Australians mourned the tragic deaths of Thomas Kelly and Daniel Christie. The assaults that killed these young men provoked a furious reaction from the press, the public and even the Prime Minister. But the widespread public support for the Kelly and Christie families has a negative shade which has so far gone under-examined: it illustrates the potentially dangerous way a single case can capture the community’s attention and result in broad public support for law reform.
The family of Thomas Kelly, who died after being punched in the head by Kieran Loveridge in July 2012, last week delivered a change.org petition with 132,000 signatures to the New South Wales government. Spurred on by the New Year’s Eve punching of teenager Daniel Christie, over 100,000 people signed it in the space of 11 days.
Thomas’ parents, Ralph and Kathy Kelly, are calling for intoxication to be a mandatory aggravating factor in sentencing. Under the proposed amendment to NSW’s Crimes (Sentencing Procedure) Act 1999, a defendant who commits a crime when drunk or affected by drugs would receive a harsher penalty. The family has also argued for mandatory minimum sentences to be imposed for manslaughter.
The Kellys rightly hope that their tragedy is not repeated and approach harsher sentencing as a deterrent. But deterrence is tricky, especially with crimes like alcohol-fuelled punches, which usually happen precisely because the aggressor doesn’t stop and think. When a drunk man throws a punch he’s not considering the maximum sentences for assault, manslaughter, or murder, just as he’s not labelling it a "king hit" or a "coward punch".
As for mandatory minimum sentences for manslaughter, Kieran Loveridge’s sentencing judge Justice Campbell noted that manslaughter, “covers a wide spectrum of offending from a practical joke gone wrong to a crime falling just short of murder”.
Mandatory minimums represent a one-size-fits-all approach, which sits uneasily with the principle that the punishment should fit the crime. A mandatory minimum sentence would not adequately reflect the range of conduct which might constitute manslaughter.
Sentencing is a complex process, taking into account both objective and subjective factors surrounding an offence. Its purposes are not restricted to deterrence and include punishment, protection of the community, rehabilitation, accountability, denunciation, and recognition of the harm done to the victim and community.
There has been criticism made that judges have too much discretion, apparently resulting in woefully inadequate sentences, like Loveridge’s six-year incarceration. But usually that criticism comes from a victim-focused attitude which undervalues rehabilitation.
Loveridge himself is very young and of Indigenous heritage. His biological father drank and took drugs, his only father figure died of cancer and he has showed genuine remorse for his actions. While his circumstances are not an excuse for his behaviour, a parliament-mandated harsher sentence would reduce his chance of rehabilitation.
The more a judge’s discretion is constrained, the less he or she can respond to individual circumstances in sentencing. Under the Kellys’ proposal, a teenager who was drunk for the first time and swung at someone, and an older man who knew that alcohol brought out violent tendencies in him, would receive the same treatment for any crime committed while under the influence. Their intoxication would harshen their punishment. It’s unlikely that the community would view those two scenarios in the same light. Some might even think alcohol should be a mitigating factor in the former scenario.
When law reform follows public outrage, the results are often troubling — similar circumstances have brought NSW to the brink of recognising a foetus as a legal person.
Zoe’s Law is named for the foetus carried by Brodie Donegan, lost in 2009 when Donegan was hit by a car eight months into her pregnancy. The driver was charged with grievous bodily harm, but Donegan wanted the law to recognise the foetus as a separate person. Before the bill passed the lower house, Premier Barry O’Farrell told parliament that he would vote in favour of the bill because he had been moved by Donegan’s circumstances. Now the sympathy the public and politicians have for Donegan is reified in an amendment to the Crimes Act which threatens abortion rights.
If we want to curb alcohol-fuelled violence, criminal law may be the most powerful tool, but it’s probably not the most effective. The government has already looked at the availability of alcohol in problem areas like Sydney's Kings Cross and George Street. The solution might also be in eroding a particular and dangerous conception of masculinity, as has been suggested, although it’s hard to imagine how that change.org petition would read. Mandating a stricter, harsher approach to sentencing based on two cases is likely to be ineffective.
Carefully considered law reform can be slow work. Usually over a year lapses between the Australian Law Reform Commission receiving Terms of Reference from the government and delivering a final report to the Attorney-General.
Even then the process is incomplete. The government must still decide which recommendations to adopt and legislate accordingly. Two years elapsed between the New South Wales Law Reform Commission receiving its reference on sentencing in September 2011 and the tabling of its final report, which ran to 500 pages, in parliament last year.
But a swift reform of sentencing laws in New South Wales might be on the cards in early 2014. Thomas Kelly and Daniel Christie are by now familiar faces. Their photos depict handsome young men who should have lived much longer. Most of us never knew them, but we probably know someone like them. Families see their own sons or brothers going for a night out and the idea that they might not come home is appalling. We want to do what we can to help the Kelly and Christie families. But sympathy alone is not a sound impulse for law reform.
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