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The Criminal Legal System

Discussion in 'Politics' started by Gnostic, Nov 11, 2013.

  1. Gnostic Mark Ella (57)

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    With the closure of the case against the killer of Thomas Kelly a furore has erupted again regarding inadequate sentencing of offenders. Now there are numerous examples being resurrected and doing the rounds of the Net blogs and fora. A quick point form to spur some thought and discussion.

    So what will be the outcomes of this.
    1) The judiciary (via proxies) defence lawyers and the DPP will all come out saying that the sentences were adequate and take into account individual circumstances and were made in a dispassionate and my favourite "disinterested" (Crowdery N. SMH 11/11/13) manner.
    2) The government will react and legislation will be proposed and possible enacted in a knee jerk repsonse to calm the "tough on crime" voices and appease the victim's rights groups.

    So what will change?
    1) Point 1 will result in no change to proceedure and no change at all in the actuality of sentencing.
    2) Point 2 could result in yet another piece of legislation and another offence created for behaviours which are already adequately covered by existing legislation. This just further muddies the legal waters instead of simplifying the system so all know where they stand.

    The dangers:-
    1) The judiciary need to understand that they are not servants of some artificial document call the law. They are servants of the law abiding citizenry. Without the consent of the citizenry the law fails, and that consent is only gained when a number of factors are met, such as respect for the law itself, its officers and the manner of its execution. The lack of adequate sentencing poses a real danger that the respect for the Officers of the law will be further eroded and the required faith in the execution of the law undermined.
    2)Politicians need to wake up and cease this knee jerk turn to legislation to address systemic failures. A good example is the current bikie legislation in Qld, the new proposed "king Hit" legislation and after each public outcry there are more and more added to the books. We end up with a situation where days and weeks of argument results in whether a case should be heard under one law or another and the risk is increased that a prosecution will be brought under a section which is not quite correct and an offender dismissed simply on procedural technicality. The Law as it stands provides full recourse against an offender in a situation like that in the Kelly case. Further legislation does nothing to alleviate the primary concerns of those raising the objections in this and other cases. That of sentencing.

    The solutions:-
    1) The Politicians solution - mandatory sentencing. There are a myriad of problems with this not least of which is it takes absolutely no account of the differences between offences of the same type and the overall circumstances, much like the stealing to feed the children opposed to theft through pure greed examples from the convict days.
    2) Community sentencing - already in use in many areas of Australia this has had some very good success in terms of rehabilitation not only for the offenders, but more importantly from my POV for the victims. I would like to see an expansion of this option to include non-indigenous people.
    3) Mandatory minimum sentences - very similar to the US systems in many states, characterised by the 15 to 20 type sentences seen on all the TV drama shows.

    lincoln and Braveheart81 like this.
  2. Bowside Peter Johnson (47)

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    I think that it is very hard to understand a decision without actually being in on the hearing and considering all evidence.

    A knee-jerk shift towards US style 'justice' is absolutely the wrong way to go IMO.

    That being said, I was surprised the sentence was so low in the King hit case, and I think a please explain is fair enough. Is there an opportunity for further appeal?

    In my experience, people who are violent (or wankers) on the piss, are usually not too different when sober.
  3. I like to watch Simon Poidevin (60)

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    There is never a one fits all solution,with the legal system.
    No matter how heart wrenching it may be in some scenario's.
  4. Gnostic Mark Ella (57)

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    I agree Bowside regarding the knee jerk reactions as I hope was evident in the OP.

    As for the avenues for appeal, they are available in this case, but my point is these manifestly inadequate sentences do further damage to the victims of crimes, and the Legal system has a duty to rehabilitate them as much if not more than the offender yet they are totally ignored by the system. Such sentences also damage the standing of the system as a whole.

    The point of the thread is not so much the specifics of this case but the system as a whole. Even cursory investigation of the sentences imposed in NSW will show that sentences rarely approach 50% of the maximum provided for by the current legislation and almost never make the maximum. My point is that the government do not need to legislate further when adequate laws already exist, they are just not being applied, after guilt is proved.
  5. I like to watch Simon Poidevin (60)

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    The maximum is the sentence that is delivered for the absolute worst case scenario.
    The system then discounts from the worst case to whatever is found.
    I don't know how this can be changed without mandatory sentencing,which most free thinking people would be against,I would have thought.
  6. Braveheart81 Rocky Elsom (76)

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    Part of the problem is that the reporting of this sentence has pretty much entirely revolved around "four years".

