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| Sentence for Elijah Doughty's killer sparks anger. Was justice served? | Sentence for Elijah Doughty's killer sparks anger. Was justice served? |
| (2 months later) | |
| Elijah Doughty’s football team is at the top of the ladder. If he had not been killed on 29 August 2016, the Aboriginal teenager, who loved football almost as much as he loved motorbikes, would have moved up to the under-16s team of the Kalgoorlie City football club and played against the Saints on Saturday. | Elijah Doughty’s football team is at the top of the ladder. If he had not been killed on 29 August 2016, the Aboriginal teenager, who loved football almost as much as he loved motorbikes, would have moved up to the under-16s team of the Kalgoorlie City football club and played against the Saints on Saturday. |
| Instead, on Friday, a jury at supreme court of Western Australia found that his death was not manslaughter but a case of dangerous driving causing death. Ten minutes later, the chief judge of that court, Wayne Martin, sentenced the 56-year-old driver, whose two-tonne 4WD ran over the top of Elijah, who was riding a 70cc motorcycle, to three years’ jail. | Instead, on Friday, a jury at supreme court of Western Australia found that his death was not manslaughter but a case of dangerous driving causing death. Ten minutes later, the chief judge of that court, Wayne Martin, sentenced the 56-year-old driver, whose two-tonne 4WD ran over the top of Elijah, who was riding a 70cc motorcycle, to three years’ jail. |
| The driver will finish his sentence before Elijah would have finished high school. | The driver will finish his sentence before Elijah would have finished high school. |
| If he is granted parole – and there is every suggestion he will be – he could be released early next year. | If he is granted parole – and there is every suggestion he will be – he could be released early next year. |
| The a case has brought the Black Lives Matter movement to the fore in Australia once again. | The a case has brought the Black Lives Matter movement to the fore in Australia once again. |
| pic.twitter.com/rgENWpwoFM | pic.twitter.com/rgENWpwoFM |
| Do Aboriginal lives matter in Australia? | Do Aboriginal lives matter in Australia? |
| The outcome was met by anger and grief from the Aboriginal and Torres Strait Islander community, as well as many non-Indigenous Australians, who say it is a product of systemic inequality. The same systemic inequality that has contributed to the Indigenous incarceration rate being 14 times higher than the non-Indigenous rate, and made Indigenous teenagers in WA, like Elijah, 53 times more likely to be in youth detention than their non-Indigenous peers. | The outcome was met by anger and grief from the Aboriginal and Torres Strait Islander community, as well as many non-Indigenous Australians, who say it is a product of systemic inequality. The same systemic inequality that has contributed to the Indigenous incarceration rate being 14 times higher than the non-Indigenous rate, and made Indigenous teenagers in WA, like Elijah, 53 times more likely to be in youth detention than their non-Indigenous peers. |
| A lawyer outside the court on Hay Street, Perth, told Guardian Australia last week the trial was the one chance for the state to show Aboriginal people that: “Yeah, we’re tough on you when you do the wrong thing, but when something happens to you we’re equally tough on those responsible.” | A lawyer outside the court on Hay Street, Perth, told Guardian Australia last week the trial was the one chance for the state to show Aboriginal people that: “Yeah, we’re tough on you when you do the wrong thing, but when something happens to you we’re equally tough on those responsible.” |
| Demonstrations that followed the sentence – a peaceful protest in Kalgoorlie, red ochre smeared on the windows of the supreme court in Sydney, protests in Adelaide and Brisbane, and a rally planned for Melbourne – indicate that opportunity had been missed. | Demonstrations that followed the sentence – a peaceful protest in Kalgoorlie, red ochre smeared on the windows of the supreme court in Sydney, protests in Adelaide and Brisbane, and a rally planned for Melbourne – indicate that opportunity had been missed. |
| Law Courts Building in #Sydney. #JusticeForElijah pic.twitter.com/R3gP158G22 | Law Courts Building in #Sydney. #JusticeForElijah pic.twitter.com/R3gP158G22 |
| Brisbane at a stand still #justice4elijah pic.twitter.com/qgpVi1emYR | Brisbane at a stand still #justice4elijah pic.twitter.com/qgpVi1emYR |
