Published: 19 December 2017

Legislative Council Wednesday 29 November 2017

Ms  FORREST (Murchison ) - Mr Deputy President, the continued push by this Government to impose mandatory sentencing is not backed by evidence.  It is an action that seeks to appeal to the fears and emotions of the general public.  This is expert evidence that I am talking about.  It was interesting that the member for Windermere talked about the Western Australian situation. 

I was recently talking to a Liberal member of parliament from South Australia.  He was lamenting the fact that mandatory sentencing seemed to be taking a bit of a hold around the country in some parts and he was quite opposed to it.  I found that interesting because he saw the injustices created through mandatory sentencing.

Mr Dean - Did he relate any to you and tell you about any of those injustices?

Ms FORREST - He did.  We had quite a lengthy discussion but I am not going to go into that now.  I am going to deliver my speech.  I am just saying that if you read an article in the newspaper from a government member or minister about how well we are doing, we need to take that with a little grain of salt, but I am going to quote experts, evidence and peer reviewed research. 

It is clear to me that mandatory sentencing can and does lead to unjust outcomes - and I have read some of these from Hansard previously - not for all, but certainly for some.  Those most likely to be victims of mandatory sentencing and the unjust outcomes that can result are those from marginalised groups - individuals who are often victims themselves. 

I do not for a second condone the actions of those who seriously harm our dedicated police officers.  I believe the courts should determine the appropriate sentence after the Parliament sets a range of sentencing options.  That has been my consistent view, and I stand by it.  It is totally false and absolutely misleading to suggest I or any other member of parliament do not care about the safety and welfare of our police service.  To suggest this in any way is abhorrent and the lowest form of gutter politics.

I care deeply about the safety of our police officers; they are there to protect us and maintain law and order in our communities.  I always have and always will support this view.  As the member for Rumney says, yes, I believe individuals who commit any serious assaults against police officers or a serious assault deserve to face the full force of the law.  The courts need to have a wide range of penalties that can be applied.  Particularly in cases of serious assault, perpetrators should and generally do face custodial sentences.

I support the courts imposing the most appropriate penalties for these crimes.  I stop short of dictating to the courts how and what these penalties should be in any given case.  We pride ourselves in our judicial system that sees a separation of powers.  This exists for very good reason - judges have years of experience and access to all the facts of the matter.  It is their job to determine the most appropriate sentence.

I do not intend to refer to the many credible articles from equitable organisations such as the Australian Institute of Criminology, as I have done this repeatedly over many recent debates.  In view of this being progressed, I wish to refer again to one article from a selection of many articles from the Australian Institute of Criminology on this particular topic.  I have referred to this in the past but it is important to do so again.  This is to ensure no mistake is made regarding my motivation for opposing this bill.  The member for Mersey referred to the Sentencing Advisory Council's position on this.  I am not going to repeat anything he has said because it was something I was also going to raise.  I will focus on quoting sections of paper No. 138 entitled 'Mandatory Sentencing' by Declan Roche.  I will quote sections of this paper published from the Australian Institute of Criminology -

Strictly speaking, mandatory sentencing refers to the practice of parliament setting a fixed penalty for the commission of a criminal offence.  The recent publicity surrounding mandatory sentencing in Australia might lead us to think it is a new idea, when in fact, it has a long history.

During the eighteenth and nineteenth centuries mandatory sentencing was used for a wide range of offences.  In the course of the nineteenth century, however, this approach was largely abandoned in favour of parliament setting only a maximum penalty, with the sentencing judge responsible for determining the appropriate sentence for individual offenders.  (Morgan 1999, p 267).

Some minor offences in all jurisdictions, such as speeding, still carry mandatory penalties although these are not mandatory penalties in the strict sense as courts retain some discretion over their imposition.  Contemporary debates about mandatory sentencing usually refer to a particular form of mandatory sentencing that involves the imposition of a significant minimum penalty, usually a jail sentence, with penalties escalating for subsequent offences.

Further the article goes on -

In assessing the legal, social and other impacts of mandatory sentencing, this paper scrutinises the arguments and the evidence for mandatory sentencing.  The main claims made by advocates of mandatory sentencing are as follows: that it prevents crime; that it provides consistency in sentencing; and that is a democratic response to widespread public concern about crime.

It is argued that mandatory sentencing prevents crimes through incapacitation and deterrence, incapacitating repeat offenders and deterring those offenders as well as other potential offenders.  Assessing the preventive effect of a policy is, of course, problematic.  It is difficult enough to accurately estimate the level of crime. (Felson1998, p 7, Brown et al. 1996, p 39) and even more difficult to determine how policy changes affect that level. 

