The Work of Judges
Tough-on-crime advocates all rise
Supreme Court Judges in full regalia. © Penny Stephens/Fairfax Syndication
Why wisdom matters, and sentencing by numbers is selling justice short.
A couple of years ago, as I waited outside Courtroom 3 of the NSW Supreme Court in King Street, Sydney, I got chatting to an elderly man, a retiree, who told me he routinely visited the courts because he liked “seeing the justice system in action”. Along with 40 others, we were attending the sentencing of a 39-year-old woman who had been found guilty of murder. She had deliberately run over a young man with her car and killed him. As we filed into the courtroom, I asked my companion if he thought that the woman felt remorseful.
“She has seemed very down,” he said. “But it’s hard to say whether it’s for herself or for what she’s done. The judge will be able to tell.”
“How?” I asked.
“He’s had so much experience. He knows character.”
The judge, dressed like Santa in scarlet robes, entered and delivered his judgement. It took more than 30 minutes. He told us that he was required to use a “stepped approach” to reach the sentence, that there were “different categories of murder” and that he must consider the “objective seriousness of the offence”. He spoke of “aggravating” and “mitigating” factors, and of the “statutory ratio between the non-parole period and the total term”. He announced it was a murder of mid-level range – being neither planned nor wholly spontaneous – and sentenced the woman to 25 years in prison. He reduced the standard non-parole period from 20 years to 18 years and nine months because of the offender’s “immediate and continuing remorse”.
The judge stood, we stood and he exited. The retiree turned to me. “We have excellent judges,” he said. “They get things right 95% of the time.”
I didn’t know how His Honour had arrived at the sentence, nor precisely what had convinced him of the woman’s remorse, and it occurred to me that, when it comes to sentencing, a judge’s job is at once analytical, ceremonial and personal. Judges assess crimes in relation to the law. They must also sit opposite people and decide who they are and what to do with them.
At stake is the idea of wisdom: what we think it is, and what we want it to do. I’d want a wise person to sit in judgement of me, someone with experience, intellectual honesty, ethics and compassion. But complex sentencing procedures in New South Wales inhibit the wisdom of judges. They impede the very quality we most need in our courts: the capacity of judges to gently weigh the unquantifiable circumstances of wrongdoing, broken lives, and that most ungraspable of things – the human soul – so that they might reach just decisions.
The NSW State Coroner’s Court in Glebe is a short, flat building that stretches for a third of a block on Parramatta Road in Sydney’s inner west. On a Wednesday afternoon I meet Magistrate Hugh Dillon in his office, where a glass wall looks out to a small foliage-filled courtyard. Dillon was a public prosecutor until he became a magistrate in 1996, and in 2008 he was appointed Deputy State Coroner. He is softly spoken and reflective, and reminds me of an old-world moral philosopher.
Before he began presiding over inquests into deaths – witnessing doctors confront grieving families whose babies had died; consoling widows of traumatised policemen who had taken their own lives – Dillon worked in the local court sentencing people. “I don’t pretend to speak for all magistrates or judges or our courts, but I think that the process is unnecessarily complex and intellectually turgid, overladen with all sorts of rules and guidelines,” he says. “Sentencing has become an abstract, Byzantine dance of words. It’s Hermann Hesse’s The Glass Bead Game.”
For judges and magistrates in the NSW criminal justice system, the number of prescribed matters that they must take into account when sentencing someone, and the accompanying algorithms applying to discounts and aggravation, has grown so vast that the process has become worryingly esoteric. Since the 1980s, successive NSW state governments have introduced legislation curbing judicial discretion. It was the result of a “law-and-order auction”, as critics put it, as governments and oppositions vied for the tougher-on-crime mantle. In the late 1990s, the Carr government introduced ‘guideline judgements’: model cases that reflected a sentencing scale in commonly encountered situations. Judges were told that if they departed from the guideline case when arriving at a sentence they were required to give a reason. In 2002, standard non-parole periods for some offences were introduced (40% of the maximum sentence for some offences, 80% for others), and a mandate to judicial officers that, should they wish to depart from these standard minimums, they were required to give one or more reasons drawn from a formal list. There are also “sentencing discounts”, where offenders are eligible for a reduced sentence if they plead guilty at an early stage, and further discounts if they assist police. The thinking is that guilty pleas save the court time and money, and save victims from having to give evidence. An offender who pleads guilty before being committed to trial is eligible for a 25% reduction; an offender who pleads guilty after committal gets up to 12.5% off.
