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Why mandatory sentencing fails

Why mandatory sentencing fails

By Tania Wolff

Criminal Procedure Sentencing 

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Crime will be a key election issue and a ‘one size fits all’ approach to sentencing is a concern for justice advocates.

Victorians go to the polls in November and it is expected the major political parties will engage voters on law and order issues, in particular sentencing.

The state Opposition has announced its intention to introduce mandatory sentencing for adult re-offenders convicted of one of 11 violent offences including rape, murder, aggravated burglary and aggravated car-jacking. The “two-strike” plan will see mandatory minimum sentences ranging from 10 to 26 years.

Victorians need to be kept safe in light of increasing crime rates, particularly violent car-jacking and home invasions, the Opposition said.

In response to the claimed crime spike, the state government introduced amendments to the Bail Act and Sentencing Act last year.

Criminal law practitioners and the LIV are concerned that Bail Act amendments will result in fewer people granted bail, exacerbating the overcrowding in Victorian prisons. There is also concern that low-level offenders are being remanded for far longer periods than they would be sentenced to when their matters are eventually heard.

The new standard sentencing scheme which replaces baseline sentencing compels judges to consider fixed sentences (minimum non parole periods) for 12 offences. Any departure from those set periods will require reasons to be given.

The LIV has long held that independent, qualified and experienced judicial officers are best placed to impose an appropriate sentence, taking into account all the circumstances of the case. Standardised sentencing forces judges to depart from the “intuitive synthesis” model and take into account a fixed term that may be inappropriate in the circumstances.

Mandatory sentencing is ineffective and has a high social and economic cost. One year in prison for one person costs about $110,000. In addition, mandatory sentencing exacerbates court delays as offenders are likely to contest charges, and it reduces motivation to assist authorities with further investigations.

It also undermines well-established common law principles in relation to sentencing discounts and proportionality, as well as the Sentencing Act 1991 (Vic) guideline principles.

Mandatory sentencing for re-offenders and standard sentencing come from the premise that imprisonment of offenders will result in a safer community. This is not the case.

Victoria’s prison population has increased by 67 per cent in 10 years with 7151 prisoners as at June 2017. Imprisonment rates are growing faster than the increase in recorded crime. At June 2017, there were 2225 remanded prisoners, a 20 per cent increase on the previous year. This means that 31 per cent of prisoners had not been sentenced.

Our prison population, perhaps contrary to public perception, is predominantly made up of the poor and disadvantaged. Add to that the addicted, the mentally ill and the cognitively impaired. Prison is not a rehabilitative environment and with recidivism rates at 43 per cent, almost half return to prison inside two years.

The Victorian Ombudsman’s report into prisons in 2015 provided the following sobering statistics about our prison population:

  • 75 per cent of male prisoners and 83 per cent of female prisoners report illicit drug use before going to prison
  • 40 per cent of prisoners have a mental health condition
  • 42 per cent of male prisoners and 33 per cent of female prisoners had a cognitive disability
  • 35 per cent of prisoners were homeless before their arrest
  • More than 50 per cent of prisoners were unemployed
  • More than 85 per cent of prisoners had not finished high school.

The notion that the unwell, addicted and impaired will stop committing crimes without rehabilitation and therapeutic programs to deal with the underlying causes of offending is fanciful. It is well known that the motivation to satisfy a drug addiction outweighs the threat of punishment and its long-term consequences.

In a growing number of jurisdictions internationally, including Texas, governments are directing resources away from prisons and towards rehabilitation programs for offenders and justice reinvestment initiatives. In Victoria, specialist courts and programs are addressing underlying reasons for the offending with treatment and support. The Drug Court, which has had significant success in terms of recidivism, psychosocial improvement and cost effectiveness since starting in 2002, and the Assessment and Referral Court, are a far more effective response to the revolving door nature of crime and punishment.

Mandatory penalties do not deter people from committing crime, address recidivism or provide consistency in sentencing. A “one size fits all” approach to sentencing leads to unjust outcomes as offenders with unequal culpability and circumstances are sentenced to the same minimum sentence of imprisonment.

Ultimately, mandatory sentencing is a populist, simplistic reaction to complex problems which require a more sophisticated response.

 

Tania Wolff manages a specialist pro bono criminal law CLC within an addiction and mental health clinic in St Kilda. She is an LIV accredited specialist in criminal law and an LIV Council member.


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