What is required is the systematic testing of the preventive effects of mandatory sentencing laws.  Unfortunately, however, there is a lack of this type of research (Tonry 1996, p 139).  Based on the available research in the United States (on the preventive effect of mandatory sentencing laws in Massachusetts, Michigan, Florida, Pennsylvania and New York) Tonry concludes that mandatory penalties prevent little or no crime (Tonry 1996, p. 140). 

That article discussed this topic further and I encourage members to read the whole article.  Under the heading, 'Incapacitation', which was referred to as one of the reasons for introducing mandatory sentencing, the paper notes -

Mandatory sentencing partly aims to prevent crime by preventing offenders from continuing to offend.  As 'past behavior is the best predictor of future behavior ... it is reasonable to attempt to prevent crime by preventing known offenders from continuing their criminal behavior' (Sherman et al. 1998, ch. 9).  The way mandatory sentencing attempts to prevent known offenders from offending is simple enough:  'for as long as offenders are incarcerated they clearly cannot commit crimes outside of prison' (Sherman et al. 1998).  Moreover, there is some evidence incapacitation works.  A recent authoritative report on crime prevention concluded that 'incapacitating offenders who continue to commit crimes at high rates' is 'effective in reducing crimes' (Sherman et al. 1998).

That is, repeat offenders.  The paper goes on -

However, it is questionable whether mandatory sentencing is the best method to pursue incapacitation, and more generally incapacitation by any means may be morally problematic and not cost effective.

Further on in regard to this area of incapacitation, the paper states -

Mandatory sentencing critics argue, though, that mandatory sentencing schemes, instead of incapacitating dangerous offenders, are routinely biased against the poor and marginalised.  Poor and marginalised people are more likely to commit the sorts of offences covered by mandatory sentencing schemes.  In mandatory sentencing jurisdictions there are invariably offenders who receive lengthy imprisonment terms for committing relatively trivial offences.

This is the point the member for McIntyre raised about being caught up in this.  Back to the article -

An Aboriginal man in the Northern Territory received considerable publicity when jailed for a year for the theft of a towel (Lagan 1999, and for other examples Bayes 1999) ... 

This is the point the member for Windermere made - there have been no unjust outcomes.  Yes, there have.  This paper refers to them -

... as did a man in California, when imprisoned for 25 years for stealing a slice of pepperoni pizza.  (Vitello 1997, p. 396). 

Arguably, these instances of injustice can be avoided by targeting serious offences and defining the offences that should attract mandatory sentencing with more specificity so that only dangerous offenders are incapacitated.  Opponents of mandatory sentencing contend, however, that the legislature cannot define offences, and the circumstances in which offences are committed, with the precision necessary to eliminate unjust results in individual cases.

That is the key point -

Opponents of mandatory sentencing contend, however, that the legislature cannot define offences, and the circumstances in which offences are committed, with the precision necessary to eliminate unjust results in individual cases.  As Morgan puts it, 'it is inevitable that mandatories which are structured by reference to broad offence definitions will not and cannot be effective tools for selective incapacitation' (Morgan 1999, page 275).

Mr President, to move on to the question of deterrence, which I referred to earlier in the paper, the author states -

By imposing significant mandatory penalties, mandatory sentencing also aims to prevent crime through deterring offenders from continuing to commit crimes once they are released (specific deterrence) and deterring other members of the community from committing crime (general deterrence).  Critics of mandatory sentencing argue that mandatory sentencing relies upon misconceived assumptions about the deterrent effect of punishment. Sherman argues that '(f)or too long democratic societies have assumed that all punishment has a general deterrent or preventive effect, but criminology has increasingly disproven that assumption'  (Sherman 1993, Braithwaite 1997, p. 314). 

This is taken from a lot of research.  Further on this matter of deterrence -

If deterrence assumptions are correct, it is arguable that mandatory sentencing is flawed, even on its own deterrence-based logic.  By imposing a mandatory imprisonment term for a third offence, for example, as the Northern Territory does, an offender with two previous offences has little incentive to choose to avoid committing a more serious crime for the third offence.  (Vitello 1997, page 447).  Again advocates may argue that mandatory sentencing simply requires greater precision in the definition of offences but, as already discussed, critics claim that there are inherent limits on the specificity with which a legislature can define offences.

Commenting on cost-effectiveness, the author states -

Any reductions in crime produced by mandatory sentencing laws must be assessed in light of their costs.

