Not As Easy As It Looks – A Judge in Chains

Criticism has been made of the approach taken by a District Court judge in sentencing a man convicted of dangerous driving causing death.


In his article headed –

SA Judge Paul Muscat says it is ‘disheartening’ for courts to pass harsh mandatory sentences on killer drivers who are of good character”

Mr Sean Fewster criticized the judge for the way he approached his task of delivering an appropriate sentence and for seeming to engage in an “intellectual, legalistic debate”.

The ability to appropriately differentiate and assess penalty not only between different crimes but also separate instances of the same crime, is a task that can only be developed over many years involvement with criminal trials. Judge Muscat has that involvement and experience.

In arguing that the judge believes that “a reckless driver who takes a life is less deserving of prison than a rapist, drug dealer or paedophile”, Mr Fewster not only misstates the judge’s remarks but more importantly, misses the point.

What the judge is bemoaning in this case is first the fact that the law does not permit him to differentiate between offences which are committed deliberately and with a criminal intent and offences which are committed without that criminal intention.

Secondly, because those who commit serious criminal offences deliberately – such as drug dealers, sex offenders and armed robbers – are not required to serve at least 80% of their sentence before being eligible for parole, it makes no sense to treat those who commit criminal offences without the serious element of intention  more harshly by being forced to serve at least 80% of their sentence before being eligible for parole.

The result is that a minimum non-parole period is required for offences committed negligently but no such minimum non parole period is required in relation to crimes committed deliberately.

The consequences of both can have tragic effects, but the judge must, if he is to be able to differentiate the relative criminality involved in each, be able to take into account whether a crime was committed deliberately or negligently.

That does not mean that one is “less deserving of a prison sentence” than the other but rather that the sentencing judge should be cognisant of the difference and be able to frame his sentence accordingly.

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