Just got around to listening to a truly wonderful Law Report broadcast from a few weeks back, featuring the retiring Chief Judge of the WA District Court, Antoinette Kennedy. The whole programme is worth hearing (or reading the transcript):
It’s becoming an increasing problem. 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.
More frightened of disorder than of tyranny. Well bloody put.
There’s a discussion on WA’s mandatory sentencing regime and the sorts of injustices it occasions, and then Kennedy makes this excellent point about the naivete of passing these harsh laws and just trusting that the nice people in charge of enforcing them won’t use them against anyone undeserving:
Well it means that they can stop and search anyone they like, anytime they like, without any suspicion or without the person having done anything suspicious. So that if your next-door neighbour’s a policeman, if he doesn’t like you, as you’re going out your front gate he can stop and search you. Now they would say to me, ‘Oh that’s ridiculous, we wouldn’t do that’. Well ‘we’ shouldn’t have the power to do it. And that’s all there is to it. Again the Commissioner of Police is saying, ‘Look, we’ll only use it in certain circumstances’, and again, it is: in that case, since he’s such a decent human being, why don’t we just say the Commissioner of Police can do whatever he like because we know he’s such a nice man, he won’t do anything unreasonable?
Quite right. “We’ll only use it in certain circumstances” has never held up over time.
There’s then a devastating critique of the clumsy anti-hoon laws, following which she gets stuck into the damage the tabloid media are doing to the cause of justice.
Does this ring any bells?
We had a very bad time in Western Australia for a period of time, which is now passed, with our major daily newspaper, and they were only interested in criticising judges and they weren’t interested in making sure that the community understood what the situation was. And I understand the problems that the media have, the media obviously, they’ve got to do things that people are interested in, and it’s very immediate, but no-one has ever asked what the community is doing about the crime problem, and there is this constant attempt to put all your eggs in one basket and to think that somehow, judges have the answer to the crime problem and we’re flatly refusing to use it. Now I live in this community, I have family and property in this community, of course I care what happens to the community. Of course I care about the victims of crime, it’s positively insulting and hurtful to suggest that I am a person who doesn’t care about crime, and the victims of crime… it’s arrant nonsense.
Antoinette Kennedy is clearly a legend.
I wish some Victorian judges would come out swinging, too.
UPDATE (31/5): And an excellent piece today by Greg Barns, “Five years in jail is a hell of a time, and a fitting sentence“:
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.
If you see how the case he’s responding to was reported in the local tabloid, the Herald Sun – where eight years with a non-parole period of five years (as a discount for pleading guilty from the nine he would’ve received otherwise) – was just reported as “five”, and you observe the outraged comments of the misled “public”, it’s hard to deny that there’s a problem – but it’s a problem of misunderstanding, not of “lenient sentencing”. If the sentences are indeed so “lenient”, then why does the Hun feel the need to exaggerate them downwards every single time?
So it’s vital that we hear more of this common sense from people like Antoinette and Greg, lest the cynical fearmongers trying to sell newspapers actually achieve their apparent aim of making politicians enact ever-harsher laws that actually make the streets much more violent and less safe.