Tough justice
22.07.2000
QUEENSLAND'S legal system needs to take a long, hard look at itself.
Statistics released last week revealed that of 1800 people jailed in Australia last year for defaulting on fines, 1600 were in Queensland. It is not news that people who don't pay fines in this state go to jail, but the national comparative proportion is staggering.
To appreciate how ridiculous the Queensland situation is, consider the charge of assault occasioning bodily harm. On July 26, 1996, two solicitors and a forensic scientist were drinking at a Brisbane hotel when they became involved in an altercation with another man, Andrew Woods. A fight flared, and all three got stuck into Woods, kicking, punching and dragging him outside. Woods suffered dreadful injuries to his eye, mouth and forehead.
The trio -- solicitors Timothy Alton Sayer, Andrew Leslie Thompson and scientist Simon Joseph Walsh -- were charged with this crime of violence. Incredibly, the trial judge decided to impose only fines, and not even record a conviction. The fact they were ``professionals'' weighed heavily in their favour, which is a statement in itself.
After outcry, the Attorney-General appealed and the Court of Appeal unanimously upheld the appeal and sentenced the men to a fully suspended six-month jail term. It also ordered that convictions be recorded.
The judgment said it was not possible to establish which particular injuries to Woods were caused by which of the assailants. It read: ``Whatever the injuries which were actually caused, their responsibility is substantial.''
That has to be an understatement -- when cowards gang together and kick a man on the ground! The Appeal Court concluded the original penalty was manifestly inadequate ``to reflect the properly high need for general deterrence -- not deterrence of the men because they are not likely to reoffend''.
It is probably unworthy to reflect on the outcome had the cowardly attackers been footballers, carpenters or unemployed Aboriginal youths.
Last week, a similar charge came before Judge Brian Hoath in the District Court. The court report stated: ``A man was invited to go outside a hotel but was then bashed by four men over `a matter of honour'. The victim was a former boyfriend of a sister of one of his attackers and was alleged to have claimed he attempted to take his life because of her. The man was punched to the ground where he was repeatedly kicked. Ivan Chen, 23, Po-Jen Chen, 20 and Meng Chieh Shih, 29, pleaded guilty to committing assault occasioning bodily harm while in company on November 1 last year.
Prosecutor Dan Boyle said a man had been drinking in a hotel lounge about 1.30am when Ivan Chen approached him to go outside. Once outside, Shih confronted him about things the man was supposed to have said about
his sister.
The man was knocked to the ground and attacked by at least four men although a taxi driver who saw the attack claimed another six men joined in.
The victim suffered extensive bruising, abrasions and nine fractured or cracked teeth. In street parlance, this bloke had been ``done over pretty good''. Judge Hoath observed that the attack was ``persistent and cowardly'' and would have deserved actual jail time. But instead he imposed a wholly suspended six-month jail term -- the same as the Court of Appeal handed down on Sayer, Thompson and Walsh. The fact is, judges like Mr Hoath are bound by precedent, and if he imposed a heavier sentence -- particularly a jail term -- under the current regime his decision would almost certainly be overturned on appeal.
Since the Court of Appeal determination was handed down, there have been several dozen cases of multiple attacks on single victims which have come before the courts. The penalty is predictable -- a suspended sentence.
Another perpetrator to benefit from this precedent was Aboriginal leader Murrandoo Yanner who was involved in a brawl in the Burketown pub. Even though he had previous convictions for similar assaults, precedent ruled that he be given the suspended sentence.
The only apparent exception is if the assault occurs in the instance of a ``home invasion'', with that mitigating circumstance apparently being enough to make the crime more serious than a pub attack. The whole situation is ludicrous.
A brawl where one person is seriously injured is bad enough, but when several ``men'' attack a single victim and continue to kick and injure him, it is clearly a case where a cooling-off period is warranted so that the heroes can reflect on the social unacceptability of their conduct.
Judges express privately their disgust at the bind in which they find themselves in regard to this particular issue. Prosecutors and police are frustrated beyond belief. And the victims -- ``Who cares?'', one might well ask.
It is flippant, but nevertheless true, to state that in Queensland, if you have a disagreement with another person, the answer to retribution is to get a couple of mates and give him a good kicking.
Perhaps some judge in a future assault case will have the courage to declare that the perpetrator deserves jail. It will take that to restore faith in the justice system.
In the meantime, the State Government should be working overtime to get fine defaulters out of jail, and come up with meaningful measures such as direct debits that ensure they don't go to prison but the money owed is recovered.
