Thursday, 14 May 2009

Sentencing sex offenders

Ian Freckelton SC is an authority on several fields of law in Victoria.

I greatly admire his skills at a sentencing hearing. Having watched him do pleas in court and read some of his writing on the subject, the thing I've always been most impressed by is that he isn't afraid to refer to his opponent's best arguments.

Bad advocates don't address counter-arguments; they just ignore them entirely. Better ones talk about the flaws of their opponent's case. Dr Freckelton goes all the way. Given half a chance, he'll take the opposing case and talk about how good it is.

There's an inevitable moment of confusion that results when this happens.

"Hang on. How can emphasising the seriousness of the offence be good for his client?"

But as he speaks, Dr Freckelton's initially glowing description of his opponent's argument fades. There are weaknesses to any point of view and Dr Freckelton gives the appearance of wanting to be scrupulously accurate, so goes on to describe in minute detail what he finds to be the shortcomings of his opponent's case.

Methodically and seamlessly the submissions continue, until he arrives home at his chosen destination: his client's position. By comparison, his opponent's arguments appear superficially attractive, and inherently flawed. So yesterday. It's a persuasive technique which would be difficult to counter once it's got rolling.

There's no better example of Dr Freckelton's approach than in his paper Pleas in Sex Cases: Risk, Recidivism and Recalcitrance. As he is the first to say, making a plea of mitigation for serious sex offenders is no easy task. This paper draws together some of the best arguments from both ends of the bar table, making it a useful sentencing resource for both prosecution and defence.

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