Brian Edwards Media

Misplaced Sympathy for the Teenage Killer of a Four-Year-Old Boy

Austin hugs Emma Woods after sentencing. Pic: The Press

I’m rarely in agreement with Michael Laws, but I was in general agreement with his column in yesterday’s Sunday Star Times. Laws was discussing the sentence handed down to 18-year-old Ashley Austin. 

As he was attempting a ‘a controlled drift’ in Christchurch’s Linwood Avenue, Austin’s illegally modified car had mounted the grass verge, driven across the footpath and ploughed into Emma Woods, her  4-year old son Nayan  and his 6-year-old brother Jacob.  Nayan could not be resuscitated and died at the scene. His brother was seriously injured. 

Austin, who pleaded guilty to dangerous driving causing the death of Nayan and injury to Jacob and Mrs Woods, was sentenced to six months community detention, 200 hours community work and disqualified from driving for three years. The seemingly inadequate sentence reflected Austin’s conduct at the scene – rather than running off, he had stayed and  attempted to resuscitate the four-year-old  – his evident remorse and the wishes of the boys’ parents,  Emma and Duncan Woods. 

The Herald reported: 

In a remarkable display of forgiveness, Emma Woods embraced a sobbing Austin outside Christchurch District Court after the sentencing this afternoon. 

“We do not believe he can be punished any more severely than by having the guilt of this accident on his conscience. [Mrs Woods said] 

“I guess he made a mistake that had pretty horrendous consequences, but that doesn’t make him a bad person. 

“And he’s done a lot since the accident to attempt to make amends or try to support us. 

“I don’t think somebody like him belongs in jail. I don’t think he’s going to learn anything from being in there. The mistake he made, he’s not going to do it again.”    

In his column Laws expresses astonishment at the lightness of the sentence. ‘It is,’ he writes, ‘the worst message to send to such a fringe criminal community [of teen hoons]… The killing of a child – by accident or design – must always invoke the strongest sanction.’ 

But it is this passage from his  column that I would like to reinforce: 

‘… to tolerate a justice system in which the victims have such sway over the sentencing of a criminal is inherently wrong.  It inevitably leads to different sentences dependent upon the attitude of the aggrieved.’ 

He is absolutely right. 

I have very little doubt that victim impact statements, delivered in court,  have real value in allowing the victims of crime to confront those whose actions have negatively affected and in some cases destroyed their lives, and to express their sorrow and anger face to face with the authors of their misfortune.  

But that is as far as it should go. To allow the victims of a crime to influence, let alone determine the sentence that will be handed down to an offender is to turn the justice  system into little more than a lottery in which those lucky enough to have offended against  forgiving victims get off lightly, while those unlucky enough to be confronted by victims seeking retribution receive the harshest punishments. 

Justice cannot be capricious. It must be even-handed.  As far as possible, the same crime must receive the same sentence, influenced only by extenuating or aggravating  circumstances which cannot properly include the opinions or attitudes of the offended parties, whether liberal or hard- line. 

The more serious the crime and the broader the available range of punishments for that  crime, the more dangerous and inappropriate the idea of victim influence on sentencing appears. In many American states the sentence for murder may be a lengthy term of imprisonment or death. Should the wishes of the victim’s family or friends be a factor in that determination? You can only answer yes to that question if you believe that life or death can properly be decided by little more than the toss of a coin. 

In this particular case, 18-year-old Ashley Austin killed a four-year-old boy, seriously injured his 6-year-old brother and forever changed for the worse the lives of that family. His actions were the result of absolute selfishness and reckless indifference to the lives of other people. A vehicle inspection report after the ‘accident’ revealed that the car had lowered suspension with stronger springs to enable the car to slide more easily and that the hand brake did not work on the rear wheels. The car had been illegally modified to the point where it was ‘only suitable for a controlled environment like a race track’. 

To satisfy his desire for excitement, Austin chose to drive this vehicle on a public road. He showed no concern for the safety of others. He was reckless in his disregard for their lives. As a result he took the life of a four-year-old boy and nearly the life of his six-year-old brother. He weeps in court. He is remorseful. But in Laws’ eyes, and in mine, this delicacy of sentiment comes too late, is too convenient, fails to make amends, almost adds insult to injury. Had I been the father of that child, I might have screamed in court, ‘I don’t want your bloody remorse; I want you to have had enough human decency, enough unselfishness,  enough conscience not to put the lives of other human beings at risk for your own satisfaction. You do not deserve my forgiveness. Nor will I be your advocate.’ 

Emma and Duncan Woods did not see it that way. While I can and do admire them for their generosity  of spirit, I find their plea that Austin not be sent to prison (for however short a term) misguided and the court’s acceptance  of that plea misjudged and setting a dangerous legal precedent.

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46 Comments:

  1. Maybe he wasn’t sent to jail because the judge realised, with or without the victim impact statement, sending him there would do no good, would probably do harm, and the best thing for society was to get a decent, functioning, and much wiser human being out of this tragedy. That and the fact that his actions immediately after the tragedy were commendable (he administered CPR and tried to save the boy), that he was remorseful right from the start and that there is no lesson he could learn in jail.

