The Consolation of Kevin Donnelly

Sometimes events happen in our lives that are so horrible that they scar us permanently. Educationalist Kevin Donnelly, a sometime guest blogger here at Troppo, and his family have had just such an experience. Kevin’s son James was killed in a hit-and-run road accident some 3 years ago. The killer was eventually caught after conspiring with his parents to cover up his actions. He was sentenced a couple of days ago to a little over 2 years imprisonment, but with a non-parole period of just 10 months.

Not surprisingly, Kevin is calling on the Victorian DPP to appeal the sentence (which the DPP is currently reviewing). But perhaps Kevin should instead be questioning why the offender (one Phillip Josefski) wasn’t charged with manslaughter by culpable driving or some similar charge. That might have left greater scope for a longer sentence. It appears that Josefski was only charged with failing to stop after an accident, failing to render assistance, and conspiring to pervert the course of justice. One would suspect that the “tariffs” for those crimes may be substantially less than for culpable driving.

Was there a plea bargain negotiated? Or did Josefski’s fleeing the accident scene and covering up his behaviour for 2 years result in there being insufficient evidence to sustain a culpable driving charge? In any event, I would imagine that the “tariff” for a conspiracy conviction ought still to have been sufficient to allow the trial judge to impose a significantly longer non-parole period than 10 months.

Despite the increasing frequency of Victim Impact Statements in the sentencing process, most judges still appear to concentrate their attention on the offender and his prospects of rehabilitation. They fail to acknowledge or even understand that their own actions in imposing excessively lenient sentences directly impact the already-suffering family of the victim, and further traumatise them at a very vulnerable time in their lives. Why is their well-being so much less important to the criminal justice system than that of the offender who took their son’s life? What they (and the broader community) need is an acknowledgment that society valued the life of their loved one and that the community will do everything it reasonably can to redress the dreadful wrong that has been done. That isn’t hateful “vengeance”, as criminal defence lawyers invariably seek to style the reactions of victims and families who dare to protest against lenient sentencing. It’s simply true restorative justice; an acknowledgment that the criminal justice system involves numerous stakeholders and that the community’s sense of just desserts and the victim’s family’s need for tangible acknowledgment of the value of their loved one’s life are factors at least as important as the well-being of the offender.

My deepest sympathies to Kevin Donnelly and his family.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
This entry was posted in Law. Bookmark the permalink.
Subscribe
Notify of
guest
29 Comments
Oldest
Newest Most Voted
Inline Feedbacks
View all comments
Dave Ricardo
Dave Ricardo
2022 years ago

“But perhaps Kevin should instead be questioning why the offender (one Phillip Josefski) wasn’t charged with manslaughter by culpable driving or some similar charge.”

Maybe Josefski wasn’t culpable.

Maybe it was just an accident.

According to the magistrate, James Donnelly had a blood alcohol reading of 0.212 and had traces of marijuana in his blood. Maybe he was just another pissed pedestrian who got hit by a car.

If so, this is very tragic, but it isn’t manslaughter.

None of this excuses Josefski not stopping, even though, as the Magistrate said, there was no evidence that if he had stopped, Donnelly’s life would have been saved. Nor does it excuse the conspiracy.

Was the sentence light? On the evidence, possibly, but not outrageously so. I’d have given him a non parole period of 15 months.

Ken Parish
Ken Parish
2022 years ago

Dave

That the event itself was at least partly James Donnelly’s fault is obviously a logical possibility. But, as you say, it in no sense excuses or minimises the gravity of failing to give assistance, leaving the scene, or conspiring to cover up the events (or Josefski’s involvement in them). Moreover, Josefski’s flight prevents us from ever knowing what his blood alcohol or drug level might have been.

I would have thought at least 2 years actual imprisonment would be warranted, although the way courts apply sentencing principles depends on the “tariff” derived from previous sentences in comparable cases. It isn’t really possible to express a meaningful opinion in legal terms without knowing the “tariff”. Hence my argument that tariffs generally, especially in cases where death results from a crime, doesn’t adequately reflect the need to acknowledge and reflect in the sentence the gravity of any criminal act that results in human life being lost, in large part because of the traumatising effect on the victim’s family of a lenient sentence.

Dave Ricardo
Dave Ricardo
2022 years ago

Well I suppose so Ken, but the family, traumatised as they doubtless are, aren’t actually the victims here. The person who dies is the victim. If you start giving the feelings of the family undue weight, then you are saying it’s worse to kill someone with a family than it is to kill someone with no family. I don’t think that’s right.

