Crimes, Punishments, and Justice in Sentencing: Justice Has to Be Seen to Be Believed for the Inaudible and Invisible Child Victim of Crime

Not the last word: Point and Counterpoint

Crimes, Punishments, and Justice in Sentencing: Justice has to be seen to be believed for the inaudible and invisible child victim of crime

Chris Goddard

onnie Biggs' fame as a deal of time, but that he had what he There was something almost surreal Great Train Robber is of wanted while he was there. about this part of our conversation. particular relevance to Here was a man who had escaped to At one stage a new prisoner was Australians. He spent some Rio rather than spend years in Wands placed in the cell next to Ronnie's. timRe here in Melbourne while fleeing worth or worse (and, believe me, they Ronnie got into conversation with him from the full weight of British justice. are a world apart) complaining about and asked him how long he was in He had been sentenced to 30 years for justice. Ronnie probably misses his for. Nine years, was the reply. What his part in the train hold-up and had native London very badly at times, and for? Ronnie asked. His new neighbour gone missing from the British prison I wondered if he ever regretted his said that he had been caught breaking system before any of the principles of decision. He would have been free long into and robbing offices. Ronnie said punishment (retribution, deterrence, ago if he had stayed in the cell he had that he thought at the time that that and rehabilitation) had taken effect. made sound so comfortable in that was a long sentence for that particular The Great Train Robbery seized the London prison. type of offence. He then told me that public imagination and, perhaps for when he picked up his local paper a The conversation with Ronnie Biggs this reason, the miscreants received few days later he discovered that the came back to me in the rather more what was seen at the time to be heavy prisoner, Ronnie's new neighbour, had prosaic surroundings of Spencer Street sentences. The robbers were regarded been sentenced for the violent sexual Station in Melbourne. Perhaps it was as heroes in many quarters and, in assault of a young girl. the railway connection that brought it to spite of the attack on the driver of the mind. While I was waiting for the train, train, the robbery came to be viewed I read about the dreadful case of the almost as a victim-less crime. 'revenge rapist'. Briefly, the details of I was talking to Ronnie Biggs about this Victorian case are as follows: this one day in Rio de Janeiro. Un Robert Tahche was on parole for fortunately I cannot find my notes on raping a woman when he raped the the conversation so I cannot be cer same woman again as revenge for tain that my memory has remained reporting him the first time. Tahche completely true over the years. Rio was sentenced to three-and-a-half seemed to me to be an ideal place for years for the first offence, but had a robber to 'hole up' after the crime. served only four months (one month The image of the place that has been in Pentridge and the rest on a prison created by the advertising copywriters farm) when he raped the woman the for the tourists has always been one second time. The details of the of sex and exoticism (Goddard, 1989). second offence were described in the (jetting to talk to Ronnie was quite Herald-Sun: ..•jfcAisi Roeewa oswes easy. He was in the Rio telephone A iwiprra as** SEMIENCS.. The court heard the woman was alone in directory, just beneath 'Big Bar' and her house when Tahche forced his way 'Big Burger'. On this particular day he U?fP6r4 INSTEAD. and pushed her to the floor before raping was happy to chat (I apologise to him her with an unidentified sharp metallic if he reads this account and feels that object which caused her 'severe pain and it does not do him justice). Our con bleeding'. The judge said the rape was versation turned naturally to crime Child molesters are not popular in particularly chilling, cold-blooded and and punishment, and he described to prison but Ronnie did not tell me the premeditated. It was clearly punishment as me something that happened in his story to illustrate that point. Rather he part of a 'payback' and demonstrated callous behaviour. brief time in Wandsworth Prison. He was suggesting that there was some painted a picture of a life of relative thing wrong when a man who robs a (Heaney and Giles, 1992) train gets a 30-year sentence, while a ease, with his prison routine set up to For the second offence, the judge: meet his needs. He said he knew that child rapist gets less than a third of that amount. ... sentenced Tahche to one year for he would not be in there for a great indecent assault, 10 years for the first

