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Five years in jail is a hell of a time, and a fitting sentence

Greg Barns

by Greg Barns

31 May 05:45am

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Filed under: Andriyas Tello, Courts, Criminal Law, Justice, Matthew Mcevoy

55 comments

The death of 24 year old Matthew McEvoy outside a night club in Melbourne in 2008 was as a result of acts of senseless violence by two young men, Andriyas Tello and Lauren Sako.

Rape, violence, depression…Melbourne's Pentridge Prison.

But as tragic as Matthew McEvoy’s death is, it is important to remember that the justice system in a democratic society is not there as a tool of revenge or bloodlust, but exists rather as a means of both protecting society and hoping that these young men do not offend in this serious way again.

David Penberthy on this site last Thursday took issue with Victorian Supreme Court Justice Paul Coghlan’s sentencing of Tello, who pleaded guilty to manslaughter, to a period of 5 years imprisonment (Sako has already been sent to jail for 6 years with a 3 year minimum term).

To Penberthy’s considerable credit he did something which journalists reporting on sentences handed down by our courts rarely do, and that is analyse carefully the reasons Justice Coghlan gave for imposing the sentence he did in this case.  Penberthy observed that with a maximum of 20 years for manslaughter on the statute books, Justice Coghlan should have upped the sentence.  To not do so concluded Penberthy was “an appalling bloody insult” to Matthew McEvoy’s memory, and the five year sentence “does not even come close to reflecting the magnitude of the crime,”  Penberthy concluded.

Part of Penberthy’s reasoning relied on his referring to a similar type of case in New South Wales last week where a judge handed down a 14 year term to a 21 year old man David Issako, whose attack on the victim has left him a vegetable.

So did Justice Coghlan get it wrong?  No.  On my reading of his sentencing remarks he rightly undertook the exercise which judges and magistrates agonise over every day – how to give the victim or their family a sense that justice has been done, while at the same time ensuring the offender becomes a worthwhile member of the community, which will make us all safer in the long run.

If the sentencing exercise carried out by our courts were simply there as reflection of society’s need to punish, and the deep seated and primitive desire for revenge that lies in all of us, then we would hang people who murder, castrate rapists, cut off the hands of burglars and have to spend billions of dollars on building jails to accommodate all the people we want to banish and punish.

And would we have a safer society?  No, but instead a more violent one, because violence begets violence.

It needs to be remembered that the McEvoy family will never get their son back.  That is a shadow that weighs unfairly on that family forever now.  But whether it was one year or life imprisonment, nothing will change that sad fact.

What Justice Coghlan was faced with was a 21 year old man who had no prior convictions, no known propensity for violence, was studious and hard working, had come to this country with his family from repressively violent Iraq, and who had expressed ‘uncharacteristic’ remorse for his actions, according to psychological evidence tendered.  Mr. Tello, Justice Coghlan heard, has anger management issues. 

All of these factors are legitimate ones to take into account when sentencing a person, and for good reason.  What the courts have to do is to make sure a jail term is not so crushing that the offender will never take the opportunity to rehabilitate. 

A five year jail term for anyone is a long time.  As someone who visits jails on a regular basis I can assure you that for a young offender like Mr. Tello the chances of him surviving bashings, rapes, verbal and physical abuse, and severe mental illness are not high.  Despite what some in the community might believe, jail is hell on earth for the vulnerable or the young and five years will seem a lifetime to Mr. Tello.

The second point to make is that it is clearly in society’s best interests for Mr. Tello not to reoffend again.  We surely want him to return to the community at some point while still relatively young, and not be a threat to society.  The longer he stays in jail the less likely it is that this aim will be achieved.  Is that what we rally want?  A jail hardened offender back on the streets meting out violence?

The memory of Matthew McEvoy is surely best served by his attacker not offending again.

- Greg Barns is a criminal barrister and a Director of the Australian Lawyers Alliance.

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55 comments

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    • Kevin says:

      02:42pm | 01/06/10

      I’m sick of hearing these pathetic excuses such as ” he has anger management issues” - coowee! who cares what his issues are, they won’t be fixed by going lightly on his sentence, neither will it help him to understand that he needs to change. I think the best thing to do to give the victims family some sense of justicve, is to ensure that he never again walks the streets of Australia - that is, we shoould send him back to the life he’s used to after he does his sentence - by this we can 100% know that he won’t be a danger to any Australian ever again. Stop sweeping the rubbish under the carpet - instead, throw it in the bin!

