Friday, 28 August 2009

Magistrates are human, too

While this statement of fact shouldn't qualify as newsworthy, some appellate court decisions make it appear as though sentencing is a task better suited to a computer than a person. So it's worth taking note of a case which finds that not every expression of emotion from the bench results in prejudice to the accused.

In Pitt v Police [2009] SASC 244, the accused pled guilty to a charge of dangerous driving causing injury. The driver had flipped her car whilst travelling too quickly on a dirt road. The impact caused her passenger to miscarry her pregnancy.

A photograph of the stillborn baby was tendered to the sentencing court.

9. The Magistrate, having looked at the photograph, according to the material contained in the affidavits I have read, then became somewhat emotional and left the bench. When he returned, he commented that his sister had recently given birth to a stillborn child, but that the photograph that he just viewed would have no bearing on the sentence he imposed.

The accused was sentenced, and subsequently appealled. It was submitted that the magistrate ought to have recused themselves on the ground of apprehended bias. The Supreme Court rejected the argument.

Strictly speaking, the tender of the photograph of the stillborn child was unnecessary; however, it is perfectly understandable why the Magistrate, in a small country court, with the families of both sides present, determined to accept it in the context of those proceedings.

After explaining in open court that the photograph would have no bearing on any penalty he imposed, the Magistrate did not again refer to that photograph in the course of his sentencing remarks. The Magistrate was entitled, indeed, it seems to me he was obliged, to allow the prosecutor to furnish the court with the victim impact statement setting out the impact of the appellant’s offending on the victim and her family.

Viewed in that way, the receipt of the photograph was doing no more than acknowledging that the victim’s loss of her unborn child had caused untold devastation and grief and was a part of the consequences of the appellant’s conduct. In my view, there is nothing else to indicate that the Magistrate gave undue weight to this aspect of the victim impact statement.

The basis upon which the appellant now argues that the Magistrate ought to have disqualified himself arises out of the events which occurred after he received the photograph. After leaving the bench for ten minutes or so, the Magistrate returned and announced to the court, unfortunately in the absence of the appellant still, that he had had a life experience of a similar nature. I agree with the submission of counsel for the respondent, by itself, that is not sufficient to give rise to any apprehension of bias.

The test of apprehended bias is well established. A judicial officer is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

In R v Goodall [2007] VSCA 63; (2006) 169 A Crim R 440, in a different context, Neaves JA commented that just because a person has had a particular life experience does not mean that that person cannot serve on a jury in a trial which concerned that matter to which the life experience the juror had was directly relevant.

In my view, an equally robust approach ought to be applied to the case of judicial officers called upon to impose a sentence related to circumstances in which he or she may have personally had experienced. It is unreasonable to expect that at times judicial officers may not become affected in some way as a result of the presentation of facts on which they are required to pass sentence.

In my view, that is simply to recognise that judicial officers, like any other human being, are ordinary human beings who at times may have reactions of distress or revulsion at some of the material before them.

The penalty was adjusted downwards, but for other reasons.


Anonymous said...

Two Hoots! Yes, he was human and that's exactly the reason to think that his personal experience may have influenced his verdict.

As a human, he was susceptible to this folly and it should have been reason enough in adjusting the sentencing.

Dr Manhattan said...

You may be right, Anon.

This case was interesting to me because of what it suggests about the true purposes of sentencing.

We're all aware of what the Sentencing Act says, but it's always struck me that there's no mention of providing a formal sense of closure for a victim (a feature better recognised in the Coroner's Court, and definitely in play in this case.)

Vincent JA spoke of the impact of crime on victims in DPP v DJK [at 17 and 18]:

It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.

This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

I'm no wild-eyed victim's advocate, but I do acknowledge that some judicial officers are trying hard (and probably doing some good) by bringing victims into the process, rather than leaving them out in the cold.