    Four years is not the length of his prison sentence. It is the minimum non parole period. He was sentenced to a maximum of six years. The media loves focusing on the minimum non parole period because it causes more outrage.

    You read some of the comments that people have made and many people suggest that he should receive a longer sentence because he is young and will still be young when he's released from jail. People fail to take into account that being young actually works to decrease your sentence because it is considered that young people are more prone to making bad decisions but also more able to be rehabilitated. I agree with this premise.

    He also pleaded guilty straight away and showed remorse. Both of these result in a lower sentence.

    The outrage over this sentence is a bit ridiculous in my opinion. It is a terribly sad story of a young man needlessly dying due to someone else's violent stupidity but the high profile nature of this case doesn't mean there should be a harsher penalty.

    Judges reference past sentences and weigh up all the circumstances of a case when deciding on a sentence. Most manslaughter cases receive very little public scrutiny and very often more lenient sentences. Just because this one has struck a nerve doesn't mean there should be a harsher sentence.

    The DPP has appealed the sentence. I will be surprised if it is increased by much if anything on appeal. Taking all the specific aspects into account (age of the offender, acceptance of guilt and remorse) and it would not seem that the sentence was manifestly lenient.
  7. Bowside Peter Johnson (47)

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    On the topic of worst case scenarios:

    As far as fighting/king hitting goes - swinging at (multiple) random people from behind is about as bad as it gets IMO.

    To add to the above, there was a case in brisbane a few years back when a bloke was being racially abused walking down the street on a night out. Ended up confronting and hitting the bloke who was abusing him and the guy subsequently died because he hit his head as he fell.

    Now the later crime is still manslaughter, sure, but it's not in my mind as bad as hitting random people from behind unprovoked.

    In terms of manslaughter - I can understand how there could be worse scenarios than death by king hit.

    So maybe a distinction needs to be made between 'king hit' manslaughter and regular manslaughter. Or maybe there needs to be a law about unarmed assault causing death. Maybe there already is, I simply don't know enough about the subject.
  8. Bowside Peter Johnson (47)

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    Good post Braveheart. I agree that when you look at it in context it changes things.

    If he's judged to be inherently violent I'd be expecting a longer sentence for harm reduction reasons. But if there is scope for rehabilitation, maybe the sentence is appropriate.

    It really wouldn't surprise me if the defendant was on a cocktail of prescription benzodiazepine and alcohol when this occurred. It doesn't change the fact he killed a person, but I think it does influence his chances of successful rehabilitation.

    Despite all this, I still find it hard to see any justification whatsoever for the blokes actions.
  9. I like to watch Simon Poidevin (60)

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    4 years is the amount of time one should expect him to serve,without a very poor disciplinary record once he was in jail.
    In actual fact,you would find that he would be subject to day release,and possibly weekend leave for about a year prior to his release in the 4 year timeframe.
    Having said that I agree with the balance of your post.
  10. ChargerWA Mark Loane (55)

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    The US prison system manifestly proves that being "tough on crime" doesn't work.

    Triple J had a really interesting guest on last Thursday. Erwin James is a convicted double murderer from the UK who served 20 years. He was out here for the Festival of Dangerous Ideas. Pretty much every study has proven that the key to preventing re-offending is rehabilitation. Here is article he wrote on an astonishing rehabilitation program in Norway.


    Unfortuntely the lines become blurred because people don't differentiate between wanting to punish the offender for their crime and rehabilitate them to not commit the crime again. The old idea that a long enough incarceration period is the correct way to teach an offender a lesson so they won't repeat their mistake has been proven unsuccessful.

