Penfold Strikes Again

Boring

This post is a fantastic example of the ignorance of those whom regularly rage about the ACT’s criminal justice system.

First of all, according to the MSN article, there has been no “sentence” handed down in this case. I understand that the defendant appeared in Court to enter a plea of guilty to the charge. This is clearly indicated in the MSN article linked to in the post.

Secondly, Justice Penfold made no such comment that “neither a jail term or a community based sentence would be appropriate”. This was the remark of the Prosecutor appearing for the Director of Public Prosecutions, an independent body. This is also clearly indicated in the MSN article. I should add that the DPP also decides on the charge with absolutely no involvement by the judiciary.

Thirdly, the term “Attorney” is not used in Australia. We have either Solicitors or Barristers, generically described as “Lawyers”. Saying “Defence Attorney” makes you sound like your understanding of the legal system comes from watching too many US television programs. This perhaps explains your clumsy understanding of the matter referred to in the article.

Finally, the defendant’s lawyer indicated that she is currently receiving treatment to address her health issues, and Justice Penfold specifically ordered a pre-sentencing report to determine the defendant’s “suitability for supervision to ensure there’s continued (medical) treatment”. The assertion that the defendant’s mental health condition should be taken into account was suggested by a forensic psychiatrist, whom I assume is qualified to give an opinion on such matters.

Perhaps you should at least take a couple of minutes to read the article properly before waxing lyrical about the terrible state of our Courts?

Gee, sentencing is hard. So you’re a judge or magistrate or whatever and the person is guilty (whether the accused pleads guilty or a jury or judge/magistrate does that part of the deed).

Now follow the process:
– you don’t get to choose the charge. Maybe it was manslaughter, but it could have been at the end close to murder or the end close to something pretty lightweight. We don’t have plea bargaining, but there is capacity to adjust charges
– the legislature has set a maximum sentence for the offence, usually worked out by comparison with the maximum sentences for similar offences
– the maximum sentence is reserved for the most grave cases, otherwise it would become a standard. So, you might discount to some extent for whatever extent the offence is not at the top end
– the person’s record (which you’re not allowed to know about or think about before sentencing). A cleanskin or relative cleanskin gets a discount, because of previous good character – someone with a shocking history gets nudged back into the direction of the top
– did the person plead guilty and if so, when. Did the person make admissions that saved time and cost for all and pain for witnesses. If so, a discount (which I understand is pretty mathematical in NSW)
– mitigating factors (1) – was there, subjectively, some reason for the offence, even if it was not a defence to it? If so, a discount
– mitigating factors (2) – is the person, generally, less likely to be as responsible for the offence as the average person. Think psych conditions, childhood that was a litany of abuse etc. If so, a discount
– mitigating factors (3) – what are the other consequences of the offence for the offender? Loss of job, loss of reputation, loss of residence in Australia, catastrophic effect on financial position
– mitigating factors (4) – the post-offence actions of the offender. Did he/she apologise sincerely, take steps to get the treatment needed to avoid reoffending, provide some kind of restitution in a property matter. Did he or she cooperate with the police in relation to evidence, co-offenders etc? If so, a discount
– sentences should generally be towards the lowest level likely to achieve the goals of protecting the community and punishing the offender whle retaining an incentive to rehabilitate.

If the judge or magistrate gets it badly wrong (and that can happen, often because the lawyers did not get the relevance of a factor across), there is an appeal process to allow a more appropriate sentence. The opinion of the appeal court matters – the opinion of the media, RiotACT, witnesses etc do not. If Penfold J has blown it in this case or in the recent sexual assault matter, the Court of Appeal will set things back on the right track.

One factor that needs to be considered is the public cost of higher sentences. It’s not just providing a prison, it’s also dealing with the collateral stuff when someone is taken out of the workforce and the family environment. And long sentences (I understand) make it so much harder for the person to get back into the community.

Kiddie now with dad. Does this mean kid out of danger?

fnaah: What makes you believe the Munchausen-by-proxy is defence attorney posturing? (i assume that means a lie)

The charge looks OK to me – “attempted murder” doesn’t fit (to my mind) based on the lack of intent to kill. If the Munchausen-by-proxy is to be believed (which to me sounds more like defence attorney posturing), then the intent was to harm.

The verdict sounds good too, but I agree that the sentence seems way too lenient. Surely some kind of mandatory counselling or psychiatric evaluation would have been more appropriate?

MHBP, while a recognised behaviour, should not be treated as a mental illness that precludes a person from obeying the law. If the person behaves in a manner that endangers another person’s life, especially a child unable to defend themselves, then they should be under supervision – such as in a low-security jail.

Admittedly speculating on a case without knowing the detail is always going to be criticised, but my impression here is that Judge Penfold, like the majority of law enforcement staff in Canberra, is simply raising revenue by allowing the woman free without a bond.

Drats, I left out “and just a description of a behaviour” from the end of first sentence. Please mentally insert and reread.

I believed Munchausen-by-proxy was neither a specific diagnosable psychiatric condition, medical illness or disorder.
This is its legal status in Queensland iirc, and is just identified as a possible symptom of other problems.

Certainly, its describing a form of child abuse, but if I go out and purposefully break the legs of dogs its still animal cruelty (even if I claim a nonspecific mental illness of which dog leg breaking was just a symptom).

But this judgement isn’t helping perceptions that no matter how vigilant ACT Policing are in investigating, locating useful evidence, and processing it…
ACT Judgiciary will still drop the ball and treat defendants as if they were victims and relegate actual victims to mere props in a posturing theatre piece to get acorss their own social whims.

Way to show the public how very effective Government interference with the process of appointing judges can be.

Vote 1 Corbell!

Does the judge decide what a person should be charged with? American tv has taught me that its the police and prosecution that do that. Perhaps its them that disagree with your assessment of this crime being attempted murder, neanderthalsis?

justbands: Serial child abuser, yeah. Thing is that choice is not there. Much like a person with OCD might have to turn a light on and off 10 times before entering a room. They do this, but you wouldn’t say they choose to do it.

Munchausen-by-proxy hey….just means they are a serial child abuser, yes? So actually being scum is now a fair excuse for scum-like behaviour?

Perhaps the offence was at the lower end of the scale?