‘That’s not justice’: Tale of two manslaughter sentences prompts calls for law reform

Updated April 19, 2019 07:45:14

Two days and two very different sentences have been handed down in manslaughter cases in Victorian courtrooms, sparking debate over the need for potential law reform.

Key points:

  • Borce Ristevski’s sentence for killing his wife has triggered debate over Victoria’s sentencing laws
  • The Victorian Opposition wants a parliamentary committee to consider mandatory minimum sentences for family violence
  • Prosecutors are considering whether to appeal Ristevski’s sentence

The nine-year jail sentence imposed on wife-killer Borce Ristevski yesterday immediately triggered furious debate over sentencing laws in Victoria.

With time already served, Ristevski could spend less than five years in prison.

Family violence support services:

Ristevski’s sentence came one day after Joseph Esmaili was sentenced to 10 years and six months’ jail for punching Melbourne heart surgeon Patrick Pritzwald-Stegmann in the head at Box Hill Hospital, in Melbourne’s east, in May 2017.

Ristevski’s six-year minimum for killing his wife, hiding her body under logs and continually lying about her whereabouts contrasted markedly with Esmaili’s 10-year minimum sentence for a heat-of-the-moment punch after an argument about cigarette smoking.

The difference? Esmaili was the first person to be sentenced under Victoria’s one-punch laws, which mandate a minimum decade-long jail term.

The one-punch legislation means he will not be eligible for parole until he has served 10 years in prison.

Victoria’s one-punch laws were introduced in 2014.

Passing sentence on Wednesday, Justice Elizabeth Hollingworth said the prosecution had satisfied the four key elements of the law and she imposed a total sentence on Esmaili of 10 years and six months.

But there is no Victorian legislation covering mandatory sentencing for family violence matters.

Victoria’s Opposition says it is time mandatory minimum sentences for family violence cases were examined by parliamentarians.

Victorians ‘shaking their heads’ over Ristevski sentence

Ristevski’s sentence immediately triggered an angry response from the Victorian Opposition and domestic violence support groups.

Opposition leader Michael O’Brien said Victorians wanted the « injustice » to be « fixed, » and anti-domestic violence campaigners said they were deeply concerned about the message the sentence sent to the community.

Mr O’Brien is now pushing for Parliament to explore mandatory minimum sentences for family violence incidents.

He wants a parliamentary committee on sentencing re-established to consider mandatory minimum prison terms for family violence.

« Too many Victorians will be looking at the sentence handed down to Ristevski and shaking their heads, » Mr O’Brien said.

« That’s not justice, that’s not justice or anything like it, but that’s where we are in Victoria at the moment. »

Mr O’Brien did not criticise judges or members of the legal profession, saying instead that it was up to the Parliament to « fix » sentencing for family violence cases.

Legal and justice system expert Stan Winford from RMIT’s Centre for Innovative Justice said the key difference in the sentencing of Ristevski and Esmaili was Victorian legislation.

While he did not want to comment on the adequacy of Ristevski’s sentence, he said it was important for people to remember that judges must sentence in accordance with the law.

He said in one-punch cases, judges’ « legislative discretion » had been narrowed by minimum mandatory sentences.

Ristevski sentence about average

The maximum sentence for manslaughter in Victoria is 20 years.

Mr Winford said that according to the Sentencing Advisory Council, the average manslaughter sentence handed down in Victoria in recent years was between eight and nine years.

« So the sentence imposed here is within the mid to upper level of sentences that have been applied to this kind of manslaughter, » he said.

Ristevski case ‘atypical’

Mr Winford said Victorian Supreme Court Justice Christopher Beale had a range of factors to consider when deciding Ristevski’s sentence.

In sentencing, Justice Beale took into account Ristevski’s previous good character and his guilty plea.

The judge said if Ristevski had not admitted to manslaughter when he did, then he would have received 10 years.

His guilty plea avoided the need for a five-week trial, thereby saving the family further trauma, witnesses from testifying and the cost of the court proceedings.

The judge also mentioned that this was Ristevski’s first criminal offence.

He described the case as « atypical » because many domestic violence homicides involve a history of violence, not an « isolated outburst. »

Character references tendered on Ristevski’s behalf, including from the couple’s daughter Sarah Ristevski, painted a glowing picture of him as a « loving, caring, sympathetic, protective and charismatic man ».

Ristevski has not said how or why he killed his wife.

Justice Beale said he had « insufficient information » for comparing the crime with other examples of manslaughter.

But he did find it was not at the lower end of the scale.

« This is a serious case of domestic violence, » Justice Beale said.

But he said: « Without knowing the level and duration of the violence perpetrated by you which caused your wife’s death, I simply cannot say whether your offending was mid or upper range. »

Prosecutors may appeal

The Office of Public Prosecutions (OPP) is leaving the door open for a potential appeal.

« This sentence, like all sentences, will be under review for possible appeal. However, no decision has been made as yet, » an OPP spokesperson said.

Victoria’s Attorney-General, Jill Hennessy, declined to comment other than to express compassion for the family.

« Our thoughts are with the family and friends of Karen Ristevski and all of those affected by this horrible crime, » she said.

But she said because the OPP was considering an appeal, it would not be appropriate to comment further.

However, others have been openly critical, including Labor Upper House MP Philip Dalidakis, who tweeted that Ristevski’s sentence was causing people to « keep losing confidence in our judiciary ».

#justiceforkaren

A Twitter hashtag, #justiceforkaren, has emerged, with some calling the sentence a « travesty » and others describing it as a « slap in the face for homicide victims and their families ».

Domestic violence support groups slammed the sentence, with the chief executive of No to Violence, Jacqui Watt, saying: « Family violence cannot end until the men who use family violence change the actions they take in harming women and their beliefs, attitudes, behaviour and choices. »

The chief executive of the Domestic Violence Resource Centre Victoria, Emily Maguire, said no sentence, no matter how long, would be enough for Karen Ristevski’s family members.

« The family are never going to get Karen back and they’re going to have to live with the consequences of not having a mother and a sister and a friend for the rest of their lives, so no sentence would be adequate for that family, » she said.

« We have a legal system that means we operate within that, but how many years in jail is comparable for someone’s life being lost? »

Domestic Violence Victoria released a statement saying the message to Victorians was that « one woman’s life is worth six years of a man’s in prison. »

Topics: law-crime-and-justice, domestic-violence, judges-and-legal-profession, state-parliament, crime, murder-and-manslaughter, crime-prevention, vic, melbourne-3000

First posted April 19, 2019 06:41:14


Source:http://www.abc.net.au/news/2019-04-19/borce-ristevski-joseph-esmaili-different-manslaughter-sentences/11029858

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