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Letters

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Cite as: (2002) 76(11) LIJ, p.8

We welcome letters to the editor of no more than 400 words.
Email: letters@liv.asn.au. Fax: 9607 9451.
Mail: LIJ, Managing Editor Mick Paskos, GPO Box 263C, Melbourne 3001; or DX 350 Melbourne.
We reserve the right to edit letters and to republish them in their original or edited form on the Internet or in other media. Letters must include a phone number and address for authentication.

Punishment fully justified

I write in response to the letter written by Felicity Hampel SC “Harsher punishment no answer” which appeared in the October issue of the LIJ (page 11). In her letter, Felicity Hampel criticised the 55-year sentence imposed on Bilal Skaf, the ringleader of a series of gang rapes which were committed in Sydney in 2000. She argues that such a sentence “will do nothing to address the causes of sexual assault”, that it is “irresponsible to think that we can solve the problem of sexual offending by sending people to jail for increasingly longer periods” and that it will achieve “in my opinion, nothing positive”.

With due respect, I find her views deeply offensive and fundamentally flawed.

She seems to overlook the fact that the fundamental role of sentencing is to punish the guilty, and that it is not simply to function as a deterrent. Justice Finnane did not pass that sentence under any illusion that it would help address the so-called “causes” of sexual assault. Who knows what “causes” a man like Bilal Skaf to organise (via mobile phone) a group of 13 other men to sexually assault a girl at gunpoint at three different locations over a period of six hours. It is beyond me. For many crimes there is no excuse or explanation, and the offenders should be punished accordingly.

I acknowledge that another of the roles of sentencing is to rehabilitate offenders. However, the aggravated and calculated nature of these sexual assaults suggests that some offenders may be beyond “rehabilitation”. None of the crimes occurred on the spur of the moment and none of the offenders was affected by drugs or alcohol. Bilal Skaf did not express any remorse or contrition during his trial, and according to Justice Finnane “conducted himself as if the proceedings were a joke”.

I disagree with Felicity Hampel’s comment that the sentence “provides another disincentive to women to report sexual assault”. The sentence imposed demonstrates to women that justice will be done, that the punishment will reflect the horrific nature of sexual assaults and that longer sentences will protect other women from those offenders. That said, I recognise that no sentence can truly reflect the ordeal suffered by the survivors of such attacks, many of whom will have psychological and emotional wounds for the rest of their lives. I quote Justice Finnane who said that: “The people of this state owe them a great debt. If they had not been prepared to come forward and to persist, this dangerous group of offenders could not have been brought to justice”.

Perhaps a little praise for the courage and strength of the survivors would be more appropriate than criticism of a sentence which reflects the severity of the crimes. These women have proved to their attackers that they will not let themselves become victims of crime, and I commend them and Justice Finnane for ensuring that these men cannot engage in this kind of activity again.

JESSAMINE LUMLEY

ARTICLED CLERK, DEACONS

For providing the letter of the month, Jessamine Lumley has won a $50 book voucher from the Law Institute bookshop.

Reports recommended reading

I refer to the letter “Lawyers to blame” from John O’Brien in the October issue of the LIJ (page 10). Mr O’Brien identifies the use of juries in medical negligence cases as a root cause of rising insurance premiums for medical practitioners. He asserts there is a 50 per cent chance of having an intelligent and serious jury, and the same chance of “striking a bunch of nitwits”. He calls for the abolition of civil juries.

I have represented defendant medical practitioners for 26 years. Blaming juries for the rise in the cost of medical indemnity is not supported by the Victorian experience of jury verdicts. Most of the verdicts in medical negligence cases in this state have been decided by juries and in the majority of those cases the jury has found for the defendant. Juries have consistently demonstrated an ability to decide the important issues that arise in medical negligence claims and to rise above the emotions often engendered by these claims. I will require trial by jury if the plaintiff does not.

In advocating the abolition of civil juries, Mr O’Brien draws support from the plaintiff lawyers’ lobby in the US paying Mr Bush not to reform tort law. Tort and procedural reform is as much the province of the states of the US as it is of the states of Australia. President Bush cannot abolish civil juries. If preservation of juries was the aim of plaintiff lawyers, their donations to President Bush were misdirected.