The government’s rationale was that the legislation would achieve greater consistency in the sentencing process, and render it more transparent to the public. It’s not clear whether either goal has been achieved. Meanwhile, the changes have increased the actual labour of judicial officers, who must write more elaborate and often mind-boggling judgements if they are to withstand the scrutiny of the appeals courts.
“When I first went into practice, we used to talk about the ‘tariff’,” Hugh Dillon says. “The tariff was the range within which a particular offence would fall. In a drug importation case, for example, everyone understood that a certain amount of heroin imported by a courier with no previous criminal history in Australia would attract a tariff of three to five years’ jail. Judges could work out the exact sentence by going up and down the scale between three and five years, depending on the subjective factors, but they would stay within that range. A sentence hearing might last an hour. These days it might last three or four.”
The term ‘intuitive synthesis’ is used to describe the process whereby a judge considers the penalty range of an offence together with a mass of subjective information to settle on a sentence. For instance, two men might commit an armed robbery at a convenience store. Superficially it would seem that both men should receive the same sentence. However, the older man has a long criminal record and a history of violence while the younger man has no criminal record, was co-opted into the offence, confessed to police, expressed deep remorse and assisted in apprehending his accomplice. In arriving at the two sentences, a judge must also consider the “objective seriousness” of the offence. Were guns, knives, baseball bats or syringes used? How much cash was stolen? What property was taken? Was the victim threatened, beaten or shot? Judges and magistrates draw on their deep knowledge of case law, and their experience of people, to arrive at a sentence that sits in an appropriate range.
The problem is that current processes do not suit this ‘synthesised’ approach but instead implicitly encourage a sort of phoney science. As Dillon tells me: “Some judges try to place a mathematical range on the kinds of discounts that offenders receive. When sentencing a person, they sit there and think, ‘OK, this sentence ought to be four years,’ and then they turn to a formal list of aggravating and mitigating factors and add and subtract all these little bits and pieces before arriving at three years and eight months – ‘OK, I’ve not only got to give him a discount for the early plea, but I’ve got to nominate a number. He pleaded guilty a month after being charged, so I might give him 15%. What’s 15% off three years and eight months?’ – and they go and work that out on an abacus or something. It’s fake mathematics because not only are there no set numbers for these factors, but the original starting point is discretionary. One judge might have had the original number as four and a half years, while another might have three and a half.”
Even those judges who rigorously adopt an intuitive synthesis approach now also keep a calculator on their desks. One judge has ‘Intuitive Synthesiser’ written on his calculator. A NSW District Court judge, Andrew Haesler, tells me: “You can have logical, coherent sentencing with some mathematical elements, but too much maths skews the process. If we want robots to sentence people, then employ robots. But it won’t be fair and it won’t be just.” Another District Court judge describes the legislation as “a matrix, a labyrinth that you’ve got to work your way through”. A magistrate tells me that the process is “a puzzle with all these little bits and pieces. If you leave out a piece, your sentence will be appealed.”
