5 young white men “of good character” beat Aboriginal man to death

From Michael Brull at the Overland blog, detailing a judge’s decision to give lenient sentences to five young men in the Northern Territory – Scott Doody, Timothy Hird, Joshua Spears, Anton Kloeden, and Glen Swain – who after a drinking spree drove along the Todd River creek-bed deliberately terrorising Aboriginal people sleeping in camps there, and who then beat one of those terrorised people, a young man named Kwementyaye Ryder, to death after he threw a bottle at their car:

Those are the facts. Justice Martin then had the task of interpreting them. He concluded that this ‘crime is toward the lower end of the scale of seriousness for crimes of manslaughter’. Not enough violence was inflicted, and the defendants supposedly could not have foreseen a serious risk of death from their violent attack. Repeatedly kicking someone in the head and hitting him with a bottle and then fleeing when the victim was motionless is apparently not recklessness, but negligence to Justice Martin.

Justice Martin then considered the possible value of inflicting a heavier sentence for deterrence value. He dismissed this too. His grounds for this are particularly striking: the violence ‘arose out of an angry and aggressive reaction to a perceived insult’. Plainly, there could be no value in deterrence with a mere crime of violence perpetrated by intoxicated youths responding to a perceived insult.

What didn’t feature in his discussion of deterrence was what he acknowledged repeatedly was the ‘atmosphere of antagonism towards Aboriginal persons’ manifested by the defendants. Nor was this mentioned as an aggravating feature. Which goes much of the way towards explaining his lenient sentencing: Doody, who did not physically strike Ryder, was sentenced to four years imprisonment to be suspended after 12 months. Hird, Kloeden and Spears were sentenced to six years imprisonment, with a non-parole period of 4 years. Swain had half a year taken off both measures, on account of his confession.

Yet there is one other factor which played a crucial role in Justice Martin’s sentencing, and is arguably the most appalling part of his decision. Justice Martin went out of his way to provide character references for every single defendant. Doody is ‘a person of positive good character’. Hird is a ‘solid, hard-working young man of good character’. Kloeden has an ‘underlying good character’. Spears is a ‘person of very good character’. Swain, like Kloeden, was a ‘person of underlying good character’. These men of good character repeatedly terrorised Aboriginal people for being Aboriginal, before getting a gun to terrorise them further, ending the night by beating a man to death, and then casually driving away without checking if their victim was okay.

Like Michael Brull, I too am ashamed to live in a country where not only can a judge think it’s acceptable to decide that this ‘crime is toward the lower end of the scale of seriousness for crimes of manslaughter’ – but that our media doesn’t even pick up on it at all – how did I never hear of this death when it happened in July last year? These men should have been convicted of aggravated manslaughter at the very least. Shame on them, and more shame on Justice Martin, whose inexcusable leniency sends a signal to other young men in the area that it’s still just fine to terrorise and kill indigenous people any time they feel like it.



Categories: arts & entertainment, law & order, violence

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24 replies

  1. You have got to be fucking joking. I hate this damned country sometimes. I’ll be over here, vomming and crying.

  2. I am not a legal professional and I realise these are different cases tried in different jurisdictions, but on reading the Overland entry and part of the judgement, I was immediately reminded of the recent conviction of Sarah Ward for the murder of Eli Westlake in NSW.
    Ward was a drunk driver who got in a short altercation with Westlake (a young white man) and his friends in Sydney in 2008, during which some food was thrown at her car. She then ran Westlake down with her car, killing him. It sounds like the judgement was that the act was comparatively impulsive and she didn’t mean to kill him. After hitting Westlake, she tried to render assistance at the scene. She has been convicted of murder and jailed for 25 years, 18 non-parole.
    In this case, Doody, Hird, Spears, Kloeden, and Swain deliberately and dangerously intimidated Aboriginal campers with their car, returned later with a pistol to intimidate them further with both the car and the gun, had a bottle thrown at their car by Kwementyaye Ryder and then left their vehicle in order to beat up Ryder, whom they killed. They noticed that Ryder had stopped moving and fled the scene and there’s no mention that they tried to give or summon assistance, in fact quite the opposite for most of them. They pleaded guilty to manslaughter, and the longest sentences imposed were six years with a non-parole period of four years.
    It’s disgusting that the judgement was at all solicitous to Ryder’s killers whose actions were racially motivated, cruel and took place over an extended period of time.

  3. This is disgusting. What the hell does ‘good character’ mean, then? Has never beaten a *white* person to death?

  4. Tell me this will be appealed. Tell me that upon review, the judiciary will find Justice Martin has acted inappropriately. Tell me that our system isn’t broken beyond repair.
    And even if you could, it wouldn’t make up for the fact that this decision could be made by anybody in the first place.

