These are the facts, as they were agreed to by the perpetrators. After a long night of drinking, Scott Doody, Timothy Hird, Joshua Spears, Anton Kloeden, and Glen Swain left a casino at 6am in the morning of 25 July 2009. They ranged in age from 18–23. Most of them were drunk, but Kloeden, the driver, was not.
Kloeden, in the words of Chief Justice Martin, then thought it would be fun to ‘take on the challenge of driving along the Todd River bed to the Telegraph Station’. Even more fun, Kloeden then ‘made the offensive and stupid decision to harass the Aboriginal people camped in the riverbed’, nearby Schwarz Crescent causeway. They drove towards a group of at least six campers. The campers fled to trees for safety, except for an elderly Aboriginal person, who was too elderly to respond with adequate speed. Kloeden drove within a metre of him, with the intention of terrifying him by narrowly missing him.
Having driven away Kloeden turned the car back to the camp due to a fenced off exit. Kloeden had not yet had enough fun for the night: he drove over the elderly man’s swag as they passed the camp again. One female camper, who saw the young men coming, threw a small log at their car. Some of the men got out of the car and ‘yelled abuse’ at the Aboriginal campers. The form of this abuse was not recorded.
The night, now morning, was not yet over. Kloeden thought there was more fun to be had, so he drove at another Aboriginal camping group. The three Aboriginal people were sleeping. They were woken up by the car speeding towards them, and fled for their lives. Kloeden parked near the campers, and again ‘words were exchanged’. The sort of words exchanged is not yet on the public record.
After this, the group decided to return to the home of Hird and Swain. Fun was still to be had. Once there, the group picked up more alcohol, Hird’s gun and blank ammunition. They drove along and Hird shot his gun, though at one point it jammed. As they approached Schwarz Crescent causeway, they stopped the car so that Hird could fix his gun. Having fixed it, he shot it again. Justice Martin noted that the car was intentionally stopped so that Hird would be able to ‘scare the Aboriginal occupants’ of the first camp they had terrorised previously.
This goal was achieved. As Swain testified to the police, the campers began running, and obviously ‘feared for their lives’, according to the judge’s rendition of Swain. Hird plainly contributed to this by holding the pistol outside the car in the direction of the camp.
An Aboriginal man, Kwementyaye Ryder, was one of the campers who had been terrorised by Kloeden’s driving in the first instance. He responded this time by throwing a bottle, which hit the side of the car.
Kloeden immediately executed a sudden u-turn. He stopped so close to Ryder that Ryder could grab the bullbar. All four passengers raced out of the car, with Hird the first one out. Without checking the damage to the car, they chased Ryder, who tripped and fell. Confronted with a man ‘lying defenceless and incapable of posing any threat to any of the offenders’, they repeatedly kicked him in the head, and Spears struck his head with a bottle. They told him ‘Don’t fuck with us’.
Swain, who had kicked Ryder in the head twice, noticed he was lying motionless, and that something was plainly wrong. He called out ‘Let’s go’, considering that the most appropriate reaction. They got into the car. Kloeden hadn’t gotten out of the car because he was executing a three-point-turn. Apparently untroubled by what he saw, Kloeden was ‘seen to drive away at a leisurely, normal pace’.
The men proceeded to lie to the police over the course of a week. Swain and Kloeden lied to the police, saying they had gone by themselves to a racecourse and fallen asleep there. Hird lied to the police, saying that he had gone to the casino with Doody and hadn’t seen Swain or Kloeden. Justice Martin did not comment on it, but the matching alibis point to some collusion among the defendants.
Justice Martin noted to the defendants that it was apparent they ‘would inevitably be caught’, which may help explain why Swain offered a full confession within a week. Out of the group of five, Swain was the ‘only person who made a full and frank confession to the police and who gave them every assistance possible’.
Those are the facts. Justice Martin then had the task of interpreting them. He concluded that this ‘crime is toward the lower end of the scale of seriousness for crimes of manslaughter’. Not enough violence was inflicted, and the defendants supposedly could not have foreseen a serious risk of death from their violent attack. Repeatedly kicking someone in the head and hitting him with a bottle and then fleeing when the victim was motionless is apparently not recklessness, but negligence to Justice Martin.
Justice Martin then considered the possible value of inflicting a heavier sentence for deterrence value. He dismissed this too. His grounds for this are particularly striking: the violence ‘arose out of an angry and aggressive reaction to a perceived insult’. Plainly, there could be no value in deterrence with a mere crime of violence perpetrated by intoxicated youths responding to a perceived insult.
