It’s easy to be an armchair judge or jury member. I must admit that I was surprised when I read that Thomas Towle was found not guilty of six counts of culpable driving causing death. Instead, the jurors found him guilty of dangerous driving causing death, which is a lesser offence carrying a lesser sentence.
In 2006, the car Towle was driving spun out of control and crashed into a group of teenagers walking home from a party, killing 6 of them and seriously injuring 4 others. After the accident, he fled the scene, leaving his four year old son and ten year old daughter in the car. The parents of the dead teenagers have been outraged and distressed by the lesser conviction, particularly after it emerged that Towle had prior driving offences about which the jury had not been told. Of course, the reports that Towle’s father blames the “sinful” teenagers rather than his son for the accident will distress the parents even further.
But I also know from my own days in practice that it’s very different sitting through an entire case than it is reading a newspaper report. Indeed, the Victorian Setencing Advisory Committee prepared a report on public perceptions of sentencing which established exactly that. In the executive summary to the report it is stated that:
- In the abstract, the public thinks that sentences are too lenient
- In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient
- People have very little accurate knowledge of crime and the criminal justice system
- The mass media is the primary source of information on crime and justice issues
- When people are given more information, their levels of punitiveness drop dramatically
- People with previous experiences of crime victimisation are no more punitive than the general community
- People with high levels of fear of crime are more likely to be punitive
- Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment
- Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions
- Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts
- Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders
- Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture
The report is well worth reading in full if you have a moment. Essentially, the only criminal cases about which we are told in the media are the “juicy” and shocking ones, where the result is newsworthy and sensational. Of course, media outlets like to focus on outraged victims and/or their families in these cases. Further, we only know a small proportion of the facts that come before a judge and jury, and studies have shown that when people are given more facts, their views of an appropriate response change. So I’m wary of claims that sentencing is “too lenient”. In individual cases, mistakes happen, but it is not an across-the-board phenomenon.
Back to the Towle case. The four principal charges against Towle were:
Six counts of culpable driving causing death;
Four counts of negligently causing serious injury;
Six counts of dangerous driving causing death;
Four counts of dangerous driving causing serious injury.
There were other charges, but I won’t mention them here. The first two were the more serious charges, with culpable driving carrying a penalty of up to 20 years in gaol. The second two were the alternative lesser charges, with dangerous driving carrying a penalty of up to 5 years in gaol. In order to prove that Towle was guilty of culpable driving, the prosecution had to prove that Towle was “grossly” negligent, whereas for the lesser charge of dangerous driving, the prosecution merely had to prove that Towle was negligent. In judging whether Towle’s driving was grossly negligent, or merely negligent, the jury could not be swayed by the horrific consequences of the accident or Towle’s cowardly actions afterwards. The question was to what degree the driving up to the accident was negligent?
I can’t answer that question. I don’t know all the information which the jury received. It is clear that he was speeding, with his son sitting on his lap, but I don’t know what the expert evidence was.
We also don’t know what the sentence will be yet. Justice Cummins will consider that question on Monday. However, in that context, I thought I might look at another report by the Victorian Sentencing Advisory Committee, which provides a “snapshot” of sentences for culpable driving causing death. It was interesting to note that the most common sentence of imprisonment for the more serious offence of culpable driving was four years with a non-parole period of two years. The median principal imprisonment level was 5 years. So even if Towle had been convicted of the more serious offence, according to the law of averages, he may still have been facing a sentence of around 5 years. It will be interesting to see what the sentence is. I suspect it will be at the higher end for dangerous driving, but I can’t say for sure.
The other question which has been raised in the light of this case is whether juries should explain their verdicts. Dr Mirko Bagaric and Colin Lovitt QC presented opposing points of view in The Herald Sun today. Presently, juries are not allowed to explain their verdicts to the press or anyone else. This is in contrast to the US, where juries can give interviews to the press explaining why they decided as they did. Sometimes this creates an unpleasant media circus where jury members are hounded by the press.
I think I sit somewhere between Bagaric and Lovitt. I think it’s important for juries to give an idea of why they decided as they did to maintain public confidence in the criminal justice system. As I’ve noted above, the more facts people know about a decision, the more likely they are to find it acceptable. But I think it is really important that individual jury members not be interviewed or identified by the press, and they certainly should not be hounded. I would favour an agreed written statement of reasons produced by the jury, to accompany the handing down of a verdict. Of course, the problem with this is that it may lead to more appeals in criminal cases if a potential flaw is found in the jury’s reasoning. But then, as Bagaric says, isn’t it fairer that we redress flaws than leave them hidden? And I think it’s always better to know than to be left in the dark. It may be that the jury had perfectly explicable reasons for deciding as they did in this case, and I think they should be allowed to give a statement justifying their decision.