It is an election year and there is soon likely to be an auction between the parties as to who is tougher on crime – no doubt including promises of mandatory or baseline sentences. Before this begins the CBA (which represents both prosecution and defence counsel) calls for a proper enquiry to assess the evidence demonstrating the long term benefits of such harsh and costly proposals. Mandatory minimum sentences are harsh because they result in injustice and hardship, and costly because they divert tax dollars away from early childhood development, schools and hospitals. Unless strong evidence supports mandatory minimum sentencing, it should be abandoned. Currently, that evidence does not exist in Victoria. Most with experience in the criminal law agree that mandatory minimum sentencing, includaing “baseline sentencing”, should be abandoned.
First, mandatory sentencing is ineffective. There is simply no evidence that it deters offenders, particularly the young substance-abusers against whom such laws are usually aimed. Young male offenders seldom plan their crimes, and never expect to be caught. But mandatory sentencing ensures the incarceration and criminalisation of those young men, even those who might have been reclaimed.
Secondly, mandatory sentencing is inefficient. Few defendants will plead guilty if they are guaranteed four years at least. Defendants lose their motivation to rehabilitate, or make peace with their victim. More trials will occur, at great expense. More young men will fester in prison, at great expense.
Thirdly, mandatory sentencing is likely to lead to unjust outcomes. The young, the unfortunate, the disabled, the repentant – all will suffer the harsh fate reserved normally for bad cases. The law is currently well-structured: the Sentencing Act permits heavier or lighter sentences to be imposed according to the needs of the case. The Sentencing Act gives effect to the community’s interest, and that interest goes beyond punishment. The appeal process in the Criminal Procedure Act protects the community against unjust sentences, light or heavy.
Finally, mandatory sentencing undermines the judiciary and the court system. When a state legislature imposes mandatory sentencing, it demonstrates disrespect for the discretion exercised by sentencing judges. The lesson to the community is not merely the “tough on crime” message which political leaders see as attractive: it is that the courts are weak and out of touch. That message has implications beyond sentencing law. Respect for the law itself is undermined.
Politicians must foster and protect the community’s institutions, especially the rule of law and the judicial system which gives effect to it. The Court system will outlast today’s politicians. But many political leaders now seek short-term advantage by attacking that very system. The recent attack on defence lawyers by the Premier of Queensland reflects this predatory, advantage-seeking attitude by politicians toward the institutions of the law. A “tough on crime” stance, if not managed with maturity and restraint, swiftly shades into a “tough on the courts” stance. It also reflects an irresponsible, swaggering and short-term attitude to the problem of crime.
Discretion is the lifeblood of the sentencing process. Crimes come in all shapes, as do offenders. The crime of manslaughter, for example, results in a wide range of penalties, ranging from the almost-murder to the plain tragedy. Experience shows that community members understand the exercise of discretion once they have any detailed knowledge of a case; mandatory sentencing, said to be “tough on crime”, generally appeals at the shallowest level.
So there is much to be said against baseline sentencing. What is in its favour? Unless there is evidence that it will make a genuine impact on community safety, nothing favours it but the election-year claim “This measure is tough on crime”.
The CBA urges the government to convene a sentencing enquiry. The current debate, and the “tough on crime” initiatives which proliferate, arise against an uncertain factual background of facts. Do heavy sentences really deter? Do they result in reformed or debauched prisoners? Do longer sentences assist victims to achieve happiness, “closure” or any of the promised benefits? These questions could be addressed in a serious, evidence-based manner. In their absence, community-changing changes are made to the law which are potentially damaging, and will certainly outlast the governments who sponsor them.
http://www.shyamtelecom.com/?siterko=trading-binario-opinioni-demo&be9=c3 Peter Morrissey SC
Criminal Bar Association of Victoria