The other root causes identified by Mr O’Brien are the “truly astonishing fees” charged by counsel, solicitors and the plaintiffs’ firms that are pejoratively referred to by Mr O’Brien as ambulance chasers. Mr O’Brien’s solution to the three root causes, as he sees them, is to enact legislation similar to that of the TAC and Work Cover compensation schemes. Many counsel who are regularly briefed in medical malpractice litigation also practise in the TAC and Work Cover jurisdictions. It has been my understanding, confirmed by counsel, that their fees are substantially the same across all personal injury jurisdictions. The firms acting for the majority of plaintiffs against doctors are equally active in the TAC and Work Cover jurisdictions. I understand TAC and Work Cover usually elect for trial by jury. The “successful” TAC and Work Cover legislation has not diminished the work of the plaintiffs’ firms, has not reduced the “astonishing fees” charged by counsel and has (fortunately) not eliminated jury trials. Why would the position be any different under similar legislation for the medical profession which Mr O’Brien asserts is the solution to the root causes of the current problem?

I commend to Mr O’Brien the considered reports of the Neave Group and the Ipp Panel and their integrated multiple recommendations to address the concerns in the medical malpractice jurisdiction and the public liability arena.

RUSSELL BALL

SOLICITOR

Children and the care and protection system

Ensuring the best interests of the child is of paramount concern to the community. Recent discussion of the care and protection system has overlooked an important dimension. A “snatch and grab” approach is not appropriate for all cases and ought only be occasioned when the child is genuinely at risk, as a child can also have its life shattered by unwarranted intrusion.

I run a program for clinical placement students at a Melbourne legal centre. We do care and protection work. The importance of protecting abused and neglected children is critical, but sometimes some in the Department of Human Services (the department) take an approach which is defensive and has little real concern for the child and use their investigative powers to cajole and intimidate rather than offer the necessary support many struggling families need. Acting on the basis of very little evidence, they will enter people’s lives threatening removal of a child. Not having sufficient evidence to support their case, they will delay the production of reports, adjourn cases and refuse to explain to often distraught and confused parents and siblings what is happening (even though protocols say they should). This escalates a situation which could often have been worked through with better communication and early purposeful intervention. Sometimes, the non-government agencies used by the department can also lose their objectivity as independent assessors, seeing themselves more as agents of the department.

Many case workers are young and inexperienced and focus on minor aspects of parenting such as an incident of unwashed dishes or that the child was left with a person unknown to the department (in one case I’m aware of, this was an aunt). The Court does what it can to ensure its statutory obligation to make sure removal is warranted and gets criticised by the department for not doing its bidding.

Being a case worker in human services is not an easy task and the complexity of the role and stress must be understood, but they must also make sure they act validly and they need to be backed by resources to assist families who struggle with parenting. Separation of a child from its parents should only occur with good reason, especially as the state which becomes guardian on removal is often not a good parent. Successive governments have failed to address the need for resources and proper assistance for agencies which offer support at the cutting edge. There is a shortage of foster parents who are committed to staying with children for the long haul. The debate should not just focus on removal but also look to what happens to the children on removal. Often they miss out on education and make their way into the criminal justice system.

Matters of proper resourcing, properly trained and experienced personnel and clarity around the rights and responsibilities of all parties are long overdue. These children, by virtue of their vulnerability, are entitled to a greater contribution and priority by the community and governments.

LIZ CURRAN

LECTURER IN LAW AND LEGAL STUDIES, LA TROBE LAW

Changes to AUSTRAC reporting requirements

The director of AUSTRAC, Neil Jensen, has recently approved changes to the way in which solicitors must report significant cash transactions (SCTRs) to AUSTRAC. The approval is made under ss15A(2) and 15A(3) of the Financial Transaction Reports Act 1998 (FTR Act). Solicitors whose reporting volumes exceed 250 forms per year will now be required to report electronically rather than on paper (providing the appropriate technology is available).

The new reporting requirements are intended to minimise both the cost of processing paper for AUSTRAC and the cost and time of compliance with the FTR Act for solicitors. The system AUSTRAC has developed is EDDSWeb, the Electronic Data Deliver System on the web. EDDSWeb is a secure website with 128-bit SSL encryption. To access this website you need to register, allow cookies and have Internet Explorer v5.5 (IE5.5) or above (or the latest version of a similar browser). The required report information can then be data entered online.

AUSTRAC requires all solicitors who meet the technical provisions described above to be reporting electronically by 31 December 2002. If you feel this is an unrealistic timeframe for your business, or if you wish to register or discuss any aspects of electronic reporting, please contact the AUSTRAC help desk. Help desk contact details are: PO Box 5516, West Chatswood, NSW 1515, tel 1800 021 037 or (02) 9950 0827, fax (02) 9950 0071 or email help_desk@austrac.gov.au.

Claire Douglas

AUSTRALIAN TRANSACTION REPORTS AND ANALYSIS CENTRE

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