Last Friday in Hornsby Local Court a 29-year-old man was sentenced to eight months in prison with a minimum non-parole period of three months for being involved in organising an unauthorised anti-lockdown protest and multiple breaches of COVID-related public health orders.
Essentially, it was condign punishment for the crime of being persistently antisocial.
That, objectively, is a big serve. By way of random comparison, I was reading the same day about a Sydney solicitor who was convicted of perverting the course of justice by counselling his clients to lie to police about a series of incidents of female genital mutilation in their community. His sentence was 400 hours of community service.
Of course, trying to make sense of sentencing practice is a ticket to despair, but on any basis three months in prison is harsh punishment for crimes involving no violence or violation of another’s rights.
The obvious answer to qualms about this heavy-handedness is “it’s a pandemic, stupid”, not an invalid point. Not just the governmental response to COVID but COVID itself commands that we act uniformly in compliance with “the rules”, otherwise we lose and people die. Pleas of “but my human rights” fall on deaf ears outside freedom warrior chat rooms.
The guy, Anthony Khallouf, was unquestionably recalcitrant and not apparently likely to cease his threats to public safety unless physically restrained. He is the founder of an anti-lockdown group with 12,000 followers on Telegram. He was also charged in 2020 with inciting protests in Melbourne.
Khallouf was instrumental in organising the illegal “Freedom Rally” in July, and pleaded guilty to four breaches of public health orders, including travelling from Queensland to Sydney.
There are always outliers. The single member of Congress who voted against the United States entering World War II. The billionaire who is anti-lockdown, anti-vaccination, pro-quack COVID cures. Pete Evans on anything scientific. Matt Canavan or Craig Kelly, just generally.
At some point free speech becomes a public health risk; in a pandemic, that line is necessarily a lot closer to home.
Everyone’s heard of Typhoid Mary. She was a domestic cook in New York and an asymptomatic carrier of typhoid. As she made her way between various Manhattan households at the turn of the 20th century, Mary infected dozens of people and at least several died. The link was eventually made, and against her will she was forcibly quarantined as a public health threat.
After a few years Mary was released on condition that she cease working as a cook and take precautions to not infect others. However, she liked cooking and five years later, after infecting many more, she was back in quarantine on an island in the East River where she remained until her death (not from typhoid) 23 years later.
Mary never believed that she carried the disease or presented a danger to anyone. Since she never had symptoms, that’s somewhat understandable. However, she was as lethal as a rattlesnake, and her lack of freedom was the price for her refusal to accept the generally acknowledged truth.
For Mary, the consequence wasn’t technically punishment, although the practical distinction between imprisonment and detention is often hard to see (ask an asylum seeker). It was protective — not of her but everyone else.
Under our modern public health laws, state and federal, authorities are equipped with every power conceivable to prevent or restrict the spread of a pandemic disease. They can forcibly quarantine individuals or whole populations, close borders, impose vaccinations and medical procedures without consent. All these powers are justified by a single public policy imperative: public safety.
It is accepted in legal principle that sometimes an existential reality trumps everything else, including all our human rights real or imagined. Habeas corpus can lawfully be suspended and aliens detained in wartime; we can be locked in our homes or quarantine facilities in a pandemic. It is pure pragmatism, the bottom of the hierarchy of needs: survival.
Punishment, however, is qualitatively different from protection and requires a completely different justification. This is where we need to be vigilant, because the balance between personal rights and society’s needs can most easily be pushed too far in the latter direction during a crisis.
The policing instinct which all our governments have on bold display, supported reflexively by the media and most of the population, is understandable. We get angry when we see flagrant disregard for what we’re all trying to achieve through sacrifice, and the trigger desire for punishment is only natural.
However, we would be wise to ask ourselves on what principle we should be dealing with Khallouf and his kind? A principled approach would contemplate both an element of punishment as a proportionate response to deliberate or reckless wrongdoing, and a larger element of protection of public health and safety.
To the latter extent, Khallouf is not a miscreant but a practical threat: he’s an idiot, obviously; it’s just that in normal times that wouldn’t matter, but at the moment, for purely pragmatic reasons, it does.