What didn’t feature in his discussion of deterrence was what he acknowledged repeatedly was the ‘atmosphere of antagonism towards Aboriginal persons’ manifested by the defendants. Nor was this mentioned as an aggravating feature. Which goes much of the way towards explaining his lenient sentencing: Doody, who did not physically strike Ryder, was sentenced to four years imprisonment to be suspended after 12 months. Hird, Kloeden and Spears were sentenced to six years imprisonment, with a non-parole period of 4 years. Swain had half a year taken off both measures, on account of his confession.
Yet there is one other factor which played a crucial role in Justice Martin’s sentencing, and is arguably the most appalling part of his decision. Justice Martin went out of his way to provide character references for every single defendant. Doody is ‘a person of positive good character’. Hird is a ‘solid, hard-working young man of good character’. Kloeden has an ‘underlying good character’. Spears is a ‘person of very good character’. Swain, like Kloeden, was a ‘person of underlying good character’. These men of good character repeatedly terrorised Aboriginal people for being Aboriginal, before getting a gun to terrorise them further, ending the night by beating a man to death, and then casually driving away without checking if their victim was okay.
Justice Martin’s grounds for these conclusions are astonishing. He notes character references in their favour, proving that many of them have friends and employers who think nice things about them. This hardly balances out what they did. He then scrapes the barrel in special pleading on their behalf, holding, for example, that Spears had never previously ‘come into contact with the criminal law’. Considering he was 18 at the time, this is hardly such an achievement. Hird, Kloeden, and Swain, on the other hand, despite their youth had previously had difficulties with the law. Yet Justice Martin was able to claim that this was ‘totally out of character’ for all of them, and also that they were ‘genuinely sorry’. Presumably he was able to judge their tremendous remorse from how they casually left the scene of the motionless man who soon died from their beating. This too was in their character. Or perhaps their remorse was manifested in the lies they worked on together to tell the cops. Or perhaps he judged their remorse in the fact that four out of five of them didn’t cooperate with the police at all, and the only one did when it was already apparent that they would be caught.
What was missing from Justice Martin’s sentencing remarks, and sentence, was a sense of revulsion at what happened. The five young men engaged in recreational activities that wouldn’t be out of place in a gathering of Klansmen.
This disgusting crime was not just an attack on Ryder. It was an attack on Aboriginal people in Australia. It – and Martin’s judgement – was an attack on our decency as a people. I am appalled as a human being to live in a country where such a terrible crime can take place, where the media and public intellectuals – with the honourable exception of National Indigenous Times Chris Graham, who gave me the judgement on Friday – have reacted with complete indifference. I am horrified as a Jewish person to live in a country where a member of a small, vulnerable minority can be victimised in such a shocking manner, and the perpetrators can still be described as basically good people.
And I am ashamed as an Australian that this is the country I live in.
Cross-posted from Michael Brull.
Update: And a week later (Thursday night, the decision was Friday last week), there have been no op-eds run in any paper. NIT, I’ve been told, will cover it. No one has seen anything significant in the decision. There were a few news stories – none of them describing the facts at the length given here – and I found one blog which discussed it (it’s a blog devoted to casinos). No one has seen fit to analyse the decision, and the media doesn’t care.
Update 2: The first op-ed I’ve found in several weeks to even mention the issue. It says an Aboriginal man ‘was killed’ after five young white men went ‘hooning’. It mentions the white guys kicked and struck the victim whilst he was on the ground. This paragraph is the most that has yet been written by any commentator: no one, as yet, has deplored the judgement. Ms Hudson describes this case as ‘tragic’, not outrageous.
Update 3: Chris Graham writes about the case in the latest NIT (‘Deep South justice in the Red Centre’ May 13 2010). Graham is also very critical of Chief Justice Martin’s comments, but largely takes up different points. Also, I noted in what I wrote that the words ‘exchanged’ between the campers and the five white men were not recorded in the judgement. Graham writes: ‘The words that were “exchanged” are not mentioned in the summation. For the record, it was racial abuse. And for the record, it wasn’t just by Kloeden.’ I urge everyone to read the article (and I also recommend subscribing to NIT, which in my view is just about Australia’s only paper worth reading).
This may be the end of the issue, unless we take it up. So, dear reader, now that you know the facts, what are you going to do about it?
I’ve just tried to contact the judiciary at
http://www.supremecourt.nt.gov.au/judges/current/martin.html
The contacts and feedback pages give 404 as do the rest of the Menu.
The Justice is not only guilty of aiding and abetting villains he is also out of contact to the (internet) public.