      Reply

    • Bea Minor says:

      01:22pm | 01/06/10

      In the mind of a redneck vigilante, the brevity of the sentence would be a trigger to enact some brutal form of backyard justice. For the open minded, liberal thinker who carefully considers the wider, societal context and the greater good, it is difficult to reconcile, if not, completely unpalatable.

      Reply

    • Arios says:

      07:12pm | 31/05/10

      Usually by the time people get to this point, it’s too late. They are already damaged goods. Obviously that’s why they committed the terrible crime in the first place. I am torn on whether to lock them up forever or totally cut their hands of (barbaric instincts) or whether to try super hard to rehabilitate them properly.

      In most cases, they came from broken homes and therefore know no better. Their parents often screw them up from a very young age and then the rest of their life just becomes a mess.

      So it definitely has to go back to the families responsible for the offender. We need to place more of a focus and responsibility on families and their duty to raise people in a responsible and loving manner. Families are definitely the fabric of society and this is where the majority of issues stem from.

      In Japan for example, when a suicide victim jumps in front of a train, the government hands the total cleanup and delay expenses back to the victim’s family! They basically say “Well you raised this guy, why weren’t you there for him as a family, so now you can pay the bill - because the rest of society shouldn’t have to wear it”. This is also meant to act as a deterrent to stop people selfishly taking their own life. I think they have it right and its the fairest way. It won’t always be perfectly fair, I.e. you will get some fantastic families who unfortunately had a bad kid not from their own doing, but not too often, there is usually always a reason and a starting point.

      So we need to place more responsibility on the family unit. Take privileges away and make families bear the cost of what they produce. In western society we often focus too much on the individual and not enough on the “group” I.e. the family behind the individual.

      Reply

    • lucy says:

      04:21pm | 01/06/10

      Arios, ‘bear the cost of what they produce?’ How exactly do you suggest that parents are responsible for everything that happens with their child until they die? Would you also agree that the parent of a child who stayed in a relationship of domestic violence and ultimately died as a result of that should then be told go and clean it up as they weren’t there for them? Key point here is that you cannot completely control another persons decisions and actions in life, influence yes, control no, end of story. Not everyone is shaped by their parents alone, nature and life experiences and choices outside of parental control can surely affect an individual too, so why would it be the parents fault for everything?

      I find it disgusting that if what you said is true that in Japan a grieving family who lost their child through suicide and very likely through a mental illness would be judged and treated that way. Mental illness is just that, an illness, like a physical illness it is a medical condition which needs appropriate treatment, it is not something a family can just magically fix nor is it the hallmark of a selfish person. That just shows a complete and utter lack of understanding of mental illness and the ppl who suffer from it.

      Some families do contribute to what their child becomes, some don’t, some kids from enormous adversities and abusive homes have grown into the most productive amazing adults, should their parents be praised for that? Or the ones that did all the right things but their child made the wrong decisions in life be vilified? No to both of those, life is just not that black and white.

    • stephen says:

      04:15pm | 31/05/10

      Rehabilitation should be attempted ,I think, in every case that comes before the Courts, or in any instance in which common-sense demands.
      My point, really, was that the Judiciary should not be coerced or even influenced by a person’s prognosis.
      In sentencing, an offenders history, (and not a Judges attempt at prediction), should have bearing on a sentence.
      Criminal and illegal acts are actions by perpetrators.
      If Capitalism, say, is to ‘judge’ a person by the decisions they make in life, (rich or poor etc), why then does the Court operate to, in effect, ameliorate this social system ?

      Reply

    • stephen says:

      01:59pm | 31/05/10

      I disagree that the Courts should in any way concern themselves with an offenders’ rehabilitation. Judges and the Judiciary should simply sentence for punishment. Another agency should then intrude, once the sentence has been handed down, for psychological assessements for techniques and procedures for re-introduction of the offender into society.
      The Judiciary is not trained to ‘design’ Societies.
      They are supposed to consider legal matters only, when determining guilt or innocence, and that they then intrude into psychological aspects of a person’s future is inefficient.

