THE CASE AGAINST MANDATORY SENTENCING
...a true story
Four-time Walkley Award winning political commentator and Churchill Fellow, has returned to the fray over concern that the integrity of news dissemination is continually being threatened by a partisan media.
Benny was an orphan and was relentlessly abused at a Mittagong facility for boys. By the time he reached his teens he was going from gaol to gaol becoming feloniously smarter with each move.
Benny is now in hospital at the age of 60.
His good friend, Roger Rogerson, colourfully recalls Benny having wandered home late one night drunk to his Sydney hostel. He opened the door to his room to see a man with his pants down molesting a young boy. Benny was in the wrong room.
He eventually found his own room and searched under his bed for his double barrel sawn-off shotgun.
He unwrapped the oilcloth from around the gun as he strolled back to the other room. When he arrived he pushed the child aside and levelled the gun at the abuser. Without one second's hesitation he blew off half the man’s face.
The abuser was still alive as he slumped to the floor, face up. Benny proceeded to empty the other barrel into the other side of his face. Now he was properly dead.
Benny then calmly walked downstairs, placed his shotgun on the reception desk and asked the hostel owner to call the police.
It was after 18 months on remand that Benny stood before a judge for sentencing. Benny's counsel and his friends had begged him to claim self defence on behalf of the child.
There were a dozen mitigating factors that could have minimised Benny's sentence but he wanted none of it. He simply pled guilty as charged.
Everyone in the courtroom had agonised over what they would have done if they owned a shotgun and had they had been in Benny's shoes.
Even the judge had tried to cajole him into pleading something other than guilty to first degree murder.
"Your Honour, make no mistake, I believe I would do exactly the same thing again tomorrow and I need to believe I would”, said Benny.
With two spent shotgun cartridges Benny had cleansed all that had haunted him since he was a child and he wouldn’t allow that to be diminished.
In his mind he had also cleansed a thousand other children's hearts. On behalf of all the kids in his orphanage he stood tall and proud. To downplay the substance of what he had done was unthinkable.
The judge had no choice, he gave Benny a minimum of eight years. Unmoved, Benny walked toward the court officers. "Come back here", declared the judge. "I may have given you eight years but that is not what I intend you to serve."
Benny stood stoicly upright, his expression unchanged. "Allowing for the one year and six months you have been on remand, you will now serve six and a half years." Benny appeared unfazed as again he started to walk away.
"Come back here!", roared the judge.
Benny returned and again stood dispassionately before the judge.
"With good behaviour your sentence can be reduced by four years. I am also sending you to a prison farm where, if you work, there will be a further three days per month reduction in this sentence."
Benny still appeared unimpressed.
"And before you walk away again I want you to listen very carefully to me. When you apply for parole I rule that you must get in touch with my chambers so I can write you the best reference any man has ever been written. Good luck to you Sir."
Benny eventually served a little under two years for ‘murder one’ and there were many tearful people who had wished it was even less.
Sometimes there is goodness in the court system and its curators.
And sometimes judges hate mandatory sentencing for good reason... identical charges have different mitigating circumstances, they are never equal and they need the discretion of a good judge.
Benny will be out of hospital soon and hoping to down a few ales with his mate, Roger.