Published: 20 May 2019

SEXUAL assault, especially when perpetrated against children, and violent crimes against any Tasmanians, particularly those in the front line providing services to us, is abhorrent and completely unacceptable.

We must always act to address the horrific realities of those who are victims of such crime.

Prevention should be our aim because regardless of the penalty imposed, the victim has lifelong impacts. Actions must also be based in evidence and research.

Those who commit any serious assaults deserve to face the full force of the law. Strong penalties are appropriate and to suggest that those not supporting mandatory penalties don’t care about the safety and welfare of children, police, ambulance officers and medical staff, is a sign of a lazy intellect using ad hominem slurs in lieu of considered arguments.

Many of the victims of serious assaults, particularly children, suffer for a lifetime. This is why we operate under the system we do, where parliament makes the laws and the judiciary determine the most appropriate sentence. Maximum penalties provide guidance to the courts.

Minimum mandatory sentencing ignores the important separation of powers between the parliament and the courts.

Research by a range of bodies including the Australian Institute of Criminology show that many claims made by advocates of mandatory sentencing are not based on evidence.

Years of research have shown mandatory sentencing does not work in: deterrence; certainty and consistency in sentencing; and reflecting of community condemnation of crime. US studies conclude mandatory penalties prevent little or no crime.

Furthermore, it can and does lead to unjust outcomes. Those most likely to be subject to mandatory sentencing, and the unjust outcomes that can result, are from marginalised groups and people who are often victims themselves.

Imposing a mandatory sentence has not shown to be a deterrent.

Whilst cost should not be the deciding factor, mandatory sentencing is a more expensive means of pursuing reductions in crime.

There are increased costs in the court system because more defendants contest charges to try to avoid the mandatory penalty that follows conviction — where otherwise they may have entered a plea of guilty.

The primary focus of governments must be crime prevention, with money more effectively spent on reducing poverty, improving education, preschool care and healthcare, and programs to assist those at risk of offending.

Investment in programs supporting on-line safety and respect for all, especially women, will reduce serious offence rates.

Governments do have a role in providing guidance to the courts regarding penalties and punishment beyond these preventative measures, however unless a greater focus is given to crime prevention, the lifelong harms experienced by victims will continue.

Claims that mandatory sentencing schemes will eliminate inconsistency in sentencing are not supported by research. In this respect, mandatory sentencing is based on the principle that discretion is the enemy of consistency.

The imprecision in statutorily defining offences can result in disproportionate penalties, with very unequal offenders receiving the same sentence. This can result in unjust outcomes for some, generally disadvantaged, people.

Research from the 1950s, 1970s, 1980s and 1990s shows mandatory penalty laws shift power from judges to prosecutors and simply displaces discretion to an earlier part of the criminal justice system.

When that discretion is left in the hands of judges, they are in a position to attempt to achieve consistency by taking into account all the relevant circumstances of the offence, imposing a sentence to match the offender’s culpability. Judges’ decisions are publicly accountable through their visibility, which provides some safeguards against inconsistency.

Judges have years of experience and access to all the facts of the matter. It is their job to determine the most appropriate sentence.

The State Government continues to push minimum mandatory sentencing, to show a tough on crime approach in response to distress and legitimate fears in the community about criminal activity.

This is despite consistent advice, including from the Sentencing Advisory Council and legal and judicial professions. In doing so they also seek to wedge members who oppose its introduction, claiming those who oppose mandatory sentencing support paedophiles and criminals who assault workers. This is shameful and a blatant lie.

Preying on the community’s fears and its superficial understanding of criminal law shows we are not far removed from vigilante gangs.

Years of research shows mandatory sentencing does not work. If governments persist, the question must be whether this has nothing to do with law, criminal justice or crime prevention, and is more about the symbolic power of mandatory sentencing as a way to help politicians win elections and demonise those opposed.

We all want less crime. We all want to see children protected and not sexually assaulted, at any time. We want our frontline health staff and police officers protected. Whether on or off duty, they should not be assaulted anywhere, any time.

We all expect harsh penalties to be imposed on people who commit serious, violent or sexual offences.

Our aim must be the prevention of harm to all Tasmanian citizens. Even with the best intentions we are not likely to succeed in preventing all harm, but this must be our focus. Courts have a full range of penalties, including lengthy custodial sentences, to ensure perpetrators are appropriately punished for such abhorrent actions.

Let us trust our judiciary to do the job they are skilled in. Let us not undermine our judges who are more qualified than the rest of us in making judgments regarding appropriate penalties.


The Mercury May 18, 2019 

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