In 1814 Francesco Goya completed his painting Third of May 1808. Today it is housed in the Prado Museum in Madrid. It has come to be regarded as perhaps the first modernist work and was used by Picasso as inspiration for Guernica. It depicts a Spanish dissident at the moment of his execution by Napoleon’s army. Bodies lie at his feet and others await their fate nearby. His face depicts the emotion of his final moment and kneeling, he holds his hands up to the night sky. The soldiers point their guns at him as one, doing their ‘duty’ without reflection.
Francisco Goya, The Third of May, 1808, painted 1814-15, oil on canvas, 268 x 347 cm (Museo del Prado, Madrid)
In his biography of Goya, Robert Hughes said of the man depicted in the painting: ‘In an age of unremitting war and cruelty, when the value of human life seems to be at the deepest discount in human history, when our culture is saturated with endless images of torment, brutality and death, he continues to haunt us.’ Hughes describes him as offering defiance in the face of death and the absence of mercy. He is not bowing in submission as he waits to be shot. His is the pose of Christ at crucifixion.
In 2017 I walked the Camino del Norte from San Sebastian through Gernika and on to Oviedo. I used Picasso’s painting Guernica as my guide and wrote a story of that journey. At the conclusion of the del Norte I decided I would return to Oviedo in 2018 and complete the Camino Primitivo, with Goya’s painting as my guide.
Following my return to Australia in 2017 after the del Norte, I resumed life as a judge sitting in the criminal jurisdiction in the County Court of Victoria. Much of the work concerned sentencing and arriving at an appropriate proportionate sentence in each case by applying what is known as the instinctive synthesis, an analysis by the judge relying on his or her own experience and the application of often competing, incompatible considerations. It is said that there are a number of signposts in sentencing and they may point in different directions, much like the arrows encountered at junctures along the camino.
The expression ‘the instinctive synthesis’ can be traced in Victoria to a judgment of the Full Court of the Supreme Court in 1975 in R v Williscroft where the court observed that ‘ultimately every sentence imposed represents the sentencing judge’s instinctive synthesis of the various factors involved in the punitive process’. While the expression was novel, the court merely described how common law judges had gone about their work for generations.
As I settled back into the routine of life on the court, a sentence I had passed sitting in Warrnambool in 2015 had found its way to the High Court of Australia after an unsuccessful appeal by the Director of Public Prosecutions to the Victorian Court of Appeal. The case was R v Charlie Dalgliesh, a pseudonym my associate gave the accused to ensure that the victims of his offending were not identified when my reasons were published. The case was a complex sentencing exercise. On the one hand Dalgliesh pleaded guilty to serious sexual offences against his stepdaughters, one of whom fell pregnant as a result of his offending. On the other hand he suffered from significant post traumatic disorder and associated illnesses caused by the Black Saturday bushfires. His personal circumstances therefore informed the degree of his moral culpability. The instinctive synthesis required me to give these key factors, and others, the weight I regarded as appropriate. The DPP contended that the sentence I had imposed was manifestly inadequate and Dalgliesh became the battleground on which the instinctive synthesis fought for survival.
In 2005 Michael McHugh, then a judge of the High Court, had foreseen the battle that was to come years later. He observed in Makarian v R that the instinctive synthesis had long divided legal thinking and said, ‘One reason why the idea of the instinctive synthesis is apparently abhorrent to lawyers who value predictability and transparency in sentencing is that they see the instinct of a sentencing judge as entirely subjective, personal and arbitrary.’
Dalgliesh pitted the instinctive synthesis against current sentencing practices—a provision in the Victorian Sentencing Act that came to prominence following the judgment of Justice Redlich in R v Ashdown in 2012. His Honour stated that sentencing judges were required to adhere to current sentencing practices—that is—sentences passed by other judges in similar cases. It was a clear statement that the instinctive synthesis was out of fashion as the court sought to achieve uniformity in sentencing.
The principle of current sentencing practices was relied on by the Victorian Court of Appeal to uphold the sentence I had originally passed in Dalgliesh. The court concluded that it was a merciful sentence but not so out of step with other sentences for similar crimes as to reveal error. Apparently to defend the instinctive synthesis, the DPP took Dalglieshto the High Court but went on to argue that the sentence was impermissibly merciful. To defend the sentence imposed, Dalgliesh relied on current sentencing practices. It seemed that once-familiar roles had been reversed.
