Heilpern, David --- "The Life of a Country Magistrate ... a Personal Refection" [2000] ALRCRefJl 27; (2000) 77 Australian Law Reform Commission Reform Journal 33

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Reform Issue 77 Spring 2000

This article appeared on pages 33 – 35 & 90 of the original journal.

The life of a country magistrate... a personal reflection

By David Heilpern*

I was appointed a magistrate in January 1999, and appointed to a country circuit in the Central West of New South Wales at Dubbo in April 1999. My courts are Wellington, Narromine, Warren, Nyngan, Cobar and Condobolin.

Previously, I had been a criminal lawyer and academic in Lismore. For me, coming to the West was a bit of a home-coming, as I grew up in Bathurst and worked in shearing sheds to support myself through university.

About 70 per cent of the people who appear before me are Aborigines, and the jurisdiction of the court includes children’s court, family court, industrial court and coroner’s court. Accordingly, there is a huge range of work in an ever-expanding jurisdiction. The most serious cases in the adult court I deal with to finality are allegations of aggravated indecent assaults on children, dangerous driving causing death and serious assaults. In the children’s court I hear cases involving sexual assaults and armed robbery cases.

Being a magistrate is a job of enormous contrasts. There is the contrast between the beauty of the countryside, and the pain and anguish of the faces that appear before me. There is the contrast of dealing with a minor traffic matter in the morning and a murder committal in the afternoon. There is the contrast between the confidence and competence of those used to the court process, and the utter bewilderment of the rest. There is the contrast between the outrage of the poverty of the dying towns and the confident booming bustle of the successful towns. There are the drunk defendants who want to lecture you for days on the meaning of life, and the blank eyed nodding heroin dependant souls who are trying desperately just to stay awake.

And within all that contrast there is the responsibility to apply the laws without fear or favour, affection or ill will. And to try to strike a balance between the powers of the police and the rights of individuals.

Rather than trying to paint a picture of everything that I do, it seems more appropriate to point out a few aspects of my work and some of the impressions of that I have collected along the way.

A day in the life of ...

My day starts early as I set off with my court staff as far as three and a half hours away. On the trip we religiously listen to Van Morrison with a smattering of news and current affairs. As a result we arrive at Cobar or Condobolin a little better informed and a lot more awake than when we started. If it is a ‘list day’ we deal with all the fresh charges that have been laid in the preceding weeks, and deal with left over matters from the last list day. On a list day, there can be more than 100 individuals appearing before me. Sometimes this feels like sausage factory law, but I concentrate on remaining focused and try to remember that every case is very important to the individuals involved. This means that I am reading from the moment I get to court to ensure I am up-to-date with the background of each of the defendants.

If it is a hearing day there will often be preliminary matters that need to be sorted out before the hearing starts. These include resolving issues of law, dealing with subpoenas and adjournment applications. Most hearings take three to four hours to be heard, although they take much longer if the defendant is unrepresented. If court finishes at four we will often than not be home until 7.30 or 8pm, so there are some very long days. Sometimes there are judgments and case notes to be written, statistics to complete or law to catch up on at home in the evenings.

In the evening when staying overnight in one of the towns I will often attend a council meeting or rotary club or sporting association. I believe that magistrates have a responsibility to get to know the towns in which they sit, and in particular to mix with as many people as possible to ensure that they understand the cultural context in which the law is being applied. As a result I have been fortunate to meet with many older Aboriginal people and listen to their stories and their hopes for their children and grandchildren. I often think, perhaps with some romantic rose-coloured glasses, of how life was for these people before white man’s law came to town.

Unsung heroes

Every day in my court there are the mothers and fathers of children who have been charged with various offences. Sometimes they have travelled literally days to get to court and have put their lives on hold while they try to ensure that their children are not sent away. And they wait all day for their child’s name to be called and when it is they shuffle in, pulling their clothes straight in an effort to look their best and most responsible for the magistrate. And I am sure that when they get home and their heads hit the pillow they worry about what they’ve done wrong in their parenting for their child to end up in court. I feel like getting down off the bench and telling them that it is not their fault. I feel like telling them that all kids can be trouble and that I respect and thank them for being there. Sometimes I do.

