If I kick a dog, it will want to bite me.  If you hit me, I will want to hit you back.  Our instinct is not to forgive those who trespass against us, but to trespass against them.  Our instinct leads us to seek revenge.  That’s one of those instincts that we share with animals.  The Oxford English Dictionary has this for ‘revenge’:

The act of doing hurt or harm to another in return for wrong or injury suffered; satisfaction obtained by repayment of injuries.

We might fairly say that our law was born and shaped to control our instinctive need to take revenge.

We need to look first at what the original wrong or trespass was.  Oliver Wendell Holmes said in this in The Common Law:

It is commonly known that the early forms of legal procedure were grounded in vengeance.  Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law began in that way.  The feud led to the composition, at first optional, then compulsory, by which the feud was bought off…..Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.  It can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between being stumbled over and being kicked.

Later, Holmes said that our laws dealing with wrongs and crimes all ‘started from a moral basis, from the thought that someone was to blame.’  A ‘law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear’.

It follows that the punishment must be measured by the level of blame of the offender.  Holmes referred to the view that at least one purpose punishment is to deter the criminal and others from committing similar crimes.

Thus the punishment must be equal, in the sense of proportionate to the crime, because its only function is to destroy it.  Others, without this logical apparatus, are content to rely upon a felt necessity that suffering should follow wrongdoing.

Holmes saw in this emotional imperative ‘the notion that there is a mystic bond between wrong and punishment.’  That was very different to the view ‘that the infliction of pain is only a means to an end’, namely, deterrence.

Well, in the year of grace 2017, we prefer the deterrent view to a ‘felt necessity’ or ‘mystic bond’ that wrong-doing must lead to suffering, but we still feel a need to have our basic moral standards and our personal safety vindicated by the law.  We tend to lump the latter under the heading of ‘retribution’, meaning repayment.  How you distinguish retribution from revenge is a question that is a little too metaphysical for my taste.  Of the three factors mentioned by Holmes – revenge, deterrence, or retribution – only deterrence looks to be capable of being tested empirically.  We would now add reform or rehabilitation – that too may be capable of at least some measurement.

But on any view, the punishment must fit the crime.  Otherwise, as Holmes said, we contravene the teaching of Kant – and I think of Jesus – that every person has their own dignity or worth, and that we as a community must not treat a person as a thing, or merely as the means to an end.

For present purposes, at least three other conditions must in my view be met when we as a community seek to punish one of our members as a criminal.

First, since the law has taken vengeance from the victim and family, the punishment must be inflicted by and under the law, and not by the victim – or by the mob.  Secondly, the punishment must be adjudicated according to the rule of law.  We are all equal before the law, even cardinals of a church or magistrates of a court, and we can only be deprived of our rights by a judgment given after due process and by a court sitting according to law.  Finally, since the law inflicts the punishment on behalf of the community, the community must accept responsibility for ensuring that the punishment is that which has been ordered by the court – and no more.  So, when criminals were flogged, the community assumed some responsibility for ensuring that the punishment did not lead to the death of the criminal.  So now, if our law requires that a criminal be deprived of their liberty by imprisonment as a punishment, we as a community have the responsibility to ensure that the deprivation of liberty is the only punishment that the court has ordered – and not that the criminal is raped or murdered or bashed into a vegetative state.

(I may say that all of this discussion is predicated on the notion that our law of punishment has a basis in logic that underwrites the very considerable legal industry that expounds it at such length.  I was not able to detect such a logical basis when I studied Criminology in 1965, and I have not seen it since, despite having sat on tribunals over thirty years where the issue passed blithely over my head.  To say that a sentence of eight years conforms to logic or theory better than one of four or six to me resembles awarding points for difficulty to the Beatitudes.  But that is a discussion for another day.)

A recent edition of The Saturday Paper had the following story.  Robin Irvine worked a 12 hour shift in a coal mine.  Driving home, above the relevant speed limit, he failed to see a woman cyclist, a mother and a wine-maker, in time.  The collision killed her.  There were no drugs or alcohol involved.  It looked like a case of fatigue.  Irvine was devastated by the consequences of his actions.  He was charged with negligent driving causing death.  The court was told he was experiencing ongoing psychological issues from his involvement in the death.  A pre-sentence report said Irvine would benefit from supervision and counselling and that he was eligible to undertake community service.

The magistrate, who was known as ‘Fierce Pearce’, did not adjourn to deliver sentence.  He sentenced Irvine to twelve months imprisonment.  That is very rare for this kind of offence.  Irvine’s lawyer was in shock.  He asked for bail pending appeal.  The police did not oppose bail, but the court refused it.  (It is not clear to me who first used the term ‘flight risk,’ or what evidence there was of such a risk.  What is clear is that it would have been ludicrous to suggest that Irvine should have been held in custody pending the hearing of the charge.)

Irvine was taken to a high security prison that houses serious criminals and that has a history of assaults on prisoners.  With the assistance of other prisoners, a violent twenty year old prisoner bashed and stomped on Irvine, and left him in a vegetative state.  After two years in rehab, Irvine lives with his mother who has to look after him.  The state allowed him $5000 compensation as the victim of a crime.  In the trial of the prisoner for assault, the Crown could offer no motive.  Irvine and his wife are divorced.  He and his mother have been sent to hell.  According to the report, Magistrate Pearce will retire this year at the age of 71.

Not just we lawyers, but all Australians should be sick at heart over this outrage.  If there is a God worth worshipping, his will has been flouted in what mortals should call a crime against humanity.  If you look at the principles I have sought to set out, each one of them has been violated.

