Dialogue: Steven Price

Judges ought to explain decisions

By STEVEN PRICE

Passing judgment

Whoa! Hold your horses.

Before we slam Judge David Harvey for letting off you-know-who for importing 103g of hashish and cannabis, then granting name suppression, let's wait and see what his reasons were. Clearly, the judge was persuaded by lawyer Marie Dyhrberg's written submissions.

Judges have a responsibility (though, interestingly, not a legal duty) to explain the reasons for their sentencing decisions. In an era of increasing judicial accountability (judges sometimes write summaries of their decisions or even issue press releases), our understanding of judges' reasons should not hinge on the availability of a lawyer's submissions.

In cases that attract public interest, the judge should issue a written decision.

Guilty people should not escape conviction, judges have said in other cases, unless there are "exceptional circumstances" rendering the consequences of conviction "out of all proportion to the gravity of the offence."

Discharges without conviction are granted in about 2 per cent of cases, usually where the offending is minor or out of character, or where punishment would have grossly excessive consequences for the defendant's career, reputation or finances. Of course, they favour those who have careers, reputation and finances to lose.

Discharges benefit people such as university students who steal or road signs - and, in August last year, a polytechnic student found with five caps of cannabis oil, whose eligibility for Master Builders Federation membership would have been jeopardised by conviction. Or police officers - one caught with 25g of cannabis - for whom conviction would mean the sack.

The power to discharge without conviction is discretionary and its application is patchy. Look at some of the people who didn't get discharges: a man who lost the chairmanship of a county council for unlawful possession of a pistol; a depressed 23-year-old student who shoplifted a bottle of aftershave lotion; and a masseuse who lost her employability after being caught with cannabis oil.

Still, almost all those who do get discharges committed relatively minor offences, were unlikely to repeat them and faced grave consequences if convicted. We are entitled to ask for the same tests to be applied to visiting American billionaires.

The same goes for name suppression. The test: would publication probably create an acute additional punishment that is disproportionate to the gravity of the offending?

This often goes hand-in-hand with a discharge, but remember, it needs to be justified separately. If, for example, the billionaire was granted a discharge because otherwise he couldn't get travel visas, that would not justify name suppression as well. On the other hand, if there is medical evidence that harmful publicity would kill his ailing mother, that might justify name suppression but not a discharge.

Don't like the idea of name suppression at all? What about people convicted of trivial crimes who are suicide risks, whose rehabilitation prospects would be destroyed by publicity, whose victims might come into the public spotlight, whose employees might lose their jobs?

Yes, sometimes it seems there is a different law for the wealthy and famous, who are more likely to cop bad publicity and, therefore, more likely to get name suppression. But the media also applies one rule for celebrities and another for everyone else.

Anyway, name suppression is usually denied. Publicity is seen as part of the penalty. That was the hard lesson for two defendants in 1989 who discovered someone else's cannabis crop in the bush, harvested it and flogged it off. When they were busted, they pleaded for name suppression - otherwise the true owners might find them and do them in.

"This is not an easy case," said Justice Tipping. He turned them down.

So why was the American's application granted? I hope we get an explanation. If we're not satisfied with the answers, let's ask why the police were.

Comments: sxprice@hotmail.com