The 'Law is an ass' thread

[Tannin]

The footage was released long before anyone was charged. It's security camera footage which was broadcast in the hope - successful as it turns out - of catching the scum who did this crime. It turns out to have been useless, because the court just let two of them go, and the other one only got one twentieth of the set penalty.

The "scum lawyers" you refer to are required to represent those people. It would be a sorry day for all of us if lawyers could decline to appear for us because they didn't like what we had done.

Like all blanket rules, this one should be interpreted with care, and with regard to the individual circumstances. Defending criminals who perpetrate this type of vicious crime is beyond the moral pale. It is absolutely OK (and indeed worthy) to test the prosecution evidence, and to require proof rather than mere likelihood. But where guilt is not in question - as it was not in this instance - and the evil of the crime so gruesomely self-evident, it is neither moral nor decent to attempt to get a criminal off scot-free, which is what was successfully done for these violent scum. That's just a disgrace, and the lawyer responsible should be utterly ashamed of himself.

Moving on, I think it is a really big mistake to say that "Judges don't get "tough on crime", Parliaments do."

That route is the route to a far less flexible and far less fair justice system. There are plenty of populist right-wing "crime-busting" politicians who would take delight in doubling and tripling sentences, and in introducing much harsher and less flexible minimum sentences. And, for that matter, quite a few on the other side of the house who are keen on doing the same thing, especially when there is an election in sight.

And that would be huge blow to justice. The whole point of granting judges the discretion they have is that they, judges, are then supposed to be able to look at the circumstances of each particular case on its merits. The idea is that the judge is able to make allowance for special circumstances, and in consequence select a lighter or a heavier sentence, or even a different sort of sentence. This freedom granted to judges makes it possible for the justice system to dispense something much more closely approximating "justice" than would otherwise be the case.

And what have judges done with this freedom - they have pissed it up against the wall by using it to hand down ridiculous sentences such as the community service orders granted in this instance.

Yes, judges have the freedom to do that sort of thing, and so they should. But with freedom goes responsibility, and the courts have manifestly failed to exercise their responsibility in this and in many other cases involving violent crime. If I hire a worker, I have the right to expect that worker to exercise reasonable responsibility in the discharge of his duties. If he behaves irresponsibly, I am entitles to counsel him, warn him, and if his performance does not improve, sack him. Why should judges be any different?

The real worry is that because the courts are choosing to hand down these get-off-scot-free sentences for very serious offences, the parliament will indeed intervene, and take away the right of judges to be lenient when this would serve the cause of justice best. We will see people who are guilty of an offence, but who, for a variety of circumstances, should not be punished with the full weight of the law, sentenced to the statutory minimum anyway - and that would be a very bad thing indeed.

Judges have the power to hand down sensible sentences for this type of offence. One of the offenders in this particular case was charged on 8 counts. The first two counts alone have a combinerd maximum penalty under Victorian law of 20 years in prison. I don't know what the other 6 charges were - but we are already up to 20 years in the cooler just for the first two.

So we have a offences for which parliament has laid down a 20-year maximum penalty, and the judge has decided to give one year. Hello? What planet are we on? Can anyone honestly say that this particularly nasty bashing was only one-twentieth as bad as others? That's what the judge said with his sentence. Presented with irrefutable evidence of a particularly evil bashing of a young lad, evidence that wasnt even contested by the defence, the judge handed down a sentence one twentieth of the maximum set by parliament. That is a disgrace.

Now, you may argue that this case is being appealed and that the appeal will do something to rectify matters. Yes - in this one case. That says nothing for the many others, some of them very well-documented, that go uncorrected.

[Tannin]

Taken as a whole, this study essentially reinforces the main findings of most previous studies on perceptions of crime ....... blah bl;ah blah classic cognitive and perceptual errors at work, as expected.

Oh FFS. Mate, I know all this shit. I studied this stuff when you were still in short pants, and I have a degree to prove it (among other things).

My point is based on these exact same understandings.

It is a very simple point: if the courts don't get their act together, the people who hold those misperceptions will do it for them - and the result will be be bad for justice.

More appropriate sentences for scum like the ones in that video are on the way, nothing surer or more certain. The only question is will the courts wake up and start sentencing sensibly of their own accord? Or will the parliament do it for them, and in doing so take away a lot of hard-earned judical freedom?

