The law, not emotion, should determine Towle sentencing
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In my view, the Mildura driver, Thomas Towle, who killed six young people should walk free in 6 months time. I say this not because of any sympathy for Towle (I have none) but because he is entitled to have the law applied, regardless of the very emotional circumstances of the case. Further, he should be bailed immediately pending his appeal. We are all aware of the terrible tragedy two years near Mildura where six young people were killed and four seriously injured by a lone car driver (Towle). Towle was charged with culpable driving and convicted on lesser offences of dangerous driving by a jury. Yesterday, Mr Justice Cummins, sentenced Towle to 10 years jail with a minimum of 7 years. Towle has already served just over 2 years and thus will be released in another 5 years. He will appeal. The above summary will lead any normal person to conclude that 7 years for 6 lives is not nearly enough. This case is a shocking tragedy but, as often happens with the more extreme cases, it raises some important points of law. I want to discuss these, but before I do, I need to clear the air over a number of matters. First, this is not a legal lynching. Towle must be sentenced according to the law, not emotion or public or media outcry. Second, it must be understood that he was acquitted of the much more serious charges of culpable driving (maximum 20 years) and convicted of the significantly lesser charges of dangerous driving causing death (maximum 5 years). If the community is of the view that more serious punishment should be imposed on Towle, then the Victorian DPP should have obtained culpable driving convictions before the jury. This the DPP failed to do. To me, it is inconceivable that any jury could acquit Towle, but that is what happened, largely (I think) because of the brilliance of defence counsel Robert Richter QC who outgunned the prosecution. In any event, the verdict of the jury is final and we must accept it. The problems in this case arise directly from the fact that the DPP was unable to get a conviction in a culpable driving case which most lawyers would think could not be lost by them (the facts are set out in the Cummins J judgment). Third, multiple road fatalities are common. Drivers are frequently convicted of culpable driving for multiple deaths. They receive substantial sentences because the maximum penalty of 20 years allows the Judge to reflect community disapproval. Towle’s case is almost unique because he is being sentenced for multiple deaths (six) arising from the lesser charge of dangerous driving. So this case cannot be judged by other sentences. On the other hand, all these legal niceties do not assist the victims and their families or the community who, quite reasonably, expect that Towle should be locked up for a long time. Unfortunately, my view of the law, if proven correct in the Court of Appeal or the High Court, can only make matters much worse. As I have said, as a matter of law I believe he must be released immediately as the two years jail he has already served is as much punishment as the law allows in this case. The fundamental legal principle that no person can be twice punished for the same conduct will be considered on appeal. It must be understood that the criminal act of Towle was a single act of very short duration: Cummins J said “Your driving was one, limited, action: three hundred metres of speed, inattention and knowledge. It was not extensive in time or place.” Every day, most people are guilty of speeding over 300 meters without such terrible consequences. Why, then, should anyone go to jail for doing what we all do? That is a good question. In one sense, there is no moral difference between speeding and missing another car by a centimeter and speeding, hitting the other car and 5 people dyeing. The (criminal) conduct is the same but the consequences are very different. The answer to this problem is pragmatic: in simple terms, the community has said that if you speed and kill someone you go to jail. The community makes laws against speeding and says that, if you choose to speed, you take your chances as to the consequences. And this makes sense. But it becomes difficult when there are many deaths arising from the one act. As I have said, the problems here arise because of the acquittal for culpable driving. If Towle had been convicted then the judge could have sentenced him to a more realistic and appropriate sentence (such as 15 years with a minimum of 10 years). In Victoria, historically there was no such offence as culpable driving. Drivers were charged with manslaughter (20 years). It was perceived that juries were refusing to convict because manslaughter was seen by them as too serious an offence for negligent or drunken driving. Culpable driving (20 years) was introduced to solve this problem. In turn, dangerous driving causing death (5 years, soon to be increased to 10 years) was introduced as a lesser alternative. The sentencing problem of Towle where there were multiple convictions for dangerous driving was never contemplated. There was a gap in the law. Cummins J was faced with the sentencing on a jury conviction of six counts of dangerous driving causing death and four counts of causing injury, all of which carried a maximum of 5 years jail. His sentence was 3½ years for each death and either 2 years or one year for the injuries. So far so good. I agree with these numbers. The problem arises when the question of accumulation of sentences is looked at. In my view, Cummins J (as a matter of law) could not accumulate