If you had a choice between there being another Carl Williams or Hoddle Street mass murderer Julian Knight on the streets, who would you prefer?

Of course it would be Carl Williams. Murderers who pick their victims at random strike fear into our hearts and imperil our collective sense of security. Victim specific crime, on the other hand is far less damaging to the community psyche.

It is for that very reason that as a nation we spend billions of dollars trying to thwart terrorism, despite the fact that there has not been a single Australian killed on our shores from a terrorist act (in the past 20 years), while we spend a relative pittance trying to curb the dozens of domestic murders which occur annually.

Carl Williams never killed anyone who didn’t choose to be part of the criminal underworld. That’s why the public isn’t much fazed about Williams’s killing spree and he is being treated as a mini celebrity.

At the same time, the community are right to be jacked off at being berated by police who are angry that we are not angry enough at Williams. The police claim that by treating Williams as a ‘B-grade movie actor’ we are not expressing sufficient concern at his conduct. We can think what we want and the cops are clearly overstepping their mark when they try to control our impressions and opinions.

Perhaps Victoria’s rights loving Attorney-General should direct the police to sections 14 and 15 of his new glossy Charter of Human Rights which gives Victorians a right to freedom of thought and belief and even a right to express their beliefs without being mauled by overbearing cops.

The more important question to emerge from the Williams saga is how could he possibly get a ten year longer sentence (when you factor in time he has already served) than Julian Knight? Knight killed three more people than Williams. All of Knight’s victims were picked at random; their only failing is that they were in the wrong place at the wrong time.

The answer to this rests in the vagaries of the intellectual and moral wasteland that is the Australian sentencing process. In this anti-system decisions are made not on the basis of transparent rules and principles, but in accordance with what judges ‘feel’ is right.

So what are the failings of the system and what can be done to fix it?

One of the main problems is that for serious crimes there is only a maximum penalty (which is never imposed), but no minimum and hence judges get to pluck out a sentence that feels right on the occasion. They have virtually free rein because there over 300 different (mainly misguided) factors that can either increase or decrease the sentence.

A common mitigating factor is remorse. The problem with this is that remorse is typically feigned, or at most regret at being caught. Moreover, if offenders are actually sorry for their misdeeds, this logically should not entitle them to a discount. Minimal decency commands that people should be sorry for harming others and people should not get a benefit for what is expected of them.

One of the reasons for the big whack given to Williams was because of his apparent lack of remorse. In truth, Williams should have been commended for his decision not to sulk to the judge, thereby sparing the court the dishonest remorse subterfuge.

In order to inject principle into sentencing, all of the aggravating and mitigating factors need to be abolished and we need to start from scratch in developing a system of smart sentencing. The first step in this system is to match the seriousness of the crime with the harshness of the penalty.

In terms of setting the amount of punishment, the main determinant should be the principle of proportionality, which prescribes that the pain inflicted by the punishment should be commensurate with the harm caused by the offence. Minimum penalties are the only way to achieve this outcome.

So what was the appropriate penalty for Williams? All murders are heinous offences, including those committed by Williams. Death is final and hence homicide is the offence where it is the most difficult to match the carnage caused by the offence and the pain that should be imposed on the offender.

As a community we need to impose a minimum penalty for all murders that expresses our unequivocal condemnation at such crimes. Twenty years as a minimum does this. Given that all of the killings by Williams were part of the one underworld culture transaction, a significant portion of each crime should have been served cumulatively. Williams should not be serving more than the 27-year term imposed on Knight.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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