Historic fine

WHAT DOES the historic $2.25 million fine given to Vincent Nelson QC say about the State’s handling of corruption offences?

It represents something of a watershed moment, showing that the State is getting better at dealing with white-collar crime. It shows how far we have come as a nation in terms of criminal justice administration. And it shows how much further we are yet to go.

Considered alongside the Securities and Exchange Commission’s (SEC) recent handing down of millions in fines in relation to an IPO scandal, there is much to be hopeful about. But in the case of the SEC fines we must be careful to observe these were ordered and accepted without any admission of liability for wrongdoing on the part of the actors. That is markedly different from Nelson’s case.

Nelson pleaded guilty to a number of charges tied to allegations of money laundering, conspiracy and fraud. Such serious offences normally raise the prospect of jail time. But the fact that the QC entered a guilty plea, saving the court time and expense in a lengthy trial, was probably something the judge was entitled to consider. Either way, $2.25 million is a substantial penalty by any standard and an effective deterrent to unethical conduct, whether in public or private life.

And yet there will be many who will question whether this is good enough. As is the case with the SEC fines, there is the danger that a culture of impunity could set in: a culture in which wealthy people escape the jail time normally reserved for those unable to launch lucrative legal defences.

Time and time again in our criminal justice system, for example in relation to capital offences like murder, there is a feeling that prison time is reserved for the small fry. Rarely, if ever, do the big fish get exposed. The imposition of a fine suggests liability is something that can be bargained over. Indeed, that is the whole point of the plea-bargaining law that paved the way for this week’s historic first.

And yet there is merit to such plea-bargaining if only for the way it can have a positive impact on the heavily backlogged criminal justice system. For that to be the case, however, it must be seen to work for the rich as equally for the poor.

Ironically, it may well be the QC’s status as a senior lawyer that emboldened the court to impose such a substantial penalty. And that, too, is a facet of the system: for justice to work it must not only be rigidly consistent, it must be effective, applying to the specific circumstances of each case and each defendant.

At the end of the day, impartial judicial discretion, balanced with clear public policy and innovative laws, must focus the aim of justice’s sword.