I first ask whether the hearing gave due process.  Was this one of those old time magistrates who say ‘I’m the sheriff in this town, and it’s my way or the high way.’  I’ve seen courts like that.  You wonder why you bothered to turn up.  The decision has been taken before you get to your feet, and it’s rule by a man, and not by the law.  But that is just surmise, so I put it to one side.

What is not matter of surmise is the impropriety and unfairness of the sentence of imprisonment.  According to the press report:

Statistics maintained by the NSW Government show that of the 65 cases [on this charge] dealt with between 2013 and 2016, only two people were jailed. A large percentage received non-conviction orders, the most lenient sentence available.

On that basis, it is nigh on impossible to support the sentence of imprisonment in this case.  And the magistrate must have known the records which made his sentence improper and likely to be set aside on appeal.

It is that which makes his refusal of bail not just capricious and unreasonable, but arbitrary and cruel.  That is a complete repudiation of the rule of law.  And, again according to the report, this magistrate had form for this form of cruelty.

In 2010, 13 men who had been jailed by Pearce had their sentences quashed.  When District Court judge Garry Neilson came to the case of Ian Klum, he wept when told Klum had been bashed to death at Grafton jail while awaiting the outcome of his appeal against a sentence for the offence of driving while disqualified.  Magistrate Pearce had refused an application by Klum for bail pending his appeal.

The judicial arm of government therefore behaved dreadfully in this case.  Then both it and the executive arm surrendered all care by putting Irvine straight into this kind of prison at Wellington.  This is what the press report says:

Wellington houses around 500 inmates, some of them violent offenders or gang members moved from other jails across the state to isolate them….

Bashings and sexual assaults are a regular occurrence in Australian jails, yet individual offences feature little in public discussion.  If Irvine had been beaten this way in Kings Cross on a Saturday night, his assault would have been front page news.  Yet his maiming in a place where the state was responsible for his wellbeing slipped by without any media attention or scrutiny.

Our jails, dangerous places at the best of times, are shockingly overcrowded.  The state’s 37 correctional facilities were built to accommodate 11,000 prisoners.  Current figures show more than 13,000 inmates, and the number has been rising.

In 2015 the Minister for Corrective Services approved two-person cells being used to accommodate three inmates.  In January this year it was reported that assaults on prison premises had increased by 37 per cent over the past two years.

Let me go back to revenge, and our instinctive reaction to seek revenge – which it is a hallmark of a civilised community to seek to contain.  We are, we hope, beyond the stage of the ‘felt necessity that suffering should follow wrongdoing’ as being a sufficient justification for punishment in general or for a particular sentence.  The punishment must fit the crime and we musn’t use real people for target practice.

Anyone who believes that a stint in Wellington, or any other such place, will send the inmate out a better man is wilfully delusional.  So, in my view, is anyone who believes that community security can be improved, either measurably or at all, by increasing the time that convicted criminals spend in jail.  Isn’t the truth rather that most prisoners will come out worse than they went in?  As I understand it, overseas experience says that this problem is worse in terrorist cases, and that the time that terrorists spend in jail just hardens them up to do better next time.  If that’s the case, trying to contain terrorism by holding terrorists in jail for longer terms is about as sensible as trying to lasso a herd of elephants with spaghetti.

What I see rather is that the courts are just taking some of the worse offenders out of circulation for a time – because in the absence of any alternative form of punishment, no one has thought of a better idea.  It’s like an expensive form of cold storage.  In the name of heaven, who would want to be found within the same state as the man who maimed Irvine when he gets out?  He looks to me to be a homicidal maniac now.  Will he not just get worse in the psychopathic Gehenna that is called Wellington?  If our security were paramount, wouldn’t they just throw away the key?

Well, if all that is the most rational account that we can give of punishment, how far have we moved from the instinctive need for revenge?  How far removed am I on this from my dog?  If we see imprisonment as a pis aller, a last resort, I am reminded of some remarks by an Anglican divine, J M Thompson, about a French terrorist, Maximilien Robespierre, that punishment is a measure of despair.

He could, indeed, read men’s minds, but he could not judge their characters; so he could make them think what he thought, but he could not make them do what he wanted.  Faced, as every preacher of a difficult creed is faced, sooner or later, by the problem of unbelief, he was too small-minded to forgive and yet powerful enough to punish.  But punishment is a measure of despair.  It may cause conformity; it cannot produce conviction

But why, then, have jail terms kept increasing and with them our prison populations?  The answer, I think, is that governments have acceded to the demands of parts of the press to increase the terms of jail sentences.  Those demands are not couched as rational arguments founded on evidence of the application of a given theory of punishment.  Rather, they derive from a mystic bond between crime and punishment, the belief that wrongdoers should suffer pain.  That is to say, they derive from our instinct for revenge.  And these demands are not made from a felt need to improve our community.  They are made in pursuit of profit by business people whose adherence to either sense or evidence can go clean out the window where there’s a dollar to be made.

So, we have governments responding to irrational dictates from the press to put more people in jail and to keep them there longer, and then completely failing to see that those jails properly serve the governments’ purpose.  You end up with the frightful and unjust tragedy suffered by Robin Irvine and his mother.  And you wind up with the suspicion that we have fallen this low at the behest of the mob and their chosen organs in the press.

No nation that is so governed can call itself civilised.

As for us lawyers, I think we need to answer the question put by Dietrich Bonhoeffer:

We have been silent witnesses of evil deeds; we have been drenched by many storms; we have learned the arts of equivocation and pretence; experience has made us suspicious of others and stopped us being truthful and open…Are we still of any use?