The difference between imprisonment and quarantine detention may be thought by some to be semantics, but I assure you it’s not. Its consequences will outlast COVID by a long way.
Does the punishment fit the crime? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name if you would like to be considered for publication in Crikey’s Your Say column. We reserve the right to edit for length and clarity.
Fair enough points Michael and if he had shown the likelihood of moderating his actions I would agree. But he is pretty recidivist. I wonder in this context about the woman who brought Delta to Newcastle in flagrant breach of health orders, (not her first such breach)was pulled up and agreed to go back to Sydney but did not do so and went to several more parties. Her actions, which were quite deliberate, indirectly resulted in the deaths of at least 2 people. What should happen there I wonder? ow do we know the results of Khallouf’s incitement? It may not be at all harmless.
People who breach health orders usually don’t cause deaths, but sometimes they do. So should the punishment be according to the actual harm caused, or the potential for harm?
My two cents. Because the actual harm may never be quantifiable, or known.. but we know the actual risk COVID presents to many, then it has to be about prevention. The alternative is to allow someone to knowingly put others at risk in a pandemic but effectively ‘ shut the door after the horse has bolted’. I’m comfortable at this stage using a justice response to protect the community from an evident and known danger.
That dichotomy is both the boon & bane of black letter Law.
The Lady does not wield a sword blindly without good reason.
Exceptions need to be exceptional.
This sounds more like a case of the rod having been spared wayyy too often.
There are laws that address both outcomes
people get busted for speeding, despite getting home safely and not hurting anyone – so I guess the precedent is there for penalising people for the potential harm
Lost me at your claim that he wasn’t violating another’s rights and safety. That’s precisely what he WAS doing…
I must be reading a different article. After weighing up both sides, he concludes:
“Khallouf is not a miscreant but a practical threat”
To: stating the bleeding Obvious,to wit – 863 weightless words, sundry expenses and photocopying etc, please forward Fee + Refreshers at earliest convenience.
Sgnd, A Shyster.
In fact for some people he could be the causal link to their death
I think that media has a responsibility to debunk myths and conspiracies without ridicule.
All of Murdoch’s outlets and especially Sky after Dark need to be called in and told was is and isn’t acceptable.
To not acknowledge the negative and deliberately destabilising effect this neocon propaganda has on democracy is to stick your head…in the sand.
There’s not that much that can be done about nutter forums but we don’t need a seeder of misinformation in free to air or pay TV.
While I admire the front , it really annoys me that people with so much chutzpah can be be so wantonly misled. Namely because they lack the services of a rational media support that can honestly debunk falsehoods or at the very least offer a reasonable differing opinion. This is what modern government looks like ,.. protecting by seeing science and rational thought that isn’t driven by immediate economic profit is the countries’ priority.
If that stuff was running on free to air as consistently as ‘treasure on gold island’ or whatever it’s called at 10:30 odd pm , we probably woldn’t have a problem, or at least we would have a better problem.
Thanks for the article Michael.
I quite agree with you when you say that:
“Of course, trying to make sense of sentencing practice is a ticket to despair, ”
but when you go on to add that:
“…..but on any basis three months in prison is harsh punishment for crimes involving no violence or violation of another’s rights.”
I am not so sure.
I think that this character, Anthony Khallouf, should have been required to serve his full 8 month sentence. But as you and I both know the likelihood of that happening is negligible.
I would argue that he was violating other people’s rights. He was violating their right to avoid the COVID virus. His behavior clearly increased the probability of people contracting a very contagious and potentially deadly virus.
On this occasion, probably due more to good luck than anything else, justice seems to have been served on this irresponsible social menace who was involved in organizing an unauthorized anti-lockdown protest and multiple breaches of COVID-related public health orders.
Indeed there is the issue of causation in criminal law
What, RR ? A “right to avoid the covid virus” ? That makes yet another right, added to others appearing with monotonous regularity.
Great article, thanks. I really enjoyed reading it and thinking about the issues it raises.