( EDIT: Thanks for the link and +1 for that, it's a case worthy of discussion )
I read you linked and was published by the court in full, as you also read it you'll note there are references to unpublished material
( you wrote:
> I'll omit it, but you can find it quoted in the judgement, and the media appears to have filled in ...
whereas the court noted:
> 3. "Zip up (etc...)" [Offensive words omitted.]
ie: the court left out portions of what was posted. Further:
> 7. the Mercury newspaper reported the applicant's comments in part ...
> 25. some of the words written by the applicant were not published by the Mercury .. Those words will be redacted when these reasons are made available for publication.
)
I agree that on the face of things it appears as thought the judgement has been made exclusively on the fact of the offender commenting on a prior case.
I disagree that this is as simple as "conviction for describing underage sex as Awesome on Facebook".
It is laid out at length that the offender had previously preyed upon the person he made comment about, further that these later comments caused further duress to that same victim, and reference was made to his prior conviction (which carried stringent terms about staying clear of underage girls in general and his prior victim(s?) specificly, associating with others of the same ilk, and avoiding patterns of prior behaviour, etc.)
This is not a case of "some average Australian" making comments about underage sex on the internet - such things happen daily.
This is a specific case of an actual prior offender making public utterances about a former victim after a conviction that included a jail term and behavioural advisories. *
( * I assume on the grounds that similar cases in Western Australia's children court include strong "stay the F. away from your victims" conditions )
I would find this concerning if this was a case that saw a random citizen charged, I don't find it concerning that these specific set of circumstances were bought under consideration and after deliberation a prior offender has been given a message that this kind of behaviour is not okay.
Real life is rarely clear cut and the law constantly has to deal with edge cases.
I think we have to distinguish between (1) the elements of the actual crime of which he was convicted, (2) sentencing factors, (3) prosecutorial discretion.
His prior criminal acts, the impact he had on his victim, etc, are all relevant to (2) and (3), but not to (1).
Regarding (3), I honestly don't feel very comfortable with the idea "let's have massively over-broad laws, but trust prosecutors to only use them against people who really deserve it". Should I put that much trust in prosecutors? My uncle is the second most senior prosecutor in Victoria, and from what I know of him, I honestly believe his heart is in the right place. On the other hand, just this last week Shane Drumgold has been giving everyone a rather poor impression of himself. But, putting personalities aside, in principle, I just don't like it. Maybe some degree of it is inevitable, but I feel like in this area of law we've taken it much further than we ever should have.
If they had criminalised convicted sex offenders publicly defaming their victims–I wouldn't have a problem with such a law, or with him being prosecuted under it. That would be a narrower law, vastly more defensible, vastly less concerning.
But by the letter of the law under which he was actually convicted, he would have committed the exact same offence if he'd just written that comment in his private diary, with no intention to ever show it to anybody. Now, if that was the scenario (let's assume they found his diary in a search), quite possibly the police/DPP would have decided against charging him – but there's no guarantee of that. In the event they did charge him, the sentence would have been significantly more lenient. But the actual criminal conviction would have been exactly the same.
The idea that mere writing words in a private diary is the same crime as filming the actual rape of children – including the former in the offence seems (to me) to belittle the heinousness of the latter.
And I'm not comfortable with the idea that a person can commit a crime just by putting words in their private diary – even if they are absolute unrepentant scum like Bester – as I said, it is about the principle, not the worth of the person to whom it is applied.
I read you linked and was published by the court in full, as you also read it you'll note there are references to unpublished material
( you wrote:
> I'll omit it, but you can find it quoted in the judgement, and the media appears to have filled in ...
whereas the court noted:
> 3. "Zip up (etc...)" [Offensive words omitted.]
ie: the court left out portions of what was posted. Further:
> 7. the Mercury newspaper reported the applicant's comments in part ...
> 25. some of the words written by the applicant were not published by the Mercury .. Those words will be redacted when these reasons are made available for publication.
)
I agree that on the face of things it appears as thought the judgement has been made exclusively on the fact of the offender commenting on a prior case.
I disagree that this is as simple as "conviction for describing underage sex as Awesome on Facebook".
It is laid out at length that the offender had previously preyed upon the person he made comment about, further that these later comments caused further duress to that same victim, and reference was made to his prior conviction (which carried stringent terms about staying clear of underage girls in general and his prior victim(s?) specificly, associating with others of the same ilk, and avoiding patterns of prior behaviour, etc.)
This is not a case of "some average Australian" making comments about underage sex on the internet - such things happen daily.
This is a specific case of an actual prior offender making public utterances about a former victim after a conviction that included a jail term and behavioural advisories. *
( * I assume on the grounds that similar cases in Western Australia's children court include strong "stay the F. away from your victims" conditions )
I would find this concerning if this was a case that saw a random citizen charged, I don't find it concerning that these specific set of circumstances were bought under consideration and after deliberation a prior offender has been given a message that this kind of behaviour is not okay.
Real life is rarely clear cut and the law constantly has to deal with edge cases.