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Archive for April, 2009

The Lesser of Two Evils

For those living in Australia, unless you have been hiding under a rock in recent weeks, you will be very aware of the separate criminal sentencing of two prominent Australian figures; Sportsman Nick D’Arcy and former Supreme court Judge Marcus Einfeld.

These two unrelated cases had me thinking…   How does a court determine appropriate punishment in sentencing?

In the case of Nick D’Arcy, convicted of violently bashing in the face of his fellow teammate, and subsequently sentenced to a 14 month (non custodial) suspended jail term.
Marcus Einfeld, convicted of committing an act of perjury in lying to a court, was sentenced to 3 years in prison.

Should a court consider the character of the

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individual in determining an appropriate punishment?
Of course a court needs to consider all the specific details of a particular case, although it would appear to me that in this particular case, the act of perjury should be a lesser crime than an act of violence against another individual.

When a court considers sentencing, should the social and community building efforts of the offender be considered in sentencing?   In my view, those aspects must be considered.  One has to wonder whether it is reasonable that an individual who has worked to eliminate social disadvantage, improve living conditions for Aboriginal Australians and establish standards of human rights in developing countries, should be gaoled when considered against the crime of an act of violence?

I find Marcus Einfeld’s crime exceptionally disappointing and as a judge he has undermined the very legal institutions he was supposed to stand for, although when considered against a violent crime, it would seem the sentence is out of balance.

Do we have yet another case of Australia showing greater appreciation for the efforts of those in a sporting arena, when compared to intellectual pursuits?

Which is the lesser of two evils?

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