    Having said that, 4 years for that young mans life is inadequate. Backed up by the pattern of offending before he killed Thomas I think a minimum of 10 years might be closer to the mark. 7 years incarceration, 3 years prison community as per the link above and all dependent on him successfully completing all the rehabilitation program's required.
    Inside Shoulder likes this.
  11. Braveheart81 Rocky Elsom (76)

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    This is where the difference between murder and manslaughter lies.

    Regardless of the fact that people die from being king hit and their hit then hitting the ground, there are literally hundreds of similar assaults every weekend across the country and very few people die. This is why these cases will always be manslaughter rather than murder.

    It is impossible for the Crown to prove beyond a reasonable doubt that the perpetrator had both intent and that it was reasonably foreseeable that his actions could occasion death.

    If this was a case of murder and all the other factors existed of the perpetrator pleading guilty, showing remorse and being young then the minimum non parole period might have been 10 years.

    In almost any case where the victim dies unfortunately (i.e. from their head hitting the ground), it is unlikely the punishment meted out will seem adequate. This is because in most situations the victim wouldn't die and the perpetrator would be facing a charge of assault occasioning actual or grievous bodily harm or similar.
  12. ChargerWA Mark Loane (55)

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    With the level of media surrounding one punch deaths I would argue that death is a foreseeable consequence of this kind of action.
  13. Braveheart81 Rocky Elsom (76)

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    Now try and prove that the perpetrator was intending to kill the victim.

    It's impossible which is why this will never result in a charge of murder that will actually proceed to trial.

    Sent from my HTC One XL using Tapatalk
  14. Gnostic Mark Ella (57)

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    IMO a key point of the legal system is to rehabilitate the victims of crime. Tough on crime stances do not work because people choose to do what they do and a large majority of those that choose to commit crime do so not through exigent circumstances but through a complex series of motivators. Our system evolved over the years to take this into account so that those who stole to feed their children for instance were not lumped in with those who chose to steal through more base motivators.

    This is the point that the Criminal Justice system in Australia has lost sight of. They now concentrate totally on rehabilitation of the offender to the detriment of the victim who is almost totally left to their own devices to recover. Now I am not suggesting there needs to be court appointed counselling for victims or anything like that. I am suggesting that the lack of importance placed on the suffering of the victim compounds the injury done. The sympathy and continual acceptance of after the fact contrition from recidivist offenders over the injury of the victims further injures the victim as the "state" places more value on the "rehabilitation" of the offender. The NSW Government attempted to address this to some degree by introducing Victim's Impact Statements, but various Supreme Court Judges have circumvented that in their statements on appeal saying that such information has no part in the sentencing when it should be a primary concern.

    Anybody with a cursory knowledge of the Criminal System knows what the Judges and Magistrates have to take into account when sentencing. It is my passionately held opinion, gained through long experience, that the weighting of those factors is wrong and the precedent system is gradually eroding the base sentence.

    If we accept the fact that for offenders who have made a true mistake or bad choice (and it is easy to see as they do not have a long history with Police and the Courts) the rates of recidivism are extremely high and even higher for sexual offenders.

    (some light reading for those who are interested - no one article here provides complete stats, you will need to read a lot. http://www.aic.gov.au/crime_community/communitycrime/recidivism.html )

    The solutions:-

    Mandatory sentencing will not work simply because those who make a bad choice do not deserve to be lumped in with those who are recidivists, and this would be an injustice. However when large segments of the community loose faith in the sentencing of criminals that undermines the whole system. It has been shown in many Police statistics that many crime areas are under reported as the victims avoid the "Justice" system as it cannot aid them in any way. The offenders then continue on with their damaging behaviour unchecked, and this causes lasting damaged to our society, and can result in massive outpourings of anger against the system at times like this.

    The real solution has to be a combination of approaches and will require the legal fraternity to accept changes (which will not happen while individuals like N. Crowdery have any standing)..

    1. Discounting of Sentences - An early Gulity plea is not after the Police have presented a brief of evidence that may have taken anywhere up to 12 months to complete. For a Plea to be considered for a discounted sentence it must be made at the first mention date of the matter. Not entering a plea should be considered in the same light as entering a plea of Not Guilty as the offender is seeking to see the evidence and determine if they can escape a conviction. The discount is for people who admit their wrong doing freely and actually show contrition doing so, it is not for those forced to admit the guilty by not being able to wheedle out of the evidence. Alcohol and drug intoxication is not a defence, or an ameliorating circumstance.
    2. Recidivist Offenders with three or more similar convictions should get no discounts regardless, and any sentence should not be less than the previous sentence.
    3. Expansion of Community Sentencing programs. For youth offenders in particular and traffic offenders these programs actually do cut the rate of recidivism. Use them. Custodial sentences really are an absolute last resort in these areas, and only after everything else has been done to avoid it.
    4. Offenders who display behaviour in a criminally progressive manner such as that exhibited by most sex offenders must be given the maximum or close to it sentences available to the court for the offences that have been proved. A recent example of this is the Jill Meagher case. Adrian Bailey had been given minimal sentences on previous matters, some of which most community members would regard as very serious. If he had been sentenced appropriately Bailey would have been in custody and not in a position to commit the offences.

    I apologise for my verbosity, these are not simple matters and even summarising like this doesn't provide sufficient supportive material or reasoning for the points but those who visit this site will be able to fill in the blanks.
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  15. Gnostic Mark Ella (57)

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    It is not the outcome so much as the intent (Mens Rea) at the time of the punch that determines whether the offence is Manslaughter or Murder.
  16. Braveheart81 Rocky Elsom (76)

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    This is incorrect. There are a litany of studies which suggest that median sentence rates for violent crime have been increasing over the last 20 years in NSW and across Australia overall.

    Part of this has had to do with the introduction of minimum non parole periods for many offences.

    It is a common misconception that the judiciary is going weak on punishing crime. The opposite is actually true.
  17. Braveheart81 Rocky Elsom (76)

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    If you introduced this sort of legislation it would have a huge detrimental effect on disadvantaged defendants with poor or no legal advice in the initial periods after their arrest.

    In the case of Kieran Loveridge, he was initially charged with murder by the police which was never going to proceed. You would end up with disadvantaged people not only being imprisoned more frequently but being imprisoned for more serious offences than they would otherwise be found guilty of.

    There is already a strong correlation between the quality of legal defence and severity of sentence. I feel that putting in legislation like this would only result in further punishment for disadvantaged defendants.
    terry j likes this.
  18. fatprop David Wilson (68)

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    It was manslaughter, the judge gave the average sentence, now are judges not giving long enough sentences? dunno, but the current legislation allows them to get up to 20 years, so the leeway is there

    But did he die of the hit or hitting his head on the ground as a result of the hit?
  19. Braveheart81 Rocky Elsom (76)

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    He died from hitting his head on the ground as a result of the punch which knocked him out.
  20. Gnostic Mark Ella (57)

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    Quite true on all counts. The criminal justice system is rapidly becoming like the Civil system where justice and truth are immaterial. The size of one's wallet is all that matters. This alone should ring alarm bells and doing nothing will not fix the system or engender faith in it from the community.

    The Police made an error (and a fundamental one IMO) in charging Loveridge with murder and even if he entered a plea of guilty the Judge could and IMO most likely would have convicted on the lesser charge simply because the Statement of Facts as reported could never make out the mens rea for murder. This is the same in other matters. The current system has been abused by defence counsel, and allowed by Judges, in that they will discount sentences in some cases even after a hearing has commenced. These are not early pleas at the first available opportunity as required.

    People do forget that our system of rule of law only works by consent. That consent requires faith that the system is just and addresses the injustices done to citizens. The protests about this sentence and others shows that people are loosing that faith. Not far down that path leads to vigilantism as people no longer seek redress through other means. I have seen this and it is more prevalent than you would think.If the rule of Law isn't consented to by the majority, or even a significant minority who are effected the enforcement of those laws cannot be seen as anything less the "legal" means used to justify the actions of dictators and Stalinist states, that of force and state rule.

    In another Politics thread I spoke about the pillars of democracy with two of those being Government and the judiciary. There is an astounding level of apathy among people regarding both and that is purely because neither is seen as working for law abiding citizens and ethical.

    The fundamental question is who should be cared for first and foremost the victim of the crime, or the offender? Who's rights were impinged on and need redress?

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