DPP Adam Kimber says he will not challenge sentence imposed on teen hoon who killed Nicole Tucker in fiery car crash
UPDATED: The state’s top prosecutor will not challenge the 18-month minimum term imposed on the teen hoon who killed Nicole Tucker — and the Attorney-General says the blame rests solely with the law.
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THE state’s top prosecutor will not challenge the 18-month minimum term imposed on the teen hoon who killed Nicole Tucker — and the Attorney-General says the blame rests solely with the law.
In a statement on Tuesday morning, Director of Public Prosecutions Adam Kimber SC said he would not file an appeal against the decision of District Court Judge Joanne Tracey.
Last month, Judge Tracey jailed the boy, 16, for three years, four months and one week — but with backdating, he will be free to seek release on parole in just 10 months.
In sentencing, Her Honour noted she was restrained by the requirements of the Young Offenders Act, which prioritise “care, guidance and correction” of youths over punishment.
That sentence shocked Mrs Tucker’s grieving family and sparked widespread public debate but, in his statement, Mr Kimber said that did not make it legally questionable.
“It is only appropriate for me to appeal if I am of the opinion that there is an adequate prospect of the Court of Criminal Appeal concluding it was not open to the sentencing judge to impose the sentence she did,” he said.
“Her Honour has sentenced according to law (and) the sentence is within the appropriate range given the principles the judge was bound to apply.
“This being so, it would be inappropriate for me to appeal.”
Mr Kimber’s statement was closely followed by remarks from Attorney-General John Rau who, in the wake of the sentencing, said he would not rule out changing state law if necessary.
“The DPP has determined that an appeal, on the current law, will not succeed,” he said.
“I will not be directing him to act contrary to his public duty, and act in a way that would amount to an abuse of process by us both.
“The fault lies with the law — not the judge, not the DPP.
“I will be advising Parliament of legislative changes to deal with this problem later today.”
The teenager, who cannot be named, was already on bail and serving a suspended sentence when he crashed a stolen car into Mrs Tucker’s vehicle in October 2016.
He had reached speeds of up to 212km/h prior to the fiery impact, which killed Mrs Tucker — a devoted and beloved mother of two — instantly.
Another driver was also injured while the boy, who escaped harm, attempted to flee the scene.
Although he faced a maximum sentence of life imprisonment, and was dealt with by the District Court, his fate remained within the jurisdiction of the Act.
And, while she described the boy’s crimes as “horrifying” and “at the extreme end of seriousness”, Judge Tracey was obligated to follow its strictures.
In his statement, Mr Kimber said he had spoken with Mrs Tucker’s “helpful and dignified” family, and thanked them for their “respectful” discussions about his decision.
He said that, when contemplating Judge Tracey’s decision, it was important that the public remember “at least three matters”.
The first was that the boy received a 40 per cent discount on his sentence, as provided by law, for pleading guilty on just his second appearance in court.
The second was the requirements of the Act, which were “reinforced by a number of judgments” on past cases and appeals.
“In part, these principles prioritise the imposition of a sentence that might allow the youth to develop into a responsible, useful member of the community and which will provide an opportunity for the proper realisation of the youth’s potential,” he said.
“The sentencing standards that apply to adults do not apply.”
The third factor, he said, was that “obviously enough, no sentence can ever compensate for the loss of a life”.
“The approach of the sentencing judge reflects the above principles (and) Her Honour has sentenced according to law,” he said.
Former DPP Stephen Pallaras QC told The Advertiser that decision was to be expected.
“In a successful appeal, either a judge has failed to take relevant material into account or has taken irrelevant material into consideration,” he said.
“Unless you can get home on one of those, you will ultimately fail in the Court of Criminal Appeal and, in reality, there’s no successful prospects of an appeal.”
He said it was not a DPP’s job to file an appeal, knowing it would not succeed, in order to make a political statement or provide judges with an opportunity to criticise the law.
“That would be a conflict of duties,” he said.
“It’s part of the professional obligation not to mislead the court by running a case which he or she believes has no prospect of a successful outcome.
“If you’re sitting at the front bar of the pub and you say that, you might not get too many takers who are sympathetic to it, but that’s the professional’s duty.”
Mr Pallaras said Mr Rau’s foreshadowed legislative change needed to achieve one of three things in order for it to prevent a repeat of the teen hoon’s sentencing.
He said Mr Rau had to either change the Young Offenders Act, give judges discretion to sentence outside it if needed, or sever the link between it and adult sentencing.
That third option would mean youths remanded to the Supreme or District Courts, to be sentenced as adults, would automatically be subject to harsher adult penalties.
“In the end, it all probably means the same thing — what we are looking for, here, is an outcome, and how we get there really doesn’t matter,” he said.
“The outcome that we want is a sentence that is reasonably proportionate to the offence, and one that satisfies the general concepts of public expectations.
“The legal profession and the courts are created to serve the public, not to dominate or dictate to them.”
Commissioner for Victims’ Rights Michael O’Connell agreed that the fault lay in the law.
“Most people who have contacted me expected that when a youth is tried as an adult they would be sentenced as an adult,” he said.
“Such was the impression left when the law was reformed.”
He said any amendment would “not undo the sense of injustice felt by Nicole’s family and friends, or the public disquiet in relation to the sentence”.
Nor, he said, would it “silence the anger when people believe a sentence is too lenient”.
“Depending on how any amendment is written, however, it should mean that when sentencing young offenders tried as adults, courts will be able to take into account factors, such as the any injury, loss or damage resulting from the offence — in other words, the harm done to victims,” he said.
“The need to protect the community would also be a paramount consideration, and sentences could be imposed to deter both the offender and potential offenders.”