Section 5 of the Sentencing Act 1991 (Vic) sets out five principles for sentencing in Victoria: punishment, deterrence, rehabilitation, denunciation and protection of the community. Each of these might be more or less significant in a particular case. The Court of Appeal today ruled: “General deterrence is of fundamental importance in cases of domestic violence.” Their Honours explained: “The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.” This decision forms a precedent that will need to be followed by courts sentencing for domestic violence in future. The Court upheld the man’s 8 year head sentence, with a non-parole period of 6 years, for breaking his de facto wife’s arms.
Good behaviour bond for violent vigilantes
Two Melbourne men have avoided a recorded conviction for an assault, despite inflicting a fractured skull, brain haemorrrhaging and hearing loss on their victim. After seeing a man punch a woman, they followed him down the road and took vigilante action. Magistrate Kate Hawkins took into account their remorse, and the circumstances of the attack. She said “it’s desirable to encourage young men to come to the aid of women who are being assaulted by men in the street”, but their “great error of judgment was taking the law into your own hands.” The men were placed on adjourned undertakings (commonly called good behaviour bonds) with conditions to attend positive lifestyle and anger management courses. According to Sentencing Advisory Council statistics, this is an exceptionally rare outcome for a charge of causing serious injury recklessly, which carries up to 15 years jail. The third man was earlier sentenced to a community correction order for his assault on the woman.
Death penalty study provides support for abolition
A new study has found that between 2.8% and 5.2% of defendants sentenced to death in the United States were likely innocent. The University of Michigan Law School designed the study, and had the numbers crunched by medical researchers trained in population statistics analysis. Law professor Samuel Gross said, “Since 1973, nearly 8,500 defendants have been sentenced to death in the United States, and 138 of them have been exonerated. Our study means that more than 200 additional innocent defendants have been sentenced to death in that period.” Last week, The Economist reported that although “America is unusual among rich countries in that it still executes people”, the trend was towards fewer executions and more states abolishing the death penalty. It concluded, “It may be a long wait, but the death penalty’s days are surely numbered.”
Charges laid over fatal wall collapse
WorkSafe, the agency that regulates workplace safety in Victoria, has charged two companies over a wall collapse that killed three pedestrians last year. The builder, Grocon, and a signage company it hired have been charged under section 23 and section 26 of the Occupational Health and Safety Act 2004 (Vic). According to the Herald Sun, WorkSafe alleges that the companies failed to obtain a permit or conduct appropriate risk and engineering assessments before attaching an advertising billboard to the wall. It later collapsed in high winds. The companies face up to $9 million in fines if the allegations are proved.
Detention without legal representation in NT
A Northern Territory scheme has been criticised for jailing people without due process. Under the Alcohol Mandatory Treatment Act 2013 (NT), a person who police say has been drunk in public three times can be detained in a secure facility for up to three months, without going before a court or receiving legal advice or representation. The president of the Criminal Lawyers Association of the NT, Russell Goldflam, says, “The Act provides that a person can engage a legal representative … but in practice it’s a completely empty right because there aren’t arrangements made for lawyers to be made available.” Observers say that police are applying alcohol laws in a discriminatory way, and “since the law came into effect in July last year, every single person detained under it has been Aboriginal.” Julie Edwards says the NT scheme is extreme compared with other jurisdictions: “In Victoria, secure treatment can only be used where a person has severe health problems and lacks the capacity to make decisions for himself/herself. Under the [Severe Substance Dependence Treatment Act 2010 (Vic)], secure treatment can only be ordered for 14 days and this order must be made by a court.”
Controversial “baseline” sentencing bill introduced
The Sentencing Amendment (Baseline Sentences) Bill 2014 has been introduced to the Victorian parliament, with the aim of increasing penalties for certain crimes. The legislation sets out an intended median prison term for an offence, and requires judges to “act compatibly” with that intention—without setting out a process to follow. Senior judges responding to a draft version of the bill told the government it was “unworkable”. The introduction of baseline sentencing was an election commitment made by the Coalition in 2010, which has been controversial. The incoming government sought the Sentencing Advisory Council’s advice on implementation, but its report observed: “The Attorney-General has not asked the Council for advice on the merits of a baseline sentencing scheme or whether a baseline sentencing scheme should be introduced. The majority of stakeholders expressed strong opposition to a baseline sentencing scheme.” The Law Institute of Victoria says the bill would “unduly limit judicial discretion, over-complicate the sentencing process and, ultimately, fail to act as a deterrent.”
Killer to spend 25 years in psychiatric care
A Melbourne man has been ordered to spend 25 years in a psychiatric hospital after being acquitted of the murder of his parents on the grounds of mental impairment. The family is upset that he did not face trial. However, the court heard expert evidence from three independent psychiatrists, who all agreed that the accused was suffering from paranoid schizophrenia and that the psychotic episode was not drug-induced. Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) creates a defence to criminal charges where a person “could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong”.
Beggars diverted into Salvos’ care
The City of Melbourne council is working with police and the Salvation Army on a new anti-begging strategy. Under the plan, police will charge people with begging, and then recommend them for a court diversion program, which would involve compulsory “health checks, training, and help in finding work”. Twenty-four men were arrested under the scheme last weekend. Under the Criminal Justice Diversion Program, people are given the opportunity to avoid court and a criminal record if they comply with conditions set by a magistrate. Under the Summary Offences Act 1966 (Vic), “begging or gathering alms” is punishable by up to a year in jail.
White-collar penalties low, says ASIC
The Australian Securities and Investments Commission, the body responsible for regulating companies, says the penalties for corporate wrongdoing are too low. For example, “[t]he maximum fine that may be imposed may be substantially lower than the financial benefit obtained as a result of the wrongdoing.” One proposal in the ASIC report is to set the maximum penalty for profitable offences at “three times the value of the benefits obtained that are reasonably attributable to the contravention”.
Handlebar-cam highlights danger of “dooring”
A handlebar-cam video has highlighted the danger facing cyclists using bike lanes in the CBD. The video shows a passenger hitting the cyclist with the door of a taxi, refusing to identify himself, and blaming the cyclist for the incident. Rule 269(3) of the Road Safety Rules 2009 (Vic) makes it an offence to “cause a hazard to any vehicle by opening a door of a vehicle”. The penalty was significantly increased in 2012, because “dooring” is a serious risk to cyclists’ safety, particularly in the CBD.