Since the legislation was introduced, there has indeed been a spike in the number of appeals. There have been issues of ‘double-counting’, for example, where judges are deemed to have accidentally counted a particular factor twice. A more pressing issue concerns standard non-parole periods. In a recent landmark ruling, High Court judges found that a key case, R. v. Way, used by NSW judges to apply standard non-parole provisions, had been wrongly decided in 2004. The maths made no sense. Now Legal Aid NSW is considering a review of the cases of offenders sentenced on the basis of this case. The NSW Attorney-General, Greg Smith, a former public prosecutor, recognises what he calls the “ridiculous complexity” of NSW sentencing legislation. In September last year, five months after coming into office, he ordered the NSW Law Reform Commission to review the NSW Crimes (Sentencing Procedure) Act 1999. The report is due out next month.
In the criminal justice system, the labour of judgement is not reserved solely for the judiciary. Judges and magistrates write sentences but they don’t administer them – that work is left to others. The NSW State Parole Authority, for example, makes more than 10,000 decisions a year regarding inmates’ parole.
It is 9 am at a private meeting of the Authority. Seven of us sit in a sunny boardroom that has an Aboriginal dot painting, a large, limp Australian flag, and a detailed map of New South Wales sticky-taped to the wall. The State Parole Authority offices are in Parramatta, Western Sydney, and are part of the Justice Precinct: a collection of glass-walled buildings and pathways that exudes happy order. The landscaped gardens include thick bushes of mint and lavender, clumps of chives and luminous lemon trees. Twenty people are on the parole board – four judicial officers, 12 community members, and four official members (representatives from Community Offender Services NSW and the police force) – but only five members sit at any given time. Around the table today are two university professors, a young, friendly parole officer whose handwriting is neat and fat like a primary school teacher’s, a former undercover policeman with tattoos who once worked “in the drug scene”, and Ian Pike, chairman of the Authority. Pike, the former NSW Chief Magistrate, is a smart, compassionate man much liked by his peers. In his home town of Junee, a street has been named in his honour.
At this meeting, the Authority must decide when to allow people to serve the remainder of their sentences in the community, as well as set the conditions of release. Unlike the complex work of the judiciary, with its baffling sentencing legislation, the job of the Authority is administrative. When people are given a custodial sentence, they usually receive a non-parole period from a judge or magistrate, meaning that they are unable to apply for parole until a set date. If a person’s sentence is less than three years, the court automatically issues a parole order; for sentences of three years or more, parole is decided by the parole board. Almost all inmates’ sentences are finite. Parole is crucial as it’s in the public interest to have offenders supervised in the community before their sentence expires. The Authority must also decide whether or not to revoke parole when parole orders are breached.
I scribble snippets of conversation: “He’s still only young.”
“He made the big time early as a serious offender.”
The board makes a parole order for an inmate: “We’ll use conditions 4 and 17.”
“Your 4 might be covered by 18.”
“So just leave it at 15 and 16?”
A parolee has tried to evade a mandatory urine test by substituting his own urine with a sample of animal pee (he took it from his pet cat): “At least he’s not pregnant,” someone jokes.
A parolee has died: “It’s immensely tragic.”
“The man overdosed in his bathroom. His 15-year-old daughter found him.” On his file they write “Parolee Deceased”.
The board revokes a parolee’s parole and issues a warrant for the man’s arrest: “I had A, B and D.”
“I had A, B, D and K.”
“We don’t need K.”
Pike turns to me: “We use so many mnemonics, it’s crazy.” The secretary has 23 stamps on her desk and, like a bureaucratic pipe organist, she listens to the voices around her while her hands open, punch, close and stack files. During this three-hour meeting, 70 matters are decided upon. On average, each matter is given less than three minutes of discussion.
The rapid pace is made possible by board members reading their thick piles of documents beforehand. For each inmate, parole board members receive the judge’s sentencing remarks, a probation and parole report, and the inmate’s criminal history. They might also receive letters from the inmate’s family or from the victim or victim’s family, and, in the case of an offender who has received a non-parole custodial sentence of 12 or more years, a report from the Serious Offenders Review Council.
