As a young Australian, I was sorry to read in the Sydney Morrning Herald (December 13, 2005) that a girl who crashed her car in Mosman, killing a friend and injuring two others, in June 2004 has been sentenced to a minimum of two months and a maximum of eighteen months in jail.
According to the Herald, “The Children's Court magistrate Paul Mulroney said the sentencing guidelines left him no option but to send the Queenwood student, now 18, to prison,” in order to deter other young drivers from committing similar offences.
Let’s be clear, driving recklessly is never to be condoned, especially where it involves the death and serious injury of others. There is no denying that the driver had been gravely irresponsible, pleading guilty to three dangerous driving offences after data from the car's computer showed she was travelling at 90 kmh, nearly twice the legal speed limit. After losing control of the car, hitting a stone wall, and then overturning, another young girl, Jade Graham, 18, died instantly from severe head injuries.
In what was truly a tragic event, another passenger received traumatic brain injury, and a third had serious injuries to her hand.
When I discussed the outcome of the case with a colleague practicing law in the Western Suburbs recently, his comments were interesting:
“I think she was lucky to get a minimum of two months … here was a clear-cut case where you had a little rich girl from Mosman with a QC barrister. Imagine the same scenario in the suburbs: the kid wouldn’t have had the pockets to pay for a silk (a QC) and they’d probably have thrown the book at her.”
I agree, in part, with these remarks. I do not think there should be two tiers of justice; one for the rich and the other for the poor. A fundamental precept of the rule of law is that it is dispensed equitably. Of course we all know that in practice there can be some significant anomalies, and there is still some serious advocacy and law reform work that needs to be done in this area.
However, in an age where governments of all persuasions want to be seen as "tough on crime", I have some serious misgivings about prioritising the punitive - as opposed to the rehabilitative - function of the law, especially when it comes to young Australians. Issues of this nature go beyond the efficacy and morality of imposing a two to eighteen-month sentence on a young girl (whether she be from Mosman or Campbelltown), and some difficult questions arise.
Is punishment inflicted merely to demonstrate the consequences of breaking the law, or is it to reaffirm the fundamental values of society? Is it aimed at deterring the offender and other members of the community from committing similar acts in the future, or is it to protect the public by isolating the offender? Is retribution to be the guiding principle of law? Or is law meant to reform the offender? And should teenagers, who are say 16 and 17 at the time of an offence, be entitled to judicial leniency for criminal or gravely reckless behaviour when they are deemed to be adults for many other important exigencies arising under law?
Cases involving teenagers are an incredibly emotional, complex and sensitive area of legal systems, and require a delicate balancing act. Unfortunately, there is no magic formula for tragedies like this. Law, and indeed judicial precedent, has only a limited role to play here, and the importance of discretion based on common sense principles should not be overlooked.
It is beyond dispute that what the young Mosman girl did was wrong, but equally, it is important to look at some of the mitigating factors, not least of which is the fact that she was a teenager going before a Children’s Court:
There was no intent or malice in the offence, rather it was the result of a very, very unfortunate accident:
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