Mandatory sentencing is an expensive means of pursuing reductions in crime.  There are increased costs in the court system as more defendants contest charges to try to avoid the mandatory penalty that follows conviction, where they otherwise they may have entered a plea of guilty.

We heard this through numerous briefings over the period on mandatory sentencing generally.  Back to the article -

More significantly, there is the cost of housing large numbers of offenders imprisoned under mandatory sentencing laws.

In Australia it is estimated that it costs up to $60 000 to keep a prisoner in prison for a year -

That was Cowdery (1999, page 291); I assume that cost may have gone up in more recent times -

and approximately $200,000 to build a new cell -

Again, that has probably gone up since that figure was put forward -

Arguably, there are much more cost effective methods of crime prevention within and outside the criminal justice system.  Within the criminal justice system it is claimed that increased expenditure on detection is a more effective deterrent than mandatory sentencing (Tonry 1996) but arguably this shares the same rational actor assumptions of mandatory sentencing.  Outside the criminal justice system, money can be more profitably spent on crime prevention by investing in improving education, pre-school care and health care, targeting especially those at risk of offending.  Cost-benefit analyses done by RAND Corporation in the United States estimate that every million dollars spent on California's three strikes laws would prevent 60 serious crimes, whereas providing parent training and assistance to families with young children at risk would prevent 160 serious crimes, and giving cash incentives to induce disadvantaged high school students to graduate would prevent 258 serious crimes (Greenwood et al. 1996).

On the topic of consistency, the author stated -

Another related purpose of mandatory sentencing schemes is to eliminate inconsistency in sentencing.  In this respect, mandatory sentencing is based on the principle that discretion is the enemy of consistency.

Certainly, when judges have a discretion as to the sentence they impose, there is the possibility of unequal treatment of offenders who have done equal wrong.  (Braithwaite and Pettit 1990, page 21).  Mandatory sentencing attempts to eliminate this discretion by legislating mandatory penalties.

Critics of mandatory sentencing share the aspiration of achieving consistency in sentencing, but argue that sentencing left in the hands of judges is likely to be more consistent than sentencing in the hands of parliament.

While mandatory sentencing sounds like it could achieve consistency, for a number of reasons it in fact does not. 

Firstly, the inherent imprecision in statutorily defining offences means very unequal offenders can receive the same sentence when convicted under mandatory sentencing.

Secondly, mandatory sentencing may encourage judges to circumvent the mandatory penalties imposed by legislation.

Thirdly, rather than eliminating discretion, it simply displaces it to other parts of the criminal justice system, most notably prosecutors.  Discretion is unavoidable in the criminal justice system.  (Brown et al. 1996, page 119).

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.  Moreover, judges' decisions are publicly accountable through their visibility, which provides some safeguards against inconsistency.  By contrast, the circumvention of laws and displacement discretion means that discretion is being exercised in a less considered and certainly less accountable way.

Further, it goes on to say -

It is also suggested that mandatory sentences rather than eliminating discretion simply transfer or displace that discretion to an earlier part of the criminal justice system.  (Braithwaite and Pettit 1990, page 20).

Tonry argues that 'the record is clear from research in the 1950s, the 1970s, the 1980s and the 1990s that mandatory penalty laws shift power from judges to prosecutors'.

I do not believe that is okay, Mr President.  That was from Tonry 1996, page 135 and refers to findings of the US Sentencing Commission, page 148, and see also Morgan 1999, page 278 -

A mandatory sentencing scheme gives prosecutors greater certainty about the penalties that will result from a particular charge in contrast to a system where the judge chooses a sentence to match the offender's culpability.

I wish to focus at this time, as many of these matters have been raised - and I have raised them in a previous debate - on the democratic arguments from the paper and conclusions of Mr Roche, particularly as this, in my view, is the reason we are debating this bill.  The Government is well aware of the views relating to mandatory sentencing.  The Government seeks to appeal to the fears of Tasmanians in attempting to win votes in an upcoming election.

I know the member for Windermere's comments were that they could have provided a different approach to this; we are actually looking at amending other legislation to look at the range of penalties available as opposed to minimum mandatory sentencing.

I am going to quote the whole section of this, which is not that long, in view of the conclusion because I believe it reflects why we are here today and what is a democratic process -

Mandatory sentencing schemes are also defended on the basis that they are the product of democratic parliaments, and as such respond to, and represent, public concern about crime.  Elected legislatures are sensitive to community concerns about crime in a way that appointed judges are not.

