Mandatory sentencing in criminal law comes in many shapes and sizes.
In South Australia we have essentially three types. The first is the minimum mandatory sentence for murder. The second are recent rules preventing a judge from suspending a term of imprisonment for certain offences where the head sentence is greater than two years, which in reality operates like a mandatory sentence. The third is the plethora of minimum mandatory penalties for a variety of traffic offences such as speeding or drink driving, that are often imposed by the Magistrates Court.
It is common for lay commentators and politicians to call for mandatory sentencing to address particular offences that have drawn the ire or outrage of the community, such as “one punch” assaults.
Often there is little understanding of existing law and an even lesser comprehension that judges in many cases impose sentences that are greater than the very mandatory sentences that are called for.
Being opposed to mandatory sentencing therefore does not equate to being weak on crime. What it exhibits is an understanding of the complexity of sentencing and the importance of preserving discretion in the sentencing process to ensure just, not perverse, outcomes.
The nuances of an offender’s conduct is rarely, if ever, properly described in short media reports about criminal cases. The media wants to sell its product and ‘stirring the pot’ is not a bad method. In addition, there often isn’t room in a limited content article to fully explain the facts of a matter.
The jury experiment
In 2010 the Criminology Research Council commissioned the Jury Sentencing Survey. Members of juries who had heard a matter at trial to determine the guilt or innocence of the accused person (which is the jury’s job), were asked to remain to listen to sentencing submissions and then asked to hypothetically impose what they thought was a proper sentence.
In the real world jurors of course do not get to participate in the sentencing process, but in this experiment jurors did. Interestingly, on average, they imposed lesser sentences than that of the sentencing judge.
Jurors are randomly chosen from the electoral roll and represent an average member of the community. They may have reacted differently if their only exposure to the case was a media report published emotively or with insufficient facts. Provided with all the evidence and having sat through the trial, the juries produced a different result.
The risk of absurd outcomes
Lack of sentencing discretion on the part of judges can lead to some unexpected outcomes.
The classic tale of the absurdity of mandatory sentencing is captured in the case of Mr Williams who fell foul of California’s “three strikes” laws. Mr Williams committed petty theft by stealing a slice of pepperoni pizza from a group of children on the pier at Redondo Beach, California. He had two previous felonies; as this was his third offence he received a mandatory sentence of 25 years imprisonment for stealing a pizza slice. The then Californian Attorney-General described it as a “victory for the people of California”. Others may think differently.
Other unintended consequences often occur at the other end of the scale with road traffic offences. I recently received a message from a reader of this column to tell me he had lost his job as a driver due to traffic infringements. Members of the community are entitled to a view that a person who is reliant on their licence for their livelihood should be extra careful not to lose it. On the other hand, a professional driver travels hundreds of thousands of kilometres more than an average driver, and a loss of employment neither helps the individual, nor their family, nor the community in a broader economic sense. In some jurisdictions licenses can be disqualified but allowance is made for the right to drive for vocational purposes – a “drive for work license” if you like. Otherwise the driver remains disqualified. Why not in South Australia?
Traffic offences often come with mandatory minimum fines set irrespective of an individual’s capacity to pay, and regardless of whether a person has lost their job due to the offence and thus their ability to pay the fine. Mandatory fines are regressive and hit those of low economic means the greatest.
There is also the question of those in remote, rural and regional areas for whom disqualification from driving can have a disproportionate impact. Again there is the argument that such people should be extra careful not to commit traffic offences, and I do not dismiss that as a valid contention, but when a law really designed for city drivers has unforeseen ramifications for those in remote locations, one has to ask whether mandatory disqualifications are really the best way to go.
Without discretion what results is disproportionate justice. What is inconvenient for a city dweller who can catch a taxi may be devastating for a farmer and a farmer’s family.
As I reflected in my last column, the high number of indigenous people incarcerated in Western Australia can be, in part, attributed to the imprisonment of indigenous offenders for driving while disqualified, following imposition of mandatory disqualifications of license relating to driving offences. An Aboriginal person in a remote community disqualified from driving often drives anyway because it is difficult to go about ordinary life without being able to use a car. Indeed that is hardly peculiar to indigenous people. Is this a good use of mandatory sentencing? And is it good justice to then imprison that person because the law requires a magistrate to so do? Finally given the high rate of recidivism among Aboriginal and Torres Strait Islander people who have been imprisoned, there is little deterrent effect to such sentences. So, all in all what is the point of the exercise, at least in relation to imprisonment?
Many commentators take a view that a person who would otherwise be sentenced to less than six months’ imprisonment ought not go to jail, at least not a conventional jail. The downsides they argue outweigh the upsides. Others contend that what we ought to concentrate more on incarcerating violent offenders or those who pose a risk to society, such as in cases of domestic violence.
That is not to suggest that other offenders ought not be punished, but our sentencing acts are inflexible and our correctional facilities so geared toward conventional imprisonment, that such alternative penalties do not exist.
Our legislators must think carefully about being seduced by community expectations and the ballot box in the mandatory sentencing debate. Rather we should revisit the rigidity of penalties in this state and others for first-time driving offenders, those in remote and rural areas, and those with unique, individual circumstances. Repeat traffic offenders can of course be treated with less sympathy.
Greater flexibility in sentencing options will lead to smarter justice, satisfying not only the community’s rightful taste for justice, but the need not to pointlessly damage people’s lives, those of their families, as well as their livelihoods. It also avoids the simultaneous impact on our fraught economy of the cost of imprisonment and the many related expenses that directly flow from it, all paid for by the long-suffering taxpayer.
Thinking creatively about the shortcomings of our criminal justice system does not mean watering down justice. Reflect on this: if our current approach was working, why have our jail numbers increased at 10% year on year despite a relatively static population?
The use of mandatory sentencing in its many forms is undoubtedly partly to blame.
We should talk intelligently about criminal justice, rather than resorting to slogans and reacting to emotive reports of criminal cases. There are obvious improvements to be made, but, as always, what is required is political will and adequate resourcing of our criminal justice system.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own.
His column will return on 28 January.
Disclosure: Morry Bailes is a member of the Liberal Party.
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