Wednesday, 20 November 2013

Hard cases and bad law

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Every day, courts around the country balance a myriad factors in sentencing offenders, and every day they are criticised for being too lenient. There are avenues of appeal, and legislation can be changed to reflect community standards. But governments should not yield to the temptation to enact bad law for the sake of community outrage.

There is a long list of clichés that lawyers like to throw around. I think it is something to do with wanting to appear wise and superior to all non-lawyers who couldn’t possible understand the world we live in. One particularly well-worn expression is “Hard cases make for bad law”.

Kieran Loveridge and the new One Punch Laws are as good an example of a Hard Case and a Bad Law as you are likely to see. This is, however, the NSW government response to the community outrage at the penalty Loveridge received for the manslaughter of Thomas Kelly.

Thomas Kelly’s senseless and tragic death in July 2012 was widely reported in the media, as were justifiably enraged demands that his killer be found and brought to justice.

It wasn’t until Loveridge’s sentence proceedings two weeks ago, however, that the full details of the events of that night were revealed in the media.

Eighteen year old Kieran Loveridge went to Kings Cross with some friends. Even before he arrived there he was drunk. He was a man who had been in trouble with the law before, for offences including stealing a car and assaulting a police officer. Just one month earlier he had been sentenced for an assault, having gatecrashed a party, then punched the host and thrown empty bottles at him. He was probation for that offence at the time of Kelly’s death.

Such a history is perhaps not surprising, given his upbringing. Loveridge’s father was a violent alcoholic and drug addict who had himself spent time in gaol. His parents were separated and Loveridge, after a difficult childhood, grew up to become an angry young man.

Loveridge committed several other violent and unprovoked attacks the night Thomas died: four other people suffered various injuries at his hands, albeit minor ones – one had cut on his eyebrow, another had some bruising.

Thomas Kelly was less fortunate.

After Loveridge struck him, Kelly fell to the ground and his head struck the pavement. He was taken to hospital but doctors were unable to save him and his life support was turned off a few days later. It was a horrifying series of events.

In a decision that incited an avalanche of outrage, Justice Campbell in the NSW Supreme Court sentenced Loveridge to 4 years in custody and a further 2 years on parole for the Manslaughter of Thomas Kelly. He was sentenced to a further 14 months in gaol for the 4 other assaults.

Was that sentence insufficient? Thomas Kelly’s parents certainly thought so, although, as they said themselves, no sentence was ever going to be long enough for them. And no one could fault them for feeling this way. Losing a beloved son in such a way would be a source of grief and rage so unbearable that you might never recover. It would be an impossible and utterly unreasonable proposition to ask Thomas’ parents to see a wider picture in the sentencing of the perpetrator.

The mainstream media, however, does need to take a wider view. Many of the articles published on this issue quoted selectively from Campbell’s judgement and complained about the positive comments he made about Loveridge.

It’s true that Campbell summarised the positive and the negative about Kelly. He had no other choice, if he was to sentence him appropriately. Judges are required to look at all aspects of a case, not just the ones that resonate with our emotions.

What the media overwhelmingly failed to report was that Campbell also provided a detailed summary of recent decisions in similar cases. The summary is worth considering fully, and includes only cases where a person died after a single blow knocked them over and they hit their head on the ground.

Name

Year

Non-parole

Parole

Castle

2012

5 years 8 months

7 years 6 months

Donaczy

2010

3 years 6 months

6 years

Bashford

2007

3 years 6 months

5 years 3 months

Smith

2008

2 years 6 months

3 years 9 months

O'Hare

2003

3 years 6 months

6 years

Greenhaigh

2001

4 years 6 months

6 years 9 months

Risteski

1999

3 years 6 months

5 years

KT

2008

4 years

6 years

 

Obviously each of those cases are different, and it would be ridiculous to expect a judge to simply take an average. They do however, provide a guideline for judges in future cases of a similar nature. And Campbell was operating well within his prevue in taking them into consideration.

The Crown, however, is certainly entitled to appeal against the alleged leniency of the sentence - as they have done.

The Crown is also asking the Court to impose a Guideline Judgement, setting down a specific set of guidelines designed to assist justices in sentencing one-punch Manslaughters. This may be the most sensible means of obtaining considered judicial alteration to the sentences imposed for such crimes.

It is worth noting that the purposes of sentencing do not include “dampening down community anger”. Rather, our judges take into account: adequate punishment, specific deterrence (deterring the offender) and general deterrence (deterring potential future offenders). The court should also consider incapacitation (keeping dangerous people away) as well as rehabilitation of offenders, protection of the community and the denunciation of criminal offences.

Having said, that the media outrage was to be expected. There was wide community anger at the death of such a young man in such a senseless manner, and no one ever bought a newspaper with the headline “Convicted Killer Receives Adequate Sentence Given All The Circumstances”.

The anger is understandable. Manslaughter (the offence to which Loveridge pled guilty) is somewhat of a “catch-all” for homicides where Murder cannot be proved. That is not in and of itself a problem, but it does, rightly, lead to wildly varying sentences depending on the precise nature of the offence for which the offender is being sentenced.

A quick look at the statistics for Manslaughter show that some offenders receive nothing more than good behaviour bonds or suspended gaol sentences. At the other extreme, some offenders have received non-parole periods of 15 years. The median is 4 years non-parole, which, coincidentally, is exactly the sentence Loveridge received. The reasons for this are complex and are to do with the individual circumstances of each case. Judges, who hear all the details that are usually not reported in the media, direct the jury on law and take many aspects of the case into consideration when it comes to sentencing.

The NSW government’s response to the Loveridge matter is troubling in that it seems to owe far more to the media outrage than to any understanding of the judicial guidelines of sentencing or the outcomes of long incarceration on criminals.

The maximum penalty for the new One Punch Laws will be less than that for Manslaughter. There is a technical argument that the laws may marginally increase the penalties for offenders like Loveridge, but, if at all, it won’t be by much.

And it is very difficult to imagine that such a law could have any effect on the actual rates of violence like this, which is the stated reason for introducing such a law. Angry young men don’t pay attention to new developments in criminal law, and they certainly don’t stop to consider such developments in the midst of alcohol-fuelled rages.

Loveridge didn’t think that his actions would kill anyone. If there had been One Punch Laws in place at the time, he probably wouldn’t have heard of them – and even if he had, is it likely that such a thing would have been a deterrent?

New criminal laws need to actually prevent crime or address crimes that are not covered by existing legislation. Neither of those things are the case here.

Excessive alcohol use, violent expression of unmanageable pain and disconnection from society are not addressed by simple measures. They are complex issues and require complex solutions. Ignoring the complexity in favour of knee-jerk simplicity will not prevent senseless violence and adding a few more years to Loveridge’s sentence won’t stop the next tragic death.

Thomas Kelly did not deserve what happened to him. His family’s grief is unimaginable. But these new laws won’t bring him back. They won’t stop this happening again. And they won’t result in a higher penalty for the next person to kill someone in the same way.

They are a transparently political attempt to be seen to be Doing Something. And the grandstanding on this topic by the usual suspects is nothing more than an attempt to profit from the grief of the Kelly family.

Andrew Tiedt

Andrew is a criminal defence lawyer from Sydney. 

Follow him on twitter @mrtiedt

mrtiedt.blogspot.com.au/