| This was not the anger of the riot that occurred a day after Elijah’s death, which were used by some in Kalgoorlie-Boulder to excuse and retrospectively justify the driver’s actions, it was despair and frustration that the loss of an Aboriginal life had, once again, been met with very little punishment. | This was not the anger of the riot that occurred a day after Elijah’s death, which were used by some in Kalgoorlie-Boulder to excuse and retrospectively justify the driver’s actions, it was despair and frustration that the loss of an Aboriginal life had, once again, been met with very little punishment. |
| The protests have been tagged with: “No justice, just us.” | The protests have been tagged with: “No justice, just us.” |
| pic.twitter.com/54EScn1uu2 | pic.twitter.com/54EScn1uu2 |
| There is an entrenched pattern of non-Indigenous people getting charged, and often acquitted, with manslaughter for the killing of Aboriginal and Torres Strait Islander people. | There is an entrenched pattern of non-Indigenous people getting charged, and often acquitted, with manslaughter for the killing of Aboriginal and Torres Strait Islander people. |
| Five men charged with running over and killing Kwementyaye Ryder in Alice Springs in 2010 were convicted of manslaughter and received sentences of up to six years’ jail. Like the driver who killed Elijah, their “previously good character” was considered a mitigating factor in sentencing. | Five men charged with running over and killing Kwementyaye Ryder in Alice Springs in 2010 were convicted of manslaughter and received sentences of up to six years’ jail. Like the driver who killed Elijah, their “previously good character” was considered a mitigating factor in sentencing. |
| The police officers charged with the 1983 killing of John Pat in Roebourne, Western Australia, a case that sparked the royal commission into Aboriginal deaths in custody, were acquitted. Likewise sergeant Chris Hurley was acquitted of manslaughter over the 2004 death of Mulrunji Doomadgee at Palm Island. | The police officers charged with the 1983 killing of John Pat in Roebourne, Western Australia, a case that sparked the royal commission into Aboriginal deaths in custody, were acquitted. Likewise sergeant Chris Hurley was acquitted of manslaughter over the 2004 death of Mulrunji Doomadgee at Palm Island. |
| Black Lives Matter, hey? Exhaustion and despair, here we are again. https://t.co/PnP4iLxcHq | Black Lives Matter, hey? Exhaustion and despair, here we are again. https://t.co/PnP4iLxcHq |
| Also entrenched is the argument that an Indigenous person’s alleged offence – in Elijah’s case the fact that he was riding a stolen motorcycle – in some way excuses or explains what has happened. That Elijah stole the motorcycle himself has never been proved, and he had never been charged with stealing a motorcycle. | Also entrenched is the argument that an Indigenous person’s alleged offence – in Elijah’s case the fact that he was riding a stolen motorcycle – in some way excuses or explains what has happened. That Elijah stole the motorcycle himself has never been proved, and he had never been charged with stealing a motorcycle. |
| This Facebook from a man in Kalgoorlie the day after Elijah's death was one of many that said the 14-year-old deserved to die #ElijahDoughty pic.twitter.com/WaLmy2H2H2 | This Facebook from a man in Kalgoorlie the day after Elijah's death was one of many that said the 14-year-old deserved to die #ElijahDoughty pic.twitter.com/WaLmy2H2H2 |
| Martin, in his published sentencing remarks, said the loss of property was no justification for what had happened. | Martin, in his published sentencing remarks, said the loss of property was no justification for what had happened. |
| “That fact provided justification for your pursuit of the motorcycle which you believed correctly was yours, but it provided no justification for driving dangerously in the course of that pursuit,” he said. | “That fact provided justification for your pursuit of the motorcycle which you believed correctly was yours, but it provided no justification for driving dangerously in the course of that pursuit,” he said. |
| Why was the original charge manslaughter? | Why was the original charge manslaughter? |
| The morning after Elijah’s death, the driver, whose identity is still subject to a suppression order, was charged with manslaughter – a crime that carries a maximum sentence of life imprisonment. It’s not a common primary charge and more usually offered as a lesser alternative to murder. | The morning after Elijah’s death, the driver, whose identity is still subject to a suppression order, was charged with manslaughter – a crime that carries a maximum sentence of life imprisonment. It’s not a common primary charge and more usually offered as a lesser alternative to murder. |