I am sure also that they feel the full brunt of their neighbours’ sneers when they arrive home, as confidentiality is a joke in the bush. And sometimes their children are placed on a curfew and are under house arrest for months. I wonder how they cope with the intensity and tension that must necessarily bring. Many of them become in effect their children’s keepers and must report their children to the police if they break their curfew or other bail conditions. What a dilemma that must be. They are the unsung heroes and I pay tribute to them.

Sentencing options

One of the most frustrating aspects of being a country magistrate is the lack of sentencing options available to me. In some of my towns the only sentencing options are fines, bonds and imprisonment. In city courts there are a range of other options including community service, periodic detention, home detention, offender anger management courses, assessment centres, drug court and driver education programs. It is particularly frustrating that we are all seeking to decrease the proportion of Aborigines in custody, however where the vast majority of defendants are Aborigines, the sentencing options are so limited. Almost every day I am faced with sentencing an offender in a manner that I feel is inappropriate – either to light or too heavy – because of a lack of sentencing options that are available in the city. As Chief Magistrate Patricia Staunton recently commented:

‘As judicial officers we all know that, where the facts and circumstances of a matter warrant it, every consideration should be given to avoiding the imposition of a full time custodial sentence. In many areas of our state, simply by dint of residency, that consideration cannot be given its proper weight. The situation creates an unacceptable inequality before the law in the exercise of the sentencing powers of the court.’

The driver’s licence

For people in the country a driver’s licence is not a luxury, it is a necessity. It is also true that alcohol plays a crucial part in almost every activity in the bush. The combination of these two factors is that drink driving creates special problems for country people. There is no public transport, the distances are huge and yet the same automatic disqualification periods apply throughout the state. When you add to that mix the number of deaths caused by alcohol related driving incidents in the country, sentencing for drink driving offences poses real dilemmas.

By way of example, I recently had before me a shearer with three children, a mortgage and a high range prescribed concentration of alcohol offence. There is an automatic and mandatory disqualification period for this offence, which would effectively mean that the shearer loses his job, his house and his ability to work. The only other alternative is to deal with him in a manner that does not record a conviction, usually a path limited to first offences, and minor ones at that.

The situation is made worse for many people because unpaid fines now lead to the suspension of a person’s driver’s licence. If I fine a person who is long-term unemployed and likely to remain so, I am effectively stopping them from driving – often a prerequisite for any employment at all. It is trite to say that a driver’s licence is a privilege not a right, but in the bush, life without a licence may be hopeless indeed.

Personal life

Being a country magistrate poses special problems for having a personal life. There are obviously some places that you just can’t go particularly when visiting in country towns. I am obviously too old for Bachelor and Spinster balls, but they seem to be out of bounds for me anyway because I would then become a witness in every case before the court for the next month.

Having teenage children also has potential problems should they sow their wild oats in a manner that brings them before the court. Fortunately, I rarely sit in the town where I live and so that particular problem is unlikely to come my way. However, everyone in the country is very quick to tell you what you should do in every situation. My newsagent is very quick to tell me if my sentences are tough enough in a publicised case. The librarian rings me to tell me if I have mispronounced a local town. The newspaper is quick to report and comment on the sentences that it perceives to be too lenient. My children will often hear reports on the local news and give me a hard time if they think I have slipped up – ‘You didn’t give that dickhead bail, did you Dad?’. Thank you, children.

On many occasions I have been halfway through a case when a witness is called and I have some personal connection, or I have seen them in front of me in a different case. Sometimes this means that the case must be aborted and there is great inconvenience for all involved. Other times I simply disclose the problem to both sides and, in the absence of any objection from them, we go on with the case. Of greater difficulty is the inevitability of forming an opinion about the police officers who appear before me on a regular basis. One becomes an expert at selective forgetting.

Despite the difficulties I have listed above, the job is very satisfying and never boring. Being a country magistrate is often lonely and at times daunting, but the positives certainly outweigh the negatives. A magistrate cannot stop domestic violence or alcoholism or turn around the economy of dying towns. What we can do is ensure that the law is upheld and that there is humanity and consideration in its application. In the words of Martin Luther King:

‘Morality cannot be legislated, but behavior can be regulated; judicial decrees may not change the heart, but they can restrain the heartless.’

*David Heilpern is a NSW Magistrate.