The imprisonment of former Federal Court Judge Marcus Einfeld will no doubt invoke a significant deal of schadenfreund for those gleeful at the prospect of a respected judge, QC and human rights advocate falling from grace. Einfeld was sentenced on Friday to a minimum of two-year jail sentence for what was described as “deliberate premeditated perjury” and “planned criminal activity”.

Einfeld infamously blamed a $75 speeding fine on a deceased American friend, Teresa Brennan, and composed a subsequent 20-page statement which was described as being “vivid, fluent and totally fictitious.”

While not diminishing the nature of Einfeld’s crimes, like many other “white collar” offenders, the sentence meted out by Supreme Court of New South Wales Judge Bruce James appears to be wildly out of sync with community expectations and common sense.

Like other high profile felons, such as Glenn Wheatley, Rodney Adler and Rene Rivkin, Einfeld’s sentence appeared as much related to his notoriety than to the actual ramifications of his actions. Einfeld is no doubt not the first person to have acted dishonestly in order to extricate himself from a minor infraction.

The crimes of Einfeld, Wheatley, Adler and Rivkin, while all serious infractions, were far less offensive and damaging than violent crimes, such as r-pe, murder or battery. Many would expect that those violent crimes, in which the victim encounters serious personal injury or death, should result in a far more significant period of incarceration than dishonesty offences such as perjury, insider trading or tax evasion. (It is noted that not everyone shares this view, with Janet Albrechtsen supporting Einfeld’s incarceration, presumably on the basis of his “larger than life personality” and his desperation to be loved by the intelligentsia).

The basic principles underlining sentencing — specifically, community safety, prevention of re-offending, promotion of rehabilitation, deterrent and punishment of the offender — imply that dishonesty offences should be penalised in a different manner than violence. Pertinently, there is minimal community safety benefit in jailing a person for an isolated dishonesty offence. However, recent history indicates that sentencing judges do not hold such views.

In December 2008, a Western Australian court sentenced Matthew Roy McDonald to five years jail (and eligibility for parole in less than three years). McDonald had pleaded guilty to aggravated manslaughter after his cricket bat attack on a father-of-five left the victim dead.

Earlier this month, Geelong man Luke Anderson escaped a jail term despite delivering a near fatal drunken punch which left his 62-year-old victim, former Australian basketballer, Russell Riches, fighting for his life.

In 2002, Victorian Supreme Court justice, Bernard Bongiorno, sentenced two teenagers to four years jail for the manslaughter of grandmother, Marie Greening-Zidan. Evidence had showed that the victim was bashed and strangled and found lying on the floor of her bedroom, bloodied and bruised. She had also been s-xually assaulted. The sentence was later increased to six years by the Court of Appeal.

While the actions of former “living treasure” Einfeld represented an appalling breach of honesty, it is arguable that the former QC has already suffered significantly due to loss of social standing and reputation, such that a jail term for the 70-year-old would have no deterrent effect. Nor does the former Human Rights Commissioner pose any sort of risk to public safety.

It appears irreconcilable that our justice system considers crimes of dishonesty and greed to be deserving of similar (or at times, harsher) penalties as violent crimes such as murder or r-pe. Offences of dishonesty, such as perjury or tax evasion are better served through the imposition of a very significant monetary penalty, coupled with many hours of community service — the expense and effect of incarceration on an already stretched prison system is both unnecessary and immoral.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey