Difference between tax cheats and killers? Not much in Victoria
Friday 17 May 2019
- Opinion piece for The Australian by Mirko Bagaric, Professor of Law, Swinburne University of Technology
Any system of justice that penalises people for lodging dodgy business activity statements in the same way as remorseless husbands who kill their wives is ethically and jurisprudentially disfigured. Welcome to the pitiful state of sentencing law in Victoria in 2019.
Several weeks ago the Victorian Supreme Court sentenced Borce Ristevski to nine years imprisonment with a minimum of six years for the manslaughter of his wife, aged 47, in their family home.
After he killed her, he dumped her body in a forest and for nearly three years denied involvement in the killing. Her body was not discovered for eight months.
At her funeral, Ristevski was the pallbearer and pretended to be an innocent grieving widower. Even after pleading guilty Ristevski, 55, did not disclose why or how he killed his wife, denying her family the closure of why and how she died. Ristevski was remorseless until the end.
The sentence he received is on par to that received by tax dodgers such as Martin Aitchison in 2015, who across a period of several years over-claimed on his BAS returns to the tune of $5.8 million to save his struggling business and fund his lifestyle. Like Ristevski, Aitchison was a first-time offender, but at least Aitchison had the decency to plead guilty at the earliest opportunity and accept responsibility for his offending. He still received a sentence of eight years with a minimum of five.
Of course, taxes run the economy and no one likes a tax cheat. But in any legal system that purports to incorporate even the crudest principles of justice, there is a hierarchy of crime and punishment. And it is repugnant to suggest killing a wife and mother can come close on any measure to the harm caused by tax evasion.
On any normative and jurisprudential assessment, the sentence handed out to Ristevski is profoundly inadequate. It breaks one of the few non-derogable principles of justice. The principle of proportionality is universally endorsed, except of course in the Victorian sentencing system. It provides that the severity of the punishment should match the seriousness of the crime.
It is farcical to contend that the pain Ristevski will experience by being locked up for six years is even remotely equivalent to the devastation experienced by his wife and the suffering inflicted on her family. Six years is a blip in an otherwise fulsome life. Death is final. It is tragic.
Aitchison received a year of jail for each million he took from the ATO. Ristevski received a year of prison for approximately every six years he took from the life of his wife. Rarely have the scales of justice malfunctioned so badly.
And it is of little moment that Ristevski pleaded guilty to manslaughter, not murder. He pleaded guilty to manslaughter by unlawful and dangerous act. This is not some sort of accidental killing.
The elements of this offence require he intentionally committed an act against his wife that was both dangerous and unlawful.
It must be so dangerous that a reasonable person would be aware that it carried an appreciable risk of serious harm. The maximum penalty for the offence is 20 years.
It is inexcusable that a man who kills his wife and the mother of their children can walk free from prison in six years. This outcome would be intolerable in any sophisticated, transparent and fair system of justice. It is tolerable only in a rudimentary sentencing system that prioritises the intuition of judges over normatively sound principles informed by empirical evidence regarding the appropriate objectives of sentencing.
Hence, it is not surprising that this sentence would be imposed in Victoria, where sentencing is a principle wasteland and is instead guided in the main by the intuition of ex-lawyers who happen to be appointed as judges.
The courts lack the candour to describe sentencing as intuitive and instead refer to the decision-making methodology as the “instinctive synthesis”. This is an empty phrase that does nothing other than mask the fact when judges sentence offenders they can sentence pretty much anywhere from no punishment to the maximum penalty, with the main determinant being their instinct regarding how bad the crime seems and the diverse range of sentences imposed by other judges for similar offences.
The integrity of the Victorian sentencing system has been shaken, rightly, by the sentence in the Ristevski case. The sentence sets back the community education campaign against violence towards women. The Victorian government urgently needs to implement sentencing reform.
The starting point is to ensure the punishment for all serious offences matches the gravity of the crime. The manslaughter of any person should never again result in a prison term of less than 10 years actually served in prison.
Professor Mirko Bagaric is director of the Criminal Justice and Sentencing Project at Swinburne University of Technology. Read his opinion piece orginally published in The Australian.