[pietillidie]

I can't see how you can claim on one hand you are acutely aware people's perception of this matter is hopelessly askew, which it is, and meanwhile import like unfounded nonsenses such "evil" (what is it?), and sentences being too low (to achieve what end?) for "scum" (are these lesser humans?) into the discussion. Are you sure you haven't just added a boatload of your own visceral guff to the public discourse and tried to pass it off as some profound street pragmatism? There is nothing pragmatic about enacting foolish ascientific policy which achieves the exact opposite of its goals.

I have a different solution. How about we respect the facts, and solve the perception problem by putting more police on the ground and pumping money into educating people about the actual facts of crime to counter the distorted nonsense the media feeds them? Then we can look at all of the successful programs being run which data shows actually do reduce crime and recidivism.

There is no more reason to bow to the angry mob than there is to bow to the wishes of the aristocracy. Again, I haven't conducted a research project on the matter, and I'm happy to change my mind if someone shows me decent evidence and puts forward a rational argument, but I'm yet to come across anything which convinces me harsher sentencing will benefit society.

But yes, agreed, we do have to counter the lies and idiocy on the airwaves.

[Tannin]

^ What in incredible argument! Are you sure you are not Hiss in disguise?

Do you seriously propose to "solve" brutal street violence by prettying up "the perception problem"? Or is that just rhetoric?

unfounded nonsenses such "evil" (what is it?)

To call evil "unfounded nonsense" is quite extraordinary! If you cannot recognise naked evil in that security camera footage I linked you to, you have forgotten what it is to be human. There are as many different ways to define "evil" as there are humans on planet earth, but they share a common core. A very simple, common and practical definition is that evil is "intentionally causing harm". I defy anyone to deny that the action we saw was anything other than evil - exactly as defined.

unfounded nonsenses such as ... sentences being too low

Neither nonsense not unfounded. I have provided you (a) with incontrovertible evidence of the vicious and evil nature of this crime, and (b) with a summary of the sentences, which amount to no sentence at all for two offenders, and one year in jail for the other - less than 1/20th of the maximum set down by law, or, to put it the other way around, this vicious and brutal unprovoked assault was assessed by the court as being only one-twentieth as bad as it might have been. This mind-boggling judgement is a particularly stupid one, granted, but over and over again we see vicious crimes penalised with trivial sentences which do very little to deter and absolutely nothing to prevent repetition.

Now let us turn to this: "there is nothing pragmatic about enacting foolish ascientific policy which achieves the exact opposite of its goals". That is a very clever but quite dishonest debating trick. It is a subtle version of the time-honoured "have you stopped beating your wife?" You aim, by using it, to associate a perfectly reasonable call for sanity in sentencing of violent crime with all the worst of the uninformed shock-jock rhetoric.

Let's get this straight: I am talking about violent crime - that security camera footage is a typical example and as good as any - and nothing else. I am not concerned with non-violent crimes, that's a topic for another day. I have showed you footage of a vicious assault and showed you that the judge found it barely worth bringing to court - no sentence at all for two offenders, and a mere 12 months for the worst one.

Put that in context: this scumbag gets off with less jail time than Chris Egan would have done for driving on a tollway! Are you following this? For driving repeatedly on a highway without paying the toll, Egan got a fine which he couldn't pay, so he was facing more than one year's jail in lieu. Our disgusting court system is giving out bigger penalties for skipping a $5 toll than it gives out for brutal, unprovoked, life-threatening violence. How sick is that?

And you seem to be denying that there is a problem!

Oh, sorry - you admit that there is a "perception problem" - i.e., the problem (according to you) exists only in the mind of people who are concerned about it, and it can be cured by the appropriate reeducation programme!

Finally, let's get one other thing straight: no-one here is arguing for "harsher sentencing". No-one. "Harsh" is not a term you can even think of applying to letting two vicious violent offenders off without any sentence at all (aside from a little "community work") and the worst of the three off with less than one-twentieth of the sentence laid down by existing law for that crime. We are not talking "harsher sentencing". We are talking about some sentence instead of none at all. We are talking appropriate sentencing where an especially vicious assault gets more than a token jail term - and indeed, more than the courts hand out for unpaid parking fines.

[pietillidie]

^ What in incredible argument! Are you sure you are not Hiss in disguise?

Do you seriously propose to "solve" brutal street violence by prettying up "the perception problem"? Or is that just rhetoric?

unfounded nonsenses such "evil" (what is it?)

To call evil "unfounded nonsense" is quite extraordinary! If you cannot recognise naked evil in that security camera footage I linked you to, you have forgotten what it is to be human. There are as many different ways to define "evil" as there are humans on planet earth, but they share a common core. A very simple, common and practical definition is that evil is "intentionally causing harm". I defy anyone to deny that the action we saw was anything other than evil - exactly as defined.

