Message from the Chief Judge: response to the Herald Sun

13 February 2019

A statement by his Honour Chief Judge Peter Kidd, following an opinion piece in the Herald Sun.

The opinion piece Victim of a Failed System published on these pages on February 8 contains several false and misleading claims about the sentence imposed in the recent case of DPP v Aston.

I make no comment on the correctness of the sentence, which may be the subject of an appeal; however several claims made in the article cannot go unaddressed.

In discussing the case, the article describes a sentence of five years, (which is wrong, the head sentence was five years and three months) and fails to mention the non-parole period of two years and six months, being the minimum period of time that Jack Aston was sentenced to spend in jail.

This selective approach to reporting on sentences is all too common.

The head sentence — or "total effective sentence” — is the total length of time an offender is under sentence. The non-parole period is the minimum time an offender must serve before becoming eligible for parole. A judge declares both when sentencing an offender. 

Where media criticism is directed at perceived severity, often only the head sentence is mentioned. Where media criticism is directed at perceived leniency in sentencing, the non-parole period is often the sole focus of attention. 

Indeed, the author of this article does exactly that: referring only to the head sentence received by Mr Aston in order to allege severity, while referring only to the non-parole period imposed in another case (“two years and 10 months for shooting someone at a child’s birthday party”) in order to allege leniency.

Such reporting appears deliberately misleading and fails to properly inform the community about the actual sentences imposed.

The article also draws inappropriate comparisons between the sentences imposed in cases for different offences. When considering current sentencing practices, a court is only permitted to examine the sentences imposed in comparable cases; that is, cases involving similar offending. A court is not permitted to compare, for example, sentences for serious driving offences with sentences for violent offences.

In any event, the article’s use of such a comparison is based on the false premise that sentences for violent offences are too lenient, which research shows is not the opinion of informed community members in Victoria.

Similarly, it ignores the widespread community concern around serious driving offences, reflected in increases in the maximum penalty for several of those offences, and increased sentences.

Most egregiously, the article falsely suggests that, while other offenders receive concurrent sentences, Mr Aston “must serve each count cumulatively. One after the other”, implying that the judge ordered full cumulation. This is not correct.

Mr Aston was found guilty of six charges of negligently causing serious injury — one charge for each of the six victims. He was sentenced to a period of two years and nine months on the first charge and three years on each of the five other charges. The judge ordered that six months on each of those five charges be served cumulatively. In other words, two years and six months on each of those five charges was in fact ordered to be served concurrently, not cumulatively, contrary to the article’s assertion.

The article also fails to inform the community that it is the law in Victoria that, generally, a court must order some level of cumulation where there are multiple victims, in order to recognise the harm caused to each individual.

Research has demonstrated that, when informed of the law and a judge’s reasons for sentence, the Victorian community overwhelmingly considers the sentence appropriate. Reporting, however, that omits highly relevant information, draws inappropriate comparisons and provides false information, has no benefit to the community and in fact diminishes the community’s ability to be properly informed about sentencing and the work of the courts.

I encourage everyone in our community to read the judge’s reasons for sentence, to assist in informed debate and to ensure fair and accurate reporting by the media.

The reasons have been available on the County Court website since late last year and are also published at the link below: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2018/2258.html 

This response was published in the Herald Sun on 14 February 2019.

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Page last updated: 14 February 2019