    That Nyan’s parents realised this as well is amazing and admirable, but from memory, I don’t believe the judge said the sentence was a direct result of their attitude.

    • Maybe he wasn’t sent to jail because the judge realised, with or without the victim impact statement, sending him there would do no good, would probably do harm, and the best thing for society was to get a decent, functioning, and much wiser human being out of this tragedy.

      If you have a look at any of the posts I’ve written on crime and punishment, you’ll see that I’m not an advocate of prison sentences and I would, in fact, agree with most of what you’ve said. I’m not sure whether the judge gave any specific indication of whether the sentence was influenced by the parent’s plea on Austin’s behalf, but he did refer to it and I have very little doubt that it was a factor. The core of my argument had to do with consistency in sentencing. Victims’ appeals for softer or tougher sentences in cases involving them must be ignored in the interest of judicial fairness.

  2. Everyone is entitled to an opinion and everyone’s opinion is valid even Mr Laws. That said, sentiment and opinions aside; being right, does not always make it right and let’s not mistake the law & justice.

    The law and justice to quote a line from my wife’s favourite tv programme seem to be “a paradox wrapped up in oxymorons and smothered in contradictions.”

    Please correct me if I’m wrong,but I did notice there was a judge in the court who made the final decision and passed judgement.

    Then again maybe it’s because I’m a simple Bulgarian Maori that I get so easily confused.

    • Please correct me if I’m wrong,but I did notice there was a judge in the court who made the final decision and passed judgement

      To answer your hypothetical question, you’re not wrong. There was a judge in the court and he did make the final decision and passed judgement. The question is: Would that judgement have been different if the four-year-old’s parents had not said they did not want him to go to prison, or had asked that he be sent to prison? If it would, then the teenager’s fate would have been in their hands, not the courts. That is not how justice should be administered.

  3. This is not really relevant to the discussion but .. you quote the NZ Herald. Where did this crime occur? Christchurch? Do they not have a paper to which you could refer? Or is the Auckland media all one needs?

    • This is not really relevant to the discussion but .. you quote the NZ Herald. Where did this crime occur? Christchurch? Do they not have a paper to which you could refer? Or is the Auckland media all one needs?

      You’re right – I really can’t see the relevance of your question. The Herald gave a lengthy and comprehensive factual report of the case and I have no reason to doubt its accuracy. This is a small country and significant events are reported nationally and not merely in the areas where they occurred. The NZPA has a major role to play in that. Consider the reporting of the Christchurch earthquake as an example. In that case I was careful to get the Christchurch perspective by reading The Press on line. But there is nothing particular to Christchurch in this story. I accept that occasionally posts on this site will have more relevance to Auckland than to other centres. But the reality is that this is where I live. Blogging is not a job for me. I don’t get paid and I rather object to the idea that I have some obligation to cater for the parochial sensitivities of readers.

  4. @BE

    You use the phrase “controlled drift”.

    To my understanding (largely garnered from accounts in the ‘Press’ and Fridays article on TV3) Austin was not actually drifting (which does imply a level of irresponsibility), rather he took a corner normally but his poorly modified car slid and hit the poor Nayan.

    I believe from following the story that the description ‘drifting’ was conflated with the incident the very night of the event in early press reports (it must be remembered that this event occurred arround the same time as a boy racer fleeing from Christchurch police killed two people in a crash near the site of Nayan’s death).

    Austin undoubtedly made a serious error of judgement by illegally modifying his car to the point that it could not handle a slick and rain-swept winters road. He also made the mistake of driving a model of vehicle synonymous with boy racers in a city plagued by them (these in isolation are not crimes, but will damn a person in the eyes of many)..

    From my standpoint Austin is guilty of lethal stupidity in modifying his car to the point that it could not be safely driven (purhaps an act of youthful hubris and dangerous arrogance).

    Other than that he did no more than than to drive home from work in the rain and wide up sliding on a slick road and killing a small boy. This is an act he showed immediate remorse for and will live with for the rest of his life.

    Unfortunately young men will take risks which at times will have lethal consequences, and undoubtedly there should be strict consequences for such action.

    However, sometimes there occurs such an incident whereby any deserved consequences can surely be mitigated some circumstances – I think Austin’s case may be such.

    I am thankful that our society still has courts that can recognize this, and people that are as saint-like as Emma and Duncan Woods.

    I am sorry I cannot share either your own (or Law’s) sentiment on this matter.

    • You use the phrase “controlled drift” etc.

      A very reasonable comment. But the thrust of my post was that sentencing decisions cannot be made, even indirectly, by the victims of crime. One can argue in this case that the outcome was reasonable. But the same set of circumstances with a family demanding retribution might well have resulted in an entirely different sentence which, incidentally, you would not have approved of at all.