As parole board members read the material, they make notes and recommendations, translating the mass of documents into a few letters and numbers. For example, a member might want to refuse the person’s parole on the basis of ‘C19’ (“Needs to participate in therapeutic program to address violence”) and ‘J46’ (“Unconfirmed post-release accommodation”). Then they compare notes. Sometimes discussions are heated and a vote is taken. (“On the board there used to be a feminist medical doctor and a chauvinist high school teacher and there was nearly blood on the floor,” one member tells me.) But most often there is good-natured agreement.
Sometimes the board grants an inmate a public parole hearing. These hearings take place in the Sydney West Trial Courts building, also in the Parramatta Justice Precinct. In Courtroom 4.07, five parole board members sit at the judge’s bench, hear the submission made by the inmate’s lawyer, and speak with the inmate directly. All parolees and inmates who’ve had their parole revoked or refused are eligible to present further information at a hearing. New South Wales is the only jurisdiction in the Asia–Pacific region to have public hearings. Ian Pike is proud of this transparency; visitors to the court are approached by a smiling staffer offering information booklets.
Inmates used to appear in person at public hearings, but now they appear via an audiovisual link from one of 27 videoconferencing studios in 22 correctional centres across New South Wales. It is a cost-effective means of having inmates ‘in’ court, and Pike makes a point of speaking to offenders. Still, Legal Aid lawyers have concerns that the AV contact is not enough. One told me that inmates just stare at the split-screen monitor, unsure of what’s going on. “It’s much harder to lock someone up if they’re standing right in front of you,” he said. “But the AV link is better than nothing.” On screens around the courtroom, we see the expressionless faces of men sitting at small tables with hands clasped in front of them, and wretched handwritten signs (‘Silverwater’; ‘Long Bay’) stuck to walls behind them showing which jail we’ve beamed into. Whenever an inmate ceremoniously stands for the court, the camera framing has the unfortunate effect of beheading him.
Sometimes a wife or a mother might come and wave forlornly at her husband or son on the monitors (men comprise more than 90% of the prison population in New South Wales), but typically the public seating is deserted. At one hearing I attended, a ten-member family – the inmate’s wife and three little boys, his mother, his brothers and sisters-in-law – filled the first two rows. After the man’s lawyer had argued his client’s case, and after the parole board had left the courtroom to deliberate over lunch, the man’s two youngest sons crept over to the microphone and began speaking to their father.
“Hi Dad,” the youngest boy said, grinning into the camera.
“Can’t wait to see you, bubba,” the man gushed. “You’re getting big!”
“I love you,” said the other boy.
“I love you, I miss you,” said their dad.
The tiny conversation was on loudspeaker and the man’s face filled screens on the walls and desks. The third boy, the eldest, didn’t follow his brothers to the camera. He clung to his mother’s leg and wept. During lunch I joined the parole board members. Shaken, I told them what I’d seen, and suggested they release this man.
“You can’t catch crooks with sooks,” a former police detective told me.
“He’s an armed robber!” the others said. “He’s had 61 prior convictions!”
Sometimes it’s the victims’ families who come to court. Ian Pike always asks them if they wish to be acknowledged and, if so, he publicly thanks them for being there. The parents of a homicide victim came to another hearing I attended. Their 21-year-old daughter had been raped and killed at a party. The male perpetrator was applying to be released from jail. The girl’s parents sat quietly in the courtroom in a special spot spared from the cameras.
New South Wales’ present sentencing legislation was enacted partly in response to community perceptions, beaten up by radio jocks and the rest of the tabloid media, that sentences were too lenient and disparate. Perhaps something primal in us feels that judgement belongs to the victims. When a criminal act tears at our society, we don’t want procedures; we want vengeance. But we also know that we need legal processes, and that victims don’t own the conflict. Unlike the civil courts, the criminal courts don’t set plaintiff against offender; it’s the offender against the judge. Technically, a crime is committed against the state.
