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Nicholas Cowdery AM QC uses the Kieran Loveridge sentence to illustrate that justice and truth are more important than snappy headlines or political posturing.
Headlines serve several purposes.
They are deliberate attention-grabbers, but they also, deliberately, or not, shape opinion. Take this one from the front page of the Sydney Morning Herald:
(Sydney Morning Herald 9 November 2013)
The background to this particular headline is that at around 10 pm on Saturday 7 July 2012, 18-year-old Thomas Kelly was walking with friends in a street in Kings Cross. Kelly was minding his own business when heavily intoxicated and violent 19-year-old Kieran Loveridge ‘king-hit’ him to the head. Thomas went down, his head striking the pavement, causing massive brain damage. Kelly died two days later. Police charged Loveridge with murder. He was also charged with other offences of violence stemming from less serious (in terms of results) assaults from that night before the attack on Kelly. Loveridge had been on a bond for earlier offences of violence.
The Kelly family featured prominently in media reports from very early in the treatment of the matter. Quite rightly, they drew attention to the level of alcohol-fuelled violence in Sydney, especially in the Kings Cross area. The NSW Government reacted almost immediately by turning attention to better regulation of drinking and drinkers in the city, attention that is ongoing.
The Director of Public Prosecutions accepted a plea of guilty from Loveridge to the offence of manslaughter. It was on that plea that he was sentenced for that offence to imprisonment for six years with a minimum term of four years. There were additional sentences for the other offences, taking the total sentence to seven years, with a minimum term of five years and two months.
This was never a case of murder. ‘One punch manslaughter’ is a common feature of the criminal justice process. It is not murder because the mental elements of murder cannot be proved – intention to kill, or intention to cause grievous bodily harm or recklessness (which requires proof that the offender turned his mind to the possible consequences of his action before he acted). The Crown would rarely be able to prove (especially without any admissions) in a case of an intoxicated and volatile offender that he held a specific state of mind when he acted.
Indeed, this has been recognised and acted upon in Western Australia and Queensland where new offences, not called ‘murder’ or ‘manslaughter’, have been created to address this type of crime. The maximum penalty prescribed is ten years of imprisonment.
So, it was unprofessional and unfair of the police to have charged Loveridge with murder. Unprofessional because the law did not support it. Unfair because it created in the minds of the Kelly family and others closely associated with the events an unrealistic expectation of the way in which the matter would be handled – as a prosecution for the most serious offence in the criminal calendar, with the accompanying expectation of a very heavy sentence. It created the basis for later personal disappointment.
The DPP proceeded on the offence that it was manslaughter. Loveridge pleaded guilty and did so in a timely way, demonstrating also personal remorse, which circumstances entitled him, by law, to a substantial discount on the sentence that would be imposed. His youth was also a significant factor.
Manslaughter is, as Justice Campbell described it, a protean offence. The maximum penalty prescribed is 25 years imprisonment, but typically maximum sentences for manslaughter are under ten years. This is because the offence can be committed in a myriad of ways, with a very wide range of culpability attached. Negligent error in the course of medical treatment; grossly negligent driving of a motor vehicle; the administration of a dangerous drug (even by consent); or, as Justice Campbell noted, from a practical joke gone wrong to an offence just short of murder. The heavy end of the available sentencing range is reserved for the most serious examples of the offence.
Sentencing requires judgment and that requires balancing considerations that point in different directions. We seek to ensure that the best people for the job are appointed as judges and the task of judging is given to them. They have laws and principles, established by the courts over time, to guide them. If they get it wrong, the Court of Criminal Appeal may correct them. We should trust our judges to do the job for which they are qualified and paid and which they practise daily.
The person in the best position to know if the sentence imposed upon Loveridge fits the crime and the criminal is the sentencing judge. He has read all the relevant material. He knows the law. He has heard the submissions of the representatives of Loveridge and the community. He has assembled all the competing considerations in his ‘Remarks on Sentence’ and imposed a sentence he considers appropriate and within the proper range for such offending (there can never be just one, single, correct sentence for any serious offence).
Justice must be served both in terms of the prisoner and the community, which includes the Kelly family and all affected by these tragic events. One sympathises with them, but the courts are there to deal with all matters objectively and in a disinterested fashion (which does not mean ‘uninterested’). The courts are not there to translate their grief and pain into an unjust sentence. They must act according to the law and the practice of the courts acting on behalf of the community generally.
The Attorney General was quick to request the DPP to review the matter and decide if there should be a Crown appeal against the ‘manifest inadequacy’ of the sentence (being the test to be applied). With respect, it must be said that it is most unlikely that the Attorney would have read all the material before the Judge or even his lengthy Remarks on Sentence. Neither would he have been in a position to apply his undoubted legal experience to an assessment of the adequacy of the sentence. His was the call of a politician seeking to gain favour with the segment of the electorate expressing dissatisfaction with the result.
Politicians do such things.
So, why were people in a position to hold and express such a view? Back to headlines…
The sentencing of Loveridge had been much anticipated by the media and was reported much along the lines of the Sydney Morning Herald’s piece the next day (although with less restrained expression from some quarters). For the manslaughter of Kelly, Loveridge was not sentenced to four years imprisonment – he was, in fact, sentenced to six years. He is not eligible for release before four years are served, but there is no guarantee he will be released then. It will be up to the Parole Authority to decide.
So the headline starts with an error. It should have said ‘Six years…’.
The sentence, in any event, is not ‘for a life.’ Sentencing is not some sort of market where periods of imprisonment are equated to consequences of action and regarded as payment. The process is much more complex than that and must take into account the objective nature of the offending, the subjective circumstances of the offender, the laws and the treatment of such matters by courts in the past (so as to aim for consistency of approach). The goal is justice, which is not a concrete substance and can mean different things to different people – especially people emotionally involved in the process. To act otherwise would be to invite judicial chaos.
No sentence can bring Thomas Kelly back. No sentence can be proper ‘payment’ for his life. No sentence can satisfy those affected by his death. No sentence can unwind Loveridge’s wrongdoing and make him a blame-free member of society.
And the second part of the headline – ‘Kelly family’s outrage’. It tells us that these people, whose tragedy we have been following are dissatisfied with the sentence, and so should we be. It asks us to identify with them. It asks us to join with them in their demands for a heavier sentence, even though we have not suffered in the way they have. It enlists us to their cause.
But we should resist. Even if we feel deeply for them we are not in their position and should not be asking our public authorities – the courts – to give them personal vengeance. The community generally should have confidence in the criminal justice system to do the just thing by objective standards. It is not qualified to know whether or not an order of a Judge is correct and within range. The DPP will consider if there should be an appeal. If there is, the Court of Criminal Appeal may or may not alter the sentence. It will give public reasons for its decision, made by applying the law. If the law should change, that is for Parliament to consider.
Or maybe it is really better for Government to continue to apply itself to better controlling the effects of alcohol in society.