John Morhall
John Morhall
2022 years ago

I agree with Dave’s view that it is not right to to fashion penalties based on a person’s family status or other similar indicators (friends suffer outrage and hurt too). This would seem to make the law more arbitrary than it is at present.

Is incarceration the only penalty exacted? I cannot comment on Josefski’s attitude following the incident or his sense of remorse if any. I knew someone whilst living in the US, who as a teenage drunk crashed into a stationary car killing its occupant. As the result of a plea bargain he received a light sentence (I cannot remember the details), and a life time driving ban. He seemed continually morose and melancholic; perhaps as much from having to live in low rent areas proximate to his work. I met him some ten years after the event, when he was slowly but surely drinking himself to oblivion. Perhaps he would have been better off with a custodial sentence?

In any one death or tragedy there are many secondary victims whose grief, anger and on occasion perhaps desire for retribution, may be expressed by way of Victim Impact Statements. The question then is whether the crime is measured on the eloquence of the expressions of those who grieve and their ability to influence the trier of fact, as opposed to the act of unlawfulling causing a person’s death or grievous harm. How are such to be weighted relative to the principal event?

In those States which have a codified approach to criminal law it would seem possible to reflect a minimum sentence where death or serious injury was the primary or even contributory result of an unlawful act. Absent this sort of approach, I see the application of the law being more arbitrary; and penumbral considerations such as the extent of familial loss, however critical in human terms, as creating a greater area of sentencing discretion, and arbitrariness.

Josefski’s actions were reprehensible and should not go unpunished. If the general consensus is to ensure that the resultant punishment is too light and should be meted out within narrow bounds of judicial discretion, then the respective States’ legislatures, should reflect public opinion and cause changes to the law.

John Morhall
John Morhall
2022 years ago

The third line from the bottom of my last post should read: “..the resultant punishment is NOT too light..” Haste makes work.

blank
blank
2022 years ago

There is a case of “causing death by dangerous driving” going through the SA courts at the moment.

A 50 year high-profile lawyer came into collision with a cyclist on 30/11/03. The cyclist was killed, and the motorist did not stop, but shortly afterwards called his lawyer on his mobile.

In his testimony in court, as published in “The Advertiser” to-day, he said ” ..the person actually thundered into the cabin part of the car .. with a tremendous amount of force.”

I’m not sure how a cyclist manages to do that to a Pajero travelling at 100kph.

A prosecutor from NSW has been brought in, as local barristers refused to handle the case.

Shaunna-Marie
Shaunna-Marie
2022 years ago

Yes, the loss of a young man, well before his time must rank as a great tragedy for his friends and family. I’m familiar with Kevin and his thoughtful, considered pieces on education and other issues. However, the tariff should not be higher because there’s a family. In my case, I don’t have a family who cares about me. Taken to its logical extreme, Kevin’s point of view would mean that if someone did this to me, that they would get off extremely lightly.

In a society where personal responsibility and self-reliance are of increasing importance, lets remember that the deceased was heavily intoxicated and under the influence of a proscribed drug. Also, there is still to me not absolute proof that the accident was the fault of the accused, or if the accused was at fault, that he was solely responsible.

Two statements: Kevin D seems to be a good and devoted father, its right that he be feeling much grief at his loss-I wish and pray for him to achieve the strength to cope, and forgive. Second, the tariff is not in my view, inadequate.

Shaunna-Marie
Shaunna-Marie
2022 years ago

Yes, the loss of a young man, well before his time must rank as a great tragedy for his friends and family. I’m familiar with Kevin and his thoughtful, considered pieces on education and other issues. However, the tariff should not be higher because there’s a family. In my case, I don’t have a family who cares about me. Taken to its logical extreme, Kevin’s point of view would mean that if someone did this to me, that they would get off extremely lightly.

In a society where personal responsibility and self-reliance are of increasing importance, lets remember that the deceased was heavily intoxicated and under the influence of a proscribed drug. Also, there is still to me not absolute proof that the accident was the fault of the accused, or if the accused was at fault, that he was solely responsible.

Two statements: Kevin D seems to be a good and devoted father, its right that he be feeling much grief at his loss-I wish and pray for him to achieve the strength to cope, and forgive. Second, the tariff is not in my view, inadequate.

Kent
2022 years ago

blank, I was thinking just that while watching the news last night.