Perhaps politicians needn’t worry about public concern over supposed judicial inconsistency and ‘soft’ sentencing. Most judges and magistrates arrive at sentences within a similar range. Those who impose unduly lenient or astonishingly punitive sentences leave themselves open to having their decisions overturned on appeal. As for soft sentencing, such as non-custodial and community-based sentences, research has indicated that when members of the public are given material relevant to a case – information about sentencing, an account of the case facts, the circumstances of the offender, a statement from the victim – people’s desire to punish drops dramatically and they often settle on more lenient sentences than a judge would have imposed.
Judges can never know the inner life of another person, and yet the task of judgement requires them to try. When I asked the Supreme Court judge praised by the retiree how he was sure that the woman who’d murdered the man with her car was remorseful, and why he’d given her a lesser non-parole period because of it, he told me the story: on the night of the incident, right after she’d struck the man, she leapt out of the car and tried to lift it off him. She was hysterical: a nurse found her on the side of the road pulling her hair out. Prison authorities, including psychologists and the chaplain, attested to her constant anguish. The judge looked at me and said: “But part of it, too, was that she was a mother. She had a son whom she loved, and yet she’d killed somebody else’s son. I have no doubt that there was real remorse.”
At another private meeting of the NSW State Parole Authority, board members process the list of parolees who have breached their parole orders, and they reach the case of Samuel Connor.*
Six and a half years ago, on the day of his 21st birthday, Connor was drunk and high when he sped down a road on the outskirts of his home town in inland New South Wales, and struck a pole. He killed three friends and seriously injured a fourth. Connor woke up in hospital with fractured ribs, a punctured lung and a broken hip. He pleaded guilty to three counts of manslaughter, and one count of dangerous driving causing grievous bodily harm. He was sentenced to eight years in jail, with a non-parole period of four years. He was granted parole a few months ago.
“I want to give him a slap,” says a female parole officer. Connor has breached the conditions of his parole order. He’s not allowed to consume alcohol, but he keeps getting caught drinking at his local pub. He’s already been given a warning.
“He’s saying we’ve ruined his social life. I want to give him more than a warning; I want to call him up,” the woman says.
“Yes, there are concerns there,” says someone else.
“Just his attitude,” she continues. “And it’s in the area where the victims’ families live. Can you imagine if your son was killed and you saw this guy at the pub?”
“In the pre-release report it states that he’s devastated he had to kill his friends in order to learn a lesson. But he hasn’t learnt. He’s not sorry,” says another member.
“In those country towns there isn’t a lot to do. He doesn’t have the ability to expand his horizons beyond the pub,” says someone else.
They decide to give him a face-to-face warning – a “sound warning”, says the young woman – and set a date for a public parole hearing, where Connor will present evidence as to why he should be allowed to continue to serve the remainder of his sentence in the community. Connor will travel the five hours to Parramatta.
Eight weeks later, early on a Tuesday morning, I arrive at the Justice Precinct to find a 20-person film crew outside the Sydney West Trial Courts. They’re filming Crownies, an ABC TV legal drama. The actors are tanned and trim, nothing like the people who frequent the courts, and when a handsome ‘solicitor’ turns his back to me I see comically large safety pins bunching together folds of suit fabric. The costume doesn’t fit him and this is wardrobe’s shortcut.
Upstairs from the make-believe, three men stand in the public seating section at the back of Courtroom 4.07. It’s Connor, with his father and his lawyer, David Drysdale.
Tap tap. “All rise.” Five parole board members file in, sit at the judge’s bench, and survey the room. Connor has refused to sit next to his dad and is slumped behind him as Drysdale sits up front in a swivel chair. Connor is clean-shaven with tattoos and polished shoes. His hair, doubtless bushy when dry, has been firmly slicked down. His father is wan and weather-beaten with old jeans that sit low on his hips. He rests his sunnies, cigarettes and a lighter on the bench in front of him.
Connor is called to sit next to his lawyer. Community Offender Services is now seeking more than another warning; it wants a revocation. Connor was caught at the pub again last week.