the sentences because they arose from a single act. Cummins J took a different view and accumulated them to produce a result of 10 years’ jail for which he set a minimum of 7 years. Towle gets the benefit of a 2 years’ reduction for time already served. In my opinion, Cummins J was correct in assessing the crime(s) as deserving 3½ years. That was the appropriate maximum but he was quite wrong to then accumulate the sentences to make a maximum of 10 years. I think, as a matter of law (not emotion), the sentences should have been 3½ years as imposed but with no accumulation and a minimum set of 2½ years. Thus Towle would be released in less than 6 months time. I think Towle has now been punished several times over for one criminal act. I note the Victorian Charter of Human Rights (not in force at the time of the crime) section 26 provides “A person must not be … punished more than once for an offence in respect of which he or she has already been finally convicted”. In any event, I believe that the Charter reflects the Common Law. Finally, I think the Court of Appeal should grant Towle bail pending appeal because, if he succeeds, he will have served longer than his (new) sentence requires. There is plenty of precedent for appeal bail. Whether he is released remains to be seen. I would sincerely hope that the Court of Appeal would not be influenced by the (understandable) public and media outcry if he was bailed. I think Oliver Wendell Holmes got it right: “hard cases make bad law”. |
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18 Comments
Mr Faris is clearly in admiration of Rober Richter’s “brilliance” and thereby illustrates the sick core of our legal system. The defence that finds the clever word or the technical loophole and thereby corrupts justice is both admired and richly rewarded. I am so proud that I am not a lawyer.
Yes Kirstin, we understand the law as it stands and to apply the law as it stands is a very principled thing, principled to the LAW not to common sense or to the real world.
You see Kirsten the “real world” is where we live; you cannot continue to live in your law textbooks for decades after you leave university.
The practice of applying the law no matter what will, in more then a few cases, result in the denial of natural justice. It’s an admirable ideal but does not work in real life,
Robert Richter is a prime example of one who excels at the law but fails on all other measures of success by that very fact.
Talk of a “decent sentence” - by what standard? Punishment is delivered according to the gravity of the breach of the rules, not the consequences. Notions of an eye for an eye don’t form part of the reasoning in determining sentences, nor should they. How could they - how could any sentence, no matter how harsh, provide any kind of solace to the families and friends of the kids killed or injured? And what point would it serve - in the case of an accident like this the likelihood of Towle causing more deaths in this way is minimal, so greater punishment brings no greater public reward. More broadly, public punishment of this individual is hardly going to stop others in the community from speeding. If greater punishment brings no solace, no community protection, and no deterrent, what is the point? Revenge is the only reason for harsher punishment, and thankfully the law protects us all from that, lest we find ourselves in a similar situation.
But it’s not up to the judge to step in and fill what a gap in the law. A jury found that Towle was not guilty of the more serious charge. The fact that the legislation does not factor in the number of deaths as a measure for the length of the punishment does not give the Judge the right to make his own ruling on the issue - this kind of judicial activism is the very thing that people complain of when it goes against the public opinion, but it is just as damaging if it goes with it. It is up to the people’s representatives to make laws to bind the people and punish them when they offend, not the oft criticised “unelected judiciary”. Judges don’t get to send a jury a message that they “stuffed up” either - the jury decides on the fact, the Judge applies the law. The two roles don’t cross over.
Smart lawyers care only about the outcome in terms of justice. It is those that approach the law with less reflection and intellect who care only about the money and therefore the win.
“Perhaps Towle should have been tried separately on each death so a decent sentence could be imposed “
Well said, that’s the answer, make each life count.
Evan Whitton! what is your point? Do you truly believe what you are saying? That a person’s past actions should be taken into account for things that occur later. Surely this approach should work both ways!!!!!! Is it justice or revenge you are after?
The notion of not being able to accumulate sentences from a single act - ok, here’s a hypothetical case. A person fly an aircraft into a skyscraper, which subsequently collapses, killing most inside. You would say that this person should only be tried for one murder, because it was one act that brought it about?
“in the case of an accident like this the likelihood of Towle causing more deaths in this way is minimal,”
Pish posh, have you seen his record ?
Justice in a case such as this is for the perpetrator to be put away for life, admittedly that won’t nake up for 6 deaths but it would have the very desirable effect of preventing this multiple offender from reoffending.
As a taxpayer I’m fed up with paying hundereds of thousands of dollars to protect the perceived rights of worthlesss scum.
Excellent article. Thanks for the insight.
