Black and White Justice

On Thursday last week two men from the Northern Territory appeared in court.

In Darwin, a 58-year-old man who goes by the name of Joe pleaded guilty to possessing child pornography.

Over the border in Mount Isa, 48-year-old Marshall pleaded guilty to a driving offence.

Joe had been caught in possession of eight videos containing child pornography, with two rated as category one, and the other six as category two. The first category includes depictions of "torture, cruelty or abuse of children", while category two includes "penetrative sexual activity between adults and children".

One police investigator described the videos as the worst example of child abuse material they had ever seen. Joe had downloaded other files that had been deleted from his hard drive and could not be recovered by police.

Marshall had been caught driving without a licence.

Joe’s lawyer told the court that he had viewed the child abuse material in an attempt to seek "emotional respite". They claimed Joe, a former firefighter, had been diagnosed with high levels of PFOS (a potentially hazardous chemical previously used in firefighting foam) and was also affected by a fatal accident that occurred between an aviation firetruck and a car which occurred on his watch as commander.

Marshall’s lawyer provided evidence to the court saying he was unfit for custody because he had liver cancer and had been given six to nine months to live by doctors.

The judge in Joe’s case dismissed the argument made by his lawyer but took into account the fact that Joe had not paid for the videos, had a low amount of them, had deleted them after watching them and had stopped accessing them at the time of his arrest. The Judge also acknowledge that the shame, embarrassment and public humiliation Joe had experienced would also act as a deterrent.

Joe was given a sentence of 12 months which was reduced to nine months for cooperating with investigations and pleading guilty at an early stage. The nine-month sentence was then fully suspended.

Marshall was given a sentence of 15 months. He will be incarcerated in the prison ward of the Princess Alexandra Hospital in Brisbane. Marshall’s family are unable to afford to stay in Brisbane, leaving him with no one to visit.

Joe is white.

Marshall is Indigenous.

The judges in both cases were white.

The Premier of Queensland, and her Justice Minister - who have both ruled out intervening in Marshall’s case - are also white. So are Nigel Scullion, Jenny Macklin and Mal Brough – the last three Federal Ministers for Indigenous Affairs - under whose watch Indigenous incarceration rates have increase by 52% over the last decade.

The Government of Western Australia, which incarcerates Indigenous people at nine times the rate of Apartheid South Africa, is predominantly white. So is the government of the Northern Territory which incarcerates Indigenous children at three times the rate of other Australian States.

Three percent of Australia’s population are Indigenous. So are 28 percent of our prison population, 35 percent of all incarcerated women and 48 percent of all juveniles incarcerated in Australia.

Before either Joe or Marshall set foot in court, Marshall was 15 times more likely than Joe, to be incarcerated.

That’s Australian justice in black and white.

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This is the story of two Australian men, both 27, drunk and in trouble with the law.

On 7 April, Liam Danial Sweeney attended a friend's birthday drinks at Crown Casino in Melbourne. According to the prosecution, Sweeney had been ignored when he attempted to shake another guest's hand, and stewed on this "insult" for a couple of hours. At midnight, under the influence of alcohol, he reportedly engaged in an "unprovoked and gratuitous" assault of the man, Richard Huiswaard. Sweeney smashed a wine glass into Huiswaard's face, and then punched him twice in the head. The defence argued that Huiswaard had made comments about Sweeney’s mother, implying he was gearing up to a fight.

Huiswaard was bleeding, but Sweeney did not stop to render assistance, nor to speak to police. Again according to prosecutors, he instead "fled the scene like a coward". Huiswaard was left needing stitches in his head and three weeks off work.

Compare Sweeney with the second 27-year-old Australian man – Mr Briscoe of Alice Springs. Briscoe was also drinking with friends but, unlike Liam Danial Sweeney, had not entered an "unprovoked and gratuitous assault", glassed someone, or permanently scarred their face when he encountered police on 5 January 2012. He had committed no crime whatsoever when the police chased him, wrestled him to the ground and took him into "protective custody" that evening. It was, in fact, Briscoe who complained of a bleeding headwound when he was locked in a cell.

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What follows is a neat encapsulation of the two very different realities faced by the different segments of Australia's population.

Briscoe's pleas for treatment for his headwound were ignored by the police. Officers were listening to iPods while other prisoners heard the audible "choking and gasping" that Briscoe was making while he was confined behind bars. The police did not make cell checks as required, despite Briscoe's bleeding face and severely inebriated state; they surfed the internet instead. Two hours later, when an ambulance was finally called, Briscoe – the 27-year-old man innocent of any crime – was dead.

Sweeney, the 27-year-old who had committed a crime, did not die in police custody once apprehended for his assault. His crime made it to trial, and he pleaded guilty to "intentionally causing injury", which can carry a sentence of up to 10 years in prison.

But Sweeney will not serve a day. He received an 18-month suspended sentence and a $5,000 fine. The serving magistrate, Jack Vandersteen, explained in sentencing that he did not believe Sweeney "would last very long" in jail. "Not many people are in jail who went to Haileybury," continued Vandersteen, naming the prestigious private school that educated the kind of young man who glassed and scarred another as the result of a perceived slight.

Vandersteen's concern was that it may be "extremely devastating" for Sweeney's parents, one of whom is a barrister himself, to see Sweeney in court. There were concerns, too, about the impact of sentencing Sweeney due to the young man being a lawyer himself. Should he be jailed, he would not be able to practice law, after all.

The death of Briscoe was the subject of a court inquest into police responsibility for his death. Although it was identified that police had committed "errors and failures" that evening, the officers brought before the inquest were "formally disciplined" and not charged.

Briscoe's family were certainly "extremely devastated" after the finding, and shouted abuse at the police officers as they left court. "He was a young man, didn't even have a wife and kids, and policemen walk free," one family member said.

No one needed me to mention that Briscoe was Aboriginal, did they?