The Lingering Failure of Mandatory Sentencing and Indefinite Detention 2014

Nathan Rees MLA, 20/03/2014
The principle of the separation of powers exists for sound reasons. Judges hear all of the evidence, they know the context of the evidence and they determine the relevant factors…we in Australia are lucky to have institutions such as an independent judiciary and that it is extremely valuable to have a fair hearing before a judge and jury … Parliaments should not interfere with the decisions of courts and impose mandatory sentences for offences that we know involve many complexities and grey areas … There is potential for people who are affected by mandatory sentences to suffer unintended consequences. (hansard)

Mandatory sentencing is contrary to the rule of law. A blanket minimum period of imprisonment for all offenders takes away the discretion of judges to treat each case on its own facts since different cases get the same minimum mandatory punishment. The opposing arguments put forward by the Government and the Opposition by NSW Premier, Barry O’Farrell, and Labor member Nathan Rees show the extremes in the argument about these laws.

With the proposed Opposition amendments to the Crimes Amendment (Intoxication) Bill (NSW) having been rejected twice by the NSW Legislative Assembly, the history of such legislation and that of indefinite detention in the United Kingdom is informative. In the UK, under the Criminal Justice Act 2003 (UK), judges were required to pass life sentences on offenders who were convicted of serious offences if there was a significant risk they could cause serious harm to the public by committing further offences. The result was injustice, and a significant increase in the prison population. More prisoners meant more cost, and less money for other justice budget items: the legal aid budget was greatly reduced.

Premier Barry O’Farrell MLA, 20/03/2014″

Unbelievably, those amendments [to the Crimes Amendment (Intoxication) Bill] will give judges the capacity not to impose minimum mandatory sentences. If one thing has been clear over the past 2½ months it is that the community has had enough of judges who do not hand out sentences in line with community expectations … If those opposite again succeed in watering down our legislation then judges will have even more discretion to circumvent the will of this Parliament, and to ignore and thumb their noses at community expectations. (hansard)

In the UK, unjust outcomes as a result of the mandatory life sentences were subsequently recognised and the legislation amended to return discretion to judges in sentencing. However, a legacy of the failed policy is that the prisoners sentenced under the original Act – approximately 3500 of them – are still lingering in prison. A number of options have been proposed to deal with their situation as discussed by legal journalist and presenter of the BBC radio 4 series Law in Action, Joshua Rozenberg, in this article in the Guardian. The Bingham Centre for the Rule of Law also hosted a panel discussion on this issue which is available for download on their website.

~ Kate