It seems incredible two young men can walk away scot-free, without a blemish to their name, after assaulting a schoolboy who later died.

It also seems incredible that because the dead boy had an undiagnosed heart condition that contributed to his death, in my view his life is seen as being worth less than that of somebody who didn't have a pre-existing medical condition.

The family of 15-year-old Stephen Dudley have been left devastated after the second of their son's two assailants received the same treatment as the first - the brothers have permanent name suppression and have been discharged without conviction.

Justice Helen Winkelmann's sentencing report makes for interesting reading. On one hand, she says: "Stephen had an undiagnosed heart condition that made him vulnerable to problems with his heart's rhythm in situations of traumatic stress.


"Because of that condition, it's impossible to say what caused Stephen's death. However, we can at least say that if the fight hadn't taken place, Stephen might be alive today." Then she says because there's no proof of cause and effect, because the Crown didn't feel it could prove the assault caused the death, the charge of manslaughter was downgraded to assault with intent to injure.

I accept that the decision to downgrade the charges is out of Justice Winkelmann's hands, but she goes on to say that although the defendant initiated the violence - he struck Stephen unawares, he hit him on the neck (a vulnerable part of the body) and both he and his brother kept hitting Stephen even after he'd collapsed on the ground - if Stephen had not died from his heart condition there was little to distinguish this from numerous schoolyard fights.

And somehow that's okay?

I'm not suggesting the two brothers be incarcerated for life with no possibility of release.

The boys had no history of violence and their school records showed no disciplinary problems. But because Stephen might have been alive today had the attack not happened, because surely it is a good idea to sheet home to teenagers that actions have consequences and resorting to violence in the first instance is wrong, it seems to me to be more appropriate for the judge to have imposed a period of supervision on the young men. To have ordered them to undertake anger management courses or counselling and then, if they kept their noses clean, to have let them walk away with a clean record?

By discharging these two without a conviction, with permanent name suppression, I think it's like saying the incident never happened and Stephen Dudley didn't matter.

And that must only exacerbate the pain of a family already mourning the loss of a son and a brother.

Kerre McIvor is on Newstalk ZB, Monday-Thursday, 8pm-midnight.
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