  5. I think the danger in more lenient sentences being handed to “visibly sorry” offenders is that it will soon behove everyone caught commiting a serious crime to immediately burst into tears, pronounce their deepest sorrow and regret, etc etc.

    I’m not saying this is necessarily the situation in Ashley Austin’s case, but if such skewed sentencing trends continue, behaviour like that is likely to become the norm. And why wouldn’t it, if it means the difference between a person getting a custodial sentence, or a community-based sentence?

  6. Some months ago you got commented forcefully on the inhumanity of the case of a young girl who was sentenced to a minimum term of 16 years after battering an old man to death with his own walking stick. I generally agreed with your argument. I disagre totally with you now.

    You are arguing that this young man who by all accounts is truly remorseful for his actions should be imprisoned. Apart from making you feel better what good would it do? I doubt whether it would prevent a single road death. This way at least gives this boy some chance to rehabilitate himself and at the same time do something useful by way of community service.

    Were I the parent of that child I would not have been as forgiving but I still doubt whether locking the youth up would achieve much. Perhaps conscience and remorse are the best punishments of all. Were I respnosible for a child’s death prison would not make me feel any worse.

    Finally let’s remember the element of ill luck; 30 seconds earlier or later the crash would barely have made the local newspaper and that is so often the way in these tragic events. I can think of times in my irresponsible youth where with a slight change of timing I would have been in the same situation and my life ruined. So if the parents can show some compassion I would have thought Brian Edwards might be able to. Compassion is the last thing I would ever expect from Laws who clearly is rooted in the Old Testament.

    • Some months ago you got commented forcefully on the inhumanity of the case of a young girl who was sentenced to a minimum term of 16 years after battering an old man to death with his own walking stick. I generally agreed with your argument. I disagre totally with you now.

      That’s fine, Ben. But what continually astonishes me about so many comments to the site is the absolute all-or-nothing mentality of the writers. My post wasn’t about imprisonment at all; it was about consistency in sentencing and the dangers inherent in placing too much weight on the particular views and wishes of victims. I have written dozens of columns, articles and posts on the general futility of sending people to prison. I am, to my knowledge, oneof only two people to twice be awarded the New Zealand Media Peace Prize, the second for my writing on this very topic. But, in addition to the issue of sentencing consistency, there are issues here of public confidence in the law and of the signal which this particular case appeared to send. Nor do I place much store by your argument about luck. This family’s luck ran out, when Austin chose to drive an illegally modified, dangerous vehicle on the public road. End of story!

      And, for the record, while entirely agreeing with you about the futility of lengthy prison terms in the rehabilitation of offenders, most of whose backgrounds were the root cause of their offending, I’m also a believer in the early ‘short sharp shock’ for first time offenders who have no such backgrounds, but are, as in this case, intelligent, employed and, you would have me believe, otherwise decent and repsponsibe citizens who ‘just made a mistake’.

  7. “Controlled drift” is a Formula One racing car concept appropriate for those machines on appropriate tracks.
    It is not something to be attempted on suburban streets by any type of car.

    The speeds and cornering angles are extreme.

    The required driving ability is very very high.

  8. BE: The core of my argument had to do with consistency in sentencing. Victims’ appeals for softer or tougher sentences in cases involving them must be ignored in the interest of judicial fairness.

    But there’s an interesting thing about judicial fairness Brian. Judicial fairness has to weigh up three things: the desire for revenge; fair punishment; future good.

    Let’s break them down. In this case there was no desire for revenge.

    The perpetrator had (and is continuing to) punished himself severely (look back over those news reports, read to the last of one – you will observe he has attempted suicide).

    Given the above, what future good could possibly come of imprisoning him? Seriously? This is a young man who has done ABSOLUTELY NOTHING MORE than a very high proportion of young New Zealand men have done. There was no malice. There was no more ignorance than afflicts a very high proportion of young men. And he has crucified himself over it. His remorse is palably genuine. There is so obviously no play acting involved.

    It’s tragic.

    And it would be even more tragic to waste another life.

    I cannot share your, or Michael Laws’, sentiments.

    • Judicial fairness has to weigh up three things: the desire for revenge; fair punishment; future good.

      Ashley, the desire or lack of desire of victims for revenge should have no role in sentencing. You’re happy with this case, because there was no desire for revenge. You would, presumably, not have been happy and would have argued against your own proposition had the Woods wanted Austin to go to prison and their wish had been granted.

  9. BE: The question is: Would that judgement have been different if the four-year-old’s parents had not said they did not want him to go to prison, or had asked that he be sent to prison? If it would, then the teenager’s fate would have been in their hands, not the courts. That is not how justice should be administered.

    That only addresses the first of what I consider tht three elements of fair sentencing. When one considers fair punishment and future good, it is obvious that the desire for revenge was, actually, irrelevant. Even if the parental desire had been for revenge, it would have been outweighed by the other two elements.

  10. Brian,
    good on the Woods for knowing how to move on. Forgiveness is a powerful thing. It even managed to shut our shallow media up for a bit.