After Dalgliesh was heard in the High Court and was awaiting judgment, an extraordinary dispute played out in public between the Chief Justice of Victoria and the DPP. In an unusual step, the Chief Justice wrote to the DPP requiring changes be made to oral submissions that had been made on his behalf to the High Court by the chief crown prosecutor regarding current sentencing practices. The DPP refused and the dispute revealed the enormous tension in the criminal justice system in relation to sentencing in Victoria. And the controversy over the instinctive synthesis.
Eventually the sentence in Dalgliesh was substantially increased following the successful appeal by the DPP in the High Court. But in allowing the appeal, the High Court made it clear that the instinctive synthesis was fundamental to sentencing in Victoria and current sentencing practices merely one consideration that a judge was to take into account in arriving at an appropriate sentence. The court emphasised that every case is different and that an individual judge may properly balance the competing sentencing factors in a different way to another.
Following Dalgliesh, Victorian judges were subjected to concerted criticism and described among other things as civil libertarians, as if that was somehow a character or intellectual flaw. Despite the survival of the instinctive synthesis and the sentencing discretion of an individual judge it was clear that pressure would be on judges to impose increasingly lengthy terms of imprisonment on offenders before the courts. In this context perhaps the most important principle of all in sentencing had become obscured—the principle of proportionality. That is, the punishment should fit the crime. Were we becoming a society in which any offence, any misjudgement would be met with a disproportionate response, I asked myself, as an ever increasing clamour for retribution coloured everyday discourse.
In 2017 the Victorian Court of Appeal also decided the case of R v Akoka. In that decision, the court confirmed that ‘justice and humanity walk together’ and that ‘an element of mercy has always been regarded and properly regarded as running hand in hand with the sentencing discretion’. The decision did not attract public attention but the language used by the court confirmed the importance of mercy in sentencing.
Sentencing judges were left to find their own pathway through these statements of principle in a hostile political environment.
***
And so after another year working in the court, I arrived in Madrid on a mild summer day in June 2018 and went to the Prado to see Goya’s painting. The Third of May 1808 hangs with its partner Second of May 1808, which depicts the uprising that led to the execution of the dissidents. In each work the participants avert their gaze. Goya depicts the final moment of the dissident’s life yet no-one in the scene is looking directly at him. Surrounded by others, he is alone. More than 200 years ago Goya created an image that has startling contemporary relevance; an image of dignified individual resistance to repression.
Spain had a new socialist government and Madrid seemed calm when I left for Oviedo by train.
Pilgrims walking the Way carry a credential that allows access to the refuges and albergues along the journey. I had mine from the del Norte in 2017 and went to the cathedral in Oviedo to check that it was current. Standing at the desk I met Dave. We chatted briefly and he seemed like a nice enough guy. I suggested a place for him to stay.
Asturias was inundated with rain when I started walking from Oviedo. Beaches were washed away as the downpour entered the Cantabrian sea. The paths on the camino were flooded and deep mud made my progress slow. There were few pilgrims on the Primitivo and the way was through remote unspoilt country. The Primitivo accounts for a small percentage of the annual number of pilgrims who walk the various caminos to Santiago de Compostela. It is, however, the original way taken between the significant cathedrals in the two cities. I crossed running streams on the paths, negotiating kilometres of mud as I went. The birdsong lifted the dense air around me. As with the del Norte the way marking is very reliable and I did not get lost. The forests are undisturbed and the Cantabrian brown bear lives, albeit in low numbers, in the remote countryside.
After three days of walking I arrived in Tineo, exhausted and relieved to be free of the mud. Some friends from the del Norte in 2017 arrived that night too. I was sitting outside my hotel having a cerveza and Dave appeared. He introduced himself to me as if he were an old friend. He explained that he had walked through the flood. He told me he had to dry his boots; ‘hunting boots’ he said. He told me he was a hunter and that he liked to shoot birds. I thought it sounded ominous but knew that one met all sorts on the camino, pilgrims and a cross-section of humanity.
Dave told me he hadn’t had a drink for 22 years. He said he gave a kidney to his sister, to whom he no longer spoke. He told me his divorce was acrimonious. He said he worked in NYC selling information stocks. He told me all of this in less than 30 minutes.
Later in the evening my friends joined us and the conversation over time turned to gun control. It was then that the real Dave who had been lurking in the shadows emerged. Dave is anti-government and he voted for Trump. Dave believed, like Justice Scalia, that the American constitution is to be interpreted by reference to the world of 1788. Dave is an originalist. He said that the reason massacres occurred in US schools is because they are gun-free zones; that the killers made rational decisions to seek out vulnerable victims. Dave couldn’t see that selling people guns in drug stores was a cause of the killing.