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count of rape and 14 years for the rape committed with the metallic object. The sentences will be served concurrently... (Heaney and Giles, 1992) The sentence of only 14 years' prison POINT AND COUNTERPOINT: (six years short of the maximum) THE CRIMES caused a great deal of comment. The County Court judge stated that the rapist had made the victim's worst- possible nightmare come true; the then Victorian Premier, Mrs Kimer, described it as an 'absolutely horrend 1. A man stole a mango from boxes of fruit left on ous crime'; and the Leader of the Platform 11 of Spencer Street Station. Victorian Opposition, Mr Kennett, complained to the Director of Public His excuse to the police: 'A craving overtook me'. Prosecutions, who agreed to review the sentence (Hannan, 1992). Soon afterwards, merely days later, 2. A man wandered into a hotel bottle shop and the case of Rodney King received tried to swap seven beer bottles filled with water worldwide coverage. Rodney was hit for seven bottles of the real thing... 56 times by Los Angeles police when Two hours later he smashed two windows at the he was stopped after a car chase. The railway station... world saw each blow, thanks to some one with a video camera in a flat He pleaded guilty to obtaining property by nearby who shot 81 seconds of tape; deception, burglary and criminal damage... King, as a result, 'suffered facial frac He also pleaded guilty to a charge of assault... tures, brain damage, a broken leg and other injuries' (Rowland and agencies, 1992). In spite of the video evidence, Officers Powell, Briseno and Wind, 3. A former solicitor who stole more than $200,000 of together with Sergeant Koon, were his clients money... acquitted after a seven-week trial. The riots that followed, as journalists pleaded guilty to 15 counts of theft... say in documentaries, are now part of history. It was suggested, and it was clearly believed by many of those 4. A man who stole cheques worth more than taking part in the subsequent riots, $411,000 from Australian Airlines... that the fact that the victim was black, and the police white, had a not pleaded guilty to 14 counts of theft... insignificant influence on the out come. The identities of the offenders and 5. Two extortionists who threatened to blow up victims have been said to have influ Qantas planes and gas the airline's terminals... enced a number of cases in Australia recently. In an article in the Sunday Herald-Sun, Bronwen Martin (1992) 6. A man who repeatedly kicked a baby girl who reports that nine Victorian lawyers would not stop crying when he was watching the have pleaded guilty to the thefts of more than $4 million, with all but two football on TV... He told police he had kicked the of the convicted walking free from baby 'about half a dozen times'... the courts. Martin outlines some of the cases, including one where the pleaded guilty to one count of recklessly causing lawyer pleaded guilty to 21 counts of injury... theft of a total of $243,000 and received a three-year good behaviour bond (Martin, 1992). For a similar example, readers can turn to the following quiz.

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Of course, these are far from the first occasions on which there have been complaints about the sentences passed on criminals. I remember reading of a POINT AND COUNTERPOINT complaint made in the late nineteenth THE TIMES AND FINES century to the British Home Secretary about the sentencing policy of judges. Sir Edmund du Cane pointed out that prison sentences of certain lengths 1. SENTENCE: 14 days' jail for theft were preferred; five, seven and ten year periods were much more common than six, eight or nine (Fitzmaurice and (Source: The Age, undated) Pease, 1986: 103) (in spite of what I believe Ronnie Biggs said). Sir Edmund believed that the sentences passed were 2. SENTENCE: A six-month suspended sentence the same as those used when transport and pay $214 damages to the ation, rather than prison, was the norm Public Transport Corporation. (1986: 103). Fitzmaurice and Pease tentatively (Source: The Age, 23 April 1992) suggest that there are some basic rules of sentence length, in Britain at least (1986: 110). If the crime is suffic 3. SENTENCE; A five-year,$5000 good behaviour iently serious to warrant a sentence of bond. between six and eighteen months, increments of three months are used; (Source: The Age, 28 March 1992) if the sentence is between eighteen months and three years, increments of six months are used; and beyond three 4. SENTENCE: Three years' jail, with a minimum of years, increments of twelve months 18 months. are normal (1986: 110-112). Those passing sentence have 'preferred num (Source: The Herald Sun, 20 March 1992) bers', with fines operating under a decimal system ($25, $30 etc.), while sentences involving imprisonment oper ate with a duodecimal pattern, using 5. SENTENCE: The pair were sentenced to six multiples of three, six and twelve years' and four years' jail months (Fitzmaurice and Pease, 1986: respectively. 113). It appears that these rules might apply in Australia, as Fox suggests (Source: The Age, 2 May 1992) that a maximum sentence of five months is rare, while five years is common (1991: 107) 6, SENTENCE: Two-year community based order.,, 100 hours of community work,,, In order to introduce sentences that will be used as alternatives to im Judge O'Shea said that it was his prisonment, therefore, Fitzmaurice and opinion that the baby would not Pease suggest that they must be ex suffer any permanent damage from pressed in multiples of three, six and the incident. He said that he would twelve: put the case before him 'at the It was cunning of those who introduced lower end of the perspective'. community service orders to consider 120, and finally accept 240 hours as the (Source: The Herald-Sun, 10 July 1992) maximum number of hours which may be ordered, since the upper end of community service thereby has assoc iations with sentencing to imprisonment, which it would not have had if, say, 250 hours had been the maximum. (1986: 113)

