Earlier this week the NSW Government passed new legislation aimed at curbing alcohol related violence. These measures include earlier lockouts in Sydney CBD clubs and mandatory sentencing for ‘one-punch’ assaults. This piece looks specifically at the introduction of mandatory sentencing, not at the overall response from the Government.
Mandatory sentencing has always been controversial. I didn’t know a lot about it (I’m still not an expert) until the last few weeks when I researched the issue for news stories at 2NUR and as background for my work with a state MP. This piece is by no means comprehensive. It aims to lay out some of the major arguments for and against the NSW Government’s decision.
The NSW Parliamentary Research Service compiled a paper on the legal and social ramifications of introducing Mandatory Sentencing prior to the legislation being passed. The research contains a succinct list of common arguments for and against these laws:
The main arguments for these laws include:
- The laws help to ensure that sentences reflect community standards and are not unduly lenient. In other words, to ensure that the punishment matches the crime. This is important for maintaining confidence in the justice system. Elected representatives are more sensitive to community concerns than appointed judges.
- The laws help to reduce crime by acting as a stronger deterrent to would-be offenders. The laws (particularly those that target repeat offenders) also help to prevent crime by incapacitating offenders for longer periods of time. By lessening crime in these two ways, the laws reduce the costs associated with crime.
- The laws can be drafted so that they do not result in excessively harsh sentences in some cases. For example, the laws can very specifically define the types of offences that will attract the minimum mandatory sentencing laws or fixed penalty. In addition, the laws might allow judges to depart from this penalty in “exceptional circumstances”.
The main arguments against these laws include:
- The laws lead to injustice because of their removal of judicial discretion. Judges will not always be able to ensure that the punishment matches the crime. There will inevitably be cases where offenders receive excessively harsh sentences.
- Increasing penalties does not deter people from committing crime. Most offenders do not act rationally; they act impulsively, and many are affected by alcohol or drugs. Laws that aim to incapacitate offenders for longer periods are unfair as they apply to some people who would not have reoffended.
- The laws impose significant costs on the justice system. They are likely to lead to lower guilty pleas, and therefore more trials. They are also likely to result in higher prison costs, with more offenders being sentenced to imprisonment, and for longer periods.
- Other less severe and costly alternatives can achieve the same objectives, including: presumptive sentencing laws, guideline judgments, and committing resources to apprehend offenders and to tackling the causes of offending.
The crux of the debate seems to be, “what decision will provide the most just outcome”. On one side of the argument is the concern that limiting the sentencing options of judges will lead to unfairly harsh sentences for cases with mitigating factors and on the other side is the belief that the judiciary might not always be making decision in line with community expectations and violent criminals aren’t being punished appropriately.
While writing a news story at 2NUR, prior to the legislation being passed, I interviewed Lake Macquarie MP Greg Piper. While Mr Piper supported the Government’s restrictions on opening hours of clubs and other measures aimed at tackling alcohol related violence he had serious concerns about the introduction of new sentencing laws:
Mandatory sentencing is a very, very bad proposition. We hear calls for this every now and then, when we see what we consider, as individuals or as communities, a mistake by the judiciary in adequate sentencing. They deal with so many things and the number of times they get it wrong, I would suggest, are very much in the minority. We should not chase these things down, with attacks on fundamental elements of our system of this separation of powers from the legislators and judiciary based on this.
The Member for Lake Macquarie also raised the issue of possibly unjust sentences stemming from the decision:
This could be somebody who, just for want of being in the wrong place at the wrong time and just defending themselves or defending a friend, has been found technically guilty of this assault that’s caused death and gets an 8 year minimum sentence. Or if it’s some other kind of injury up to 2 years minimum sentence. Now I don’t believe that’s going to make that person a better member of our society, as a matter of fact I think it’s probably going to be very detrimental to our society.
Mr Piper is not alone in his opposition to the change in sentencing laws. A recent article in the Sydney Morning Herald stated:
Former NSW director of public prosecutions Nicholas Cowdery said there was ”no justification” for mandatory minimum sentences.
”There is plenty of evidence that [increasing penalties] … does not deter offenders, complicates and adds to the expense of criminal proceedings and requires courts to act unjustly”…
The article also noted:
NSW Bar Association president Phillip Boulten, SC, said the ”knee-jerk” proposal would result in ”the most sweeping and fundamental change” to the state’s sentencing laws and was ”likely to create a raft of unfair and unjustly harsh sentences”.
An example of this, the article continues, is found in the case of manslaughter:
Mr Boulten said the new laws left ”untouched” the penalties for manslaughter, which also carried a maximum jail term of 25 years.
It meant that an alcohol or drug-affected offender who unintentionally killed a person with a single punch faced the same maximum sentence as a person who intended to kill their victim but was able to rely on a defence such as provocation to be found guilty of the lesser charge of manslaughter.
”This is an anomaly the courts won’t be able to deal with easily,” Mr Boulten said.
”We will find an increased number of complex defended hearings where there will be people choosing not to plead guilty and where there will be a real dilemma for judges and magistrates about how to deal with these issues.”
Finally:
Law Society of NSW president Ros Everett said mandatory minimum sentences were ”unlikely to be effective” and studies in the United States had shown ”deterrence arises from fear of being caught, not from the length of the sentence”.
On the other side of the debate, Professor and Dean of Deakin University Law School, Mirko Bagaric is on record in support of the Government’s new laws and believes the legislation is “a positive move towards injecting fairness into sentencing”:
The reform suffers from one main defect: it does not go far enough. An empirically driven and morally sound sentencing system would ensure all perpetrators of serious sexual and violent crime serve no less than five years imprisonment…
The problem with the US model is not the framework, but the draconian nature of the penalties. It is false that proportionate mandatory minimum penalties will result in an increase in the imprisonment rate. Studies show serious sex and violent crimes devastate the lives of victims. Perpetrators of these crimes must go to jail. Minor traffic offenders and welfare cheats don’t shatter the lives of others. They won’t go to jail.
Whether or not these new laws will help curb drunken violence on our streets and whether or not they will lead to unfairly harsh sentences for people who don’t deserve them is yet to be seen. The legislation has been passed and is in effect from this weekend.
Personally I tend to side more with those opposed to the changes. That being said, Australia does have a serious problem with violence, and I’m glad the Government is attempting to address it. I’m not entirely convinced it’s a problem that can be fixed with enforced sentencing restrictions. It seems to me to run much deeper and my gut tells me it’s our culture, our media and education that we should be focussing on. For now though mandatory sentencing is in place and I really do hope, all reservations withstanding, that it helps make Sydney a safer place to be tonight.
Jazzua Ki Andrews 