      Reply

    • Paul Neri says:

      03:14pm | 31/05/10

      But stephen, the threshold issue is whether for some bad people we should try and rehabilitate them? Surprisingly, decent people are not in short supply thereby raising the question of whether we need to go to all the expense of obtaining “repaired goods”?

    • 6c legs says:

      01:31pm | 31/05/10

      I always have a giggle when the usual suspects rile against “Do Gooders”/“Political Correctness Gone Mad”/“Ivory Towers” ect ect ect..  If all the surveys i read/hear are anything to go by, damn near every citizen will at some point in their life have to deal with the ‘wrong’ side of the Justice System, in some form or other - and funny how they forget about their criticism when it’s not them (or their entitled relative) getting put away forever. . .
      i.e; ‘it’s too tough’ when it’s applied to them, ‘but not tough enough’ when they’re the victim - ACA and Today Tonight (all Tabloid media) thrive on viewers who can’t see further than their own nose, and encourage all the faux outrage. (that the viewers can’t even sustain past the ad break, or page turn)

      I am very thankful that i was born in a country that no longer sanctions State based murder done in cold blood.
      The law is as complicated and messy as everything else we Humans do.
      I for one am glad of the time, effort, and thought, that all the ‘do gooders’ put in on things that will never be simple. Yeah, it would be fab if The Law was black and white simple - but it aint!

      @ “Jeremy” 7.49am - i heard that episode, and i agree with your summation. (I loff Radio National -  my american friends would love to have our ABC network)

      Reply

    • TheRealDave says:

      01:28pm | 31/05/10

      BOLLOCKS.

      5 years in gaol is nothing. Its a disgustingly small punishment and is definatley not a detterant for taking someones life.

      Matthew McEvoy is dead. Forever. His parents, family and friends will live with his death forever. Each and every day for the rest of their lives, lets say the next 10-50 years they will remember and suffer again the way he was taken from them so cowardly and callously.

      These two arseholes will be back on the streets ready to get on with their lives and live them to the full in as little as 6 years, when both are still in their mid 20’s. Another 50-70 years on average.

      Further - what the fuck is this ‘remorse’ crap we now have to put up with as a legitimate defense mechanism? Of course they are fucking remorseful - they got caught killing someone! I’d be fucking remorseful too if I was facing years in gaol!. It reminds me of the disgusting case where the Bikeway Rapist in Brisbane got years caught off his sentance cause he was ‘genuinely remorseful for his actions’. I wonder if this remorse kicked in after his first victim he bashed and raped? Or the second? How about the 11th?? BZZZZT! No, remorse only kicked in after he was caught.

      It is abhorent that the Legal System allows the use of ‘Remorse’ in determining sentencing. Its disgusting and an insult to the victims, their families and friends.

      As for coming from Iraq - so fucking what? He’s obviously been in this country long enough to know that their is no war, bombing campaings, secret police dragging people off to torture chambers etc Even criminals with less than the required brain power to be a functioning member of society knows the consequences of their actions. This recent trend of migrants using cicumstances of their homelands as a reasoning for their barbaric and criminal behaviour should never, ever, be tolerated.

      So, it begs the question, will this Iraqi bloke be deported once he’s finsihed his paltry term of incarceration? Oor is that only reserved for the killers of Celebrity heart surgeoans and not your average Aussie battler?

      Reply

    • Paul Neri says:

      01:12pm | 31/05/10

      I heard on the ABC news yesterday (I think, and I can’t find any trace of it) that some gentleman in NSW was being released on parole after 24 years or so imprisonment. He had committed a particulaly unpleasant murder involving a woman but some details of the crime are still suppressed because the good Judge decided they were too unpleasant for public knowledge and, let’s face it, Judges know best. Possibly the Judge thought we’d be alarmed if we learned of the types of barbarous acts people in our society are capable of perpetrating. I think that if Judicial Officers concerned themselves more with protecting our lives, rather than our sensibilities, we’d be a far happier society.

      Reply

    • neil says:

      12:09pm | 31/05/10

      5 years is not enough, Melbourne’s street violence problem is a result of youths from certain ethnic minorities who define themselves through their fighting capabilities, the eastern european, asian, middle eastern “kickboxing, cage fighting” culture.

