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The role of the law is not vengeance

By Joel Palte - posted Wednesday, 13 November 2013

Unsurprisingly, the reaction to the sentencing of Kieran Loveridge has been infused with emotion. When the life of one so young and with so much promise is snuffed out it is only human nature to attribute blame in an attempt to understand the unfathomable, why for no apparent reason such bad things happen to good people.

It is this randomness that has boiled the blood of most of the community, for if such evil things can happen without cause, then it is only by pure chance that our own family members or loved ones were not in Thomas Kelly's position on that fateful day.

And yet, for all the impassioned responses decrying Loveridge's sentence as grossly unjust, it should not be forgotten that the role of our justice system is not one of vengeance.


In most western democracies attitudes to crime have in fact moved away from punitive models of justice to recognise the varied role the law must play in facilitating rehabilitation, the restoration of harm and deterrence. Such a system not only recognises that although laws must punish offenders and provide a disincentive to criminal action, they must also account for the fact that those who commit crimes are in part a product of their circumstances.

These principles emanate throughout the sentencing judge Justice Stephen Campbell's reasoning. Not only did he have to balance the grief of the victims and the standards of society ,his role required him to have regard for the offenders 'relative social disadvantage… youth, remorse, prospects of rehabilitation and the need to structure sentences for multiple offences'.

The need to balance these various principles is the reason headlines like that run in the Sydney Morning Herald recently entitled 'Four years for a life: Kelly family's outrage' are so misleading. Even a sentence at the harsher range of the spectrum would never be equivalent to the pain suffered by the Kellies and could not ultimately bring back Thomas into their lives and indeed, that is not the sole purpose of a sentence.

In spite of this, Paul Sheehan's recent article on the topic goes further, launching an outspoken attack in the direction of the sentencing judge, Justice Stephen Campbell, accusing him of being out of touch with the real world and community.

He fails to understand it is not the job of the judiciary to mirror community interest but that of parliament. Judges are but interpreters of the law, tasked with balancing both the principles inherent to it and the relevant factual circumstances, drawing from cases that have come before and identifying where similarity exists so as to dispassionately formulate an appropriate sentence. If Justice Campbell was to impose a significantly longer sentence then not only would this plausibly be overturned on appeal, but he would have acted outside of the powers conferred upon him.

The very strength of the rule of law derives from such consistency. Unless the law is predictable, transparent and guided by objective principle then it will struggle to gain the consent of the citizens for which it operates. Indeed, from behind the veil of ignorance one can only hope that if for whatever reason they find themselves before a judge they would be dealt with fairly and according to objective standards rather than being at the whim of opinion.


If issue is taken with Loveridge's sentence, Sheehan is best-off directing his words towards the people who make the laws, the government. However, caution should always be taken to ensure any amendments are not merely the result of moral panic, rather being the product of a deliberative process. In this way all relevant issues can be considered, ensuring a justice system that not only accounts for community concerns, yet retains some level of compassion.

This is not to say that a longer sentence is not warranted. In light of the community response it may very well be the case the law should change to place greater weight on community expectations amongst the various principles to be balanced.

Ultimately though, very few people, if any, consider themselves perfect. Deep down every single one of us recognises that there are things we could do better in our lives. If the law does not also recognise a rehabilitative function inherent to our justice system then we as a society are effectively saying that we believe ourselves incapable of change for the good. If this is the case then we may as well dispense with the full body of criminal sentencing law and in its place solely abide by the maxim 'an eye for an eye'.

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About the Author

Joel Palte is a fourth year law and finance student at Macquarie University.

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