| Manslaughter does not require an intent to kill, harm or commit a criminal act, as murder does. A police interview, recorded eight hours after the crash and played in court last week, showed the driver was asked multiple times what his intention was in going to Gribble Creek reserve that morning, and what he intended to happen when he saw Elijah on the motorbike, his motorbike, and decided to give chase. | Manslaughter does not require an intent to kill, harm or commit a criminal act, as murder does. A police interview, recorded eight hours after the crash and played in court last week, showed the driver was asked multiple times what his intention was in going to Gribble Creek reserve that morning, and what he intended to happen when he saw Elijah on the motorbike, his motorbike, and decided to give chase. |
| He answered, variously, “I didn’t think about it at all”, “I don’t know what I was thinking” and “I didn’t intentionally go down to do it”. | He answered, variously, “I didn’t think about it at all”, “I don’t know what I was thinking” and “I didn’t intentionally go down to do it”. |
| The jury was not told of a spate of posts on social media by other people in Kalgoorlie-Boulder, a mining town of 33,000 people about 600km east of Perth, suggesting vigilante action against Aboriginal people suspected of stealing. There was no evidence at trial that the driver was aware of, or shared, that sentiment. | The jury was not told of a spate of posts on social media by other people in Kalgoorlie-Boulder, a mining town of 33,000 people about 600km east of Perth, suggesting vigilante action against Aboriginal people suspected of stealing. There was no evidence at trial that the driver was aware of, or shared, that sentiment. |
| The allegation was that the driver had unlawfully killed Elijah Doughty by way of criminal negligence, under section 280 of the WA Criminal Code. That meant, Martin explained to the jury, that his manner of driving was so negligent, so risky in all the circumstances, that it was sufficient to be a crime against the state. | The allegation was that the driver had unlawfully killed Elijah Doughty by way of criminal negligence, under section 280 of the WA Criminal Code. That meant, Martin explained to the jury, that his manner of driving was so negligent, so risky in all the circumstances, that it was sufficient to be a crime against the state. |
| Dangerous driving causing death or grievous bodily harm (Road Traffic Act 1974 (WA) s 59) is an alternative offence to manslaughter, just as manslaughter is often offered as an alternative offence to murder. It carries a maximum sentence of 10 years jail. | Dangerous driving causing death or grievous bodily harm (Road Traffic Act 1974 (WA) s 59) is an alternative offence to manslaughter, just as manslaughter is often offered as an alternative offence to murder. It carries a maximum sentence of 10 years jail. |
| Having found the driver not guilty of one, the jury was invited, by the driver’s own admissions and facts set out at the start of the trial, to find him guilty of the other. | Having found the driver not guilty of one, the jury was invited, by the driver’s own admissions and facts set out at the start of the trial, to find him guilty of the other. |
| How was the case for criminal negligence made out? | How was the case for criminal negligence made out? |
| Criminal negligence is a nebulous concept and was not mentioned at all in the three-and-a-half-day trial, except for the opening and closing addresses. Much of the intervening time was devoted to discussing the condition of the dirt track in the Gribble Creek reserve. | Criminal negligence is a nebulous concept and was not mentioned at all in the three-and-a-half-day trial, except for the opening and closing addresses. Much of the intervening time was devoted to discussing the condition of the dirt track in the Gribble Creek reserve. |
| In his closing address, prosecutor David Davidson argued the driver was criminally negligent because his manner of driving was “too fast, too close, no room for Elijah to move, a substantial size and power difference between the little motorbike and the two-tonne Navara, on a bumpy bush track with a creek around the bend … with the intent of pushing the rider to fall off the bike into the bush”. | In his closing address, prosecutor David Davidson argued the driver was criminally negligent because his manner of driving was “too fast, too close, no room for Elijah to move, a substantial size and power difference between the little motorbike and the two-tonne Navara, on a bumpy bush track with a creek around the bend … with the intent of pushing the rider to fall off the bike into the bush”. |
| “There’s your criminal negligence,” he said. | “There’s your criminal negligence,” he said. |