      The sentences should be doubled and these “sports” should be band.

      Reply

    • neil says:

      08:18pm | 31/05/10

      Ricky,
      After posting earlier I had to leave for a funeral, I stopped at the lights on Inkerman st/ St Kilda rd, St kilda, beside a marshal arts studio. There on the wall was a huge billboard depicting a tattooed thug king hitting a man in the side of the neck and a logo promoting the Technical Fighting Academy which incorporated a wolverine type creature with ninja turtle type swords on it’s back and huge arms carrying a knife and hand gun.

      Do you really believe they are promoting a healthy hard training socially inclusive philosophy?

    • Dan says:

      06:11pm | 31/05/10

      Nice Ricky. I guess no white Australian has ever committed an assault.

    • Ricky says:

      05:58pm | 31/05/10

      I dont believe the sports(there are many quiet, hard training people who see them only as sports)  are the problem Neil, but you are right about certain ethnic minorities causing huge problems in this country.Sadly, as long as we continue to import the dregs of the middle east & asia we will continue to see this happening.

    • James1 says:

      04:55pm | 31/05/10

      I have only once seen a stabbing Muttley.  I was in year five, and a girl from a local high school (who was white) stabbed another girl (also white) in the neck outside my primary school.  This was in 1992.

    • Your name:Muttley says:

      04:23pm | 31/05/10

      Good point James ,but of those fights, how many knives did you see? I’m guessing none. And how many of the guys texted to get their 20 cousins to turn up with their knives?

    • James1 says:

      01:50pm | 31/05/10

      Why are these problems prevalent everywhere in the country then?

      Have you ever been to a B&S ball neil?  I did once.  I have never in all my life seen so many testosterone driven fights between males anywhere.  And every single one of them was not from an ethnic minority, yet every single one of them thought it important to prove who was the toughest.

    • SM says:

      01:13pm | 31/05/10

      You’re so right Neil, and that’s something that Mr Barns and the judge in question probably aren’t aware of, because when they go out for dinner on a Saturday night, it’s probably to a leafy, affluent area where these problems don’t occur

      I went out in the city here in Sydney on Saturday for the first time in a while.  The groups of youngsters stalking around the place acting gangster are out of control

    • jose jones says:

      11:37am | 31/05/10

      It seems as though a lot of your ‘readers’ seriously prefer vengeance over rehabilitation of offenders or the protection of society, and are not really willing to consider the alternatives. This scares me.

      Above, Paul Neri at least tries to engage with the problem rather than not reading and just ranting, but defers to some of idea of ‘society’s values’ which he doesn’t define. Isn’t a desire for retribution a value? And is isn’t the desire for a fair and just means of dealing with crime a value too?

      I guess the point is that people have different values at different times, and that while it might be easier and more immediately fulfilling to demand vengeance for a crime, I think that we have decided as a society that we ‘value’ the outcomes of a fair justice system that prioritises the long term gains of rehabilitation and protection over the immediate gratification of revenge.

      Reply

    • OldGirl says:

      10:39am | 31/05/10

      I shake my head in disbelief at where this country is headed. My great great great came here as a convict, he got 7 years in chains in Tasmania for stealing half a pound of butter. Today we give them a couple of years for murder and a smack on the bum. Give it 10 or 20 years more and they will probably just get a fine. Families are devastated, a life is lost and the punishment does not fit the crime. The goals are full or repeat offenders, short sentence did not deter them, they just become prison smart. I feel for the family, I have no sympathy for this young thug.

      Reply

    • Paul Neri says:

      10:15am | 31/05/10

      The law should be the embodiment of a society’s values. If a society places a high value on human life then sentences should reflect that value. It’s not necessary that a sentence can be shown (if such a thing were possible) to have little tangible benefits for society generally, in terms of preventing recidivism. The benefit of a severe sentence is intangible but nevertheless deeply penetrates the Public psyche and promotes a sense of well-being and reinforcement of worth (and such a thing is provable to the extent enabled by surveys). The Legal Fraternity wrongly confuses revenge with a Society strongly and demonstrably enforcing its values.

      Reply

    • rob foster says:

      10:14am | 31/05/10

      Another bloody bleeding heart. these so called academics and do gooders are the reason why we have so much violence in this country now.

