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?