Increasingly, Australian parliaments are intervening in sentencing practices. In Western Australia, this includes the recent expansion of the “three strikes” home burglary laws. Politicians enacting mandatory sentencing laws claim to be responding to the public calling for harsher sentences, with the courts perceived as too lenient on crime.
Unfortunately, the public is largely misinformed about crime and justice matters. Mandatory sentencing regimes are the most concerning of these parliamentary interferences. Such regimes impose unacceptable restrictions on judicial discretion and independence, and undermine fundamental rule of law principles.
In 1992, the WA Government passed the first mandatory sentencing legislation for car theft, followed by the “three strikes” laws in 1996 for home burglaries. Since then, it has also passed the Criminal Organisations Control Act 2012, and mandatory sentences for people who assault custodial officers. Mandatory sentencing laws have particularly failed WA’s Indigenous community, members of which have been incarcerated in even greater numbers as a result of these laws. Indigenous children in WA are now 52 times more likely than non-Indigenous young people to be in detention – twice the national rate of overrepresentation.
The Law Council has consistently opposed the use of mandatory sentencing regimes, which prescribe mandatory minimum sentences upon conviction for criminal offences. Its opposition rests on the basis that such regimes impose unacceptable restrictions on judicial discretion and independence. The rule of law underpins Australia’s legal system and ensures that everyone, including governments, are subject to the law and that citizens are protected from arbitrary abuses of power. Mandatory sentencing is also inconsistent with Australia’s voluntarily assumed international human rights obligations. In the Law Council’s view, mandatory sentencing laws are arbitrary and limit an individual’s right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstances of each offence and offender. Mandatory sentencing disproportionately impacts upon particular groups within society, including Indigenous peoples, juveniles, persons with a mental illness or cognitive impairment, or the impoverished. Such regimes are costly and there is a lack of evidence as to their effectiveness as a deterrent or their ability to reduce crime.
In particular, the Law Council considers that mandatory sentencing potentially results in unjust, harsh and disproportionate sentences where the punishment does not fit the crime. There are already numerous examples where mandatory sentencing has applied with anomalous or unjust results, including a disproportionate effect on vulnerable groups including Indigenous Australians, juveniles and people with intellectual disabilities.
Mandatory sentencing fails to produce convincing evidence which demonstrates that increases in penalties for offences deter crime. Instead, mandatory sentencing potentially increases the likelihood of recidivism because prisoners are placed in a learning environment for crime, which reinforces criminal identity and fails to address the underlying causes of crime. Mandatory sentencing provides short-to medium-term incapacitation of offenders without regard for rehabilitation prospects. The likelihood of prisoners reoffending once released back into the community; inappropriately undermines the community’s confidence in the judiciary and the criminal justice system as a whole. However, this lack of confidence is not warranted by in-depth studies which demonstrate that when members of the public are fully informed about the particular circumstances of the case and the offender, 90 percent view judges’ sentences as appropriate.
Further, mandatory sentencing displaces discretion to other parts of the criminal justice system, most notably law enforcement and prosecutors, and thereby fails to eliminate inconsistency in sentencing. There are significant economic costs to the community, both in terms of increasing incarceration rates and increasing the burden upon the already under-resourced criminal justice system, without sufficient evidence to suggest a commensurate reduction in crime. Mandatory sentencing is inconsistent with Australia’s international human rights obligations.
LAW SOCIETY OF WESTERN AUSTRALIA
The Law Society of Western Australia is opposed to mandatory sentencing in any form. The Law Society’s opposition to mandatory sentencing is consistent with the view of the legal profession across Australia as set out in the policy position from Law Council of Australia. Past Law Society President, Matthew Keogh says, “The government has no statistics or evidence to support that mandatory sentencing works to deter criminal behaviour, and no specific evidence to show WA’s three-strike laws have been working up until now.” (Media release: 30/02/2015).
Mandatory sentencing removes discretion from the judiciary and dangerously displaces it to other parts of the criminal justice system, most notably law enforcement agencies and prosecutors. It results in significant economic costs to the community, both in terms of increasing imprisonment rates, and increasing the burden upon the already under-resourced criminal justice system, without sufficient evidence to suggest a commensurate reduction in crime (Media Positioning Statement; Law Society submission to the Attorney General of WA, February 2013).
The Law Society wrote to various members of parliament expressing its serious concern with the proposed new mandatory sentencing under the Criminal Law Amendment (Home Burglary and other Offences) Bill 2014 (WA) and urged that the Bill be opposed (letters 9 April 2014 and 16 February 2015). Notwithstanding the Society’s opposition, the Criminal Law Amendment (Home Burglary and other Offences) Act 2015 (WA) was passed. This Act imposes the following mandatory sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary which include a minimum sentence of 75% of the statutory maximum term of imprisonment for adults and where the maximum is life imprisonment, a minimum of 15 years applies and a minimum sentence of three years’ imprisonment for juvenile offenders.
IN TROUBLE WITH THE WESTERN AUSTRALIA POLICE?
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