For Anthony; updated web details:
http://www.supremecourt.nt.gov.au/contact/judges.htm
And to think others are emigrating here because they think it’s a better place to live …
Time to wake-up and cop-on, Chief Justice! Absolutely deplorable handling and regard for another’s life. You’re lower than the perpetrators!
Try this one Anthony, and while you’re about it, let him know that he’s been “aiding and abetting” villains. Let him know publicly with your name attached so he can have the same right of reply. Ring him up, or better send him a letter so your accusations are in writing and a matter of public record. Have the strength of your obviously strong convictions, rather than hide in the anonymity of the internet.
http://www.supremecourt.nt.gov.au/about/judges/martin.htm
Or not contact him, just show him what a good character I am
Reading this makes my own pain trivial. At least I have access to a GP with morphine. What and whom did the six campers in the riverbed have to protect their pain, their lives. Who will do so now – and when?
Good on you Tracey……let’s lower ourselves to their standard.
I am not in favour of a violent response.
Ok, hand up. On whose watch did this get posted?
I’m not sure. I’ve deleted it. Thank you for bringing it to my attention.
Just to reiterate: offensive comments and commenters who do not provide an email address will not be published on the site.
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Personally I think you completely misrepresent the facts. If you were to change the race of the offenders and victim this could be an Andrew Bolt piece. Before people continually express their ‘outrage’ why don’t they read the case in full. I think it’s quite a good judgement. The sentence is proportionate to other manslaughters with similar facts. Judges will often include evidence of good character of the offender in sentencing remarks. Often this is done so that if the sentence is appealed it is clear they took into account all the facts. Right-wing columnists love to jump on this kind of thing, and take cheap shots, just as this ‘left-wing’ columnist has done.
Please, spare me your outrage in respect to Justice Martin. The facts in this case were tragic and outrageous, but to attempt to use the judgement to draw wider conclusions about Australia or the Australian legal system as you have done here is ridiculous, and tabloid.
As a person who lives in Alice Springs I can tell you this was a crime which shocked the community. It was not, by the vast majority of residents, considered in any sense normal or acceptable. Clichéd, ignorant and judgemental comments from down south do not help anyone.
Interesting development: Justice Martin has ‘retired’ (exiting on a racist tirade, basically advocating for the removal of Indigenous children for the next 25 years or so):
Am I the only one who suspects he was forced out because this case has attracted too much negative attention? Or is that a bit too optimistic?
Note how in the Australian article, it says “some Aborigines feel the men should have received longer than the non-parole terms imposed”.
Martin is actually only 62, so it seems to me this is a pretty young age for a justice to retire. I have no idea if public criticisms of this case has made a difference. It would be very flattering to think so, but he’s been through a much bigger storm before, and right now he’s only had two public critics (and it was largely due to chance – the good favour of Overland, then Deveny, then twitterers – that I broke into ABC, which has a bigger audience).
That said, his retiring comments say it all. After ruling on this horrendous case, he says how traumatised he is by the terrible things he’s seen… Aboriginal criminals. Obviously he can’t think of any white people who have done any things lately that he has found rough or demoralising.
And his solution for the high crime rate? Saving Aboriginal children from their families. As Jacinda rightly points out, I think this might have been tried before. And as an important (and also ignored) article in the Australian pointed out last year – it’s still being tried. Ah this country hasn’t changed much since the 50s. or the 1850s for that matter. I’m going to go to a STICS rally and try not to feel too bitter.
That’s a very one eyed view Micheal. He didn’t say that white people haven’t done anything…..that is your interpretation. He did say that it is very depressing and traumatic constantly dealing with the terrible crimes that aboriginal men inflict on their own people, mostly their women. As I have stated in earlier posts, there are a whole raft of reasons for that. What is fact is that there is a much higher rate of violent crime amongst aboriginal people, mainly men, which is why they are over-represented in the legal system.
Unless you deal with this stuff regularly you are not in a position to make a judgement on someone who has. I have worked in the criminal justice system for a number of years and I work with these men on a daily basis. The majority of them are quiet, respectful men…..many of good character……unfortunately, they got drunk and did terrible things, mostly to family. Many of them get less sentences than the subjects of this blog. Many of them get out of jail and go and do it again, and again. 95% of the time there is alcohol involved. As has been stated about the 5…..that is no excuse…..but it keeps happening.
Regardless of what you like to write here, it has very little to with racist legal systems, or racist judges and a lot to do with the fact they do these crimes. As has been noted in the ABC blog you have been posting also, by people who know, the sentences handed out were in line with sentences handed out to other people who have committed similar crimes…….regardless of their colour or race.
