Alice Springs news
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Community newspspers; Australia, Central; Alice Springs (N.T.); Newspapers
v. 17 issue 18
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Mr Whitelums affidavit recognises that the Chief Justice took into account concepts of general and personal deterrence, as he is obliged to, but says he also recognised the limitations of notions of general deterrence in circumstances involving severe intoxication and the incapacity to think rationally. (Para 115-118). The affidavit notes that this very unusual case was correctly categorised as toward the lower end of the scale of seriousness for crimes of manslaughter. Having identified features of aggravation often to be seen, the Chief Justice correctly found that none of these types of aggravating features existed (Para 111). He further found, according to the affidavit: none of the offenders had an awareness of a substantial risk of causing death. Their conduct was manslaughter by negligence and therefore involves considerably less moral culpability than manslaughter by way of recklessness (Para 112). Mr Spears acted spontanously with anger and with an intention of physically attacking the deceased. None of the offenders intended to kill or cause serious harm. None foresaw the possibility of death resulting from their actions. But for the unknown pre-existing aneurism, Mr Spears offending would represent an assault causing minor harm at worst. Given all of this, and that the Chief Justice acknowledged that for manslaughter a significant number of cases resulted in head sentences in the approximate range of four to six years (Para 114), the affidavit asserts that the starting point of a seven and half year head sentence is properly to be regarded as manifestly excessive. The final head sentence for Mr Spears, as for Mr Kloeden and Mr Hird, was six years allowing for his plea of guilty, with a non-parole period of four. Had the starting point been six, the final head sentence and the non-parole period would have been lighter. In a closed session three judges of the Court of Criminal Appeal will determine if there are grounds for appeal; if so, leave will be granted and a hearing date will be set. Chief Justice: Courts cant cure the causes of crime. ERWIN CHLANDA interviews Chief Justice Brian Martin who is retiring after six and a half years on the bench in the Northern Territory. NEWS: What influence do the processes of law and law enforcement have on the enormous lawlessness in the Northern Territory? CJ MARTIN: Courts are at the tail end of the cycle of life experiences, and particularly, dysfunctional life experiences, which are the root cause of crime. Were a bit of a blunt instrument in that way. More importantly, we need to work at the cause of crime rather than stop it with punishment which does not work particularly well. NEWS: In your six and a half years in the Territory, have you seen an improvement or a deterioration in matters of crime? CJ MARTIN: Its very hard to tell because the [Federal] intervention has resulted in a greater reporting and law enforcement. But I dont think its decreased in terms of crimes of violence. [The figures may be increasing] but perhaps more through detection rather than an increase in the volume. Its hard to know. NEWS: What role does tribal law have in our legal system? CJ MARTIN: Are you talking about tribal law in terms of punishment? NEWS: Yes, and in terms of judgement. CJ MARTIN: There is no question that tribal law can co-exist with Territory law, in terms of punishment, provided that the punishment is inflicted with the consent of the offender, and provided that it is not unlawful punishment. I can consent to a certain amount of violence being applied to me, I do it if I am in a boxing match or on the football field. An offender can also consent to a certain amount of violence being applied, but an offender cannot consent to really serious violence. [In one case a suspended sentence was imposed] where the offender was punished by the community, with his consent, [he had] to go out bush and spend time learning about his culture, learning the laws. NEWS: Where would you draw the line with traditional punishment? Would you condone spearing in the leg? CJ MARTIN: The law cannot condone a spearing in the leg which is too serious a violence with potential for great harm and possibly death. [Otherwise] precisely where you draw the line is hard to express, you have to take each case as it comes. NEWS: Whats your comment on mandatory sentencing? The current government was elected on a platform of
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