Sean Fewster: Jailing killer drivers is not disheartening, forgetting the reason they must go to prison is
ANALYSIS: A judge says jailing killer drivers is “disheartening”, but Chief Court Reporter Sean Fewster remembers why Parliament introduced mandatory prison terms — a little girl named Abigail.
- Jailing killer drivers is ‘disheartening’, says Judge
- Fatal crash driver ‘was distracted by wrestling DVD’
- Driver sorry, but insists he was not watching DVD before crash
- Guilty: Judge tells distracted wrestling fan to ‘prepare for jail’
- ‘The huge void’: Family tells of loss of beloved patriarch
DISTRICT Court Judge Paul Muscat thinks it extraordinary that killer drivers must, by law, serve at least 80 per cent of their prison term before seeking parole.
On Tuesday, he bemoaned the “disheartening” task of sentencing Mitchell Deane Franklin, a DVD-watching driver who killed Harvie Spencer but was, otherwise, of good character.
His Honour questioned the fairness of the mandatory penalty, given such strictures do not apply to the other criminals he sentences — rapists, paedophiles, drug dealers and armed robbers.
I would suggest it is not only fair, but was enshrined for extremely good reasons — regardless of whether any judge is “troubled” by it.
I remember why the law was changed. I’ll never be able to forget.
It was, at least in part, because of Abigail Ralph.
Abigail was nine years old when she and her close-knit family moved to Adelaide from their native England, excited about a new life.
Their adventure was cut cruelly short in April 2003 because a reckless, impatient father-of-five couldn’t wait for a traffic light to change.
Jarrod Damien Payne decided the best way to deal with a line of stationary cars was to use an intersection’s right-hand turn lane for overtaking.
It worked the first time he tried it but, as he wove through a second O’Halloran Hill intersection, he slammed into the car in which Abigail was a passenger.
She died, two days later, in intensive care.
Payne served an 18-month minimum jail term.
The sentence gutted Abigail’s family, rightly sparked community outrage and prompted the State Government to file an immediate appeal.
It came to naught because, a year later, five judges of the Supreme Court ruled penalties for causing death by dangerous driving were best left alone.
Their Honours concluded setting a benchmark sentence for killer drivers would not be “wise or helpful” as penalties were “neither inadequate nor inconsistent”.
Unable to shift the bench’s thinking, the government rewrote the law, upped the maximum penalties and enshrined the mandatory minimum non-parole period.
That should have solved the problem — instead, penalties for killer drivers grew shorter and shorter and, even today, are radically disparate between offenders.
Judge Muscat is aware of that history — indeed, he invoked Payne’s case while discussing Franklin’s fate.
“I think I can be guided by what the Full Court of the Supreme Court said in Payne, bearing in mind that was when the maximum sentence was 10 years,” he said.
Let’s put aside, for one moment, the frightening thought that a 13-year-old legal precedent would still be invoked, in a court of law, after a total legislative overhaul.
Let us concede mandatory sentencing is of great concern to judges and civil libertarians, because it can erase discretion, de-emphasise rehabilitation and lead to unduly harsh penalties.
And we can agree that rapists having an easier time of sentencing than killer drivers is greatly concerning and should be addressed immediately.
But Franklin’s matter is not the venue for such intellectual, legalistic debates, nor is any other case of causing death by dangerous driving.
To argue a distracted, reckless driver who takes a life is somehow less deserving of prison than a rapist, drug dealer or paedophile is fallacious.
To do so when so many bereaved families feel the system has let them down — while Mr Spencer’s upset family is present in court — does little to bolster faith in the judiciary.
Abigail Ralph died 14 years ago but, on days like Tuesday, it seems her case has never truly left the courts.
That, with all due respect to Judge Muscat, is truly disheartening.