| Davidson said it did not matter whether the jury believed the driver’s version of events, which was that he was anticipating Elijah would continue riding straight but he unexpectedly “veered” in front of the 4WD, or whether the driver had hit the motorcycle from behind. It was the overall manner of driving, in all the circumstances, that was criminally negligent. | Davidson said it did not matter whether the jury believed the driver’s version of events, which was that he was anticipating Elijah would continue riding straight but he unexpectedly “veered” in front of the 4WD, or whether the driver had hit the motorcycle from behind. It was the overall manner of driving, in all the circumstances, that was criminally negligent. |
| The use of the word “pushing” was later conceded after a challenge by defence lawyer Seamus Rafferty, who said the driver’s evidence was that he “was hoping that he would take off into the bush and hopefully fall off there”, not that he intended to actually “push” the motorbike. | The use of the word “pushing” was later conceded after a challenge by defence lawyer Seamus Rafferty, who said the driver’s evidence was that he “was hoping that he would take off into the bush and hopefully fall off there”, not that he intended to actually “push” the motorbike. |
| Rafferty argued the prosecution had “overstated” the parlous condition of the dirt track, and said the driver’s speed, which averaged 67km/h just prior to the crash, was “not excessive”. Had the chase taken place on a bitumen road, he said, it would have been just as dangerous because the danger lay in the driver getting “way too close” to the motorcycle, a “much smaller vehicle”. | Rafferty argued the prosecution had “overstated” the parlous condition of the dirt track, and said the driver’s speed, which averaged 67km/h just prior to the crash, was “not excessive”. Had the chase taken place on a bitumen road, he said, it would have been just as dangerous because the danger lay in the driver getting “way too close” to the motorcycle, a “much smaller vehicle”. |
| He said the chase itself was not illegal – a point later repeated by Martin – and so given the absence of other factors such as excessive speed or intoxication, the manner of driving was merely dangerous, not criminally negligent. | He said the chase itself was not illegal – a point later repeated by Martin – and so given the absence of other factors such as excessive speed or intoxication, the manner of driving was merely dangerous, not criminally negligent. |
| Davidson argued the driver was angry. His frustration with his bikes being stolen was clearly evident on the recorded police interview, where he said, after being pushed one more time on his intention in chasing the bike: “I just wanted my kids’ motorbike. It was in a locked container in our yard with two dogs with it ... We came here for a good future. We didn’t come here for this. We didn’t come here to have motorbikes stolen, padlocks broken.” | Davidson argued the driver was angry. His frustration with his bikes being stolen was clearly evident on the recorded police interview, where he said, after being pushed one more time on his intention in chasing the bike: “I just wanted my kids’ motorbike. It was in a locked container in our yard with two dogs with it ... We came here for a good future. We didn’t come here for this. We didn’t come here to have motorbikes stolen, padlocks broken.” |
| Rafferty dismissed the suggestion the driver was motivated by anger and said the idea he had run Elijah down deliberately was “utterly implausible”. | Rafferty dismissed the suggestion the driver was motivated by anger and said the idea he had run Elijah down deliberately was “utterly implausible”. |
| “He wasn’t angry, members of the jury, he just wanted his bike back,” he said. “To get your bike back you are not going to run over it. That’s the last thing you are going to do. The whole purpose of the chase is to get the bike back in one piece, you are not going to run over it and put the bike in three pieces. | “He wasn’t angry, members of the jury, he just wanted his bike back,” he said. “To get your bike back you are not going to run over it. That’s the last thing you are going to do. The whole purpose of the chase is to get the bike back in one piece, you are not going to run over it and put the bike in three pieces. |
| “You are looking at the bike in front of you and you just run over the top of it – that doesn’t make sense … It just defies belief. It’s utterly impossible. That a man who is watching the road in front of him, trying to get his bike back, an experienced driver, a safe driver … it’s utterly implausible.” | “You are looking at the bike in front of you and you just run over the top of it – that doesn’t make sense … It just defies belief. It’s utterly impossible. That a man who is watching the road in front of him, trying to get his bike back, an experienced driver, a safe driver … it’s utterly implausible.” |
