In the interests of justice

It also requires a commitment to the often-overlooked importance of offering respect and dignity to defendants and court users. The impact of this commitment reaches out into the local community.

Such was the lesson from The Power of Dignity, a memorable account by retired US Judge Victoria Pratt of her many years sitting on the bench in New Jersey.

As I pored over her memoir, I was reminded of a time when, working as a probation officer, I took a considered risk in offering the court a sentencing option outside the prevailing sentencing guidelines. It seemed to me to be just and fair in all the circumstances; or, in the judicial lexicon, ‘in the interests of justice’.

Theodore (not his real name) had been remanded on bail to attend a pre-sentence report, after being convicted of offences of common assault, threatening words and behaviour and possession of an offensive weapon (a potato peeler!).

When Theodore arrived at the office, he was in a heightened state of anxiety, which was hardly quelled when I quipped (rather thoughtlessly), “Try not to stress even when the chips are down!”.

Feeling suitably chastened, we discussed the index offences, the context of the offending and pertinent risk and harm indicators, with condign (one of my favoured words in report writing!) sentencing options.

Theodore had been a man of good character prior to the commission of these offences and stood to lose his long standing employment if the sentence was deemed by his employer as ‘too heavy’. I reminded him that the court had adopted its standby position in hearings post-conviction, requesting an ‘all options report’, which included custody.

The background to his offending had been the build-up of what appeared a toxic domestic atmosphere between Theodore and his step-son. On the day in question, reacting, he noted, to verbal provocation, the duo had got into an altercation, in which it appeared neither wanted to back down.

I cited the age gap between the two as pointing towards a lack of maturity on Theodore’s part in not engaging in more conciliatory behaviour. It was a point he grudgingly acknowledged. “The b****** kept goading me. I should have walked away.”

As the pair then continued to argue, they moved outdoors into a public place and neighbours, alerted to the disturbance, appeared “from nowhere”. Theodore grabbed the potato peeler to “scare off” his step-son. Not, he was vehement, to use it.

When police arrived, it had been discarded and the brouhaha was over. The terms of his bail had been observed and the step son had moved out of the address.

“What will you tell the court Mr Guilfoyle?” was his entreaty. After some reflective musing, I outlined that it was my intention to propose a conditional discharge.

The lack of any previous offending, the exemplary employment history (potentially jeopardised) and the fact that Theodore was a man in his mid-fifties who had insight into his aberrant behaviour persuaded me to down tariff this sentencing option.

But I added a caveat, that at the top end according to sentencing guidelines (at the time) custody was still in the frame.

When Theodore appeared for sentence, after advocacy and character references had been submitted, the bench retired to consider my report.

It was after lengthy deliberation that the bench chair opined “We have read Mr Guilfoyle’s helpful report and heard from your legal representative. In light of all we know about the circumstances of these offences, we are prepared to step outside sentencing guidelines in this case, an exceptional course of action, but feel that it is in the interests of justice to do so”.

A twenty four month conditional discharge was imposed.

Theodore’s relief was palpable. “Do thank Mr Guilfoyle for his report”, a probation colleague overheard him saying, “and for making it possible for me to scrape through with a discharge”.

Mike Guilfoyle is a retired probation officer.