His record doesn’t include prior charges of culpable driving causing death. There would be hundreds, if not thousands, of people with worse driving records than his prior record. It would waste a lot more of your taxpayer dollars rounding them up and housing them all in prison on the off chance that if they were free they may continue their record and one day maybe cause a death. Towle has no greater or lesser chance of a repeat of this tragedy than any of these other drivers with poor records - or, for that matter, any other driver with a perfect record but subject to similar human error. The fact of the matter is that this “worthless scum” could be anyone you know - speeding, lapses of concentration while driving are things which every driver experiences. You’d be lying to say otherwise, and the fact that he was unlucky enough to have it happen with these consequences doesn’t make it any worse than when it happens to anybody else. And finally, those rights are actual, not perceived.
And Evan: such information can be brought in to a trial if it is relevant to the charge under the rules of tendency and coincidence. It’s covered by Part 3.6 of the Evidence Act 1995.
“The fact of the matter is that this “worthless scum” could be anyone you know”
Absolute rubbish, no one I know drives with children on their laps, kills 6 people and runs from the scene.
“speeding, lapses of concentration while driving are things which every driver experiences.”
You’re a little too understanding to have a grasp on reality, this wasn’t just a lapse of concentration and you know it.
“and the fact that he was unlucky enough to have it happen with these consequences doesn’t make it any worse than when it happens to anybody else.’
Unlucky enough ? I don’t believe your complete inability to grasp what this man did.
“And finally, those rights are actual, not perceived. “
Actual in a court room but how absolutely criminally negligent do you have to be, how many children do you have to kill before your righs should come second to punishment, don’t spend my tax dollars exhausting the “rights” of worthless scum.
Robert Mutton. The point is that the rule (concocted in 1894) which conceals evidence of a pattern of criminal behaviour favours repeat criminals, e.g. sexual predators and organised criminals, and is unfair to victims, their relatives, detectives, prosecutors, jurors, and the public.
The rule perverts justice on a huge scale. For example, Mafia bosses in the US were generally safe from conviction until an exception to the rule was made in 1970 for organised criminals only. The exception was shortly used to put away 23 previously untouched Mob bosses throughout the US.
I suspect the judge was making a point when he when he sentenced Towle to 10 years. Smart lawyers do not care about the outcome in terms of justice, but only in terms of winning. I suspect on appeal the sentence would be reduced to the maximum of five years, but it would be good for Towle to sweat while his appeal is being heard. The 10 year sentence may have been a message to the jury that they stuffed up in not convicting him convicting him on the culpable driving charge.
The process of concurrent sentencing provides no justice for the individual deaths that were caused so I tend to agree with the judges cumulative decision. Perhaps Towle should have been tried separately on each death so a decent sentence could be imposed
These last three comments really indicate a lack of understanding of the law and those who apply it. Ensuring that the law is applied justly, that punishment is delivered for the crime and that crime alone in a fair manner that is not influenced by public outcry is hardly “corrupt[ing] justice” through exploiting a “technical loophole”.
Lawyers should be (but rarely are) praised for making sure that the law is applied fairly to all people, even those for whom there is particular public desire for punishment. Fortunately, there are people like Mr Richter who take up these professions even though they are “despised by decent human beings”. Being a defence counsel is a far cry from the high fees of corporate practice, and those who do this job well in spite of the public pressure and hatred deserve appreciation not scorn.
These comments are the very reason why we have laws, and why we have independent people to judge breaches of them rather than opting for opinion poll punishment
Mr Faris’s piece confirms that his legal system has but a slender grasp of reality. He says the jurors should have convicted Mr Towle on the charges carrying a maximum of 20 years, but since they didn’t he should shortly be released.
What he overlooks is that the prosecutor had to falsely imply to the jurors that Mr Towle was a first offender, but it emerged after the event that he had convictions for driving offences going back to 1991, including drink drive, drive while disqualified, fraudulently use number plate, drive unregistered vehicle, give false name and address. (Not to mention possess amphetamines, burglary, theft, assault.)
If jurors could be questioned, they might be asked whether they would have convicted him Mr Towle on the more serious charges if the law had not concealed his previous convictions from them.
Fascinating article Peter. You intrigue me. You write such shallow facile rubbish when you write about politics or legal affairs touching on politicians. Yet on “pure” legal matters your reasoning and deduction is first rate.
Sometimes the law is inedequate, well a lot of the time actually.
If Towle has any brains he’ll take the 5 years because if he’s free any time soon………….
And as far as the “brilliant” Robert Richter goes, well I’d rather clean septic tanks than be so good as to be despised by decent human beings.