| At the words “a safe driver”, some of Elijah’s family began laughing bitterly in the gallery. If he was such a safe driver, one man said outside court, what was he doing chasing a kid who was riding his own kid’s motorbike? | At the words “a safe driver”, some of Elijah’s family began laughing bitterly in the gallery. If he was such a safe driver, one man said outside court, what was he doing chasing a kid who was riding his own kid’s motorbike? |
| The jury twice asked for clarification on the meaning of criminal negligence: once by requesting copies of all the closing statements and, when that request was denied on the basis that criminal trials are an oral process and the written script may not accurately reflect that, by asking Martin to explain the definition again. | The jury twice asked for clarification on the meaning of criminal negligence: once by requesting copies of all the closing statements and, when that request was denied on the basis that criminal trials are an oral process and the written script may not accurately reflect that, by asking Martin to explain the definition again. |
| After more than six hours of deliberations, the majority of the jury – which did not include any Indigenous people – found that criminal negligence had not been proved beyond a reasonable doubt and instead found the driver guilty of the lesser charge. | After more than six hours of deliberations, the majority of the jury – which did not include any Indigenous people – found that criminal negligence had not been proved beyond a reasonable doubt and instead found the driver guilty of the lesser charge. |
| The not-guilty verdict on the manslaughter charge was not unanimous: at least one, possibly two jurors remained convinced the charge had been proved, but majority verdicts of 10 or more jurors are permitted in WA after a certain amount of time has passed. | The not-guilty verdict on the manslaughter charge was not unanimous: at least one, possibly two jurors remained convinced the charge had been proved, but majority verdicts of 10 or more jurors are permitted in WA after a certain amount of time has passed. |
| Why only three years? | Why only three years? |
| Three years’ jail for dangerous driving causing death is consistent with WA sentencing law, and was privately predicted by lawyers familiar with the case. | Three years’ jail for dangerous driving causing death is consistent with WA sentencing law, and was privately predicted by lawyers familiar with the case. |
| The driver was a first-time offender and was entitled to a 25% discount on the full length of his sentence because of the “utilitarian benefit” of his early plea of guilty. However, the prosecutors did not accept the plea bargain and therefore the utilitarian value of sparing the state the expense of a criminal trial was not recouped. | The driver was a first-time offender and was entitled to a 25% discount on the full length of his sentence because of the “utilitarian benefit” of his early plea of guilty. However, the prosecutors did not accept the plea bargain and therefore the utilitarian value of sparing the state the expense of a criminal trial was not recouped. |
| Martin said while the consequences of the driver’s conduct were severe, his culpability was “in the lower half of what I might call the range of seriousness in the scale applicable to these things”. | Martin said while the consequences of the driver’s conduct were severe, his culpability was “in the lower half of what I might call the range of seriousness in the scale applicable to these things”. |
| Three years?? For the life of an Aboriginal child https://t.co/x5QCbAYkkf | Three years?? For the life of an Aboriginal child https://t.co/x5QCbAYkkf |
| “In such cases there is a tension between the need to impose a sentence which adequately reflects the value which reasonable members of the community attach to the human life which has been lost and the need to impose a sentence which is commensurate with the culpability of the offender’s conduct,” he said. | “In such cases there is a tension between the need to impose a sentence which adequately reflects the value which reasonable members of the community attach to the human life which has been lost and the need to impose a sentence which is commensurate with the culpability of the offender’s conduct,” he said. |
| “This is a case in which there is such a tension.” | “This is a case in which there is such a tension.” |
| Elijah Doughty | Elijah Doughty |
| Western Australia | Western Australia |
| Indigenous Australians | Indigenous Australians |
| Crime - Australia | Crime - Australia |
| Law (Australia) | Law (Australia) |
| Race | |
| analysis | analysis |
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