    Then again…the driver was a nice middle-class pink kid…someone most newsrooms could relate to…

  11. “Emma and Duncan Woods did not see it that way. While I can and do admire them for their generosity of spirit, I find their plea that Austin not be sent to prison (for however short a term) misguided and the court’s acceptance of that plea misjudged.”

    You’re entitled to believe them to be misguided, and if the court agrees with you not them, the offender should be locked up. But in this case it would seem their view was listened to, can we not accept that? If this means that they have had a say in sentencing so be it. Isn’t it a good thing for the courts to listen to the victim and, without creating manifestly unjust outcomes, act on their wishes?

  12. I agree that in my opinion the sentence lacked sufficient weight to prove a detterent to others.I do not consider prison to be an appropriate option.The familys comments allowed them to express forgiveness which may help them overcome this adversity.Hate ,anger ,the need for revenge,do nothing to help people recover from such events,although they are common expressions of grief.Judgement about the authenticity of remorse is a personal and difficult conclusion to accurately draw.I find it difficult to allow luck to be a factor in most traffic accidents.The moment the car was modified tipped the balance towards an accident waiting to happen.Perhaps Austin should audit all boy racers in his area and recant his story to deter this ever happening again.

  13. “I’m also a believer in the early ‘short sharp shock’ for first time offenders who have no such backgrounds”

    And what good does this ‘short sharp shock’ (I assume you mean prison) actually do other than have someone who may already have learned their lesson mix with hardened criminals and possibly be set on a path of crime?

    I realise the tenor of your argument was about consistency, but in doing so you give the very clear impression that if it had been up to you a spell in chokey for this youth would have been the sentence. If I have misinterpreted you, my apologies.

    I agree with you about consistency of sentencing or lack of it and short of mandatory sentencing there is no way of overcoming this. What would be interesting to know is what the sentence would have been had the family in this case been vengeful.

    Judging from the number of cases where the victims bemoan the inadequate sentencing, it seems to me that our judiciary is quite capable of ignoring the emotions of victims.

    Prison has to serve some sort of purpose – punishment, deterrent, rehabilitation. I happen to beliieve in this case that none of those purposes would have been served.

  14. I agree with the sentiment, and am concerned about the wisdom of victim impact statements. If, as you have outlined, the statements are taken account of in the sentencing process then that process becomes a lottery, where one is best advised to commit crimes against the merciful rather than the vengeful. If they aren’t taken account of, then the exercise is a sham and may do more harm than good when victims and their families realise this.

    Obviously many cultures do not share this view, and adopt different practices where the family of the deceased adopt a greater say. Concepts of utu and wergild (not sure of spelling) played their part in traditional Maori and Anglo-Saxon cultures, and they are basic human ways of resolving conflicts. However in modern New Zealand we believe that the criminal law is a matter for the community as a whole, expressed through the agencies of the State, and we should be very careful and think very hard about changing this basic principle.

  15. I think to send this guy jail would have achieved nothing……I think also when it comes to sentencing you need to look at their background…if someone has a history of reckless driving, drink driving etc then lock them up and throw away the key(and yes even if they had a shit childhood that does not excuse them from being decent citizens)and in this case I think thats the difference…this young guy worked, didnt have any other troubles so i think the judge made the right choice.

    Drink driving sentencing needs to be looked at big time….to me if you drink and drive and kill someone…thats murder!

  16. To allow the victims of a crime to influence, let alone determine the sentence that will be handed down to an offender is to turn the justice system into little more than a lottery in which those lucky enough to have offended against forgiving victims get off lightly, while those unlucky enough to be confronted by victims seeking retribution receive the harshest punishments.

    Thanks for pointing this out, and I agree. The circumstances of this case strike me as similar to what’s now underway with the recent incident where spotlighting shooters killed the woman at DoC’s Kaimanawa Road campsite, which I’ve been trying to follow closely.

    It’s already brought out people closely affected by the woman’s death, publicly posting in forums of their thoughts and feelings after the incident, and there’s been a lot more sympathy from the shooter than might often be expected. (eg. This comment from a close friend of the deceased, or this comment from a person who was there as it happened.) Reportedly even her father holds no grudge. Oh, and the guy who pulled the trigger is devestated that he killed someone. Good on these people associated with the victim and incident for not letting themselves be overcome with feelings of revenge as is so often reported to happen, but I sincerely hope the courts look at the case objectively.

    As someone who often uses those kinds of campsites, I’m having trouble sympathising with the man or his friends when the only distinguishing factor I can see between them and others who do similar things is that their idiotic recklessness happened to result in someone dying, which was bound to happen sooner or later and will likely happen again.

    I also know, however, that I’m not impartial, and whatever comes out of the police and court process will probably be far better considered than I could accomplish on my own, and that no matter what happens, any sentance by itself is unlikely to reduce the chances of something similar from happening again. (People who act stupidly have a way of rationalising it to themselves, telling themselves that it couldn’t possibly happen to them then seem somehow surprised when it does.)