>> Nothing to add there - you've just invented mystical nonsense that doesn't exist in the natural world. I think the word you're looking for is "violence".

unfounded nonsenses such as ... sentences being too low

Neither nonsense not unfounded. I have provided you (a) with incontrovertible evidence of the vicious and evil nature of this crime, and (b) with a summary of the sentences, which amount to no sentence at all for two offenders, and one year in jail for the other - less than 1/20th of the maximum set down by law, or, to put it the other way around, this vicious and brutal unprovoked assault was assessed by the court as being only one-twentieth as bad as it might have been. This mind-boggling judgement is a particularly stupid one, granted, but over and over again we see vicious crimes penalised with trivial sentences which do very little to deter and absolutely nothing to prevent repetition.

>> What evidence do you have that lower sentences "do little to deter" violent crime? [edit: or that higher sentences do more to deter violent crime?"] Please bring this magical data forth! The base rate of measurement has to be comparative society, not heaven. Go look at the data of societies with far tougher sentencing and tell me if their rate of violent crime is lower. I have never seen any data to support your view, though as I say I haven't researched it in depth, so I might be wrong. If tougher sentencing actually makes society better, I'll support it.

Now let us turn to this: "there is nothing pragmatic about enacting foolish ascientific policy which achieves the exact opposite of its goals". That is a very clever but quite dishonest debating trick. It is a subtle version of the time-honoured "have you stopped beating your wife?" You aim, by using it, to associate a perfectly reasonable call for sanity in sentencing of violent crime with all the worst of the uninformed shock-jock rhetoric.

Let's get this straight: I am talking about violent crime - that security camera footage is a typical example and as good as any - and nothing else. I am not concerned with non-violent crimes, that's a topic for another day. I have showed you footage of a vicious assault and showed you that the judge found it barely worth bringing to court - no sentence at all for two offenders, and a mere 12 months for the worst one.

Put that in context: this scumbag gets off with less jail time than Chris Egan would have done for driving on a tollway! Are you following this? For driving repeatedly on a highway without paying the toll, Egan got a fine which he couldn't pay, so he was facing more than one year's jail in lieu. Our disgusting court system is giving out bigger penalties for skipping a $5 toll than it gives out for brutal, unprovoked, life-threatening violence. How sick is that?

>> This is where I assume it gets legal and historical. Just some ideas: the differences between an ongoing conscious act and a one-off random act are possibly considered substantial. My guess is, hundreds of years of legal cases show theft is far more pervasive than violence and needs strong deterrent, it's just that violence is much more of a shock to the system when it happens. If far more people are capable of theft than violence - and I'm pretty sure studies show far more otherwise normal citizens are - then it would not surprising the deterrent for theft is strong. Violence, on the other hand, is probably very often a much less premeditated act, and an act which probably starts edging into the area of mental illness. Let's ask Pies4shaw. (I can't remember Egan's case details, but I would've made him do community service and repay the money).

And you seem to be denying that there is a problem!

Oh, sorry - you admit that there is a "perception problem" - i.e., the problem (according to you) exists only in the mind of people who are concerned about it, and it can be cured by the appropriate reeducation programme!

>> That's a misrepresentation of what I said. I believe the false perception is distorting the discourse. But I didn't say we shouldn't try to do better than the current levels. Read what I actually said again:

I have a different solution. How about we respect the facts, and solve the perception problem by putting more police on the ground and pumping money into educating people about the actual facts of crime to counter the distorted nonsense the media feeds them? Then we can look at all of the successful programs being run which data shows actually do reduce crime and recidivism.



Finally, let's get one other thing straight: no-one here is arguing for "harsher sentencing". No-one. "Harsh" is not a term you can even think of applying to letting two vicious violent offenders off without any sentence at all (aside from a little "community work") and the worst of the three off with less than one-twentieth of the sentence laid down by existing law for that crime. We are not talking "harsher sentencing". We are talking about some sentence instead of none at all. We are talking appropriate sentencing where an especially vicious assault gets more than a token jail term - and indeed, more than the courts hand out for unpaid parking fines.

Again, I would say the legal argument is much more complex than the visceral reaction can capture. "Appropriate" sentencing is about outcomes, and outcomes can only be determined by data and an assessment of the full implications of the changes you propose across the entire legal system.

Edit: see above.

[HAL]

Tell me what you think about violence. What of it? You sound like a category C client.

