violent crime, the justice system and the jill meagher case

The rape and murder of Jill Meagher has shocked the Australian people. Now, as the trial against the accused, Adrian Bayley, unfolds and with sentencing set for today, it has become apparent that not only was Bayley known to police, but he held a significant criminal history. This history includes charges of rape, attempted rape, threats to kill, and assault, during the period from 1990 – 2010.

For his crimes in 1990, Bayley was sentenced to five years imprisonment but was released after serving 22 months. Then in 2000, Bayley was charged with no less than 16 counts of rape against five sex workers. He was sentenced in 2002 to eight years imprisonment.

After being released on parole in 2010, Bayley was charged with assault and sentenced to three months behind bars. Despite this conviction, Bayley’s parole was not revoked. It is while he was on parole that Bayley raped and murdered Jill Meagher.

Investigator Charlie Bezzina points to Bayley’s second conviction for a string of rapes where he was sentenced to eight years as being ‘where the whole justice system has failed the victim, failed the community’.

As Bayley’s earlier judgments transcripts are not readily available, it is difficult to determine what factors influenced the Judge in sentencing Bayley for his previous crimes. But it cannot be ignored that the maximum sentence for rape in Victoria is 25 years and Bayley ended up only serving eight.

It is true that a judge must consider whether or not a defendant pleads guilty to a charge when handing down a sentence. This is true regardless of the alleged crime and is an important principle in the Australian legal jurisprudence.

But it would also appear that at the time of being convicted in 2000, Bayley could have been classified as a ‘serious offender’ under Victorian law, which would have then enabled the judge to impose a sentence longer than that which would have been proportionate to the gravity of his offence.

Undoubtedly in hindsight, the decision is sadly easy. Had Bayley received the maximum sentence for his previous offence then Jill Meagher would still be alive.

Knowing that Bayley held a significant criminal history has caused many in the Australian community to question how this was allowed to occur in the first place. Why was a man like Adrian Bayley allowed to be free to rape and murder? Moreover, what does this say about how the Australian legal system deals with serious offenders?

It must be noted that there has been significant reform to laws surrounding rape cases in Victoria, and indeed Australia wide. In Victoria these include the introduction of guiding principles into the Crimes Act (1958), which reflects the high incidences of sexual violence in society.

The Victorian Law Reform Commission has also tabled a report in Parliament, calling for (amongst other things) changes in evidentiary procedures surrounding sexual offences.

In spite of this seemingly robust framework for dealing with rape cases, the Sentencing Advisory Council has released an analysis of sentencing trends for rape in Victoria which shows that the most common prison sentence for rape was four years. This is less than one fifth of the maximum penalty which can be awarded under the legislation.

This low conviction rate has been criticised by NSW Crown Prosecutor Margaret Cunneen SC, who was responsible for prosecuting the infamous Skaf case. The Skaf case made headlines with its strong sentences and as a result, the NSW Government enacted legislation for “aggravated sexual assault in company” (gang rape).

Like Victoria, NSW has also enacted a series of legal reforms surrounding rape, including evidential provisions that aim to protect complainants during the trial process.

But despite these changes, 4,629 sexual assaults were reported to the NSW Police in 2012.  In fact, the number of rapes has increased by 1.7% since the introduction of NSW provisions dealing with gang rapes.

Similarly, despite the changes to Victorian laws it is apparent that rapes are still continuing, and offenders like Bayley are able to re-offend.

It would appear that the case of Bayley is therefore a microcosm of how serious offenders are treated by the legal system and also the inherent difficulties involved in successfully prosecuting rape cases in Australia.

According to the NSW Rape Crisis Centre, ‘The Australian Bureau of Statistics estimates that 20% of women who are sexually assaulted report the assault. In 2005 there were 9,500 reports of sexual and indecent assault made to NSW Police. It is therefore estimated that 47,000 sex offences were committed in NSW in 2005. There are less than 450 convictions for sex offences annually. This means that about 1% of sex offences result in a conviction.’

Due to strains on resources, and evidentiary considerations, not all reported cases can be taken on by police. Early settlements, or withdrawals are common. According to the NSW Rape Crisis Centre, ‘Of those which proceed to Court, 60% of defendants plead guilty, usually to a lesser charge.’

What this data shows is an apparent disjunct between what the enacted laws dealing with rape are trying to achieve in protecting victims, punishing offenders and deterring others, and what is happening in reality.

Reporting rates are still low, indicating a move is still required to encourage victims to come forward. We also know that instances like that which confront Jill Meagher – whilst undoubtedly horrific – are rare in that the majority of women who fall victim to sexual assault will know their attacker. Therefore the plight of organisations that aim to educate both men and women on what constitutes consent must continue.

In terms of the legal system specifically, there are some changes that could be made to try and prevent a case like this from occurring again. Whilst this is a multifaceted problem that requires solutions from multiple areas of the community, the legal system needs to reflect upon the statistics and address what appears to be an inherent failure to deal with serious offenders.

This process has already started, and ABC has reported that as a result of the Jill Meagher case, the Victorian Government has made changes to the legislation that will see violent sex offenders who re-offend being sent immediately back to jail.

The value of being able to negotiate with offenders for a guilty plea cannot be ignored as it is ‘usually evidence of some remorse on the part of the offender and second on the pragmatic ground that the community is spared the expense of a contested trial,’ (as cited by the High Court here).

But despite this value, there is a call from some members of the community to have this option reduced for repeat offenders. Investigator Bezzina has gone one step further and called for mandatory sentencing. ‘And multiple offenders should not be win bail for serious offences,’ he says.

Regardless of the way forward, the judiciary and executive must undoubtedly examine the gap between what the law is trying to do and what it is actually doing. A failure to do any less would mean that more and more cases like Jill Meagher’s will continue.