    I do hope, however, that the courts consider the circumstances objectively and don’t become sidetracked by victim statements. There’s more out there to consider than the people who were close to the actual victim of a past tragedy, and we’ll very rarely know what dead people might have thought about the person who killed them anyway.

  17. What on earth has got into you, Brian? For nearly fifty years you fight the good fight against the Michael Laws of this world, only to give it all away in this uncharacteristically confused posting.

    The young man clearly lacked the intent to harm; he remained at the scene; he did his best to save the little boy’s life; he is filled with remorse; he has tried to make amends; he has pleaded guilty and accepted his responsibility.

    For God’s sake, man! If ever there was a case for judicial leniency – this is it. What possible good could be served by imprisoning this young man?

    In a world filled with hate and the lust for vengeance (epitomised by Laws and his ilk) to see a man of your deserved reputation for rational liberality deprecate understanding and forgiveness is deeply, deeply depressing.

    In the words of the 19th Century English jurist and writer, Sir Thomas Noon Talfourd:

    “Fill the seats of justice with good men, not so absolute in goodness as to forget what human frailty is.”

    • What on earth has got into you, Brian? For nearly fifty years you fight the good fight against the Michael Laws of this world, only to give it all away in this uncharacteristically confused posting.

      Well clearly, Chris, the only sentence most of the commentators, including you, read in my post was the sentence:”While I can and do admire them for their generosity of spirit, I find their plea that Austin not be sent to prison (for however short a term) misguided and the court’s acceptance of that plea misjudged and setting a dangerous legal precedent.”

      What seems to be missing in these comments is an understanding of the simple fact that the inevitable corollary of judges being more lenient to offenders who have support from the victims of their crimes is that in the far more common situation where the victims and the general public are baying for revenge, judges will be (and already are) considerably more severe in sentencing – the very thing that ‘liberals’ such as you and I oppose. This does seem to me a case of wanting to have your cake and eat it too.

      I’ll accept that it might have been better if I hadn’t mentioned prison at all, since it clearly distracted from what I believe is an entirely sound argument. But Chris, if you’re going to adopt this somewhat superior and patronising tone, you might be better to avoid the hyperbole which suggests that 50 years of ‘fighting the good fight’ can all be ‘given away’ by a single sentence.

      And though, as I indicated in the post, I very rarely agree with the things Laws currently writes in his columns, I’m unwilling to pigeon-hole him in a category labelled ‘the Michael Laws of this world’ or ‘epitomised by Laws and his ilk’. This, I take it means, ‘the mindless, right-wing bigots, who don’t share my liberal views’. Whatever he is, Laws isn’t mindless. And the ‘liberal’ amateur psychologist in me sees a deeply troubled individual who, for personal reasons I’m not entirely aware of, has become a very angry and frequently irrational person. Perhaps even someone who deserve the consideration of ‘good men, not so absolute in goodness as to forget what human frailty is.’

  18. I think the thread is diverging into two separate discussions.

    There is Brian’s original argument, regarding the general principle of the appropriateness or otherwise of victim impact statements and the like. I’ve added my ten cents in an earlier comment, agreeing with him and expressing concern about their use.

    There is also the separate question of the merits of the particular sentencing decision, and of similar offences generally. It’s not clear exactly what impact the statement of the victim’s parents had on the judge in determining sentence. Sentencing decisions involve taking a number of factors into account, and so I tend to be reluctant to second guess them. But, to the extent that the decision involved taking the parents’ wishes into account, I am concerned. I agree with Chris’ comment about the need for those on the bench to appreciate human fraility, but think this moves us away from Brian’s original point.

  19. @ BE: I agree with Laws and you. But this post does seem at odds with your previous one: “Meeting Brutality with Brutality” (12/09). Here, the two girls’ demeanor, in court, was one of defiance and sullen indifference as to the consequences of their sustained savagery upon a defenseless pensioner. These two, whom had been benefactors of the deceased’s generosity, made their crime even more appalling. They deserved everything they got. And more.

    Ashley Austin should have done “time”. Period. This tragedy came about, due to a lethal admixture of a reckless-and-irresponsible youth, driving his illegally-modified car and indulging his passion for dangerous road thrills by way of “controlled drifting”; not only imperilling other motorists but also pedestrians. I’m not convinced, that Austin wasn’t “having a bit of a play” in the wet conditions, when his car mounted the curb, taking a life of the young boy and injuring the brother.

    To the parents, there is this ineffable sadness as to their loss, it seems incredibly elusive and complex as to the causes (why?) and simple in its effects: they lost a child. It could be that their “generosity of spirit” towards Austin, helps them to come to terms with their grief: by showing Ashley Austin their merciful graces, something that was denied to them.

    Austin’s very public showing of remorse (well-schooled), coupled with the parents’ act of forgiveness — appear to have had maximal effect upon the judge’s sentencing. But it should have been no more than just an abstraction: to be given an airing in court, but excluded from the judge’s considerations. The sentence should not have been made within the vacuum of Austin and the parents; this is “tailor-made justice” based on the respective responses from both the offender and his victim’s family.

