How ‘a fictional plague’ of crime hits the justice system

By KIRSTI WEISZ,
legal editor

"Media, public opinion and the courts – who’s leading who?" was the key question posed by the Sentencing Advisory Council to mark the beginning of Law Week 2016 on Monday.

The panel discussion included Sentencing Advisory Council chair Professor Arie Freiberg, Victorian Supreme Court Justice Christopher Beale, Governor of Tasmania Professor Kate Warner and ABC Radio presenter and former lawyer Jon Faine.

Prof Freiberg opened the discussion by thanking the audience for coming despite the plague of crime sweeping through society.

“I’m sorry to tell you, in case you didn’t know, it may not have been safe to come out tonight because crime is out of control in Victoria,” he said.

He described the two ways the media could influence public policy: the media as agenda setters and the media as reflecting or creating public opinion.

“The media can shape public policy … when it frames issues in a particular way, it puts the facts in a … way that shapes [how] you might think or feel about an issue,” he said.

“It’s not what you say, it’s how you say it and how you tell that story.”

Community perception of the law can drive how it reforms, such as calls for mandatory sentences, increasing police presence, three-strikes policies and indefinite sentences.

Prof Freidberg said the media could set the agenda by creating moral panic, which he described as identifying a problem that created hostility towards a particular group.

“We’ve had moral panics for decades; drugs was a moral panic, juvenile gangs – always a favourite,” he said.

“Now of course it’s the Apex gang, nothing’s changed. Moral panics come and go and we are in the middle of one now.”

Many people may not realise or believe that crime has been decreasing since the 1990s, as Prof Freidberg said.

“Commercial pressures drive the media’s coverage of crime and violence and it reflects a story of crime which is not the reality,” he said.

“It focuses disproportionally on a small number of dramatic and violent cases and leaves out much of the relevant information, which of course results of grossly inaccurate pictures – so there is a common belief that crime is increasing.”

However, ABC 774 presenter Jon Faine said people who automatically took offence at attacks on the legal system needed to stop and acknowledge that the system wasn’t always right.

“Some appalling atrocities have occurred, some glaring short-comings in our legal system and our administration of justice, which haven’t been addressed,” he said.

“The challenge is very much to make sure that every participant in the legal system understands that their job is not to talk in code but in fact to speak in plain language so everyone can understand and make the system accessible in general.”

He said courts needed to have more “showbiz” so that the legal system could run effectively.

“If you want to run a legal system that’s not [a] laughing stock and not a parody of 16^th century England well … get into the fact that this is 2016 and you need to communicate effectively with people if you want your message to stick,” he said.

“In a time of shorter attention spans, social media, what worked even badly 10, 20, 50 years ago will simply not work in future.

“The world is changing so rapidly, and the legal system is so unable to keep up, the risk is that if you thought things are bad now, they’ll be catastrophic in future.”

Justice Beale also said the situation was getting worse with media bias and what he called “media clamour” potentially diverting sentences from their proper role.

“I do think it’s getting worse, those journalists who are not really interested in the facts, who are conducting a campaign, won’t put in those bits that don’t suit their purpose and the community loses out as a consequence,” he said.

When deciding a sentence, a judge must take into account the purposes of sentencing and over 13 considerations under Victoria’s Sentencing Act of 1991.

Outlining these various considerations, Justice Beale asked whether they were included in media articles.

“When you think back to some media reports of a difficult sentencing exercise, just ask yourself … did all these considerations find their way into the media report or have important considerations been left out?” he said.

He also said that jail was a sentence of last resort because it induced “habits of dependency” which could render the prisoner “unfit for life in the outside world”.

“Imprisonment is often seriously detrimental for the prisoner and hence the community,” he said.

The last speaker was Prof Warner, the Governor of Tasmania, who has conducted a recent study in Victoria regarding jury sentencing.

The study found that 61.7 per cent of jurors gave more lenient sentences than the judge. It also found that 2.4 per cent imposed the same sentence as the judge with the remaining 35.9 per cent imposing more severe sentences.

She said the reason they used jurors for the study was because they were better informed as they had sat through the case and heard all the facts.

“I think a good example of this is one of the cases we had in our Tasmanian study. It was a case of a woman who was convicted of assaulting her teenage daughter,” she said.

“The way the case was portrayed in the media … suggested that the judge’s punishment … was much too light, that this mother should be much more severely punished.

“One of the jurors I interviewed … had been discussing the case with her father, who’d seen a programme on television and read about it in the paper.

“He said ‘what a disgrace, what was the judge doing in this case’ and the daughter said to him ‘look, Dad, you should have been at the trial, you just don’t understand the facts’.”

Law Week 2016 started on May 16 and will run until May 21. The Sentencing Advisory Council recommended journalists use the resources on their website when reporting on crime.