‘The cyclist didn’t hit your 4WD with tremendous force, you hit the cyclist with tremendous force.’

Ken Parish
Ken Parish
2022 years ago

I’m not sugesting that the traumatic effect on the victim’s family in the case of a crime occasioning death ought to be the only or even the dominant factor in sentencing. But I DO think it should be regarded as relevant. moreover, the distress of the family, and its desire to vindicate the worth of its loved one, is in many respects just a more intense version of the feelings of outrage and demand for just desserts of the general community. That feeling is felt just as much irrespective of whether a deceased victim had an exensive loving family or was a loner. To completely divorce a crime and its punishment from the impact of that crime on those most directly affected is to completely misundersand the purpose of the criminal justice system and its prosecution by disinterested DPP and impartial judge and jury. This is to ensure that extremes of vigilante justice do not occur, and that there is some consistency in sentencing.

But the consistency need not be absolute. Most people acept that there may be sentencing variations depending on specific factors particular to the individual offender e.g. rehabilitation, the offender’s personal circumstances and background etc. That is, consistency doesn’t require that identical offences be punished in an absolutely identical fashion; it just requires reasonable consistency and proportionality. It should be likewise with taking into acount factors spcific to the victim and his/her family circumstances. The sentence should remain broadly consistent and proportional to other sentences for similar crimes, but there is still some room for individualisation depending on the victims’ circumstances and the effect on the victim’s family.

Mindy
Mindy
2022 years ago

What it really comes down to is responsibility. Was the driver of the car that struck Kevin’s son responsible for the accident, if so then yes the penalty was too lenient. If they were jointly responsible, then maybe the penalty should have included other charges and loss of licence. If it was an accident then why should the hapless driver be punished because someone suddenly stepped out in front of his car (making huge assumption that driver wasn’t drunk, speeding, under the influence of drugs etc)? He should be punished (and was) for not stopping, and trying to hide evidence of his accident but if thats all he did then he doesn’t deserve a harsher penalty.

Robert Merkel
2022 years ago

Kevin, why should victim impact statements be considered in terms of the severity of sentencing sentencing?
Let’s hypothesize about two victims of two identical crimes. One ends up agoraphobic and trapped in their own home. The other works through their trauma (or possibly doesn’t; from the popular press on the topic there seems to be some evidence that for many people trauma counselling is unnecessary and can even be counterproductive), refuses to let their experience ruin their life and gets on with things. Does the perpetrator of the second crime deserve a lesser punishment than the first?

Dave Ricardo
Dave Ricardo
2022 years ago

“the impact of that crime on those most directly affected”

The person most directly affected was James Donnelly. This would be true whether or not he had a family.

Suppose a married woman gets raped and is no longer psychologically able to have sex.

Suppose an unattached single woman gets raped and is no longer psychologically able to have sex.

In the first case, there is another affected party, the woman’s husband. In the second case, there is no other affected party.

Both crimes are equally bad, IMO, because the impact on the victim is the same.

derrida derider
derrida derider
2022 years ago

I really do fail to see the distinction between “hateful vengeance” and “the community’s sense of just desserts”, Ken – such a sense often really is hateful vengeance.

To seek vengeance is very human but, as Orwell pointed out, the lust for vengeance usually only arises when we don’t actually have the power of exacting it. The consequence is that the act of attaining vengeance is surprisingly unsatisfying. So I would not blame the victim’s family for wanting blood, but I don’t think meeting that wish is good morals or good policy.

And your speculation about a ‘plea bargain’ is just that – on the facts as reported a charge of culpable driving would have been hard to sustain.

observa
observa
2022 years ago

What were Josefski’s parents charged with for their complicity in a cover up? Their behaviour in a calculated cover-up for so long was inexcusable, compared to perhaps the immediate panic reaction of a younger son at the time. I could understand why Kevin would also feel aggrieved at their behaviour here. IMO they deserve no less a sentence for not advising their son to front up to the police, immediately he confided what he had done. Their son had made a terrible mistake in not stopping and rendering assistance. That decision is something none of us will really know how we’d handle, until faced with the same situation. The 50yr old barrister fared no better in this regard. He was apparently apprehended at his home after leaving his accident scene, where he admitted his guilt. While being driven to the police station the arresting officer noticed a strong smell of alchohol on his breath. The barrister was not requested to furnish a blood test at the station because the police were very busy at the time.