    The court needed to send a strong signal — that a life was was lost through a high degree of wanton carelessness and selfishness. Remorse and Forgiveness, do not meet the court’s threshold for mitigating circumstances.

    • @ BE: I agree with Laws and you. But this post does seem at odds with your previous one

      I don’t think so, Merv. It was not my view that the two girls should not be incarcerated. My objection was to the brutality of the sentence, by sending two girls who were both teenagers at the time of the assault to prison for such a horrendously long time and largely ignoring the life experiences that had undoubtedly led to their offending. Here are a couple of paragraphs from that particular post.

      ‘But the tragedy for these girls goes back further than the killing of Mr Rowe. The court heard that both Churchward and Te Wini had lived transient lifestyles, moving homes regularly between relatives in different cities. Since being expelled from school at 13 Te Wini had spent most of her time sleeping or smoking cannabis. She had told a probation officer she ate only once every three days. By 14 she had had two relationships with gang members and suffered from a stress disorder.

      ‘A pre-sentencing report on Churchward said she was intelligent, ‘full of promise’ and, in other circumstances, could have led a completely different life. She had been abused by an older relative and lived in an abusive relationship with a man recently released from prison.

      In his homily to the girls at sentencing, Justice Venning appeared to understand where the seat of this tragedy really lay – in the girls’ family and social backgrounds:

      ‘You are victims of the failure of your own families to provide any sort of direction, support or encouragement to learn any sort of values. They failed you in the most basic of ways.’

      ‘Yet neither the girls’ youth nor their backgrounds moved him to show either mercy or compassion towards the teenagers he had just described as ‘victims’. Instead he chose to meet brutality with brutality. His sentence of life imprisonment with a non-parole period of 17 years was in the finest Old Testament tradition of ‘an eye for an eye and a tooth for a tooth’. In return for taking away Mr Rowe’s life, he took away the lives of two young women, not physically but in every other sense.

      Brutal.

      ‘There is, of course, a dilemma here. Though punishment rarely deters other than already law-abiding citizens, crime cannot go unpunished. Churchward and Te Wini had to be punished. But punishment need not involve the total destruction of the perpetrator. Does Justice Venning really believe that these girls needed 17 years to learn their lesson? Might they not have learned it in 15, or 10, or 5? Might they not have learned it on the day of their arrest or as they stood in the dock listening to His Honour’s homily, that starring moment, so loved of judges, the media and us, their audience? I think they might.

      ‘I don’t know what sentence would have been appropriate for these young killers. But its aim should have been twofold – to satisfy society’s need to punish wrongdoing and to save something from the wreckage of their lives. By his 17 year sentence Justice Venning satisfied the first but rendered the second impossible.’

  20. Sometimes prison is to safeguard the community from further offending.I have never seen prison as a deterrent to the hardened criminal.

  21. Vengeance should never influence the sentence, and I believe from my previous comment that it does not – the constant protests about judicial leniency show that.

    Yes Ben, but now we’re just reiterating our positions. And you refuse to see that if judges’ sentences are to reflect the benevolent wishes of one or two people, you open the door for their sentences to reflect what are, I suspect, the far less benevolent wishes of a majority in the population. Judges should rule according to the law, tempered by common sense and reasonable regard to the apporpriateness of the sentence , given all the circumstances. We may (or possibly may not) disagree on what should have happened to Austin, but the general principle holds true.

  22. I agree with Ben that if more people were like Emma and Duncan Woods our world would be a better place.

    Sadly, however, our world has its share of people who for a number of reasons deliberately harm others or allow them to come to harm through negligence or carelessness, which gets us back to the dilemna Brian has outlined.

    Ben has suggested that the courts should take into account requests from victims for leniency. Obviously some victims will not be so forgiving, and I do not believe that any society can force people to forgive. So in the case of those who do not wish to forigve, or cannot forgive, are Ben and those who agree with them willing to accept their wishes and the inevitable lottery that will ensue?

    It seems we can either have a system honouring the wishes of victims, which as I have acknowledged many cultures have, or a system providing for consistent treatment in accordance with society’s values as articulated through the rule of law. I don’t believe we can have both.

  23. The Sentencing Act 2002 are an eye-opener on why sentences are issued and how impacts on victims should be taken into account.

    Section 7(1)(c) states that one purpose of sentencing is “to provide for the interests of the victim of the offence”. Section 8(f) states that the court “must take into account any information provided to the court concerning the effect of the offending on the victim”.

    Furthermore, section 10 defines how the court’s required to take into account measures to make amends between the victim and the offender.

    By definition in section 4(1)(a), “victim” refers to immediate family members of someone who dies (or is incapable), in addition to those against whom the crime is directly committed.

    I may be reverting on what I said earlier, but to me this suggests that legally the court definitely should be taking victim impact statements into account when determining sentencing. Keeping in mind of course that there are 8 additional purposes of sentencing listed in section 7(1), and 9 additional things listed in section 8 that a court must take into account.