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I cannot comment on whether these witnesses whose reliability either the gist of it) about the disparities and principles apply to Australia. Earlier generally or as to particular matters was inconsistencies of sentencing by in their book, Catherine Fitzmaurice liable to be suspect for other reasons. judges and the relative severity of They were children who, though old and Ken Pease suggest that: enough to understand the nature of an different crimes, is as relevant in A sense of injustice is felt keenly only oath and so competent to give sworn Australia today as it was in London in when sentences can be contrasted with evidence, and yet so young that their the 1960s or in Sir Edmund de Cane's other sentences passed at around the comprehension of events and of quest letter of a century ago. same time and roughly the same place. ions put to them or their own powers of (1986: 10) expression may be imperfect; and persons, Serious assault on a child is still regardless of their age, who claim to have regarded as less serious than stealing They review the American literature 1 been victims of a sexual assault . a mango, let alone robbing a train. In on three extra-legal variables. The (Gillespie, 1992) the words attributed to J.B. Morton, issue of the social class of the Such views led Jocelynne Scutt to coin the late British humorist, 'Justice must offender is said to be 'finely the phrase 'the incredible woman', not only be seen to be done but has to balanced', with the evidence of the whereby in criminal law women, whe be seen to be believed'. Some crimin link between race and 'sentence ther victims or perpetrators of crime, als appear to get preferential treatment severity' said to be 'rather stronger', lack all credibility (Scutt, 1991). If while some victims are clearly re while the attractiveness of the women are 'incredible' as Scutt suggests, garded as less important (and less defendant may lead to more lenient Diplock's warning places children who prone to damage) than others. It must sentences (1986: 11). are victims of sexual assault in double be reassuring to Ronnie, should he jeopardy at the very minimum: children, decide to return to Melbourne or ...the smaller the victim, it I suggest, are not only incredible, but London before he dies, to think that appears, the less serious the also inaudible and invisible. some things never change.* crime. Research for the Law Reform Commis sion of Victoria certainly bears this Rosemary Gillespie, however, in an out: cases of sexual abuse of children article in The Sunday Age, is less hard were extremely difficult to 'track' References to convince: through the criminal justice system; Discrimination has been part of the information from the police was hard practice of law ever since the first convicts were deposited on Australian to find; and very few cases result in Fitzmaurice, C. and Pease, K. (1986) The convictions (Goddard, 1988). Psychology of Judicial Sentencing, Man shores in 1788. From the beginning, chester: Manchester University Press. this discrimination was primarily on the Informal and organisational 'screening Fox, R.G. (1991) 'Order Out of Chaos: basis of class, sex and race. processes' operate to 'filter out' of the Victoria's New Maximum Penalty Struct (Gillespie, 1992) system many cases of child sexual ure' Monash University Law Review 17 (1): 106-131. Gillespie's article is prompted by abuse (Goddard and Hiller, 1989). Gillespie, R. (1992) Tradition vs Justice' The another Victorian case that provoked Where convictions are gained, the Sunday Age, 19 January. outrage recently, the Hakopian rape sentences make Hakopian's term appear Goddard, C.R. (1988) 'A Child Sexual Abuse case. In this appeal, the Supreme severe. In one case, for example, a Police Tracking Project: A Hospital-based Court ruled that to rape a prostitute is conviction for sexual penetration led Study for the Law Reform Commission of a less serious offence than to rape a to a $500 good behaviour bond and Victoria', Sexual Offences Against 'chaste' woman: psychiatric treatment (Goddard, 1988: Children: Research Reports, Melbourne: ... Hakopian was convicted in August of Government Printer, pp. 61-185. 144); the smaller the victim, it raping a prostitute at knife-point. Judge Goddard, C.R. (1989) The Rio Roundabout' Jones, in the County Court, sentenced appears, the less serious the crime. The Age Saturday Extra, 28th October. him to 16 months' jail and said the Goddard, C.R. and Hiller, P.C. (1989) crime was less grave because the victim Serious assault on a child is Tracking Child Sexual Abuse' Legal was a prostitute. On appeal the Supreme still regarded as less serious Services Bulletin 14 (1): 25-28. Court, while increasing the sentence to Hannan, E. (1992) 'DPP acts on rape a two-and-a-half year minimum, agreed than stealing a mango, let sentence outrage' The Australian, 15 April. with Judge Jones and upheld its decision alone robbing a train. Heaney, C. and Giles, C. (1992) 'More Jail in a 1981 case which ruled that 'pros for Rapists' Herald-Sun, 14 April. titutes suffer little or no sense of shame Magazanik, M. (1992) 'Sex and Violence: or defilement when raped'. Ronnie Biggs has served his sentence How the Court Got Them Confused' The in somewhat different surroundings to Age, 7 January. (Magazanik, 1992) those envisaged by the judge who Martin, B. (1992) The Scales of Justice' Bias, according to Gillespie (1992), decided to make an example of him. Sunday Herald-Sun, 19 April. pervades English law on which Aust Copacabana and Ipanema have their Rowland, J. and Agencies (1992) 'Sometimes ralian law is based: police work is brutal' The Australian, 1 problems, but the views are preferable May. For example, Lord Diplock, notorious to those offered by a Wandsworth for his prescriptions as to how to deal Scutt, J. (1991) The Rape of Equality' The prison cell, and the climate is better. Weekend Australian, 28-29 September. with Irish rebels, had this to say in DPP Ronnie's complaint to me (and I am v Hester in 1973 in the House of Lords: '(There are) two other categories of certain my memory has not betrayed

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