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26 November, 2007  
It's entirely a matter for you

NSW missed an important opportunity to implement a “sophisticated mechanism” that would have allowed the blame for poor sentencing decisions to shift from judges to jurors. Also, the plan might have encouraged a few more badly needed Peter Cook-style judicial summings-up

imageAccording to Canadian essayist John Ralston Saul, in his book Voltaire’s Bastards:

”[T]he poor have always gone to prison and the rich gone free… Equally, kings or law courts have traditionally reached out from time to time to punish a few of their elite who have become too big for their boots … [but] ... there is no question of justice being applied to all who have transgressed. It could probably be argued, given the decline in the incidence of treason, religious conflicts and political divisions, that the ratio of convicts from the elites to those from the poorer classes is now lower than it was under the absolute monarchs.”

US law professor David Kairys says:

“This is the great source of the law’s power; it enforces, reflects, constitutes and legitimises dominant social and power relations without a need for or the appearance of control from outside and by means of social actors who largely believe in their own neutrality and the myth of legal reasoning.”

Achieving targeted inequality while proclaiming equality calls for very sophisticated mechanisms, if third world appearances are to be avoided.

The right sort of judges have to be appointed in the first place; ways to thwart investigations have to be inserted; the decision to prosecute needs to be turned into a trial as to guilt so that a “benefit of the doubt acquittal” can be awarded before trial; “plea bargaining” regimes need to be set up so that members of the elites can cut deals; trials themselves need to focus on procedural matters rather than truth, which will save a few more privileged miscreants; and sentencing has to be kept nice and flexible.

Finally, there are executive decisions such as deciding to chase (or not chase) the proceeds of crime, or allocating the offender to a nice jail.

In a sign of what may come to Australia, there are a dozen or so California jails where for between $US82 and $US137 a day non-violent offenders can upgrade to a five star cell out of contact with the hoi polloi.

Throughout all this it must be conceded that some (elite) people will have to be “scapegoated” and some non-entities allowed to escape in order to give the justice system some credibility, or to preserve something even more important – like the capitalist system.

So small investors (who might lose faith in the stock markets) get to see the Enron CEO convicted and face between 20 and 30 years in jail. The Californian Attorney General at the time did say:

“I would love to personally escort [Enron CEO Kenneth Lay] to an 8-by-10 cell that he could share with a tattooed dude who says, ‘Hi, my name is Spike, honey’.”

Unfortunately, just before his sentencing Lay died from a heart attack while vacationing at Snowmass Colorado.

imageJudicial sentencing discretion is very important in this scheme of things. Judges must be in control, not legislation. On November 14, in the High Court Telstra case, the Solicitor General, David Bennett (pic), suggested a view of the law that prompted Justice Kirby to reply:

“I think an economist would laugh at that suggestion.”

The Solicitor General responded:

“An economist would laugh at the [High Court decision in the] Australasian United Shipping case.”

The Solicitor General is not a litigant in person, so perhaps he can say that sort of thing, but to be on the safe side he immediately added:

“Fortunately the law is not dictated by economists.”

Justice Bill Gummow then endeavoured to calm things down with the cryptic remark that “economists speak with many tongues”, to which the Solicitor General could have replied “so do judges”, but thankfully he didn’t.

Justice Kirby closed the thing down with:

“I am sure economists would have equal comments on lawyers. It is just that we have the last word.”

In the sentencing process, “having the last word” means avoiding “mandatory sentencing”, and judges are very much against that.

To justify this stance, the mantra of “judicial independence” is chanted. On September 6, 2002, in the context of discussion about a new “tough” sentencing Bill The Sydney Morning Herald quoted an unnamed judge as saying:

“The whole underpinning philosophy of the independence of the judiciary is that judges have the freedom to make decisions in an unfettered way.”

However, Arie Freiberg, the respected Melbourne University criminologist, said in 2001:

“Unless there is a recognition by judges that sentencing cannot be completely unfettered, then courts may find the alternative much more unpalatable.”

As an indication of how “unfettered” judges are the NSW Court of Criminal Appeal observed in a 2004 “guideline judgment” on high range drink driving:

“The Attorney General observed that the sentences imposed do not reflect the increase in the maximum penalties for the offence in 1998 when they were doubled … the median fine increased by 40 per cent after the increase in the maximum fine by 100 per cent.

“Notwithstanding the two-fold increase in the prescribed maximum gaol sentence in 1998, the rate of imprisoning offenders dropped from 2.9 per cent … to 2.4 per cent in the period of four years after the amendments. The rate of dismissing the charge without conviction increased from 5.9 per cent to 9.7 per cent over the same period.”

Whatever a judge decides by way of sentence, there will always be people who think it was too harsh or too lenient.

One way out for the judiciary would be to involve juries in sentencing, meaning not involve them, and then blame them for the outcome – remember we are talking about “sophisticated mechanisms” here.

imageIn jury trials, judges keep jurors on a tight leash while trying to appear not to. The 1979 Amnesty Gala featured a skit entitled “Entirely a Matter for You” which parodied the process. Peter Cook (pic), playing the part of a judge, gives “directions” to the jury such as:

“We have heard, for example, from Mr Bex Bissell – a man who by his own admission is a liar, a humbug, a hypocrite, a vagabond, a loathsome spotted reptile and a self-confessed chicken strangler. You may choose, if you wish, to believe the transparent tissue of odious lies which streamed on and on from his disgusting, greedy, slavering lips. That is entirely a matter for you.”

Other parts of the sketch (and details about the Jeremy Thorpe case, which was its inspiration, can be viewed on YouTube.

imageIn January 2005 NSW Chief Justice Spigelman (pic) proposed “A New Way To Sentence For Serious Crime”.

He said:

“What I am proposing is an in-camera consultation process, protected by secrecy provisions, by which the trial judge discusses relevant issues with the jury after evidence and submissions on sentence and prior to determining sentence.”

The scheme would apply only to specified serious offences – we couldn’t have juries recommending sentences for drunk driving judges, for example. The end result in some cases would be a secret summing-up on sentence from the judge, to the jury, done in Peter Cook style.

imageIn due course Spigelman’s proposal was referred to the NSW Law Reform Commission, which canned it. On November 7, in a media release, the NSW Attorney General, John Hatzistergos (pic), went along with the LRC.

In its conclusions the LRC said:

“Submissions received from current and former members of the judiciary express doubt concerning the efficacy of the proposal. They stress the difficulty of the sentencing process, involving as it does a consideration of complex, and often contradictory, legal principles and evidentiary factors, combined with a need to address the individual circumstances of each case.”

Back in November 2005 Professor Mirko Bagaric (head of Deakin Law School) said:

“There are about 300 different (mainly misguided) aggravating or mitigating variables that courts [i.e. judges] can pluck out at a whim to justify their intuitive predilections.”

I think the NSW AG is right. Imagine a jury being asked to apply 300 variables.

In their naiveté they’d probably try to do it.


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