  5. Phew! Thank the gods they were ‘of good character’.
    What would they have done if they were not?

  6. I am not an Australian and do not know the legal system there, but judging from Mary’s comment and the post, it looks like this is indeed a very lenient sentence, or the Sarah Ward sentence was way overdone (would’ve been if it were the Dutch legal system). In that case, I certainly see why racism may’ve influenced this sentencing. Besides, indeed, I don’t see what being of “good character” has to do with it. Sounds like: “Oh they’re of such good character, they cannot possibly have intended to do this!”

  7. I have also never heard of this case before, athough I have heard news reports about the Sarah Ward case. I wonder why.

  8. I don’t see what being of “good character” has to do with it. Sounds like: “Oh they’re of such good character, they cannot possibly have intended to do this!”
    This brutal crime can’t be what they’re really like, because they’re of good character. And how do you conclude they’re of good character? By not counting in that crime, or any of the other crimes – since the harassment and vandalism they engaged in were crimes as well – that underlie it. Circular, privileged, racist.

  9. If this ‘crime is toward the lower end of the scale of seriousness for crimes of manslaughter’ then I don’t want to contemplate what’s at the upper end.
    What a disgrace. And yes, why hasn’t the media picked this up in the southern cities?

  10. What jet said. So sick of “but they are a goooood personnnn!” whenever someone with parents, friends, or a degree commits a crime. Everyone who has ever committed a crime has friends and usually a parent. Even murderers probably love their mother. That doesn’t make them incapable of committing violent crime. A judge, of all people, should know this.

  11. Astrid: the trials were in two different states and thus in two different jurisdictions. But given that they’re not different countries it is still striking.

  12. This makes me so angry!
    Ariane: one of the (few) situations in which the Crown can appeal following a criminal trial is where there is a conviction and the sentence is too lenient. If I was a Crown prosecutor involved in this case, I’d certainly be considering it. However, prosecutors always have discretion, and the Crown may not appeal.
    If appealed, it would go to a full bench of the NT Supreme Court. That court has 5 judges, 2 additional judges (who are also members of the Federal Court of Australia) and 2 acting judges. If it was appealed, I’d be hoping there’d be at least one of the Fed Ct judges on the bench, as it seems to me they’d be less likely to be affected by any sense of collegiality etc.
    Interestingly, Justice Martin is actually Chief Justice Martin, and he was the Commonwealth DPP from 1997 until 2004. It’s actually not uncommon for people who are on the prosecutorial side of the divide as practitioners to be more lenient as judges, and vice versa.
    If the NT Supreme Court didn’t change the sentence, there would be the possibility of appeal to the High Court. However, appeals to that court re sentence are very rare – at least, it’s rare that special leave to appeal is granted in respect of sentences.

  13. Something else has just struck me – only one of the five confessed. So these men are of good character and this was an aberration, but four of them still didn’t admit or take responsibility for it?
    Even if I could manage to construct some circumstance in which this crime was truly and utterly out of character for these men (and that’s a monumental “if”), it’s only plausible if they all admitted their act and showed remorse just about immediately.

  14. There are no words for how infuriating and generally upsetting this is. How in the world can people complain that our legal system lets Indigeneous Australians off lightly, when stuff like this happens. I very much doubt that the sentences would have been so lenient had five Indigenous men been found guilty of killing a white man.

    Is there someone we can write to in order to ask for an appeal? I could have a go at making up a form letter.

  15. Ariane, that’s true, but they did actually all plead guilty. The judge said that only one “fully” co-operated with the police, but he did so after giving a false story at first. He and another one took part in a re-enactment by police, and several of them apologised through their counsel in court. (I agree that an apology can’t make up for anything, but it’s still better than no apology.) There is talk about a couple of them being “relieved” when they were arrested.
    The sentencing system says that all of these things demonstrate remorse, and so from a legal point of view, they’re entitled to have them taken into account. (Whether you agree with the approach or not is a different matter 🙂 )
    Beppie, the person/body which will make the decision is the NT DPP. I very much doubt that a letter to them would be taken into account, for two reasons. (1) A DPP is not really like any other administrative body. They tend to prize their independence and discretion very highly. I may be wrong – anyone who has had any success in writing to a DPP in any jurisdiction should speak up 🙂 (2) The reasons are dated 23 April. It’s likely that any decision about whether or not to appeal the sentence would have to be made within a 4 week period, which would be end on 21 May (I’m not sure about the NT legislation, but 4 weeks to lodge an appeal is fairly standard). So time is tight, and the DPP may already have made its decision. (If the men were actually sentenced on an earlier date, with reasons being handed down later, it may be that the time in which an appeal could be lodged has already expired.)
    I think that some sort of activism aimed at getting the laws changed would be more generally effective (for example, inserting a requirement that any racial “overtones” are taken into account in sentencing – which would mean it wouldn’t go as far as hate crime legislation, which creates a specific aggravated offence, but it would be something which a judge must use to increase the sentence she or he would otherwise award). However, any change to the laws would not have any effect in this case.