    I’m sure someone with appropriate legal expertise could comment on this with much more authority than I can.

  24. I have a lot of sympathy for the views expressed by those who saw the sentence handed down to Ashley Austin as rather on the light side. But I think it might be well to look into the nature of ‘confession’ and forgiveness, and into the wider issue of justice as well.

    Yes, the youth was (being) thoughtless, selfish, and had (showed) scant regard for the safety of others. Partly, though, that is because he is a teenager. There are times we all reckon teenagers are badly in need a wakeup call.

    But here’s a thing. How often do we hear someone goofing badly enough to inconvenience, hurt or kill another, and try to divest themselves of blame by saying “it was only an accident” – how often? This kid didn’t (the matter was way too serious for that, ‘of course’). But he did do this: he accepted responsibility, tried to make whatever amends was within his power, stayed to face the music, and it is my belief was prepared to accept whatever sentence the Courts were prepared to hand down. If little Nayan’s parents had vilified him unto Kingdom Come, he probably would have accepted that (at least to begin with) as no more than he deserved.

    Now, a lot of crap has been said and written about forgiveness. My attitude to this is: even God, even Christ, demands confession and repentance in exchange for forgiveness (though scrpture doesn’t express itself in precisely this fashion, the implication is clear). But having received this confession, having heard the repentance, the Almighty forgives unstintingly.

    I am persuaded that Ashley Austin’s post-accident remorse and acceptance of responsibility was genuine, and I believe constitutes grounds in our Courts for some moderation in sentencing. The thing is not new (Michael Laws makes it sound as if it were). Everyone must know copping a guilty plea can go some way towards receiving a lighter sentence; in minor cases (e.g. traffic offences) not guilty people (or those brought in on highly contestable charges) have taken the minor lumps in order to avoid incurring the heavier, since it’s the defendant’s word against the police officer’s.

    So the sentence received from a guilty plea might have been less than the maximum anyhow. And the courts, I believe, do take note of the defendant’s personal attitude and response.

    I think what I’m leading to is the nature of justice. We would be mistaken, I believe, to think of justice in terms simply of crime and punishment, or indeed (to cast the net a little more widely), wrong-doing and redress. Repentance and forgiveness has to form part of the mix, not just personally, but socially as well.

    I personally have no quarrel with the sentence handed down (though I’m pretty sure that when the news hit, had I known what it would be, I might well have had). It also has to be borne in mind that we weren’t there – not at the accident nor during the case before the courts. So our position to judge, we must acknowledge, is ‘at a remove’, and is subject therefore to that qualification.

    Cheers,
    Ion

  25. It has occurred to me that the topic of redemption might equally be discussed in this forum, but I’ll leave that to others who might want to take it up.

    Wotcha,
    Ion

  26. I generally agree with the thrust of your argument, that sentencing should be consistent and not dependent on the views of the victim.

    In this particular case for me one key issue was whether he was attempting a “controlled drift” at the time of the accident – if so, then it was much more serious and the sentencing seems light. If not, and he simply lost control during normal driving due to the admitted modifications, then it seems reasonable to be more lenient, especially with the other aspects of remorse etc in his favour.

    I just wonder about the anti “boy racer” stories so common in the media these days. Is this a manufactured hysteria? In reality road deaths are down, and cars are much safer than they used to be. The vast majority of teenagers who get a bit car crazy grow up to be responsible citizens, although more than a few have become lawyers, MP’s and journalists.

  27. I think in the context of this discussion it is appropriate to consider the decision to paroole David Tamahere. We have a man convicted of two appalling murders. He has constantly denied his guilt and refused to reveal the whereabouts of Heidi’s body and in denying his crime he obviously cannot show remorse.

    So what does society do with someone like this? Should society’s forgiveness (and his release is a form of forgiveness) demand some sign of remorse or do we just say that there is no point in keeping the guy locked up any more?

    The other scenario is of course that he may be innocent in which case there has been an appalling miscarriage of justice.

    Any suggestions?

    • I think in the context of this discussion it is appropriate to consider the decision to parole David Tamahere.

      I have doubts about Tamahere’s guilt as I have about Watson and Lundy. If he is indeed innocent then he can neither admt guilt nor tell the cops where the body is. In addition, an innocent man has lost 20 years of his life.

      According to the Parole Board he has been a model prisoner who would have been out years ago, if he’d confessed. The fact that he refused and remained in prison strikes me as suggesting an innocent man.

  28. I have to admit the David Tamahere situation complicates the issue as I see it.

    First is this: he has been convicted of two murders. But that doesn’t mean he committed them: it means society supposes he did, persuaded by the evidence it has to hand.

    If he did commit the murders, but refuses to acknowledge the fact, nor to reveal where the body is hidden, then there are solid grounds for keeping the guy locked up. A failure to express (let alone feel) any remorse might indicate a danger to society at large. I’ve long regarded jail as a means at least temporarily to stop someone committing crimes, rather than a form of punishment.

