What would you call a situation in which a man . . .
1unched 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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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”
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):
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.
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.
Richard,
Thanks for your criticism. I appreciate your concern and think you make a fair point.
But I think the responsibility or otherwise of my post gets down to the degree of probity you require from a blog post. It is fairly clear that the post is a quick reaction to the media stories. The media stories I saw and heard – one on News Ltd and one on the ABC websites were fairly deadpan and not sensational.
If I were writing an op ed I would have done a lot more research. On a blog, part of the point is that those who disagree can do the research and show how you’ve got it wrong. I knew that Ken would set me straight and am pleased you’ve also had a go.
As it happens even with Ken’s and your points, I’m quite happy with what is up there. How I ought to express that – whether as a criticism of the statutes, their interpretation or their application in this case – I’m not too sure.
I think quite a lot is going on here. I wonder if you’re upset that the style of what I’ve written is not so different from shock jock’s style. If so perhaps the suggestion is that matters such as this should be discussed more soberly. Well I dislike shock jockery and think many discussions of this kind initiated by them are highly irresponsible – but . . .
At a fundamental level the decision is and remains an affront to my moral and emotional commonsense. The convicted man is (at least judging from the evidence) a person who has serially attacked those weaker than himself. The law has been unable or unwilling to provide protection to his
assailantvictim, though it was given the chance. It’s response when the logical consequences of its neglect are made plain in a brutal and (one hopes) unnecessary killing is an almost apologetic application of a jail term from which the killer may walk free in less time than it takes to get through primary school.“Although there are some mitigating factors … the court is duty-bound to post serious penalties for such serious crimes”. Hmm. Well I think it was duty-bound to post more serious penalties and to do so in a less defensive way.
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.
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.
…. 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.
“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.
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.
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”
Thanks Richard – I’ll try to post a response to your points in the next day or so.
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:
Thanks Richard and Ken,
With more of the facts out, my original comments look fine to me. Of course one needs to know all the details to pass fully confident judgement on a situation like this. But in fact none of us have all the facts, and nor did the judge. So in some way one hopes that the decision ‘makes sense’ when viewed from different distances. One must be prepared to change one’s mind as one acquires more facts, but there’s nothing wrong with applying ‘the sniff test’ if one does so in a responsible way. That’s what I was doing with the post, and so far I’m happy with it.
I’d extend that comment (about the sniff test) in several directions. Richard, you say that you don’t understand ‘vengeance’ as an element in sentencing. Well, I think it’s a natural side of our natures, and like lots of other aspects of our natures (like aggression for instance), I don’t think it is healthy to deny it. I think that rather it needs to be balanced alongside other aspects of our natures – like reason and sympathy. So I don’t have a problem with the society calling for vengeanceI think it’s entirely healthy even if I don’t think the exculsive focus on it by the shock jocks is. There is also deterence and rehabilitation – though the chances of either in this case look slim.
I was quite taken aback that I could see nothing in what you outlined (which I appreciate it taken from other sources) which refers to public safety. It astounds me that it is not generally regarded that once someone has acted in the way this bloke did that there is not a general presumption that he should not (ie never!) be released unless a fairly strong burden of proof is met that he is unlikely to offend again. If this sounds too draconian to you, then I’m happy to go with Ken’s formulation – only let him out under strict supervision which is specifically crafted to minimise the chances of reoffending.
Regarding justice to the offender. I think it is a bit late for that. The reason we try to provide some justice to him is the reason some of us (such as myself) oppose the death penalty – that is that in carrying it out we diminish ourselves. So we provide the accused (and the convicted) with the best thing we can provide that approaches justice, but we do so as a reminder to ourselves that this is the right way for US to behave. I have no idea what ‘justice’ requires of a man who behaved in the way that that the convicted criminal did in this case.
You write that a mandatory sentence of twenty years for murder is ‘extra-ordinary’. I don’t agree. There are some things that I’d want to argue into manslaughter or to provide their own complete defence. I can think of killings in response to sustained repeated abuse (as you mention) and and mercy killings. As for the rest of your list, if someone kills someone in a fit of passion, I have no problem with them going to jail for twenty years for it. In fact I’d say they are lucky not to be locked up for their natural life which in many respects would be more just, but not very economic.
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.