Top Blokes, Totally out of Character: When five white men beat an Aboriginal man to death

These are the facts, as they were agreed to by the perpetrators. After a long night of drinking, Scott Doody, Timothy Hird, Joshua Spears, Anton Kloeden, and Glen Swain left a casino at 6am in the morning of 25 July 2009. They ranged in age from 18-23. Most of them were drunk, but Kloeden, the driver, was not.

Kloeden, in the words of Chief Justice Martin, [http://www.ntnews.com.au/docs/2010/04/23/R_v_Doody.pdf] then thought it would be fun to “take on the challenge of driving along the Todd River bed to the Telegraph Station”. Even more fun, Kloeden then “made the offensive and stupid decision to harass the Aboriginal people camped in the riverbed”, nearby Schwarz Crescent causeway. They drove towards a group of at least six campers. The campers fled to trees for safety, except for an elderly Aboriginal person, who was too elderly to respond with adequate speed. Kloeden drove within a metre of him, with the intention of terrifying him by narrowly missing him.

Having driven away Kloeden turned the car back to the camp due to a fenced off exit. Kloeden had not yet had enough fun for the night: he drove over the elderly man’s swag as they passed the camp again. One female camper, who saw the young men coming, threw a small log at their car. Some of the men got out of the car and “yelled abuse” at the Aboriginal campers. The form of this abuse was not recorded.

The night, now morning, was not yet over. Kloeden thought there was more fun to be had, so he drove at another Aboriginal camping group. The three Aboriginal people were sleeping. They were woken up by the car speeding towards them, and fled for their lives. Kloeden parked near the campers, and again “words were exchanged”. The sort of words exchanged is not yet on the public record.

After this, the group decided to return to the home of Hird and Swain. Fun was still to be had. Once there, the group picked up more alcohol, Hird’s gun and blank ammunition. They drove along and Hird shot his gun, though at one point it jammed. As they approached Schwarz Crescent causeway, they stopped the car so that Hird could fix his gun. Having fixed it, he shot it again. Justice Martin noted that the car was intentionally stopped so that Hird would be able to “scare the Aboriginal occupants” of the first camp they had terrorised previously.

This goal was achieved. As Swain testified to the police, the campers began running, and obviously “feared for their lives”, according to the judge’s rendition of Swain. Hird plainly contributed to this by holding the pistol outside the car in the direction of the camp.

An Aboriginal man, Kwementyaye Ryder, was one of the campers who had been terrorised by Kloeden’s driving in the first instance. He responded this time by throwing a bottle, which hit the side of the car.

Kloeden immediately executed a sudden u-turn. He stopped so close to Ryder that Ryder could grab the bullbar. All four passengers raced out of the car, with Hird the first one out. Without checking the damage to the car, they chased Ryder, who tripped and fell. Confronted with a man “lying defenceless and incapable of posing any threat to any of the offenders”, they repeatedly kicked him in the head, and Spears struck his head with a bottle. They told him “Don’t fuck with us”.

Swain, who had kicked Ryder in the head twice, noticed he was lying motionless, and that something was plainly wrong. He called out “Let’s go”, considering that the most appropriate reaction. They got into the car. Kloeden hadn’t gotten out of the car because he was executing a three-point-turn. Apparently untroubled by what he saw, Kloeden was “seen to drive away at a leisurely, normal pace.”

The men proceeded to lie to the police over the course of a week. Swain and Kloeden lied to the police, saying they had gone by themselves to a racecourse and fallen asleep there. Hird lied to the police, saying that he had gone to the casino with Doody and hadn’t seen Swain or Kloeden. Justice Martin did not comment on it, but the matching alibis point to some collusion among the defendants.

Justice Martin noted to the defendants that it was apparent they “would inevitably be caught,” which may help explain why Swain offered a full confession within a week. Out of the group of five, Swain was the “only person who made a full and frank confession to the police and who gave them every assistance possible.”

Those are the facts. Justice Martin then had the task of interpreting them. He concluded that this “crime is toward the lower end of the scale of seriousness for crimes of manslaughter.” Not enough violence was inflicted, and the defendants supposedly could not have foreseen a serious risk of death from their violent attack. Repeatedly kicking someone in the head and hitting him with a bottle and then fleeing when the victim was motionless is apparently not recklessness, but negligence to Justice Martin.

