Judges should decide sentences, not vote-hungry politicians

OPINION: This could be you.

Have you ever made a mistake when driving?

Ever had those minutes of inattention which ended in a blasting horn, a scream of brakes, and a racing pulse which tells you how lucky you were not to hurt or kill somebody else?

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We've all been there, no matter how carefully we drive, and thank God most of us get away with the fright and nothing else.

So this could be you: a law-abiding, well-respected person of good character, off to jail for 18 months.

For an accident. An accident that was your fault.

An accident that took a life and left you deeply remorseful and with PTSD.

That's not to demean the suffering of the victim and the family in any such case.

A family traumatised by the horror of road death never recovers.

They must be the priority and they must be first to attract community concern, help and sympathy.

What follows is not theoretical. It's a real world case.

Nothing in this is black and white other than the extent of human suffering.

There is much grey.

And it underlines the frustration with the principles behind mandatory sentencing where a parliament removes a judge's "judgement" and tells them when somebody must go to jail.

Mandatory sentencing has been a catch cry for the law and order lobby.

It is based on the premise that judges could potentially let crooks off lightly, and they should be forced to send them to jail.

It is based on the false expectation that tougher sentences reduce crime.

Victoria has a form of mandatory sentencing.

This case shows the dangers behind it that would apply to this type of enforced sentencing anywhere in the world.

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This concerns the death of Michelle Lisa Ruitenbeek on the Nepean Highway in bayside Chelsea in the early hours of March 28, 2019, and it concerns the restraints Victorian Supreme Court Justice Lex Lasry faced sentencing her killer.

This case should make sensible people think.

But it will change nothing because politicians are bound to a "tough on crime" marketing strategy and more interested in doing what is popular than what is right.

Ruitenbeek was an elite triathlete and to look at her photographs makes it obvious she loved every minute of it.

She was training that morning.

She was riding well to the left with excellent warning lights on her bike.

She did absolutely nothing wrong and her death is a hideous tragedy. Worse, it was avoidable.

But there was no intent to kill or injure. No malice.

She died because Joshua Moloney, 31, was not paying proper attention, was not even aware he had struck her, and subsequently pleaded guilty to dangerous driving causing death.

Last week, Lasry sentenced him to two and a half years jail with 18 months before parole.

The judge understands these things.

He is an enthusiastic and experienced recreational cyclist.

He knows cars and driving. He was once a successful amateur sports car racer.

Lasry is also Victoria's most senior Supreme Court judge and his sentencing should be read by every politician and those who think judges are there to dispense the cliched "slap on the wrist".

Because his honour's sentencing, even to the layman, powerfully illustrates the nuances and complexities of setting punishment.

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Moloney does not drink or do drugs.

He wasn't speeding. He has never been in trouble with police. He has a good job.

His friends and family continue to support him.

He is deeply remorseful and is suffering significant mental health issues, including PTSD.

Some will suspect he's spinning a line, chasing sympathy.

But believe him for a moment. He could be any of us.

The judge said he found it difficult to understand how the accident happened.

He said Moloney's moral culpability was high because he had opportunity to see the bike rider and avoid her.

Simply, and tragically, he wasn't paying sufficient attention.

The judge said the guilty man had lived a "good and law-abiding life" and would almost certainly continue to do so.

"These cases are difficult because there is so often an absence of any form of malicious criminality on anybody's part," he said.

So here's the problem: Lasry had no option but to send this man to jail.

Under a 2016 amendment to Victoria's Sentencing Act, the only way jail could be avoided, he said, was to demonstrate "compelling and substantial reasons that were exceptional and rare".

There were none.

Moreover, under a further change in 2018, previous good character and prospect of rehabilitation were not sufficient to keep a guilty person out of jail.

There is no question Moloney had to be punished.

But there were options.

Of course, remove his licence to drive, as happened.

But what about community orders? What about getting him into schools to tell his story of the horror that took a life and possibly ruined his?

Jail is not always constructive.

Some are changed for the better and become crusaders for decency.

Others go from being small-time idiots to full-time crooks.

In this case, and others, there must be questioning as to whether anything is achieved by locking the man away.

At best, it may provide the grieving family with some brief comfort.

Victoria's Court of Appeal judges Chris Maxwell and Terry Forrest also addressed mandatory sentencing in a separate case last week:

"Sentencing courts are much better equipped, and much better placed, than legislators to determine what type and length of sentence will satisfy the sentencing objectives in a particular case."

Lasry was more moderate in his language but sent a similar message.

That's not to lionise judges.

Bad decisions may be made. Some have been out of touch.

I have personally run campaigns to have sentences appealed on the grounds they were "manifestly inadequate".

But there is a mechanism to deal with that.

When the most senior judges in Victoria raise questions, it is time to rethink and review.

The question is who do we trust least: the politicians with a power-driven agenda or judges who some may consider to be out of touch, occasionally seem lenient, but at least sift through every shred of evidence?

We cannot know what Lasry thought was an appropriate sentence here. And that in itself is a warning.

The judge knew the case in detail. The parliament did not.

But it told him what he must do.

To deprive a person of their liberty is a massive punishment.

Some people deserve jail, and lot's of it.

Some do the wrong thing and don't deserve any.

Judges should decide that, not vote-hungry politicians.

Neil Mitchell broadcasts from 8.30am weekdays on 3AW.