Law Reform to deal with violent assaults
- NSW Govt. Toughens Laws for Intoxicated Offenders
- The Rule of Law and Mandatory Sentences
- Do Mandatory Sentences Provide Just Outcomes?
- Questions and Activities
See also our post explaining the assault causing death offence which is the first reform enacted as part of the proposed measures below.
The tragic deaths of a number of young men in Sydney’s King’s Cross have led to calls from grieving families and the media to demand reforms to the law to provide harsher penalties for offenders, and other measures to prevent and deter alcohol and drug fueled violence. This post discusses relevant issues for NSW Legal Studies students about the following law reform question:
If someone under the influence of alcohol or drugs commits a violent offence does a minimum mandatory sentence of imprisonment lead to a just outcome for all involved?
NSW Govt. Toughens Laws for Intoxicated Offenders
In January 2014, NSW Premier Barry O’Farrell announced changes to the Crimes Act 1900 (NSW) and other laws to provide for mandatory minimum sentences for committing violent offences while intoxicated in New South Wales.
These law are being debated in the NSW Parliament THIS WEEK (28/01/2014) and RoLIA will update this post and our mashup blog on mandatory sentencing with details as they become available. At a forum on mandatory sentencing at NSW Parliament on 29 January, legal experts criticised the mandatory sentencing proposals.
Some of the measures proposed are:
- Eight-year minimum sentence for alcohol or drug-fuelled assaults ending in death.
- Serious assault maximum penalty increased by two years , with a mandatory minimum sentence of 5 years for reckless grievous bodily harm in company.
- Lockouts from some venues at 1.30am and enforced closing time of 3am for all pubs and clubs in the CBD/Kings cross area, excluding accommodation and small bar venues.
- All bottle shops in NSW to close by 10pm
UPDATE (05/02/14 @ 12.13): The NSW Parliament has passed the Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 (NSW) which creates a new offence ‘assault causing death’ which carries a minimum mandatory sentence for someone who is intoxicated. We have written another post explaining how this offence works. Discussion of the other proposal above is ongoing.
Rule of Law and Mandatory Sentences
The Rule of Law Institute has the following specific concerns about the proposed changes:
- minimum mandatory sentences reduce the discretion of judges to issue a sentence which fits the crime
- judges’ discretion in sentencing is an essential part of the judicial function and should not be restricted if it is likely to lead to injustices
- laws which limit the discretion of judges should not be rushed through Parliament and consultation with experts should occur to ensure the possible effects of such changes are fully considered by the Parliament
The rule of law requires that the justice system provides equality before the law. A key aspect of equality before the law in criminal law is ensuring that punishments (sentences) are proportionate to the crime which means that the punishment fits the crime, and that consistency in sentencing is taken into account regarding the circumstances of the crime.
It is also a key aspect of the rule of law that people have confidence in the law to protect their rights, and to provide justice for those who are the victims of crimes. Cases which cause widespread concern in the community are a particularly important force in driving law reform. However, careful consideration must be given to the full impact of proposed laws to ensure equality before the law.
Do mandatory sentences provide just outcomes?
Mandatory sentencing is a ‘one size fits all’ approach to sentencing, where the mandatory punishment may in some cases fit the crime, but in others may be excessive or inappropriate.
An offence with a mandatory sentence will require a judge to give a specific sentence for an offence. A current example of this in NSW is the mandatory life sentence for the murder of a police officer in s19B of the Crimes Act 1900 (NSW).
The laws proposed to deal with alcohol and drug fueled assaults specify a mandatory minimum sentence of imprisonment of 8 years for a violent assault which leads to death. The central discussion surrounding these laws is that many believe sentences handed down by judges have been too lenient and that the NSW Government should make judges give minimum mandatory sentences to offenders. However, a number of legal experts have pointed out the injustices which may arise as a result of this.
An article in the Sydney Morning Herald discusses some situations where a mandatory sentence would be unjust, and limiting a judge’s discretion would not allow important facts about a case to affect sentencing, consider the following:
“An 18-year-old with no criminal record is drinking in a bar when a drunken stranger hurls an insult at his girlfriend. After further taunts, the young man hits the stranger, who trips, hits his head on the edge of the bar and dies.
But a bikie gang member with a history of violence who lies in wait for a rival gang member and punches him in the face, causing him to crack his head on the pavement and die, would not receive a minimum eight-year sentence unless he was affected by alcohol or drugs at the time.”
Read the full article on SMH.
Questions and Activities
- Identify one measure proposed by the NSW Premier to deal with alcohol/drug fueled violence and explain how it would prevent crime.
- Read the section in the NSW Judicial Commission Bench Book that is concerned with sentencing someone to life imprisonment for murder. Identify TWO aspects that judges consider in making sentencing decisions about the sentence of life imprisonment for murder.
- Read the media articles linked in the blog post. Discuss with your class whether mandatory sentencing can achieve just outcomes for victims and offenders.
- Does imposing mandatory minimum sentences reflect the moral and ethical standards of the community in NSW? Give reasons for your answer.
These measures relate directly to the themes and challenges in the NSW Legal Studies syllabus.
- the role of discretion in the criminal justice system
- the extent to which law reflects moral and ethical standards
- the extent to which the law balances the rights of victims, offenders and society