The cry has gone out for minimum sentences in the ACT.
It comes after Justice Terence Higgins gave bonds to two heroin users who threatened a 73-year-old woman with a blood-filled syringe. They had been convicted of aggravated burglary.
But it is too easy to take an isolated case and make judgments without having the full facts as the judge does. And it is too easy to bay for blood.
So rather than use this one case, as MLA Paul Osborne did, to call for a crackdown and minimum sentences, I thought I would look at a range of cases to see if Justice Higgins is as lenient as this sentence exemplifies.
Guess what? He is.
The past two years of The Canberra Times has been electronically searchable. We report nearly all sentences in the Supreme Court. I have got the most recent 15 or so sentences we reported by Justice Higgins and Justice John Gallop.
The Higgins sentences are consistently lenient compared to the Gallop sentences and compared to the usual tariff interstate. Now, that must come with the caveat that justice must be dealt with individually and it can be misleading to pick an isolated case and summarise a few facts. But when you get two years’ worth of cases, those summaries have meaning.
So working back from the most recent we have for Justice Higgins (subs please leave abbreviations and figures rather than spelling out. It is a but like a table):
1. Aggravated burglary. Bond.
2. 2-year non-parole period for six sex offences, including one of sexual intercourse without consent, against an 8-year-old girl. (Intercourse without consent is not exactly the same as the old rape. It can include any form of penetration.)
3. Bond for armed robbery.
4. Suspended jail sentence for assault in which a man driving a car undid his wife’s seat-belt and deliberately crashed the car doing 100km/h.
5. 1-year non parole (3-year head, or maximum to be serve, sentence) for three acts of indecency and one of sexual intercourse without consent with 12 year old step-daughter.
6. 6-months non-parole (18 months head sentence) for $100,000 tax fraud.
7. 3 years 9 months (5 year head sentence) for sexual intercourse without consent against two women in broad daylight.
8. Bond for discharging a gun during a struggle with a policeman.
9. 10 years non-parole for importing $2m worth of heroin to Canberra.
10. Man allowed to walk from court with a bond after smashing 104 windows as the Assembly having done six months custody on remand.
11. Six months non-parole for violent attack (smashing head against concrete) with intent to rape said by appeal court to be inadequate, but appeal court does not increase it.
12. Community service for culpable driving causing death. (115km/h in residential street).
13. Allowed to go free after armed robbery with knife of pharmacy after serving six months on remand.
14. Six months (plus six months in custody on remand) for robbery of two elderly people and assault of a third.
Gallop:
1. 1 year non-parole of two armed robberies.
2. 8 years non-parole (14 head sentence) for armed robbery with sawn-off shot-gun.
3. 1 year periodic detention for torching de-facto’s house.
4. 15 months (5 years head sentence) for credit card scam.
5. 18 months (6 years head) for $185,000 theft.
6. 12 years (20) and 18 years (24) for murder.
7. As appeal judge trebled time in jail for sex crime.
8. 2 years (5 head sentence) for supplying heroin.
9. 3 years suspended for armed robbery for drugs.
10. 4 years (8 head) for $1, Medifraud.
11. 4 years minimum for armed robbery.
12. 3.5 (7 head) and 2 (4 head) for possessing heroin.
13. 6 years (10 head) for trafficking heroin.
14. 18 months (3 years head) for social-security fraud after money paid back.
15. 14 years (20 head) for nine granny home-invasion robberies.
16. 5 years (8 head) for sex offences involving step-daughter.
Now sure, these are summaries. But the summaries reveal a picture. Justice Higgins prefers not to send people to jail. Moreover, people in the legal profession will say privately that he is an activist judge in a way that helps the defence. He excludes evidence and finds technical legal arguments that can result in defendants being acquitted without the case going to the jury. He is far more generous with bail than other judges. The recent case of the man accused of letter-bombing is an example.
Now I agree with the thinking behind the Higgins view. Jail is not the answer, particularly for people on heroin. High maximum sentences are not a deterrent (indeed the higher they go the more crime seems to rise). However, I have three major objections to the Higgins approach.
The first is that it creates a judicial lottery and consequent unfairness. Those who go before Justice Higgins are more likely to be released on bail; get bonds or get shorter sentences than those who go before Justice Gallop.
The second is that he is so hopelessly to of kilter with community views that he invites a backlash of the kind that we saw this week from MLA Paul Osborne calling for minimum sentences.
The third that, though it may be laudable to aim for a jail-free society, this society right now has not got the infrastructure and support to deal with the people Justice Higgins sets loose on it. If we could be sure that there was secure supervision and rehabilitation for the people Justice Higgins sets free on bonds and suspended sentences, then his sentencing practice could be applauded. As it is, it is a proven menace as unreformed people are set loose to commit further crime.
Normally, I’d be dead against minimum sentences, but unless the ACT Government comes up with a thought-out and properly funded strategy on alternatives to jail, the Higgins approach creates injustice, community anger and menace.
The reform of the punishment system cannot be a one-judge band.