The 'Law is an ass' thread

[Pies4shaw]

Just read the OP and the discussion in relation to the Court of Appeal's decision that the relevant sentence was "manifestly excessive".

I suppose you folk know that the Court of Appeal's decisions are all published on the internet, so that you can read them for yourselves and you don't have to allow your opinions to be controlled by what the Herald-Sun has to say about such cases? The decision in Wills's case is at http://www.austlii.edu.au/au/cases/vic/VSCA/2010/235.html

In this case, the critical conclusion is set out in paragraph [18] of Justice Ashley's judgment, as follows:

"... I consider that the sentence imposed, albeit that the judge had regard to all relevant circumstances, was manifestly excessive. Given that the incident was admittedly very serious, likewise its effects upon the victim, it was a large step to sentence a young woman (1) who had not been imprisoned before, (2) who had been subjected to prolonged sexual abuse as a child, (3) who had been an intimate bystander to murder and deaths for which she bore no blame, (4) who had been subjected to physical abuse by the father of her young child, (5) whose psychological well-being had been much affected by the matters to which I have just referred, and (6), who had descended into alcohol and drug abuse from which she was making an apparently genuine attempt to extricate herself, to a sentence about three times heavier than the average and median sentences for the particular offence."

It's that last bit which goes to the question of "manifest excess" - in short, the Court of Appeal considered that the original sentencing decision was way out of kilter with the normal sentence for the particular crime of which the defendant had been convicted.

Claims of "manifest excess" in sentencing don't aften succeed. Generally, something has to have been seriously wrong (in a legal sense) with the original sentence for such a claim to prevail.

Otherwise, it is probably worth mentioning that the relevant charge was one of "recklessly causing serious injury". That is a serious assault charge but it is not "attempted manslaughter" (as I saw one post mention) and the maximum penalties are correspondingly much less severe.

It might be good sport for some of you but there is little rational point to reading newspaper reports about court proceedings and then deciding what you think the defendant is guilty of (irrespective of the charges which have actually been brought).

[pietillidie]

^Nice one. Every time I check the facts I pretty much read the same, so a few of us are already converted.

[Tannin]

OK, I'll take this one on.

First, a disclaimer. I have no truck whatsoever with the hysterical nonsense and habitual misreporting of the Herald-Sun/shockjock sort.

Second, another disclaimer: in general, indeed almost all the time, a court is the only organisation fit to determine sentences. Having politicians determine sentences directly (via so-called "mandatory sentencing" laws is a really, really bad idea which won't solve anything.

With those matters out of the way, to business. There is a reason that sentencing is so often controversial, and it's the same reason that the public as a whole is so very hostile to criminal sentences - and no, I am not talking about the bias of the Herald-Sun. This reason is simple: the public is absolutely fed up to the back bloody teeth with the gross and persistent failure of the courts, by and large, to adequately sentence violent offenders who commit crimes against non-violent victims. We regularly see soft sentences handed down to violent criminals. Now, when this is a cases of two thugs belting each other up, that's fine. No-one cares. Make those sentences lighter if you wish. But when we get to the situation where an offender has committed a violent offence against an ordinary (non-violent) citizen without provocation, this is not, repeat not repeat NOT a circumstance where it is acceptable to to hand down anything other than a lengthy custodial sentence. No excuses, no exceptions: we do not tolerate violence without provocation. We do not care what your background is (happy family, broken family, doesn't matter), we do not care what your state of mental health was or is (except insofar as we may need to prescribe a different place of incarceration, and perhaps specify treatment), we do not care how old or young you are - if you instigate a violent crime, you do serious prison time. No exceptions.

Now, the courts can get their sentencing practices sorted out, or the politicians will bring in mandatory sentencing laws and ever heavier penalties - but if the courts do not start getting it right, we will be going down the legislation path (indeed we have already started) and that will inevitably lead to worse results from the justice system.

[pietillidie]

^But what if we've actually got a highly-integrated and stable system, the net outcome of which approximately reflects the "net cultural will" regardless of controversial elements? Obviously the legal implications of a single decision go well beyond the decision itself, not to mention we actually have to fund the entire system properly to get the outcomes you're probably looking for. And why should the burden of social problems lie with sentencing anyhow? But I agree it could be useful if we use it as a point of productive intervention, a goal which presumably precludes forcing criminally and mentally-disturbed people to dwell together in confined spaces.

[Tannin]

[Nick - Pie Man]

Is 'net cultural will' the average of what every Australian thinks the legal system should be doing? That is very dangerous. Australia's population is at least 75% bogan you know. These are the sorts of people who watch Today Tonight and think criminals should be branded, raped, tortured and castrated, yet when nobody else is around they don't hesitate to vandalise property, steal, and flout the law on the roads.

Or does net cultural will refer to the average of the minority of Australians who actually possess a degree of culture (and by extension, education) ?

[Tannin]

Do try to keep up Nick. It's not difficult. Maybe you better scribble some notes down and keep them handy in case you forget again. Just remember:

Cultured, literate, civilised Australians = us.
Bogans = them.

[Nick - Pie Man]

I can't tell if you're being serious or not

or

[pietillidie]

[David]

[pietillidie]

^When you say "making the best with what we've got" do you mean "doing the best we can within current constraints" or "what we currently have is the best we can do at present"? The two are not the same.

The present system may well be causing an increase in violent crime of 22.34% vis-a-vis some other highly feasible alternative for all we know. Or "being tougher on crime" may increase violent crime by 68.22%. Or having more police and and giving weaker sentences may reduce violent crime by 32.43%.

I'm pretty sure I've seen data showing violent crime correlates with unemployment and income disparity, as well as data showing various sophisticated rehabilitation programs have resulted in a substantially lower recidivism rate. I think about the only "tougher on crime" policy I've seen which has data in its favour is having more police on the ground. But both sides of the argument usually support that.

It would be nice to see decent research on this topic.

[pietillidie]

[HAL]

They are not available right now, would you like to wait?

[Nick - Pie Man]

[pietillidie]