[Pies4shaw]

Tannin, the defence lawyers you impugn in this case not only appear to me to have done nothing wrong - they appear to have done what they were ethically obliged to do. If you want to see what outrages can follow where lawyers don't give effect to such obligations, you might like to read the High Court's decision in Tuckiar v the King (1934) 52 CLR 335.

The sentence may or may not be "a disgrace" - the appellate court will determine that. Every other opinion about the question is just hot air. Moreover, your position on it seems to be self-contradictory. On the one hand, you have no idea what factors the Judge took into account in determining the sentences in this case and you have expressly disavowed any desire to engage with the principles the Judge was required to apply when I identified some of them for you; on the other hand, you assert that this was a manifest failure of the exercise of judicial discretion. I have no idea whether it was or it wasn't and I am not arguing either way. The only way to assess these matters is to read and consider the Judge's reasons for sentencing. Generally, when one does so, questions in the form "How could any Judge possibly..." and similar just hang embarrassingly in the air.

You might also want to contemplate the consequences of what you say the DPP considers was an appropriate sentence - the DPP apparently thinks the most serious offence here was worth (at the upper limit) about a quarter of the maximum sentence for (what you say were) the charges. There are plainly sentencing considerations that you are not being told about. As in all such matters, the prosecution and the defence differed on how stiff the sentences should have been. What you see on the video might evidence guilt - it does not dictate a sentence, unless you think that mandatory sentencing is a good thing. Which you apparently don't. You can't (well, not reasonably) on the one hand assert that the video "speaks for itself" and on the other that Judges ought to be able to exercise discretion in sentencing.

I have no special interest in the operation of the criminal justice system. I don't want to get into arguments with anyone about it. All I'm trying to do is point out how it works, so that posters don't take uninformed pot shots at the people who do participate in it. When the dust settles, the chances that any lawyer (on either side) acted inappropriately or that the Judge might be found to have done anything other than (at worst) mis-direct himself on a question of law in this case are negligible. I doubt any of the defence lawyers is ashamed - to the contrary, they probably each consider themselves to have done very fine jobs in a difficult situation.

Finally, how likely is it that the sentencing Judge went into court that day determined to let a few violent thugs off lightly? Presumably, the Judge was repulsed by the vision (assuming it was admissible evidence and could be shown to the Court), just as you were. The Judge may well have been wrong (I repeat that I neither know nor care) but it is extraordinarily unlikely that the Judge handed down any decision other than the one he considered appropriate in all the circumstances. There are, of course, some areas of the criminal law where Judges have been inappropriately lenient in past times (certain categories of sexual offence come to mind), largely because they brought particular prejudices to bear when they judged the behaviour of the defendants (and, inappropriately, the victims). I am not aware of any likely prejudice that might lead a Judge to be particularly disinclined to impose a harsh sentence on a gang of violent offenders who have committed a serious and unprovoked assault. Are you?

[HAL]

Are you in a lot of trouble?

[Pies4shaw]

Help me out, HAL: list me four acids that will quickly dissolve unwanted electronic components.

[Tannin]

Sigh. You two are not engaging with the evidence. The evidence we have before us (and yes, it was admissible) shows a vicious, cruel, brutal bashing. The defence did not try to pretend that there was any provocation.

There is no excuse for this sort of behaviour. None. Nor is there any excuse for failing to hand down a meaningful sentence - two of the offenders did not get jailed at all!

You can argue the fine print all you like, you can go into detail about the processes of the legal system and the constraints that participants in the system operate under, but you cannot argue that this crime should effectively go unsanctioned - and that is what the pair of you are saying. You both deny this, but that is what your arguments amount to - post hoc justification of a massive failure to defend decent, peaceful citizens against vicious, evil thugs.

I return to my fundamental theme: the longer the injustice system continues to flagrantly flout the public will by letting brutal thugs like these men escape any meaningful punishment for what are by any measure truly horrible crimes, the more certain it becomes that parliament will respond to the near-universal calls to remove judicial discretion.

Judicial discretion is a fundamental and very valuable part of our justice system. We give judges the right to (within certain limits) overturn the normal sentence set down by our elected representatives and hand down a much lower (or higher) penalty because of individual circumstances. This can produce much fairer outcomes.

In this instance, however, and in the hundreds of others for which this one stands as an example, the judge has manifestly failed. We don't know the individual circumstances of the offenders, we don't know their life history, mental state, past record of violence, but we don't need to know because in the case of a brutal and unprovoked attack like this one, there is no possible combination of factors sufficient to excuse the failure to hand down any meaningful sentence at all.