      Reply

    • ABC says:

      12:08pm | 31/05/10

      rob foster - I’m not sure if you have ever met anyone who as ever practiced in criminal law.  Let me tell you from experience - neither criminal lawyers either defence barristers or prosecutors are bleeding hearts by any means.  They are more likely to be cynical realists - when you deal daily with the mess that people make of their own and others lives, realism is pretty much only the approach to take.  The whole world is full of shades of grey.

    • Lee from WA says:

      11:16am | 31/05/10

      Wow, I never realised compassion and decency was the source of violence? I always thought it was selfishness but hey, I’m glad you cleared that up for me Rob. Your insightful, stinging critique of Greg Barns article should be kept for perpetuity in the National Archives.

      Apart from being a colossal waste of money, locking people up for eternity for every crime (presumably your way forward) doesn’t actually serve the community in the long run.

      If Mr Tello is genuinely remorseful (which none of you are really in a position to comment on since I’m guessing you don’t actually know him) as a experienced forensic psychologist (who probably know more about this that you lot) has testified in court (a guaranteed sign of lies right?) and doesn’t have any prior convictions or history of violence then by locking him up and throwing away the key will not only cost us (yes you and I as taxpayers), it will destroy a life that could be rehabilitated and could be productive.

      It would be better for society if Mr Tello can come out of prison, having done his time, so he could serve his community. He can work and pay taxes and have kids and do what normal people do. A body in prison does nothing to serve the community, nor will it bring back Matthew McEvoy as Greg Barns helpfully points out. But hey, coming to realization means we have to bury our collective, self-righteous outrage and actually engage the issue and, well, who likes doing that?

    • Jack says:

      10:48am | 31/05/10

      Actually, even if we did have ‘so much violence’, wouldnt it be the fault of the people committing assault?

      And btw, violent crime is decreasing. But dont let that stop your bogan rant. Ivory tower liberal latte leftie bleeding heart do gooders rargh!

    • James1 says:

      10:34am | 31/05/10

      Thanks rob.  As I am sure you are aware, relative rates of violence have been declining in Australia for two decades now.  And we academics can rest easy knowing that we are the cause.  Hooray!

    • DG says:

      10:10am | 31/05/10

      Mr Barns

      who cares if your measure of 5 years in jail for Tello seems like a long time or hell on earth?

      Mr Tello took the life of a person in a violent attack and should be- no matter what his background did to him- accorded the full weight of the law….

      whether its the correct punishment or not- its the perception of the public that 5 years vs a life -seems clearly unbalanced

      do the crime- do the time….but in this instance, the bad previous life of the perp has assuaged the Judge to shorten the time in custody

      its not right

      Reply

    • Yon Toad says:

      10:03am | 31/05/10

      You say “A five year jail term for anyone is a long time. “. Oh, and being indisposed for eternity ain’t huh? You goose!

      Reply

    • Michael says:

      11:13pm | 01/06/10

      Why does the statement that a 5 year jail term for anyone is a long time have to equate to saying that being indisposed for eternity “ain’t”? I don’t see how one has to mean the other. They are two seperate consequences. The author wasn’t comparing the two outcomes.

      Obviously the victim is forever dead, maybe through no fault of their own. Still, 5 years in jail is a hell of a long time and that’s a fact. Ask somebody who’s done time.

    • SM says:

      09:57am | 31/05/10

      Why is “remorse”, something that can be manufactured, relevant in determining a sentence?

      Reply

    • SM says:

      03:10pm | 31/05/10

      You’re telling me that no psychologist whose testified in court has ever been conned by a defendant into thinking the defendant is “remoresful”?

      remorse should be taken out of the equation

    • ABC says:

      12:03pm | 31/05/10

      Remorse when it is genuinely felt as it was in this instance, and remorse when it is manufactured are two entirely different things.  I think a pyschologist actually treating a client is far better equipped to determine whether their remorse is genuine, as opposed to say, I dunno , someone commenting on a blog or writing for a newspaper don’t you?

    • AdamC says:

      09:55am | 31/05/10

      I agree with some of this – especially the comments about violence in jail – but can’t wear the conclusion. Greg, you simply don’t adequately rebut Penbo’s contention that five years for fatally attacking someone is simply too low.