Mr President, it is important to repeat that - they cannot be tossed out of their seats but we can -

Mandatory sentencing schemes respond to distress and fear within the community about criminal activity.  For instance, the Northern Territory Government announced that its mandatory sentencing laws 'deal with the present community concerns that penalties imposed are too light'.  (Zdenkowski 1999, p. 303).  Quite apart from the effect on crime rates, mandatory sentences arguably reassure the public that politicians have listened to and responded to voters' fears. 

The counter argument is that, while no-one disputes that there is considerable fear of crime, particularly violent crime within the community (Grabatsky 1995), it is questionable whether people want harsh sentences generally and mandatory sentences specifically.  Research conducted in Cincinnati found that although a large majority gave global support to 'three strikes' laws, when faced with specific cases, a majority favored exceptions to the impositions of the mandatory sentences' (Brandon in Yeats 1997, pp. 382-3; on the public's punitiveness generally, see Doob & Roberts 1987). 

Of course the making of exceptions is prohibited by mandatory sentences.  Judges given discretion about the imposition of sentences, however, can and do take into account the sorts of factors the public considered in making exceptions, namely the seriousness of the offence, the mental state of the offender and the use of violence. 

There is also a more cynical strain to the political critique of mandatory sentencing.  Critics of mandatory sentencing argue that it is a policy adopted by politicians attempting to gain or retain power by playing on a community's fears and its superficial understanding of criminal law.  After concluding that mandatory sentencing does not work when assessed by its stated objectives, Morgan posed the rhetorical question, 'Or am I missing the point?  Perhaps the real question is nothing to do with law, criminal justice or crime prevention.  Perhaps it is whether the symbolic power of mandatories is such that they help politicians win elections.'  (Morgan 1999, p. 279). 

Mandatory sentencing is claimed to prevent crime, introduce certainty and consistency into a criminal justice system lacking in those qualities, and reflect community condemnation of crime.

Available evidence suggests that mandatory sentencing can deliver modest but expensive crime prevention.  The large government investment required by mandatory sentencing laws would arguably return a much greater yield in terms of crime prevention if it were invested in prevention policy in areas such as education.  Critics also argue that crime prevention by selective incapacitation is a difficult task laced with uncertainty and inconsistency which is done particularly poorly by legislation that imposes punishment automatically on the basis of prior offending.  Moreover, they argue that the policy of selective incapacitation is morally questionable, particularly as it routinely disadvantages the poor and marginalised. 

The deterrence-based assumptions of mandatory sentencing are also questionable.  Mandatory sentencing does not deliver the consistency it promises.  In short, critics of mandatory sentencing argue that it is a crude policy resting on crude assumptions about how crime is prevented, what the public want, and what legislation can deliver.

We all want less crime, particularly serious crime.  We all want to see our police officers protected; whether on or off duty, they should not be assaulted anywhere.  We all expect harsh penalties are imposed on people who seriously assault police officers.  I agree and support that position.  The article I quoted from - and there are many others I could also quote - clearly argues the claims that mandatory sentencing will achieve the stated aims put by the Government are false.

What is needed - and this should always be our focus and imperative - is the prevention of harm to all Tasmanian citizens.  I acknowledge that even with the best intentions we are not likely to succeed in preventing all harm, but this must be our focus.  We then need to ensure the courts have a full range of penalties, including lengthy custodial sentences, to ensure perpetrators are appropriately punished for such abhorred actions. 

I will not support this bill.  Amending a bill that already provides for mandatory sentencing - a bill that I did not support at the time - does not make the current bill correct in its approach.  It is also fraught in determining whether a person knows a person is a police officer and that was the motivation for them committing a serious assault.

There are a range of questions regarding unintended consequences with this bill, and I also fear it is likely to result in unjust outcomes.  Let us provide a broad range of sentencing options.  I commend the Government for doing that - it has been going down that path and I commend it. 

Let us trust our judiciary to do the job they are skilled in and certainly more qualified than us.  I will not be a part of any undermining or questioning the capacity of our judiciary to do their job, but trying to make a silk purse out of a sow's ear will not do.

I close by repeating that small section referred to earlier -

There is also a more cynical strain to the political critique of mandatory sentencing.  Critics of mandatory sentencing argue that it is a policy adopted by politicians attempts to gain and retain power by playing on a community's fears and its superficial understanding of criminal law.  After concluding that mandatory sentencing does not work when it is assessed against its stated objectives, Morgan poses the rhetorical question 'Or am I missing the point?  Perhaps the real question has nothing to do with law, criminal justice or crime prevention.  Perhaps it is whether the symbolic power of mandatories is such that they help politicians win elections'.


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