The judge, in other words, abused his privilege to exercise discretion, and should be sacked. A judge who is capable of so flagrantly ignoring his duty to provide justice is obviously not competent to hold office. We do not need to hear the argument or read the judgement because there are no, repeat no circumstances under which an unprovoked attack like the one in the video clip can be allowed to go unsanctioned.

(You may argue that severe mental illness is one. In a sense, yes it is, but it is a valid defence with regard to guilt or innocence, and if found to be the case then there is no sentence because a guilty verdict cannot be brought down. However, in the case of a crime like this one, a custodial order is clearly essential regardless of whether that be served in a jail or an institution for the criminally insane - it is utter madness to allow violent scum like these three to roam the public streets.)

[Tannin]

Justice Whelan apparently gets it. In a judgement handed down today, for an attack that was broadly similar but caused lesser injuries, he said: "I must impose a sentence of immediate incarceration ..... general deterrence is very important ..... at the risk of oversimplification, the courts must strive to send this message: glassing means jail".

[Pies4shaw]

Sigh. You two are not engaging with the evidence. The evidence we have before us (and yes, it was admissible) shows a vicious, cruel, brutal bashing. The defence did not try to pretend that there was any provocation.

There is no excuse for this sort of behaviour. None. Nor is there any excuse for failing to hand down a meaningful sentence - two of the offenders did not get jailed at all!

You can argue the fine print all you like, you can go into detail about the processes of the legal system and the constraints that participants in the system operate under, but you cannot argue that this crime should effectively go unsanctioned - and that is what the pair of you are saying. You both deny this, but that is what your arguments amount to - post hoc justification of a massive failure to defend decent, peaceful citizens against vicious, evil thugs.

I return to my fundamental theme: the longer the injustice system continues to flagrantly flout the public will by letting brutal thugs like these men escape any meaningful punishment for what are by any measure truly horrible crimes, the more certain it becomes that parliament will respond to the near-universal calls to remove judicial discretion.

Judicial discretion is a fundamental and very valuable part of our justice system. We give judges the right to (within certain limits) overturn the normal sentence set down by our elected representatives and hand down a much lower (or higher) penalty because of individual circumstances. This can produce much fairer outcomes.

In this instance, however, and in the hundreds of others for which this one stands as an example, the judge has manifestly failed. We don't know the individual circumstances of the offenders, we don't know their life history, mental state, past record of violence, but we don't need to know because in the case of a brutal and unprovoked attack like this one, there is no possible combination of factors sufficient to excuse the failure to hand down any meaningful sentence at all.

The judge, in other words, abused his privilege to exercise discretion, and should be sacked. A judge who is capable of so flagrantly ignoring his duty to provide justice is obviously not competent to hold office. We do not need to hear the argument or read the judgement because there are no, repeat no circumstances under which an unprovoked attack like the one in the video clip can be allowed to go unsanctioned.

(You may argue that severe mental illness is one. In a sense, yes it is, but it is a valid defence with regard to guilt or innocence, and if found to be the case then there is no sentence because a guilty verdict cannot be brought down. However, in the case of a crime like this one, a custodial order is clearly essential regardless of whether that be served in a jail or an institution for the criminally insane - it is utter madness to allow violent scum like these three to roam the public streets.)

You misunderstand me, Tannin. I am not arguing anything, I don't deny anything (except your contention that the lawyers must all in some way be at fault) and I'm not "effectively saying" anything. I have no opinion at all on your underlying subject but thought that some reasonably informed observations might be of interest to you. All I was attempting to do - wholly unsuccessfully, it would appear - was to explain (not defend) how these decisions are actually made and the sorts of materials to which you might have regard in testing the adequacy of this one. A reasonable person might wish to test their thesis if, like yours, it was to the general effect that the defence lawyers involved are morally bankrupt scum and the Judge is not fit to hold office.

I'm not saying the decision was right - I have no idea - I'm simply saying that your assumption that the individual lawyers and Judge are all at fault is almost certainly wrong. There will be reasons for this decision - if you knew what they were, instead of just assuming that there can't be any good ones, it might help you to refine your arguments and think through where, in your opinion, the problems in the criminal justice system are. I know it's easier to stand back at a distance and say "It simply must be wrong" but there are other ways to engage with these kinds of issues.

I'm genuinely sorry that you haven't taken my contributions the way they were intended because I generally enjoy reading your posts. Oh well. I'm off.

[Black_White]

FFS....just got the jury duty call up in the mail.
Pity the fool who gets me on the jury.

[stui magpie]

[Peter Griffin]

^^ Likey