I’m rarely in agreement with Michael Laws, but I was in general agreement with his column in yesterday’s Sunday Star Times. Laws was discussing the sentence handed down to 18-year-old Ashley Austin. As he was attempting a ‘a controlled drift’ in Christchurch’s Linwood Avenue, Austin’s illegally modified car had mounted the grass verge, driven across the footpath and ploughed into Emma Woods, her 4-year old son Nayan and his 6-year-old brother Jacob. Nayan could not be resuscitated and died at the scene. His brother was seriously injured. Austin, who pleaded guilty to dangerous driving causing the death of Nayan and injury to Jacob and Mrs Woods, was sentenced to six months community detention, 200 hours community work and disqualified from driving for three years.
The seemingly inadequate sentence reflected Austin’s conduct at the scene – rather than running off, he had stayed and attempted to resuscitate the four-year-old – his evident remorse and the wishes of the boys’ parents, Emma and Duncan Woods. The Herald reported: In a remarkable display of forgiveness, Emma Woods embraced a sobbing Austin outside Christchurch District Court after the sentencing this afternoon. “We do not believe he can be punished any more severely than by having the guilt of this accident on his conscience. [Mrs Woods said] “I guess he made a mistake that had pretty horrendous consequences, but that doesn’t make him a bad person. “And he’s done a lot since the accident to attempt to make amends or try to support us. “I don’t think somebody like him belongs in jail. I don’t think he’s going to learn anything from being in there. The mistake he made, he’s not going to do it again.”
In his column Laws expresses astonishment at the lightness of the sentence. ‘It is,’ he writes, ‘the worst message to send to such a fringe criminal community [of teen hoons]… The killing of a child – by accident or design – must always invoke the strongest sanction.’ But it is this passage from his column that I would like to reinforce: ‘… to tolerate a justice system in which the victims have such sway over the sentencing of a criminal is inherently wrong. It inevitably leads to different sentences dependent upon the attitude of the aggrieved.’ He is absolutely right. I have very little doubt that victim impact statements, delivered in court, have real value in allowing the victims of crime to confront those whose actions have negatively affected and in some cases destroyed their lives, and to express their sorrow and anger face to face with the authors of their misfortune. But that is as far as it should go.
To allow the victims of a crime to influence, let alone determine the sentence that will be handed down to an offender is to turn the justice system into little more than a lottery in which those lucky enough to have offended against forgiving victims get off lightly, while those unlucky enough to be confronted by victims seeking retribution receive the harshest punishments. Justice cannot be capricious. It must be even-handed. As far as possible, the same crime must receive the same sentence, influenced only by extenuating or aggravating circumstances which cannot properly include the opinions or attitudes of the offended parties, whether liberal or hard- line. The more serious the crime and the broader the available range of punishments for that crime, the more dangerous and inappropriate the idea of victim influence on sentencing appears.
In many American states the sentence for murder may be a lengthy term of imprisonment or death. Should the wishes of the victim’s family or friends be a factor in that determination? You can only answer yes to that question if you believe that life or death can properly be decided by little more than the toss of a coin. In this particular case, 18-year-old Ashley Austin killed a four-year-old boy, seriously injured his 6-year-old brother and forever changed for the worse the lives of that family. His actions were the result of absolute selfishness and reckless indifference to the lives of other people. A vehicle inspection report after the ‘accident’ revealed that the car had lowered suspension with stronger springs to enable the car to slide more easily and that the hand brake did not work on the rear wheels. The car had been illegally modified to the point where it was ‘only suitable for a controlled environment like a race track’.
To satisfy his desire for excitement, Austin chose to drive this vehicle on a public road. He showed no concern for the safety of others. He was reckless in his disregard for their lives. As a result he took the life of a four-year-old boy and nearly the life of his six-year-old brother. He weeps in court. He is remorseful. But in Laws’ eyes, and in mine, this delicacy of sentiment comes too late, is too convenient, fails to make amends, almost adds insult to injury. Had I been the father of that child, I might have screamed in court, ‘I don’t want your bloody remorse; I want you to have had enough human decency, enough unselfishness, enough conscience not to put the lives of other human beings at risk for your own satisfaction. You do not deserve my forgiveness. Nor will I be your advocate.’ Emma and Duncan Woods did not see it that way. While I can and do admire them for their generosity of spirit, I find their plea that Austin not be sent to prison (for however short a term) misguided and the court’s acceptance of that plea misjudged and setting a dangerous legal precedent.