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Cheers - AE

Wednesday, 16 February 2011

Getting off lightly

Light sentences are not just a UK phenomenon, as a court in Adelaide showed yesterday. I'm not against vigilantism and violence when used to stop an attack but punishment beatings go beyond the pale, especially when it turns out they didn't actually have a reason in the first place.
[John and Brendan Harkin] bashed Dennis Murray in the toilets of a Hungry Jack's restaurant in 2009, wrongly believing he had assaulted John Harkin's wife.
John, 45, and Brendan, 21, of Hope Valley, each pleaded guilty to aggravated causing serious harm with intent.
Mr Murray was so severely injured that he required 11 steel plates to piece his skull back together.
And what did they get?
[District Court Judge Michael Boylan] sentenced John to three years jail and Brendan to 27 months, suspended on condition of two-year, $200 good behaviour bonds.
Which has upset a lot of people, especially as their victim was a grandfather who'd served in the RAN, and caused the prosecution to appeal the leniency of the sentence.
Prosecutors today asked the Court of Criminal Appeal to erase John and Brendan Harkin's suspended sentences, and order them to serve immediate jail time.
"This mischaracterisation of their perception has led His Honour to treat revenge and retaliation as a matter of mitigation," [prosecutor Ian Press] said.
He said the courts must "send a message" that revenge is intolerable, and could do that by jailing the men.
Now, I can sort of see where the judge was coming from, at least in part, because the Harkins are apparently not a dodgy, violent father / son tag team, and in fact surrendered to police when they realised how badly they'd hurt Dennis Murray and pleaded guilty to the charges. All of which I'd agree has to count for something.
[Judge Boylan] said the duo's lack of criminal history and "perception of a grievious wrong done to your wife and mother" justified the bonds.
And here's where I think people are a bit upset. The first part of that, the lack of criminal history, being a justification for good behaviour bonds is understandable. The second is a bit of a worry. As I said, violence to end violence or even to prevent the imminent use of violence loses me no sleep at all, even though Australia's refusal to allow anyone defensive weapons for their personal protection (senior police officers excepted) means that governments and politicians here don't like the idea at all. But an act of violence that takes place well after the the event that's supposed to justify it ended? Sorry, no, that's not acceptable at all. When there's no urgency and no violence being used against anyone else anymore, that's when you call the cops in. It's what they're for and even though I'm not above criticising the police I have to concede that they are probably the best people to investigate something that you think happened but didn't actually see. Hauling off and braining someone in a Burger King bog is not a reasonable response and has no justification as far as I can see.

The judge is probably right that these two men are not a danger to the public and should be spared jail. They probably have learned their lesson and they probably feel pretty awful about what happened.


And also probably this is one of those sad cases that's bloody hard for the judge to find a sentence that pleases everybody, or indeed anybody. You go one way and you're an unduly harsh tyrant in the eyes of the offender's supporters, but you go the other way and the victim's supporters say you're a soft touch. Trying to steer a course down the middle will probably just annoy both of them, but it's still the least problematic. I'm not a lawyer and I'm particularly ignorant about law and sentencing in South Australia, but I'd have thought that the judge had other options for sentences that would have punished the Harkins a bit more severely than suspended sentences and a $200 bond each while still sparing them from prison. It was, let's remind ourselves, a pretty savage attack which had no excuse, real or imagined, and it doesn't feel like the punishment fits the crime here. And the sad thing is that for the Harkins, who as I've agreed probably don't need to be locked up, the risk of jail time is still there if the appeal against the sentencing is successful. Had they been given some heavy community service orders or something there'd have been grumbling - almost inevitable - but perhaps not to the extent that the prosecutors would try to get it changed.

I'm not sure there can ever be any winners in a situation like this, but I think it is possible for everyone to lose to a greater extent than is really necessary.
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