Australia, the country where you can be 'too privileged' to go to jail

Alice Springs Aboriginal death in custody inquest begins
Articles relating to the inquest of 28yo Kwementyaye (Terrance) Briscoe at the Northern Territory Coroners Court, Alice Springs in 2012.

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This is the story of two Australian men, both 27, drunk and in trouble with the law. Their respective treatment neatly encapsulates a tale of two Australians

Van Badham 26 July 2013

Patricia Morton-Thomas (centre, front) the aunt of Aboriginal man Kwementyaye Briscoe leads a march to a building in Alice Springs where a closed-door meeting on alcohol reform is being held. (AAP Image/Xavier La Canna)

This is the story of two Australian men, both 27, drunk and in trouble with the law.

On 7 April, Liam Danial Sweeney attended a friend's birthday drinks at Crown Casino in Melbourne. According to the prosecution, Sweeney had been ignored when he attempted to shake another guest's hand, and stewed on this "insult" for a couple of hours. At midnight, under the influence of alcohol, he reportedly engaged in an "unprovoked and gratuitous" assault of the man, Richard Huiswaard. Sweeney smashed a wine glass into Huiswaard's face, and then punched him twice in the head. The defence argued that Huiswaard had made comments about Sweeney’s mother, implying he was gearing up to a fight.

Huiswaard was bleeding, but Sweeney did not stop to render assistance, nor to speak to police. Again according to prosecutors, he instead "fled the scene like a coward". Huiswaard was left needing stitches in his head and three weeks off work.

Compare Sweeney with the second 27-year-old Australian man – Mr Briscoe of Alice Springs. Briscoe was also drinking with friends but, unlike Liam Danial Sweeney, had not entered an "unprovoked and gratuitous assault", glassed someone, or permanently scarred their face when he encountered police on 5 January 2012. He had committed no crime whatsoever when the police chased him, wrestled him to the ground and took him into "protective custody" that evening. It was, in fact, Briscoe who complained of a bleeding headwound when he was locked in a cell.

What follows is a neat encapsulation of the two very different realities faced by the different segments of Australia's population.

Briscoe's pleas for treatment for his headwound were ignored by the police. Officers were listening to iPods while other prisoners heard the audible "choking and gasping" that Briscoe was making while he was confined behind bars. The police did not make cell checks as required, despite Briscoe's bleeding face and severely inebriated state; they surfed the internet instead. Two hours later, when an ambulance was finally called, Briscoe – the 27-year-old man innocent of any crime – was dead.

Sweeney, the 27-year-old who had committed a crime, did not die in police custody once apprehended for his assault. His crime made it to trial, and he pleaded guilty to "intentionally causing injury", which can carry a sentence of up to 10 years in prison.

But Sweeney will not serve a day. He received an 18-month suspended sentence and a $5,000 fine. The serving magistrate, Jack Vandersteen, explained in sentencing that he did not believe Sweeney "would last very long" in jail. "Not many people are in jail who went to Haileybury," continued Vandersteen, naming the prestigious private school that educated the kind of young man who glassed and scarred another as the result of a perceived slight.

Vandersteen's concern was that it may be "extremely devastating" for Sweeney's parents, one of whom is a barrister himself, to see Sweeney in court. There were concerns, too, about the impact of sentencing Sweeney due to the young man being a lawyer himself. Should he be jailed, he would not be able to practice law, after all.

The death of Briscoe was the subject of a court inquest into police responsibility for his death. Although it was identified that police had committed "errors and failures" that evening, the officers brought before the inquest were "formally disciplined" and not charged.

Briscoe's family were certainly "extremely devastated" after the finding, and shouted abuse at the police officers as they left court. "He was a young man, didn't even have a wife and kids, and policemen walk free," one family member said.

No one needed me to mention that Briscoe was Aboriginal, did they?

Van Badham is a Melbourne based theatre-maker and novelist, occasional broadcaster and critic, feminist, bogan and trollfighter.

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