Jason Soon
Jason Soon
2022 years ago

Dave
We do allow tortious suits for psychological damage arising from the conduct of a person. I see no reason to arbitrarily restrict such suits so that relatives of tort victims cannot access them if they can show causation and reasonable forseeability. Of course the difference is that such suits must be proved on their own terms and therefore involve some minimum threshold of damage being met. Thus in concrete terms, relatives of accident victims should have the right to launch their own separate civil liability suits against the tortfeasor. But I do agree with the general principle that the main policy rationale for all tort suits is for the tortfeasor to efficiently internalise the consequences of his conduct – this means that retribution ideally should not play a role at all in determining damages. From a philosophically naturalist perspective, retribution is also I believe not a legitimate or rational purpose of the law, only deterrence.

Ken Parish
Ken Parish
2022 years ago

Jason

Retribution has always been one of the primary rationales in criminal sentencing. It’s only been in the latter part of the twentieth century, with the popularisation of Freudian and other notions of psychology, especially behavioural schools, that rehabilitation has gradually come to be seen as a primary determinant of sentencing.

Deterrence has, of course, always been an important element, alongside retribution. There’s nothing either illegitimate or irrational about retribution as a component of sentencing. It simply means proportional punishment and just desserts in a comparative sense having regard to other similar crimes. That is an entirely rational principle.

So too is the desire of the community to maintain social cohesion and the confidence of the people, including the aggrieved victim and his relatives, in the integrity and fairness of the criminal justice system. If the system fails to maintain public confidence in that broad sense, by reflecting the community’s general notions of fairness, proportionality and just desserts, then vigilante justice, widespread contempt for the rule of law, and eventually a breakdown of social order is likely to result. That is hardly a rational outcome, nor does it reflect a justice system with any degree of legitimacy (either actual or perceived).

Moreover, most criminological research appears to show that rehabilitation is only occasionally effective, and that the deterrent effect of long sentences is marginal at best. It may well be that, if deterrence were to be regarded as the only relevant factor in criminal sentencing, then all offenders, irrespective of the seriousness of their crime, its effects on victims, or the offender’s personal circumstances, would be sentenced to between 1 and 2 years imprisonment. Research shows that sentences shorter than that have negative effects in deterrent terms, because of the “school for crime” effect, while sentences longer than that seem to have little or no additional measurable deterrent effect, and may worsen recidivism through institutionalisation etc.

Manifestly, a system where the most minor offender and the worst murderer or rapist are all sentenced to 1-2 years imprisonment would result in a wholesale loss of public confidence in the justice system, so a system based wholly on deterrence (as you advocated) is itself neither rational nor legitimate. Sentencing needs to involve a balance of deterrent, retributive and rehabilitative elements, as well as incapacitation in appropriate cases for very dangerous offenders.

David Tiley
2022 years ago

To me, as a citizen, I want the sentence to match the crime (of course). And I know there may be mitigating factors.

But to me, killing someone on the road and then running away, and then hiding it for two years by conspiracy and planning is seriously heinous.

It doesn’t actually matter whether the flight did or did not kill someone, or whether other people were present or whether the victim was drunk and fell on the road. People acting ethically within our cultural framework of responsibility believe that they are primarily responsible for trying to get help for someone they ran over.

You don’t flee into the night. A human being is dead. The whole thing is so DEEPLY immoral it seems to me both the killer and the courts did not treat the dead boy with respect. They did not value his life.

It is not about retribution, it is about the sanctity of a human life. If I am run over, and someone roars away.. words fail me about the scale of that violation.

if that judge is run over, as he bleeds to death and the tail lights disappear in the dark, I wonder if he would think that ten months in jail was an appropriate penalty?

jen
jen
2022 years ago

One morning our big dog ran onto the road chasing another dog. He got hit and took out the front driver’s side panel of an old Holden. The bloke jumped out of his car so sorry for the animal who staggered back up to the nature strip and lay down.
We got blankets from the house and the dog died where he lay.
This man stayed until he realised there was nothing he could do for us or the animal.
Later I realised the depth of that man’s feeling. The damage to his car was considerable, but he didn’t think to mention it.
He embodied shock and compassion.
His reaction made sense to us and the universe. The event on the side of the road, me, Dave, the driver and the dog, was a mark of deep respect for life – everybody’s life.

