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12 November, 2004  
The experienced, but forgetful, are usually forgiven their mistakes

The Victorian Court of Appeal dreamed-up a nifty way around sentencing oversights: experience counts for everything when it comes to forgetful judges.

In most fields of human endeavour, experience is the magical factor that can cover all manner of shortcomings.

Oscar Wilde put it so much better when he declared: “Experience is simply the name we give our mistakes.”

Take barristers. They know from the moment they sign on and get a number that they will, in time, advance and become more senior and experienced members of the Bar, in which case they will become wiser and wealthier.

Who knows, with experience and the right contacts some might even enter that exclusive club the members of which are permitted to wear a rosette on their gowns. If they are more experienced and have the right contacts, they could grasp the Holy Grail and be known as “Your Honour”.

Experience in the law, as in politics, confers an over abundance of prestige and respect.

imageAlthough that political legend from South Carolina, Senator J Strom Thurmond (pictured here), was a very experienced legislator, having been a member of the US Senate for 48 years, he was also occasionally forgetful.

For example, for many years he forgot that he had fathered an ex-nuptial child in his younger days. In your correspondent’s opinion he can be forgiven for such a lapse, not only because of the public opprobrium which attaches to representatives of the people fathering “love” children, but because the “love” child in question had a permanent tan.

That particular characteristic would have created an added burden for the Senator given that he was, for most of his life, an ardent proponent of racial segregation.

No doubt many of his constituents were supporters of the same policy and would have been distracted by news that their senator had fathered a mixed-race child, at least to the extent that they might not remember to vote for him.

In the circumstances, silence and denial were obviously the best strategies.

Nevertheless, the existence of the ex-nuptial child never seemed to cause any undue concern to the Senator who, during his life, acknowledged her as a “family friend”. No doubt this was due, in part, to the respect and admiration he engendered because of his experience.

It was not until after Thurmond died last year that the child, by then a 78-year-old woman, and the Senators family were able to come clean and publicly disclose the full extent of the Strom’s forgetfulness.

A cursory review of some recent judgments from the Victorian Court of Appeal shows that judges too can be plagued by amnesia, but happily for some that does not cause grief.

Section 16G of the Crimes Act 1914 (Cth) provided, in effect, that when a Commonwealth prisoner was sentenced in Victoria the sentencing judge in formulating a sentence was required to take into account that the prisoner would not be entitled to remissions if the sentence was to be served in the State.

The policy of the provision was to ensure that a federal prisoner would not be required to serve a longer sentence due to the abolition of remissions in Victoria compared with a prisoner sentenced for a similar offence in another State.

One might think that what a sentencer had to do was get out a slide rule or resort to a Cray computer to calculate an appropriate period to reduce the sentence.

Wrong. According to the appeal judges no mechanistic calculation was necessary. All that a sentencer had to do was take the section “into account”, along with a raft of other requirements which go to make up the “instinctive synthesis” of a sentence.

In other words, a sentencing judge simply has to say the provision has been taken into account. But here’s the rub: what if the sentencer had, like Senator Thurmond, experienced a spot of temporary amnesia and forgotten to say so?

Not to worry. The oversight can be resolved by determining whether the relevant sentencer was “experienced” or not. If experienced, then it’s taken as read that the judge had the elusive s.16G tucked away in the RAM somewhere but was temporarily unable to access it. If on the other hand, the sentencer was not so experienced, then the lapse was fatal.

In R v Nguyen and Phan (1997) 1 VR 386 and R v Gaitanis (1998) VSCA 57, where sentencers were said to be either “experienced” or “very experienced” judges, the Court of Appeal knew, as night follows day, that they would have taken s.16G into account but had simply not got around to mentioning it for some reason.

On the other hand, the poor sod or sodette who sentenced the prisoner in R v Ganglehoff (1998) VSCA 20 was obviously for the chop because there was no mention of whether he or she was “experienced”.

So there it is. “Experience” does count for something, although not as much as it did because, along with Strom Thurmond, s.16G was dispatched last year.