October 2012

The Nation Reviewed

Lost cause

By Helen Garner
Illustration by Jeff Fisher.
Defending the indefensible

The man in the dock has a pale, bony, frozen face, with long cheeks, still eyes, and sculpted lips that from time to time he purses. His hair is cropped to the skull. At 27, Shaun Oakley is already serving time for robbery and recklessly causing injury. He is now charged with manslaughter, but has agreed to plead guilty to a lesser charge: reckless conduct endangering life. The most he can get for this is ten years. By forgoing a jury trial, he is throwing himself on the mercy of a judge.

One winter evening in 2010, Oakley was drifting around Melbourne’s CBD with a bunch of street kids known to the Department of Human Services and to the police. Among them was a 16-year-old boy, James Ayodele Smith, an African refugee who had been removed from his parents’ care, against their wishes, by the DHS. The group wandered down to the Yarra River, to drink and horse about on a concrete pontoon under the pedestrian bridge that links Flinders Street station with Southbank. One of the girls went behind a pylon with James Smith. When she let out a yell, Oakley ran to them, saying, “I’m gonna push this cunt.” He gave the boy a one-handed shove in the chest. There was no railing. Smith fell backwards into the water. He could not swim. A passer-by dived in but could not save him. Later his body was found lying on the riverbed, in two metres of murky water.

A sentencing hearing is a quiet, careful process, a conversation between judge and counsel that offers little drama to a casual observer. Yesterday Justice Betty King, a woman of famously adamantine will, expelled Oakley’s female friends for taking photos of him on their mobiles. Today the body of the court is empty but for four male lawyers, three women journalists, a dozen students upstairs, and a heavily built young woman with long, unwashed hair and a pugnacious expression, who is seated directly below the dock, with her arms folded and her back to the prisoner. Glances of curiosity she repels with a bulldog glare.

The death of young James Smith, says Justice King, is a terrible tragedy. Judge and counsel deplore the awful irony that the boy should have fled a war-torn land and perished here as he did. His death is certainly relevant to the sentencing. But the prisoner is not charged with that. He is charged with conduct endangering life. There is no evidence that he knew the teenager couldn’t swim. He is not to be punished for the death.

The unfenced pontoon was a disaster waiting to happen, but there’s a limit, says the judge tartly, to how much people can be protected; and anyway, going by the documents before her, Oakley himself is a travelling disaster. His father, a violent alcoholic, bolted before he was born and returned only to make trouble. His mother died of septicaemia. His IQ is in the bottom 1% of the population and he has been a client of Disability Services since 1999. At 18 he had a 15-year-old girlfriend and was listed on the Sexual Offenders’ Register. In 2008 he fell off a roof and was in intensive care for three weeks. Since this brain injury, his mental function has dropped even further. He has a long criminal history of violence, and a tendency to become aggressive with very little provocation.

Oakley sits quietly in the dock, making occasional grimaces with his lips, seemingly unaffected by this alarming description. The long-haired woman sitting in front of him keeps her scowling gaze on the judge’s face.

What, asks Justice King, is the court to do with this man? She is obliged to think about the protection of the community. Locking him up is no solution. But his violence is ongoing and escalating. He needs something other than just prison, something that will help him. But he breaches community orders. He breaches parole.

“I’m not saying that’s flash,” says his counsel morosely. He asks permission to call the day’s sole witness. Everyone looks at the door. But instead, the scowling woman with the long greasy hair leaps to her feet and charges eagerly along the carpeted aisle to the witness stand. Up the steps she bounds, seizes the Bible and takes the oath in a clear, ringing voice.

She is Oakley’s penpal, his future partner. She has almost completed a Bachelor of Education at Victoria University. She began to correspond with Oakley at the suggestion of a friend whose boyfriend was also in prison. “I had just come out of a three-year relationship,” she gabbles, tripping over her words.

Justice King props both elbows on the bench. “No hurry,’ she says. “Take a breath.”

The young woman smiles up at her. She grips the edge of the witness stand, draws in and releases a huge, audible breath.

“I was reluctant at first,” she says, “because I didn’t want to get hurt again.” At the start they wrote letters. She got herself on to the list of people he was allowed to telephone. She started to visit him at Port Phillip on Thursdays, when people can see prisoners. “And now,” she says, with a proud little laugh, “he calls me five or six times a day!”

No, he has never behaved towards her with aggression, let alone violence. Well, yes, of course they have never actually been together; we’re talking supervised prison visits here – but no, she has never been afraid of him. Yes, she has seen the suburban household into which he will be accepted when he is released, and she has found it “appropriate”. She has met his ‘family unit’: “As far as I’m aware, she’s his auntie. She’s supposed to be his mother’s sister.” The witness is determined to maintain contact with her own family unit, though; she is not stupid.

“And,” she declares, squaring her shoulders and straightening her spine, “I have made it abundantly clear that I have a clean criminal record, and that I will not tolerate living in the presence of someone who’s going to continue to break the law.”

Oakley sits there, working his lips. He has certainly had “an unfortunate life”. He has hurt people, badly, and now someone has died because of him. Justice King will reserve her decision till September 5. She will find he lacks the mental capacity to understand the consequences of his actions. She will give him two years, to be served concurrently with his present sentence. He can apply for parole in a year.

But for now the judge merely sits and listens, chin on palm, with a genial, patient attention, her wig low on her brow, the corners of her red mouth curving upwards. Like her, every person here trembles for the witness, this brave, foolish, big-bosomed girl in her white blouse and chipped nail polish, the girl who wants to love and to be needed, and who is offering to go in, carrying all our hope and dread, where justice fears to tread.

Helen Garner

Helen Garner is a novelist and nonfiction writer. Her most recent books are her diaries Yellow NotebookOne Day I’ll Remember This and How To End a Story.

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