James Farrell
James Farrell
2022 years ago

I agree with your sentiments, David. But if it were just a question of showing respect, then any bystander who walked away would be just as culpable. The point is that someone directly involved in an accident has a strong incentive to thwart the coroner. So there needs to be a very strong deterrant to running away. If the standard sentence for failing to stop was, say, ten years’ jail, restorative justice could be served without needing to prove manslaughter.

So I’m hoping Ken or someone can explain why failing to stop isn’t a much more serious offense than it apparently is. I also think the debate about the impact on victims is a dangerous red herring. The seriousness of an offense – and the standard sentence it attracts – is a separate issue from whether leniency is appropriate in particular cases.

Dave Ricardo
Dave Ricardo
2022 years ago

And in breaking news, Rodney Adler got 4 years, 2 1/2 non parole.

I’d have given him 3 times as much.

Ken Parish
Ken Parish
2022 years ago

Yes, I’d have given Adler longer too. But how much worse was his behaviour (dishonesty costing shareholders many millions of dollars) than that of a person who leaves another human being beside the road to die like a dog, and then conspires with his parents for 2 years to cover up what actually happened?

Dave Ricardo
Dave Ricardo
2022 years ago

Apples and oranges.

The damage caused by Adler to any single person was trivial compared to the damage caused by Josefski to Donnelly.

But Adler caused damage to hundreds of thousands of people, millions if you count the tax payers who had to pick up the TAB when HIH collapsed.

Ray Williams get sentenced tomorrow. Maybe he and Adler could share a cell. They deserve each other.

Paul Watson
2022 years ago

Phillip Josefski, the convicted driver, had apparently been drinking heavily on the night. Such a hit-and-run deserves a heavier punishment than what Josefski got. In effect, he has been rewarded for his (i) not stopping and calling for assistance, which would have certainly (ii) involved a breath test, which would have presumably led to (iii) a more serious charge.

Also, James Donnelly was apparently walking on the road when he was struck, but only about 1m from the kerb. I fail to see what his intoxication has to do with anything, however. Unlike Josefski, he was not in charge of a potentially lethal weapon at the time. If the victim was instead a wandering 3 y.o. child, Josefski’s culpability should be the same.

Perhaps Kevin Donnelly can now devote his energies to rectfying this legal loophole. (As for his education policy ideas, they are reactionary and deeply destructive of the intellectual commons).

Dave Ricardo
Dave Ricardo
2022 years ago

“I fail to see what his intoxication has to do with anything, however”

It meant his judgment was probably impaired, leading him to walk on the left hand side road in the middle of the night, where he was struck from behind, instead of on the footpath, or on the right hand side of the road, which is where you should walk if there is no footpath.

Helen
2022 years ago

To suggest an alternative approach: the problem with long custodial sentences, as I understand it, is that they train the people involved to be better criminals. (With a four, six or ten year gap in your resume, I don’t think most middle aged men would be very employable either, so the chance of them succeeding in the non-criminal sphere becomes more remote.)
So, then you need to figure out what is an alternative which will appropriately punish the offender, AND his slimy family and friend who joined the conspiracy.
I’d give the courts the power to order the lot of them to sit in conference with the victim’s family, where the family is able to say anything they want, however they want. the perps are not allowed to minimise or blame shift. Only statements of apology will be allowed.

Fantasyland?! I know!

derrida derider
derrida derider
2022 years ago

“… the convicted driver, had apparently been drinking heavily on the night”
Now how do you know that, Paul? Surely a sentence should be based on what can be proved – to do otherwise leads you down some very slippery slopes (ask David Hicks). And the sentence does not seem at all out of line for what was proved.

I’m sick of people getting het up at judges on the basis of partial (in both senses) reports. Not that judges don’t get it wrong – its just that ill-informed second-guessers are likely to be even more likely to get it wrong.

Jane White
Jane White
2022 years ago

I think that the Josefski family have most probably paid enough by now. Josefski made a great error in not assisting the victim after the accident however this doesn’t prove his total envolment in the death of this unfortuate young lad. Maybe he (the victim)shouldn’t have been drinking and using drugs, allowing his body and mind to be so out of control that this state lead him to his own death.
I strongly trust the judges decision, knowing all the facts of the case and having a great deal of experience in the rehabilitation of a human being that unfortunately finds himself convicted of something he really has no fault about. Josefski was just a poor bugger at the wrong place and wrong time!!!!!!!!!!

Michael Marsh
Michael Marsh
2022 years ago

I say it was just an accident!