A father whose 17-year-old son died in a drink-driving crash says a person with money, a good lawyer and the right social network will always walk into sentencing with an entirely different set of tools than one without.
Duncan Wakes-Miller, still reeling from the horrific loss of his son Barney in 2020, is seeing red over the NSW Bar Association’s position on the issues that drunk drivers should be able to refer to their “community service history” to argue for a more lenient sentence. His profound anger is directed at a legal system he believes offers a different texture of justice depending on one’s social standing, a system that, in his view, failed his family.
Barney, a Year 11 student at St Augustine’s in Brookvale, died when the car he was a passenger in crashed at Elanora Heights. He was sitting in the back seat of the Holden Commodore and died from head injuries.
The teen responsible for Barney’s death received a 21-month good behaviour bond from the Children’s Court. He faced charges including mid-range drink driving and dangerous driving occasioning death.
Mr Wakes Miller told news.com.au the NSW Bar Association’s position on the Good Character Sentencing Bill currently being debated is not just wrong – “It is a measure of how far removed parts of the legal profession have become from the reality of what victims of road crime live through”.
The legislation aims to prohibit courts from using an offender’s “good character” as a mitigating factor to reduce sentences.
Before a Parliamentary inquiry, NSW Bar Association President Dominic Toomey SC said: “Let’s take the person who has worked as a surf lifesaver for five decades free of charge, has saved many people from drowning. And on a particular Saturday there’s a drowning that they feel they might have been able to prevent and they didn’t. They feel terrible about it. They go to the pub, they drink too much, they get in the car, they drive home, there’s an accident.
“Most right-thinking people would say, particularly where that person’s prior good character in those circumstances, that is their enormous community contribution, has some connection to the commission of the offence, that it would be artificial simply to say that all you’re doing is morally accounting.”
The comments have angered Mr Wakes-Miller, Deputy Chair of Road Trauma Support Group NSW, and the group’s members.
“Read that again. Mr Toomey calls it an accident. A deliberate choice to drink to excess and get behind the wheel of a vehicle is not an accident. It is a decision. Any crash that follows is the foreseeable consequence of that decision,” Mr Wakes-Miller said.
“Any death or serious injury that results is not a misfortune. It is the outcome of choices made, one after another, by a person who knew the risk and drove anyway.
“Calling it an accident is not a legal nuance. It is a way of making what happened sound like something no one could have prevented, so that the person who chose to do it carries less of the weight. What is also notable about Mr Toomey’s hypothetical is what it does not contain. There is no victim in it. No one is killed or seriously injured in his telling. The person who could be harmed has no name, no life, no family waiting at home.
“They are beside the point. To every family we support, they are the only point.”
Mr Wakes-Miller knows first hand. He said the driver in Barney’s case “had the right connections, retained skilled legal representation, and assembled the kind of good character case Mr Toomey is now defending in public”.
“I watched that court process play out. I watched a man’s reputation be built up reference by reference while my son’s life was reduced to a set of facts.”
He said the Bar Association is still arguing that is how it should work. “I am here to tell them it does not work. Not for the families on the other side of it”.
Good character evidence does not operate on a level playing field. It rewards those with the means to produce polished references from credible people, and it disadvantages those without, Mr Wakes-Miller said.
“A driver with money, a good lawyer and the right social network walks into sentencing with an entirely different set of tools than one without. The offence is the same. The outcome often is not.
“This is not a legal abstraction. It is something families in this community experience and recognise immediately. The system has a different texture depending on who you are and who you know. The Bar Association defending that is not a surprise. But it should not go unchallenged.”
Road Trauma Support Group NSW supports the passage of the Good Character at Sentencing Bill without dilution and without carve-outs.
“We call on the NSW Bar Association to listen to the families who have been telling it, for years, that this system has failed them. They are not asking for sympathy. They are asking to be heard.”
Mr Wakes-Miller said Mr Toomey’s comments reflected a level of “legal abstraction that feels completely divorced from the real-world consequences of these actions”.
Regarding Victims and Balancing Interests, Mr Toomey told the inquiry: “Our members understand all too well that the sentencing process will often be traumatic for victims of crime. For a victim of a crime, hearing about an offender’s otherwise good character can be seen as an attempt by a well-connected offender to minimise the harm they have caused. Recognising the harm caused to victims is, and must continue to be, an essential component of sentencing proceedings.”
He said the Association “would support a legislative amendment that makes clear that a court can, after consideration of any evidence of otherwise good character, assign no weight to this evidence when assessing that evidence against the objective seriousness of the offence”.
“There will, I might add, be many such cases because good character evidence can never be taken to overwhelm the objective seriousness of the offence.”
Mr Toomey told news.com.au: “Recognising the harm caused to victims is, and must continue to be, an essential component of sentencing proceedings”.
“It is well understood that the sentencing process will often be traumatic for victims of crime. The NSW Bar Association supports further consideration of how courts can better assist victims during the sentencing process.
“Consideration of otherwise good character at sentencing is not intended to downplay the trauma experienced by victims of crime. There will be circumstances where the court should, having considered any subjective evidence of otherwise good character, assign no weight to this evidence given the objective seriousness of the offence.
“The NSW Bar Association would support a legislative amendment that makes clear that the sentencing court has the discretion to give an offender’s otherwise good character no weight in mitigation of sentence.
“Where the objective seriousness of the offence permits, however, otherwise good character is, and should remain, an important consideration when a sentencing court is determining a just and appropriate sentence, especially where the offence is an aberration for a person who has otherwise made positive contributions to the community. Consideration of otherwise good character enables the sentencing court to assess the offending and the offender as a whole person. This assessment is key to ensuring fairness and individualised justice in the sentencing process.”