He then took up the issue of health insurance and firmly believed that government health insurance is a means by which big brother controls citizens. Dave was outraged that the NYC government recognised the multiple languages spoken in the city. He said members of Congress had never run a business, unlike Trump. He couldn’t see the irony in an outsider like Trump imposing his uniform view of the world on others. He complained it was difficult for him to take a gun into Britain. Dave is now the common face of the United States. Dave is one of the most frightening people I have ever met.
I stayed in Tineo for another day to let the rain and Dave pass. Meeting him disturbed me and I wondered why this dark figure had entered this camino.
The countryside in Asturias dried out and the early summer sun emerged. A simple Mass was being celebrated as I passed the eleventh-century monastery at Cordellana. I noticed that fewer chapels and churches lined the way, a sign of the sparse population.
I walked high into the foothills of the Cantabrian mountains. One morning as I climbed through the fog at the treeline I arrived at the Hospitales route across the high peaks to Burdecedo. An alternative route descends into the town of Pola de Allende and pilgrims are advised not to traverse the peaks in poor weather or fog. I stood at the juncture contemplating the risk. Three pilgrims emerged from the fog and we all agreed to take the Hospitales watching out for one another. As we began, silence embraced us and we took up our own positions on the path. The sun broke through the cloud and the fog disappeared. The high country was revealed. A herd of wild horses and grazing cattle gazed at us as we wandered past their watering hole. We passed sixteenth-century dry stone wall pilgrim refuges, the hospitales that gave the route its name. As I arrived at the approach to the peak at Puerto de Palo, standing in a pond was a large black steer feeding lazily on wild water lilies. On the Hospitales route there was no time, no distance, only the journey taken by pilgrims for 1000 years.
I descended onto the dry stone wall–lined path to Berducedo, the high peaks of the Cantabrian mountains behind me. This was my third journey on the camino but never before was Spain revealed to me with such profound beauty. I had walked about 25 kilometres in almost complete silence, stopping for water or to rest, my companions dispersed across the landscape.
That night in the albergue the TV news reported that the new government had decided to allow a humanitarian rescue ship, the Aquarius, to disembark 629 African refugees including 123 unaccompanied children in Valencia. The government specifically described the decision as a symbolic act. And so it was.
I continued through the Asturian countryside. As with the del Norte the previous year, the way crossed farmland and small villages. En route to A Fonsegrada I walked into a group of houses surrounded by oak, birch and beech trees. A dairy farmer was guiding his herd along a narrow laneway. Terriers were barking at the cows and proudly doing their job. I greeted the farmer and he smiled generously towards me. A friend of his emerged from one of the houses. The dogs continued to bark and looked to the farmer for his approval. In a vegetable plot nearby a woman wearing madrenas, perhaps the farmer’s wife, tended a crop. They all sincerely wished me buen camino and I walked on to the sound of the terriers and cow bells.
I thought about my work and the battle that had raged over sentencing and the instinctive synthesis. It is at the heart of what we do as judges and I was puzzled by the paradox of those advocates for liberty, diversity and human rights who were working to constrain judicial discretion. In the time of increasing personal liberty judges have less and less freedom. Like most of my colleagues over many years I have seen the deprivation that causes people to offend; the poverty, racism, ill health and disadvantage that lead to crime. It was this experience that Michael McHugh wrote about in Makarian in defence of the instinctive synthesis.
I walked to Lugo and to Melide where the Primitivo meets the Camino Francés for the final stage into Santiago. In 2016 when I arrived there I had walked with the spirit of my mother and the humility and simplicity with which she had lived her life. I had sought to be guided by her when I resumed my life in Melbourne facing the challenges of life as a judge. In 2018 when I walked into Santiago a strong sense of resolution emerged. I realised that my camino was to trust my instinct and my synthesis of all around me and to bring mercy to my work. I had carried Goya’s painting with me and as I stood in front of the cathedral I saw the dissident and the power of his resistance to oppression and inhumane authority.
I went to Mass, left a cowrie shell I had brought from Melbourne for my father in the chapel of El Pilar and walked out into the Spanish sunlight on my way back to court.
Mark E. Dean was appointed to the County Court of Victoria in 2010. Prior to his appointment he had practised at the Victorian Bar since 1983. He was appointed Senior Counsel in 2001.