    But what if the conviction was wrong? It’s happened before, and I daresay it will happen again, however confident the police and the courts that they got the right man. Then Mr Tamahere is quite right to refuse to express remorse for a crime he didn’t commit, and it stands to reason he ain’t in a position to reveal the whereabouts of the victims.

    So what do you do? Compromise, I guess, as unsatisfactory as all comprimises are, with (we fervently hope) due consideration of all the circumstances and for the parties involved and affected.

    Cheers,
    Ion

  29. I recall a ‘Law and Order’ episode in which a man convicted of a rape and murder served his entire sentence and over successive years was never given parole owing to his steadfast denial of guilt, and refusal to participate in any of the corrective programmes conducted at the prison.

    It transpired he was innocent of the crime, as new evidence (DNA) was to demonstrate. The case, then, was this man’s suit against the Department of Correction for failure to grant parole for the entire term of his sentence for a crime he did not commit.

    This weren’t no fairy tale: the man lost the case.

    Sometimes Justice isn’t very just.
    Cheers,
    Ion

  30. Duncan Woods email to you was extraordinarily moving. I respect absolutely your decision to not accept comments for the new thread. But still I feel the need to comment here and indicate that my admiration for the manner in which the Woods have chosen to react to this astonishingly cruel twist of fate knows no bounds.

  31. Whether he is innocent or not the lack of confession seems to hold an unfair bias on his stay in prison.The decision to continue his incarceration defies logic,especially if he’s innocent.

  32. Ashley:
    The only real test of all this hypothesising would be if the parents had vociferously argued that Ashley should have been locked up, with the Judge still handing down the verdict that he did.

    Tamihere:
    It’s uncoscionable that it should be held against a parole-ready prisoner that he still denies guilt. The verdict was the verdict; the sentence the sentence. In some quarters, refusal to concede guilt to win concessions is seen as heroic.

  33. “It’s unconscionable that it should be held against a parole-ready prisoner that he still denies guilt.”

    One might argue that some sign of contrition should be a prerequisite for what is a form of society’s forgiveness. If one is guilty of a crime how can you be considered ‘parole ready’ if you have refused to acknoledge that you haave done anything wrong?

    There are also two prominient cases that demonstrate how inconsistent the Parole Board is in this.

    The first was Peter Ellis who was refused parole because he refused to admit to molesting the children in his care.

    The second was Lesley Martin the euthanasia campaigner who was jailed following the admission in her book that she had attempted to kill he terminally ill mother. There the PB not only declined her home detention on the grounds that she had failed to acknowledge her guilt, but accompanied this with the quite outrageous assertion that because of this she posed a threat to the public.

    I have no view on Tamihere’s guilt or innocence and whether he should be released. What concerns me is that the Parole Board appears to make up the rules as it goes along.

  34. Quite so Ben, but ith the singular difference that, apart from a few unreconstructed loonies in Christchurch, there’s actually not a soul in this country who thinks Peter Ellis was guilty.

  35. > The fact that he refused and remained in prison strikes me as suggesting an innocent man.

    Peter Ellis also has steadfastly maintained his innocence and his stance cost him early release from prison. The facts in the Ellis case are quite different from just about every other criminal case because in the Ellis case there is no clear evidence that any crimes were committed. There is clear evidence, however, that Ellis did not receive a fair trial, nor has received justice since.

  36. Ben, you wrote that “there’s actually not a soul in this country who thinks Peter Ellis was guilty”. I think there are some people – a minority to be sure – who think he’s guilty. I recall an interview that Brian Edwards did with writer Lynley Hood in which, if I didn’t know better, I could have sworn that Edwards was on the side of the hysterical mob.

  37. It is my firm belief that the Ellis conviction was very unsafe. Although I strongly incline also to the view that he was innocent of any crime, I’m prepared to admit to being wrong about that. But the evidence seems on several grounds to have been insufficient.

    I was long given to understand that the judge had the power to overturn a jury verdict if it was clearly unsafe in the light of the evidence presented to the Court. Now, if such were true, I would have thought that in cases where the evidence failed to establish even ‘on the balance of probability’ (far less ‘beyond reasonable doubt’), that the judge would supervene to acquit. From what I have read of the case, Peter Ellis ought never to have been convicted.

    Who was it said ‘Better ten guilty persons go free than one innocent be convicted?’ It seems no one believes that these days.

    OK, then, should he have been brought to trial? On the whole, I think yes. There seemed to be evidence crimes had been committed, enough to indicate that there was a case to answer. But the case is satisfactorily answered, or if it fails ‘beyond reasonable doubt’ (or, if you want a looser criterion, ‘on balance of probablility’) to establish guilt, then the defendant walks free.

    …and not just walks free, but walks free without prejudice.

    In Peter Ellis case I suspect there was no crime (whatever early investigations turned up). It should be a surprise to no one if from time to time a trial discovers this.

    Cheers,
    Ion