than a handful of those appointments over the next year, the corrections officer would allege that hed breached the order, and the matter would return to court for re-sentencing. If that happened, the young man would very likely face jail.

But the Herald Suns reportage played for outrage, and outrage it got from those writing in. It is time magistrates are elected into (and out of) their role by the public, growled Michael. Only then will they give sentences that reflect what society expects. CJ wondered how this magistrate will feel if they see the same offender in a few years time, but the victim ends up dead. Elijah went one step further: So the scum just walks away? I hope those in the justice system responsible for such an out-of-step decision are the ones who are attacked next time.

The particular magistrate who sentenced this young man was Greg Connellan, formerly a well-known human rights lawyer. I appeared before him a number of times while I was working as a lawyer with the Victorian Aboriginal Legal Service between 2012 and 2014. Its unlikely theres a magistrate who approaches their judicial responsibilities with more thoroughness and sincerity. And hes certainly not afraid to use jail he sent one of my clients away for nearly two years, and soon after he was appointed to the bench in 2007 he criticised the leniency of the maximum penalty available (five years) for a reckless conduct charge. Connellan does need a very good reason to send someone to prison, though, and despite the views of the Herald Sun and its selection of baited readers, its unlikely that reason existed in this case.

It almost did, though. Causing serious injury is among the gravest charges heard by magistrates courts, and Connellan said in sentencing the offender that hed be going to jail if he hadnt already made significant changes. More than six months had elapsed since the original assault, which gave the offender time to complete a pre-sentence bail program known as CREDIT (Court Referral and Evaluation for Drug Intervention and Treatment). The idea is that an accused person who would otherwise be remanded in custody until they are sentenced is given access to treatment or rehabilitation services for four months, if its assessed that their problem with drugs, alcohol or mental illness is a factor in their offending. Their engagement with those services, and their progress in addressing some of the problems which may have contributed to their offending, is then taken into account by the sentencing magistrate.

I hope karma will catch up with [the offender], said David, another letter-writer in the Herald Sun. David likely doesnt know the assailant, so was expressing a familiar idea that criminal offenders are motivated primarily by evil intent, that theyre basically villains who should get their just deserts. But if David had read the Herald Suns report closely, he would have learned that the assailant in this case had been diagnosed with ADHD and a mild intellectual disability, and had been previously observed to have anger management issues. David would also have learned that the offender grew up in a violent home.

None of this represents an excuse for the offenders conduct, which is why he was charged, processed through the criminal justice system and sentenced. But the backgrounds of most offenders provide courts with hints as to what might be causing their behaviour. Unfortunately, its all too common for children who experience violence while growing up to express themselves violently as they get older.

We dont have to bend our minds too much to imagine what kind of childhood this young man had. At various times, he would very likely have been described as a victim himself. The Herald Sun was quick to cast him as a thug and a coward, but he might equally be seen as a kid who fell through the cracks a kid whose society failed in its duty to protect him from damage and to educate him into self-sufficiency and prosperity. David might hope karma catches up with this young man, but on another view, karma might already owe him some points.

This sentence in no way reflects community expectations for such a vicious and unwarranted assault, asserted Michael in the Herald Sun. What an absolutely disgraceful sentence, bellowed Matthew. Hopefully this is appealed. We bay for jail in cases like this one. Theres a pattern to it first, we convince ourselves that the offender is bad, a villain, and then we want them to suffer as much as possible.