Justice Martin then considered the possible value of inflicting a heavier sentence for deterrence value. He dismissed this too. His grounds for this are particularly striking: the violence “arose out of an angry and aggressive reaction to a perceived insult”. Plainly, there could be no value in deterrence with a mere crime of violence perpetrated by intoxicated youths responding to a perceived insult.

What didn’t feature in his discussion of deterrence was what he acknowledged repeatedly was the “atmosphere of antagonism towards Aboriginal persons” manifested by the defendants. Nor was this mentioned as an aggravating feature. Which goes much of the way towards explaining his lenient sentencing: Doody, who did not physically strike Ryder, was sentenced to four years imprisonment to be suspended after 12 months. Hird, Kloeden and Spears were sentenced to six years imprisonment, with a non-parole period of 4 years. Swain had half a year taken off both measures, on account of his confession.

Yet there is one other factor which played a crucial role in Justice Martin’s sentencing, and is arguably the most appalling part of his decision. Justice Martin went out of his way to provide character references for almost every defendant. Doody is “a person of positive good character”. Hird is a “solid, hard-working young man of good character”. Kloeden has an “underlying good character”. Spears is a “person of very good character”. Swain, like Kloeden, was a “person of underlying good character”. These men of good character repeatedly terrorised Aboriginal people for being Aboriginal, before getting a gun to terrorise them further, ending the night by beating a man to death, and then casually driving away without checking if their victim was okay.

Justice Martin’s grounds for these conclusions are astonishing. He notes character references in their favour, proving that many of them have friends and employers who think nice things about them. This hardly balances out what they did. He then scrapes the barrel in special pleading on their behalf, holding, for example, that Spears had never previously “come into contact with the criminal law”. Considering he was 18 at the time, this is hardly such an achievement. Hird, Kloeden, and Swain, on the other hand, despite their youth had previously had difficulties with the law. Yet Justice Martin was able to claim that this was “totally out of character” for all of them, and also that they were “genuinely sorry”. Presumably he was able to judge their tremendous remorse from how they casually left the scene of the motionless man who soon died from their beating. This too was in their character. Or perhaps their remorse was manifested in the lies they worked on together to tell the cops. Or perhaps he judged their remorse in the fact that four out of five of them didn’t cooperate with the police at all, and the only one did when it was already apparent that they would be caught.

What was missing from Justice Martin’s sentencing remarks, and sentence, was a sense of revulsion at what happened. The five young men engaged in recreational activities that wouldn’t be out of place in a gathering of Klansmen.

This disgusting crime was not just an attack on Ryder. It was an attack on Aboriginal people in Australia. It – and Martin’s judgement – was an attack on our decency as a people. I am appalled as a human being to live in a country where such a terrible crime can take place, where the media and public intellectuals – with the honourable exception of National Indigenous Times Chris Graham, who gave me the judgement on Friday – have reacted with complete indifference. I am horrified as a Jewish person to live in a country where a member of a small, vulnerable minority can be victimised in such a shocking manner, and the perpetrators can still be described as basically good people.

And I am ashamed as an Australian that this is the country I live in.

UPDATE: And a week later (Thursday night, the decision was Friday last week), there have been no op eds run in any paper. NIT, I’ve been told, will cover it. No one has seen anything significant in the decision. There were a few news stories – none of them describing the facts at the length given here – and I found one blog which discussed it (it’s a blog devoted to casinos). No one has seen fit to analyse the decision, and the media doesn’t care.

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Comments
11 Responses to “Top Blokes, Totally out of Character: When five white men beat an Aboriginal man to death”
  1. Donny's mother-in-law says:

    I had the pleasure of knowing Donny briefly as a guest at his and his girlfriends for two weeks.

    My opinion of him was that he also was of very good character and a top bloke.

    I am white and not proud of what my white brothers have done to my black brother. It seems that certain people will justify a violent white mans action by blamming alcohol and will scorn with disgust at a black mans violence with alcohol. The bloody ridiculous thing is, white man introduced alcohol.

