The JCA has written to the Editor of Melbourne’s Sunday Herald-Sun pointing out three aspects of the newspaper’s misreporting of a County Court judge’s reasons for sentence which resulted in the paper’s readers being significantly misled.
The article “Leniency is an insult to us all” published in your newspaper on 19 November 2017 is regrettably another example of the inaccurate reporting of the reasons given by judges in sentencing offenders.
When imposing sentences judicial officers are obliged to provide reasons for their decisions. The provision of reasons facilitates scrutiny of the decision both by appeal courts and by the public. The public reporting and commentary on the reasons for judicial decisions including sentences is to be encouraged. However, commentary such as the article should accurately report the reasons of the judge.
The offender the subject of the article had pleaded guilty to one charge of culpable driving causing death and another charge of negligently causing serious injury. The offender had a blood alcohol reading of 0.156 and drove through a stop sign killing an infant and seriously harming his mother. The sentencing judge described his crime as a “serious example of what is a serious offence” and stated that the offender’s “moral culpability [was] high”.
Most of the article consisted of rhetorical attacks upon the sentencing judge. However, to the extent that it attempted to describe the sentencing judge’s reasons it was inaccurate in at least three respects.
First, the article asserted that in sentencing the offender to seven years imprisonment with a minimum term of four years and eight months for an offence that carried a maximum sentence of 20 years sentence the judge “gave the offender less than 25 percent of that penalty”. Seven years is 35 percent of 20 years, not less than 25 per cent.
Second, the column asserts that the “reason for this generosity’ is because the offender had written a letter to the victims’ family “saying he was sorry”. This is blatantly incorrect. The sentencing judge’s reasons make clear that the sentence was determined taking into account an assessment of the seriousness of the facts of this offence compared to other offences of the same type (paragraphs 11 to 12), the terrible impact of the offence on the victims and their family (paragraph 13), the fact that the offender pleaded guilty (para 14), that the offender was remorseful (para 16), his age and the likelihood of his reoffending (para 20).
Third, the column asserts that in stating that “these crimes aside, [the offender] lived an unblemished life” the sentencing judge “breezily excis[ed]” the offender’s actions in killing a young child while drunk driving. The sentencing judge did no such thing. Instead the judge noted and considered that the offender had not before or after his terrible crime been convicted of any other offence, his work history, and that he was remorseful and that his family circumstance suggested that his prospects of rehabilitation were excellent (paragraph 20). These considerations cut both ways in sentencing. If the offender was not remorseful, had prior convictions and was likely to reoffend then I am sure your readers would expect the sentencing judge to have considered those matters in fixing any sentence.
Nothing in this letter is to be taken as either an endorsement or a criticism of the sentence. Given the severity of the crime there is clearly great scope for legitimate public debate about the appropriate penalty. However, misreporting the reasons provided by the sentencing judge does not promote that debate.
The actual reasons provided by the sentencing judge can be accessed online. I encourage your readers to read them and form their opinion about the sentence. They were not assisted in understanding why the judge imposed the sentence that he did by reading the article in your newspaper.
The Judicial Conference of Australia is the professional association of judges and magistrates in Australia.
For further information, contact the Judicial Conference of Australia Secretariat.