Some of the sentiments expressed and absolute hatred I have seen posted in this and the other ABC blog just make me sick. I’m sure everyone who has posted is as pure as the driven snow……not. One of the sad things about the internet is that it allows people to just slag, flame and defame other people with anonymity and impunity…..whether they are in possession of the facts or not. A number of people have posted here…and there….who are in possession of the facts, some of whom were actually at the trial, and because their posts do not support the original poster and the mob rule they are dismissed or worse.
I realise I’m wasting my time posting here but I can’t let it go without saying my piece.
Jacinda, you are being optimistic. He retired for the reasons he stated, not because of a few blogs about one of his cases.
“Justice Martin said jail had become an ineffective means of rehabilitation and that he had become tired of seeing a growing tide of Aboriginal men repeatedly before the courts for violent crimes against women.”
That is very true, jail is becoming an ineffective means of rehabilitation, sadly for many of them (I have been told this many times by the men themselves) jail life is a good break from some of the conditions on the outside. So what do you do, punish them by sending them home? Let them do terrible things and then let them go back to community….to do it again. With white people it seems that you all expect them to be locked up forever and a day.
Equal time for equal crime.
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These aren’t isolated incidents either. This happens all over Australia. I know… I’m an Indigenous Aussie so I would have more of an insight and would know more than a non aboriginal person. Ever heard of the grapevine and personal experience? I’m just reading some of the comments and believe me its not worth me posting anything because the majority of White Australians share the same views as martin and those white boys and their families. They can always explain things away and my people are always painted in a bad light so they can justify their actions. If you are coloured watch your back if you do come to Australia.
whoops truly didn’t think that my comments would be posted they haven’t on other sites and i was more diplomatic in them. I guess the more i got rejected the more patience i lost and just blurted angry sentiments. Quite a human reaction really. That’s not to say that what i wrote wasn’t true it is but i know that not all non Indigenous Aussies are like that just the majority. That’s what needs to change people like you on this website need to become the majority. You see i have various bloodlines in me including white so i’m quite fair but i am aboriginal always have been always will be as are my children and when we are all painted with the same brush or generalised it really is offensive, disheartening and frustrating and you react to that kind of treatment. Yes the poor man (don’t wish to say his name- cultural reasons)was aboriginal but he was also a son, a brother, an uncle, a person. What sort of person was he? When we hear about things like this all we think is this is just another link in the chain of injustice done to our people. Don’t you see? That chain needs to be broken not added to. The laws that govern Australia are made by whites for whites. Aboriginal history did not have jails for wrongdoers but exile or tribal punishment. Jail is not our way never was. That was a British solution. Why aren’t our ways of justice recognised? I know a lot of the tribal elders have asked for it but it’s been rejected. Now that’s racism. Look up the meaning in the dictionary if you don’t believe me. I can sympathise with BT to a certain point. I worked with the Ministry of Justice as an AVS(Aboriginal Visitors Scheme)officer which came about from the high instances of Aboriginal deaths in custody and its true you see the same ones over and over again that it really is disheartening, frustrating and can seem hopeless. The 2 differences between BT and myself is 1.I know from personal experience and from other Indig Aussies across Oz why and how injustice in your own country can really affect you as a person as a human being. 2.I truly believe that there is good and bad in all regardles of race, nationaly, financial status etc. Cripes there’s even good and bad in families. People are people and should be taken as such. We are all individuals even aboriginal people and maybe if we were all looked at as such then we might be able to move forward a little easier and stop adding to that chain. Racism breeds racism and that’s what white Australians really have to realise. They have the luxury of starting from the time their life existed we don’t we are still dealing with the consequences of the past. Yes racism exists all over the world, I’ve even gotten it from both sides(black and white), but we aren’t talking about the rest of the world we’re talking about our own beautiful country, Australia.
I have tried to leave comments at other sites such as Crikey, the Stump, Illawarra and Matilda but have been unable to. This is the ONLY site i have had my comments published. Gotta wonder why.
yeah I agree, I try to put my opinions as a young Aboriginal male but they dont get posted, im now taking screen shots to demonstrate my comments are relevant, and add to the debate, dont let it get you down, I have come to the conclusion the key issues dont rest with Aboriginals, I can never be treated equal even though im more.moral and proactive that these aussies flocking to the pub while their children are at home, and thats just 1 example of many, they dont even realise they are the cause of assertive Aboriginal pride, they reinforce my moral understanding of our people by being themselfs, Aboriginals are as beautiful as the land they have been connected to for 60,000 years.