    Had the colours of this tragic coin been reversed; what justice would best serve the death of a white man by the hands and feet of 5 black men? Not only has a top bloke died, several other people have been terrorised while they lay asleep.

    The war between races still rages.

    The imbalance still weighs heavily on those of us with humanity.

    SHAME ON A DRACONIAN WHITE MANS LAW.

    RIP MY SON=IN=LAW

  2. Jade says:

    PLEASE PLEASE PLEASE! IF YOU ARE IN AGREEMENT THAT THESE 5 YOUNG BLOKES GOT OFF WITH A LENIENT SENTANCE; THEN PLEASE HELP US TO APPEAL. LETTERS NEED TO BE WRITTEN TO….

    The Director of Prosecutions,
    ATTENTION Richard Coates,
    GPO Box 3321,
    DARWIN 0801.

    WE NEED TO GET AS MUCH PUBLIC PRESSURE IN ORDER TO APPEAL.
    SCOTTY DOODY WILL BE OUT THIS AUGUST AFTER SERVING ONE YEAR!
    THE OTHER FOUR WILL BE DUE FOR PAROLE IN 3 YEARS.

    PLEASE DO THIS FOR ME AND THE MEMORY OF MY BEAUTIFUL MAN.

    THANKS,

    JADE

  3. Matt Lacey says:

    Sounds to me like Justice Martin (really? Justice?) needs to be locked away himself,

  4. scott says:

    this is the same justice martin who quotes that ‘aboriginal people need to grow up.’ He also failed to allow any defence impact statement to be heard which showed that the character of Ryder was good character too. Not to mention the speeding up of the plea process was quite inappropriate. I was told last week by an aboriginal women that her cousin has been in remand for almost a year waiting for hearing, yet the judge speed up this court case of 5 white people because they had been ‘waiting to long in remand’.

  5. Sara L H says:

    If you think that the sentencing of these 5 men was too leniant please write letters of protest to:

    The Director of Prosecutions,
    ATTENTION Richard Coates,
    GPO Box 3321,
    DARWIN 0801.

  6. Chris Graham says:

    Gret piece Michael.

    NIT is indeed covering it – there’s a 7,500 word feature out in today’s NIT on the issue. It makes some of the points youmake (great minds think alike) and is very much of the same thrust – ie. an appalling decision and a totally inadequate sentence.

    Should be available online on Monday, at nit.com.au. Story is entitled ‘Deep South justice in the Red Centre’ if you want to search for it. Cheers Chris.

  7. T. Morrison says:

    First of all I want to say I’am sorry of Kwementyere Ryder’s death. But I have to respond. I live in Canada and to be honest I am tired, as well as people in Australia, of some of the attitudes of the Aboriginal population. Millions and millions of dollars are spent in both countries to improve the quality of life of the Aboriginal people. In response to our reaching out to help the Aboriginal people the whites are told we are to blame for all the problems that they encounter. Sleeping and drinking on city streets is not productive and leads to a community’s downfall. Anger comes from total disregard of society’s rules. Police in Canada have a low tolerance of bad behaviour in our Aboriginal settlements and for good reason. Also in response to Michael Brull ashamed of being Australian, if you don’t like it MOVE. You live in one of the best countries in the world. In Canada you would be cut down to size for making a comment like that. Thank you for your time and I hope the situation improves in your wonderful country.

    • s1x2000 says:

      T. Morrison, Michael Brull should NOT move. He should, as he is trying to do here, help to improve the country he calls home, as I and man others I know are trying to do. Rather than denigrating people who call Australia’s Aborigines our friends and in some cases, our family, perhaps you could look to the case itself and the judgement to examine the inequities in the way the judicial systems in Australia’s various jurisdictions treat people of non-European heritage. the differences are quire stark and the bias obvious. When the justice system treats all people equally in life and death, then perhaps we’ll have a better world. The way many of the Indigenous people are ignored or belittled in this country is simply appalling and I, as a sixth generation Australian, am just as disappointed at Michael and I will continue to work toward leaving this country a little better when my days are ended. I hope Michael will as well.

  8. sam says:

    well i had 6 Aboriginal guys tried to beat me for fun yesterday and i aint even from australia

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