Unlawful killing

What would you call a situation in which a man . . .

[P]unched his wife in the face and she fell to the ground.

He kicked her before smashing her face with a rock.

She suffered multiple fractures to her skull, ribs, vertebrae, and shoulder blades, as well as a ruptured liver.

The court heard the woman had taken out a domestic violence order against Conway a week before her death.

He had been convicted three times for previously assaulting her.

Well you don’t call it murder apparently. The convicted Katherine man Robert Conway, 37, “pleaded guilty to unlawfully killing his wife”. He was sentenced to 11 years in jail. Non-parole period? Five-and-a-half years.

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Richard Phillipps
Richard Phillipps
15 years ago

Nick

This is a critical response to a website for which I have a great deal of respect. I am disappointed in your post. Brief reasons follow.

I have not been able to find a report or transcript of the case on the AUSTLII website. I have, therefore, very little knowledge about the case other than the media report, which is, of course, and of necessity, incomplete.

If you have an authorised report, or a transcript, please tell me how I can access them, If not, your knowledge would appear to be like mine.

Nothing in the report you linked to says that the man was convicted of unlawful killing. It uses a number of synonyms, and it may be (for all I know that the judge said “manslaughter” or it may be, that just as the NT Criminal Code refers to someone who “unlawfully kills” the practice is to use that term.

I don’t know all about the NT criminal law, and I am not a criminal lawyer, so my knowledge there is incomplete too.

I have looked at the NT Criminal Code, readily available on AUSTLII, and at the Sentencing Act.

Section 1 of the Code defines “unlawful”

Ken Parish
Admin
Ken Parish(@ken-parish)
15 years ago

No doubt the reason the DPP (and the judge) accepted a plea of manslaughter/unlawful killing is that Conway was drunk. Both at common law and under the NT Criminal Code (which is I believe effectively identical to the Qld Code in this and most other respects) drunkenness may give rise to a defence of diminished responsibility which reduces murder to manslaughter. Most States have a similar defence. Indeed it doesn’t only operate where alcohol was a factor. Other drugs (e.g. steroids, ice/crystal methamphetamine) can also give rise to a “diminished responsibility” defence. So too can a psychiatric condition. That’s what spoiled rich girl Anu Singh relied on to get off on manslaughter despite calculatedly killing her boyfriend Joe Cinque (which I fulminated against here).

In relation to alcohol at least, the NT government has just initiated moves to make it harder for drunken killers to rely on a defence of diminished responsibility (or provocation, I think):

Attorney-General Syd Stirling said the amendments to the code would make it harder for the accused to use drunkenness, cultural or ethnic background as a defence to murder.

Mr Stirling says in the past 30 years there has been a growing tendency for murder charges to be downgraded to manslaughter or a dangerous act.

However the President of the Council of Civil Liberties, Terry O’Gorman, says more consultation needs to be done.

“The changes have all the hallmarks of being politically driven, of being a response to the [Crown Prosecutor] Nanette Rogers dossier,” he said.

However, AFAIK the amendments have not yet been enacted, and even if they had been they would not apply retrospectively to Conway’s case. Incidentally, you won’t be surprised to learn that I agree with you and disagree with O’Gorman.

pablo
pablo
15 years ago

Richard Phillips mentions ‘subjective factors’ possibly affecting the sentence in this case. I believe there was a tribal retribution taken against the defendant prior to sentencing that the judge had taken into account. That said I concur with posts to date that it is a very sad accounting overall.

Patrick
Patrick
15 years ago

I think that paternalism is horribly out of place in sentencing for crimes, let alone violent crimes.

Personally once there is a pattern of violent behaviour and drunkeness, if I was to give any weight to the drunkeness at all I would increase the sentence. Forewarned is forearmed, after all.

Patrick
Patrick
15 years ago

NB A similar case (with less horrific violence) occured in France when a popular hero, Bernard Cantat, the lead singer of ultra-popular rock group Noir Desir (pretty good really) got into a drunken scene with the famous actress he was going out with, unhappy that she was filming nude scenes directed by the father of one her children.

She fell, hit her head and died in hours. An astounding number of people figured that just because M Cantat loved the environment, socialism, palestinians, etc, and hated capitalists, governments, America, etc, he simply couldn’t be really culpable. Someone even firebombed the woman’s house!

Happily (for the likes of me) all this happened in Lithuania, where he was sentenced to 8 years jail.

Jen
Jen
15 years ago

…. Always remembering that we are talking about a couple who are part of a big family who have tried to look after both of these people. What happened is sad and stupid, and almost inevitable in the circumstances.

Chris Lloyd
Chris Lloyd
15 years ago

“Bernard Cantat..got into a drunken scene..she fell and hit her head. Happily … he was sentenced to 8 years jail.” Oh. But he was a socilaist so that’s a good outcome. See Here.

Patrick
Patrick
15 years ago

Frankly no idea what you mean. The point is that for a lot of people his being among other things a socialist made it implausible that he be as well a chauvinist alcoholic (and drug-addicted) pig.

Richard Phillipps
Richard Phillipps
15 years ago

Nicholas thanks for your gracious response.

If you intended to open up debate, you have certainly opened up a big one, in terms of subject matter, social importance, and placing in the political landscape.

I cannot hope to respond to all the issues you have raised, so let me focus on my original comment, which was that there is simply not enough material on the ABC article you linked to to allow any useful comment. I have attempted to keep this as short as I could, and it is not the result of any detailed research.

Let’s unpack that a little.

First of all, the article, and your response, is about the sentence.

Sentencing is a separate and distinct part of the process.

Typically, it happens at a separate hearing, and evidence that is not admissible in the trial is often taken into account. For example, so-called “victim impact statements”

Ken Parish
Admin
Ken Parish(@ken-parish)
15 years ago

The judge’s sentencing remarks in R v Conway are now available here. Some readers might also be interested in reading the NT Supreme Court’s general guide to sentencing principles. The following passage is especially relevant to our discussion:

Some offences, by their nature, cover such a broad range of prohibited conduct or occur in circumstances where the level of criminality is exceptionally variable that a tariff is not possible

derrida derider
derrida derider
15 years ago

I think there is amzing woolly-headedness about the purpose of sentencing generally. You expect that from shock-jocks and their followers – what you don’t expect is to see it from lawyers.

The econometric evidence on deterrence, rehabilitation, etc is extensive. In a rough nutshell it goes:

(1) The probability of being caught is far more important to deterrence than the harshness of the sentence. In other words, for deterrence we need more coppers (score a point for the right) rather than more prisons (score a point for the left).

(2) Jail tends to make criminals much worse, not better (score a big point for the left).

(3) As most crimes are committed by habitual offenders, keeping this small minority off the streets for long periods in prison will tend to cut crime (score a big point for the right, but note that such incapacitation does not require prisons to be hellholes – see point (2). Also note Richard’s implied point that “serious offender” and “habitual offender” are not synonyms).

Note that incapacitation – the strongest argument for prison – doesn’t even make it on to Richard’s list. And I agree with him that ‘retribution’ shouldn’t be there – but then many people in this supposedly Christian society confuse vengeance with justice.