      In my view, one of the problems with our systems of criminal justice is that they seem to lack any stated mission or objectives against which to measure effectiveness. There is also the problem that, due to the structure and independence of the judiciary, players in the criminal justice process are not accountable to anyone. These structural deficiencies result in a feeling out there in much of punterland that criminal justice has merely become a gravy train for hangers on without any regard to the community which, one may imagine, the whole thing is supposed to serve.

      Reply

    • Blossom says:

      02:05pm | 31/05/10

      Hamish I really feel the whole prison system needs a good shake up. Violence should not be happening in jail. Nor should drugs and anything else illegal be happening. Why do we pay these prison guards? They don’t appear to be doing their jobs!! I also agree this sentence is not enough. A life is not worth much in this country

    • Hamish says:

      12:35pm | 31/05/10

      It seems to me all the author achieved here was to make the, quite legitimate point, that our jails are terribly run. Sure I don’t want people such as Tello to be bashed and raped in jail, but the best solution to that problem is to make the jails safer not slap serious offenders on the wrist.

      This guy did actually kill someone and we have massive drunken violence problems in Victoria so I would have thought for deterrent value alone, this sentence is clearly manifestly inadequate.

    • Peter says:

      09:43am | 31/05/10

      The only fitting sentence for murder is the death penalty.

      Reply

    • Gavin says:

      10:58pm | 01/06/10

      Hey yeah, and while we’re at it let’s sacrafice every firstborn to appease the Aztec gods, as a means to avoid natural disasters. Who says we’re an evolved civil society.

      If we were to allow the death penalty, and you Pete were condemned while innocent, would the delicious irony come under the “Poetic Justice” banner?

    • Dan says:

      01:53pm | 31/05/10

      So you want to punish murder by murdering the murderer?

    • Zeta says:

      09:37am | 31/05/10

      If Greg writes for both the Punch and for Crikey, won’t a black hole open? It’s kind of like dividing by zero.

      Reply

    • Tough Mother Love says:

      09:22am | 31/05/10

      Maybe we should not accept refugees from countries where violence is the norm?  And castrating rapists?  Not a bad idea.  A few lobotomies would be helpful too.

      Reply

    • James1 says:

      10:32am | 31/05/10

      So we stop all US immigration then.

    • Smell the Roses says:

      09:18am | 31/05/10

      Please put womething in the water.  Some brave new world soma?  Or make it compulsory to take Valium before entering a night club.  Better still, close all nightclubs and pubs down after witching hour - a midnight curfew and there will be less violence on the streets.  Late closing is not virtue in any city which thinks it’s a vibrant andpleasant place to live.

      Reply

    • Criminologist says:

      08:04am | 31/05/10

      ‘If the sentencing exercise carried out by our courts were simply there as reflection of society’s need to punish, and the deep seated and primitive desire for revenge that lies in all of us, then we would hang people who murder, castrate rapists, cut off the hands of burglars and have to spend billions of dollars on building jails to accommodate all the people we want to banish and punish.’

      And would we have a safer society?  No, but instead a more violent one, because violence begets violence.’

      That’s not true on a number of levels.  One could just as easily say our society doesn’t believe that the removal of hands is an appropriate punishment for burglary and our society doesn’t believe that violence begets violence.

      ‘There is somewhat of a misconception among many people that if you’re rehabilitated early, you’re entitled to be set free. But there are two other reasons why we incarcerate people, and that’s deterrence, setting an example, thereby deterring other prospective killers or criminals from violating the law; and retribution - punishment.’ (Vincent Bugliosi)

      Sentencing should also be about deterrence and punishment, not just what is in the interests of their killer. 

      It’s interesting to note how the legal fraternity seem to willingly overlook and in some cases walk all over the rights of victims, particularly when they are dead.

      I also don’t believe that it should be up to a barrister, with his representative interests, to determine how the memory of someone’s loved one should be ‘best served’.

      Reply

    • Criminologist says:

      12:40pm | 31/05/10

      Karl,

      Where did I make any comment about what the sentence should have been?  So hardly misinforming anyone.