  16. …………..fuckin hell…………….. *rage*

  17. Ahh, thanks, Jo Tamar, for the clarification (and full reading of the sentencing report). That does rather change my views, but not so much as to think these are reasonable sentences. It doesn’t alleviate what I see as fairly intense racism in this – the idea that they were provoked, rather than the other way around, for example. Having things thrown at their car is provocation, while driving through a place known to be used by Aboriginal people isn’t (unless legally you can be regarded as having been provoked after you’ve provoked someone else).

  18. I should make it clear (as I think my “This makes me so angry” has the real potential to get lost in the rest of what I said 🙂 ) that the sentences also seem to me to be on the lenient side.
    Now, it should be noted that the sentences are not trivial, so it’s not like these men are not being punished at all. Also, legally, all of the factors that the judge took into account were relevant and should have been taken into account. In light of what I know about the legal context (ie generally), I even think that their previous good character was permissibly taken into account – but I also think that there are some crimes where previous good character should be a much less weighty factor than it appeared to be in this decision. I think that this is one of those crimes, and the legal principles behind sentencing should be adjusted to take that into account.
    My main criticism would be one that Michael Brull made in his post:

    What didn’t feature in his discussion of deterrence was what he acknowledged repeatedly was the ‘atmosphere of antagonism towards Aboriginal persons’ manifested by the defendants. Nor was this mentioned as an aggravating feature. Which goes much of the way towards explaining his lenient sentencing…

    I agree with that completely, and I agree that it’s problematic. There’s a weird disconnect in the reasons: as Michael says, the judge acknowledges the racial overtones and the aggression that was related to those racial overtones – and then completely ignores them in sentencing. That seems wrong to me, and that’s the reason behind my comment in the last para of my comment at #15.

  19. To all those who have posted comments od=n this story,
    Can none of you even beging to comprehend the position Alice Springs is in racially at the moment. Judging by your postings I can make the generalistation that none or a minority of you have been to the Red Centre lately. People who have been on recent trips to Alice Springs directly or even just passing through have said they were frightened for their lives. In reference to everybodys disgust over referring to the five men as of having good character, do you not understand these men had lives before this incident. In reference to a comment by Beppie, could you please ensure you understand racism before you start to judge peoples use of it. You seem to have misunderstood that racism does not only apply to indigenous people or people other than white people. It does work vice versa and if you believe you are a non-racist person you may need to re-read your comment. You stated in your posting that you doubt very much that sentencing would have been as leniant had five indigeonus men killed a white man. This statement is clearly racist towards white people. Making comments such as these just make you more and more of a racist person becuase you are saying black and white people are treated differently. Our country is now over the stage of a “better race”. Please move forward and try to keep up with the country. Now in regards to a comment made by Katherine, according to your comment you are saying that even you are capable of murder because you love your mother. Although clearly from your judgment of these five men you would never be capable of commiting such a crime. If you are going to judge other peoples actions so harshly and quickly please ensure that your comments are completely factual and try not to contardict yourself. To everybody out there that believes the race of indigeonus people are treated to harshly please do a little bit of research into the killing of Ed Hargraves in Alice Springs. Was this another “racially motivated” killing or was it not because this time it WAS a group of aboriginal men against a white man. To all who make postings please ensure that you have all the correct facts before you make such comments.

  20. *sigh*. Bingo.

  21. Being frightened is no excuse for beating someone to death. I have lived in Alice Springs. At no stage was I frightened for my life or my child’s life. Things are not so bad in Alice Springs that we have to resort to killing each other. What these young men did was wrong. Also, the person they killed had a life before they killed him. They still have lives, it was their own actions that mucked them up. He is dead, because they killed him. See the difference?

  22. Georgia Barlow – Your comments stink of racial hate-mongering. In a White-dominated society, there really is no such thing as racism against Whites. Anything that you might interpret as racism against Whites, can never pack the same devastating institutional punch as racism toward Aboriginal people has and continues to do, in this country.

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