Judge Pike explains: “I must tell you, Mr Drysdale, it’s not looking good for your client.”
“I’m trying to convince my client that parole is mostly in the interest of the public, not the parolee,” says Drysdale.
Pike commences by calling Connor to give evidence. Connor drags himself to the witness box, elects to take an affirmation rather than an oath by omitting “almighty God”, and sits. Slouching, he lifts his head to answer Drysdale’s questions, most of which require ‘yes’ or ‘no’ answers. We learn that he is 27 and that he works at the local mines.
“Your mother passed away two years ago of cancer?” asks the lawyer.
“Yes,” replies Connor. He begins to sob. He grabs tissues and someone gets him a glass of water. “Mate, there’s a lot of regrets there,” he croaks. His father rushes from the room.
Connor swallows the tears and continues. His dad steadies himself and returns to his seat. We learn that the father’s a pensioner, that they live together, and that in his town people work and people drink and if Connor wants friendships he has to go to the pub. We learn that he once had a serious drug and alcohol problem, but that he has not used drugs since being in jail.
Drysdale explains to Connor that he must respect the fact that locals are still grieving.
“I do, mate. It’s something I gotta live with for the rest of my life.”
Drysdale asks him if there’s anything else he wishes to say about his behaviour on parole.
“At times, I’m easily led. I should think more before I act. I’ve stuffed up and I’ve got to deal with the consequences,” comes the reply.
It’s the parole board’s turn. Some are moist-eyed. This man, they realise, is not petulant. He’s grief-stricken. Pike gently talks to him about alcoholism, that it is a disease that can and should be treated, and about not socialising at the pub.
“Isn’t this a small price to pay for reparation to the community for the crime you committed?”
Connor agrees: “You don’t have to explain to someone that they’ve done the wrong thing and killed three of their mates in a car accident. There might be some people that shrug it off, but —”
“We have not the slightest doubt that you feel it very much, but it is a fact and it can’t be wiped out,” says Pike.
“No, it can’t,” says Connor quietly.
Someone asks Connor whether he can remember what happened the night his friends were killed. He’s crying. He says that his memory is muddled and that he has bad dreams.
A female board member asks if he’s receiving counselling.
He says, “Everything revolves around work. It’s just get up, get to the mine, and get fed.”
She tells him that there are two things in his favour: his ongoing employment and his father’s support. Connor sobs harder at the mention of his dad.
Asked if he thinks he has an alcohol problem, Connor says his idea of an alcoholic is a person who “wakes up and cracks one”.
“My problem is that I think I’m dealing with things, and then I’m not,” he says. “Where I come from, you are just an effing goose on the piss, if you know what I mean. Blokes say, ‘He’s an effing goose on the piss.’”
Connor can leave the stand. The parole board hears from Connor’s parole officer before leaving the courtroom to deliberate. Fifteen minutes later they’re back. If parole is revoked, Connor will return to jail for 12 months before he can apply for release again. Pike asks him to stand, and takes 10 minutes to read the board’s decision aloud. He announces, “It is clear … that Mr Connor feels very deeply about the harm he caused to his friends and to the public by the commission of such serious offences.” Then to Connor: “We feel compassion for you for the recent loss of your mother.” Connor can’t stop crying. Pike continues: “We hope there’s been something of a breakthrough in your thinking today.”
They’re not going to revoke. Instead the board will make Connor attend Alcoholics Anonymous meetings and grief counselling. And then, by way of absolution, Judge Pike says to him: “You’re a young man. You’re entitled to be much happier than you are today.”
Outside the courtroom, Connor is flush-faced. There are no hugs or handshakes, just male mumblings drenched with relief. The three men exit the glass door downstairs and step into the sunlight. Drysdale slips on a Panama hat as dad and son light ciggies. Huddled together they walk slowly across the makeshift film set, past actor-cops in smooth costumes, and they stay close and tight for as far as I can see them.
*The names of people relating to this case have been changed.