    • Karl Dillon says:

      12:01pm | 31/05/10

      “Thereby deterring other prospective killers…”
      As a criminologist, you would know that most violent acts are what we call ‘crimes of passion’ and deterrence has nothing, absoloutly nothing to do with this type of crime. Stealing a car, maybe. Finding your wife cheating on you, or being drunk and someone knocking over your drink. Noone thinks “shit, i could get 25 to life here”. In exactly the same way, what i say to you has no deterrent impact on your future dispersal of this kind of misinformation.

    • Jeremy says:

      07:49am | 31/05/10

      Well said. We need to hear more of this common sense countering the shameless and dangerous fearmongering of certain media organisations.

      Also worth reading (or listening to) is the ABC Law Report from 20th April where Carrick interviewed Antoinette Kennedy, former chief judge of the WA District Court. (http://www.abc.net.au/rn/lawreport/stories/2010/2876282.htm)

      Her frank remarks on why judges sentence as they do, and very unusual specific responses to attacks on some of her sentencing decisions, were fantastic. And as she put it on this subject:

      “The community has become more frightened of disorder than of tyranny, and the history of the law, and the history of Australia, shows us that in reality there’s no reason to be more frightened of disorder than tyranny, and when you frighten people so that they are more frightened of disorder than of tyranny, they’re likely to give up the rights that have been fought for since the 13th century, and they’re likely to let politicians do whatever they please.”

      Seriously, have a read of the transcript. She’s brilliant.

      Reply

    • Dan says:

      04:32pm | 01/06/10

      AdamC, ‘In a sense, yes. Favouring lesser sentences is a luxury for those who are confident they will never become victims of crime.’

      That is so absurd that I don’t know whether you’re serious or not. Alright fine, let’s talk about tough sentencing. Explain to me why it is that the death penalty, perhaps the toughest of all sentence, has no deterrence factor? To use just one example, the US which has the death penalty in multiple states has more murders, per % of populatuon, than Australia does. You mention South Africa, however this idea that crime could be reduced by introducing tougher sentencing is absurd.

      The truth is that people want tougher sentencing because it makes them feel better. But don’t think for one moment that advocates of tougher sentencing are more repulsed by crime than critics.

      Also, this is a perfect example of why we should let judges do their jobs. Contrary to what you might, the community does not have the expertise to determine everything.

    • luc says:

      03:05pm | 01/06/10

      Adam, you think tough punishments definitely deter crime? Stats? I’m guessing that it is not that cut and dried? In relation to the Sth African situation, perhaps there are many other issues at play e.g social, financial, cultural which also impact upon the problem? I didn’t see the program so can’t comment on it, just simply posing some questions. I think you are wrong suggesting that those who oppose tougher sentencing as a solution are not repulsed by violence. As a person who has a family member who was a victim to a crime I can certainly understand a persons want for severe punishment, but at the end of the day does that change what happened? Does that make the offender better or worse? More than just vengeance and punishment it would be better if the crimes weren’t committed and repeated, if there are other more effective ways of achieving that than locking a person in a room and sending them further insane for the duration of their sentence and then letting them loose then I can’t understand why ppl wouldn’t want to hear it.

    • AdamC says:

      09:53am | 01/06/10

      ... “(are you suggesting that who who oppose so-called tougher sentencing are no repulsed by violence?)”

      In a sense, yes. Favouring lesser sentences is a luxury for those who are confident they will never become victims of crime. Incidentally, there was an intenely disturbing 4 Corners last night about violence in Sth Africa, a problem which appears to be exacerbated by an extremely soft approach to crime (sex offenders being bailed back into the communities of their victims, etc). I thought it was instructive for this debate.

    • Dan says:

      05:33pm | 31/05/10

      AdamC;

      “Dan, perhaps you could replace your strawmen – nobody is talking about replacing judges, and it is just another languidly spurious argument to equate the two.”

      It’s not a strawman at all. Determing sentencing is an important function of judges, and issueing mandatory sentences (such as the terrifying idea in NSW to have life with no parole for people who kill cops) means that you may as well not have judges. No, I don’t think it’s a strawman at all.

      “II don’t presume to know why pollies adopt ‘tough-on-crime’ policies (though down south in VIC they do so but rarely) but I think it certainly has got something to do with public attitudes to violence.” They adopt such policies because it’s a vote winner. ‘Tough’ sentencing sells more than ‘smart’ sentencing.

      ‘The fact is, public opinions have changed: people are now rightly revolted by violence. In the past, as we know, violence was often excused or swept under the carpet. Women especially were often blamed for crimes visited upon them, child victims were silenced and ignored and domestic violence was dismissed as purely private. In general, crime was considered merely a pathology of poverty, which decent, well-off people (which, of course, included barristers and judges) could happily avoid via geography.’ Nonsence. This is not about attitiudes to violence (are you suggesting that who who oppose so-called tougher sentencing are no repulsed by violence?) but rather the incorrect assumption that so-called tougher sentencing leads to less violence.

      ‘Not any more. Whether longer sentences deter criminals or not, the public increasingly expect them to be given to violent offenders to protect society from their depredations and reflect the community’s expectation that violence no longer be tolerated.’ So we should forget about deterrence and rehabilitation and focus only on retirbutuon and revenge? The community absolute believes that violence shouldn’t be tolerated, but the question is how to deal with it, and in that regards, the community is not always right. Often the best way to deal with crime is the least popular.

    • iansand says:

      04:16pm | 31/05/10

      Ms Kennedy warned against giving police stop and search powers as proposed in WA.  Such powers are indubitably a step down the road to tyranny.

    • AdamC says:

      03:35pm | 31/05/10

      Dan, perhaps you could replace your strawmen – nobody is talking about replacing judges, and it is just another languidly spurious argument to equate the two. I don’t presume to know why pollies adopt ‘tough-on-crime’ policies (though down south in VIC they do so but rarely) but I think it certainly has got something to do with public attitudes to violence.

      The fact is, public opinions have changed: people are now rightly revolted by violence. In the past, as we know, violence was often excused or swept under the carpet. Women especially were often blamed for crimes visited upon them, child victims were silenced and ignored and domestic violence was dismissed as purely private. In general, crime was considered merely a pathology of poverty, which decent, well-off people (which, of course, included barristers and judges) could happily avoid via geography.

      Not any more. Whether longer sentences deter criminals or not, the public increasingly expect them to be given to violent offenders to protect society from their depredations and reflect the community’s expectation that violence no longer be tolerated.

    • Dan says:

      02:00pm | 31/05/10

      AdamC, it’s not about tyranny. It’s about politicians wanting to take away a key role from judges. If governments, who let’s face it only come up with law & order policies because it’s an easy vote-getter, wish to have people who committ certain crimes, sentenced for certain times, then they should replace judges as it’ll be alot cheaper and they won’t have to pretend that they care about the integrity of the judicial system.

      Additionally, considering that tougher sentencing does not reduce violent crime, perhaps instead of being populist, the politicians can leave sentencing to those who actually know what they are doing.

    • Hamish says:

      12:41pm | 31/05/10

      I agree AdamC. I think most people would consider tyranny to be the exercise of government violence against the innocent or against dissidents. You know, extra-judicial executions and imprisonment, arbitrary arrest, massacres, etc. I think most people would consider someone being sent to jail ‘cos, you know, they killed someone, not to be tyranny.

      I think the equation of: 5 years for manslaughter = freedom; 20 years for manslaughter = tyranny is rather ridiculous really. It’s more like: 20 years for calling Kevin Rudd a d**khead = tyranny.

    • AdamC says:

      11:17am | 31/05/10

      The problem with your quotation there, Jeremy, is that it spuriously suggests that tougher sentencing somehow equates to, or facilitates, tyranny. That is not correct, and I don’t believe anyone could justify it.

      Indeed Antoinette Kennedy, while she did make that statement in the interview, seems to back away from it quite quickly. In fact, one of her main points was that parliamentary attempts to restrict judicial discretion (such as minimum sentences for certain crimes) can result in perverse outcomes. What is striking about that comment is that everyone agrees with it. The reason politicians have brought in those restrictive sentencing requirements is because no one trusts judges to reflect public expectations – parliaments are forced to create perverse outcomes to prevent other perverse outcomes! All of this would be avoided if judges were quicker to take account of the public’s growing intolerance of violent crime.

      (In fact, if you look at trend data, judges have been increasing sentences over time. The problem is (a) they don’t really get much credit for doing so because (b) they have been doing it so gradually people have not noticed.)

 
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