Sentencing changes come with mandatory debate

By Alicia Patterson

With a series of sentencing reforms taking place in Victoria this year, we spoke to Melbourne Law School's Judge in Residence, David Harper AM (LLB 1968), Professor Jeremy Gans and current Criminal Bar Association Chair, Peter Morrissey SC (LLB(Hons) 1991), to gain their perspectives on the hotly debated 'mandatory sentences' and impacts on the courts, judicial independence, public expense and the community.

Recently the Victorian Government proposed a new statutory minimum sentence specifically for 'one punch' assaults that lead to death, after earlier introducing new 'gross violence' offences which came with mandatory minimum sentences. Baseline sentences came into law and, since September, suspended sentences have no longer been available in Victorian courts.

What will sentencing changes mean for decision making in court, and how will it affect crime rates?

Many in the legal profession, including peak bodies such as the Australian Bar Association and the Law Council of Australia, have voiced considerable opposition to the introduction of statutory or mandatory minimum jail terms for some (generally violence-related) crimes in all Australian jurisdictions. Some form of mandatory sentencing now exists in Western Australia, New South Wales, Northern Territory, Queensland and South Australia.

In Victoria, the two new reforms for statutory minimum sentences have been for 'coward punch' or 'one punch' assaults where the victim has died (announced in August), and 'gross violence offences' where death has resulted from gang or group attacks.

The key reasons given by advocates for mandatory sentencing regimes are its deterrent effect, transparency and consistency of sentencing for specific crimes and its responsiveness to community concerns that sentencing is inadequate and courts too lenient.

Can sentencing policy drive down crime rates by way of deterrence?

"Everyone knows that's nonsense," said Professor Gans. "Harsher sentences send a general message that 'we care about the community' but they are meaningless for people contemplating crimes. Higher numbers in sentencing will always be popular, but without any actual impact on crime."

Mr Morrissey points out that deterrence is a function of sentencing: "But it must be rational. It can only play a part in premeditated or profit-motivated crimes. Not where people are not in control of themselves".

Justice Harper, who retired in 2013 from the Bench of the Court of Appeal of the Supreme Court of Victoria, agrees that increases in sentences have a negligible effect on the incidence of crime, and adds that the impact on the corrections system must also be taken into account. "It does mean that more people will go to prison, and they will go for longer," he said.

The cost of keeping an individual in prison, says Justice Harper, is approximately $100,000 per year. Policies which were targeted towards reducing recidivism rather than increasing penalties would, he suggests, result in far better value for money. The cost to the community when prisoners are released without adequate rehabilitative measures having been taken pre-release is considerable, for both the individual and society: "It is very difficult for someone who has spent a long time in prison not to come out of that experience maladjusted. Ten years is a long time. Ten years ago myki did not exist. People coming out of prison now wouldn't even know how to buy a public transport ticket".

Justice Harper has written about his concerns that Government sentencing policies have been driven by tabloid induced public panic. The problem, he says, occurs because the reporting is superficial or sensational, with no room for details: "So in that sense, it is correct to say that the public think sentencing is too lenient – based on what they know".

An uninformed public, especially one gleaning much of its knowledge about the justice system through selective use of social media or populist reporting, is problematic for governments and courts and central to barbs about lack of transparency and consistency in sentencing.

This is compounded, as Justice Harper notes, by media reporting that invariably highlights the most horrifying of cases, and the worst aspects of the crime and its impacts, and often omits mitigating facts – even facts which the courts must take into account by law.

The introduction of baseline sentencing for a range of offences, passed in the Victorian Parliament in August, was promoted as providing greater clarity in sentencing – as well as increasing the average sentences to be applied.

Professor Gans posits that the introduction of baseline sentencing – which he believes should be more accurately referred to as 'guideline' sentencing – provides a structure that can enhance public understanding of sentences.

"You can't expect every member of the public to read all the sentencing decisions. Basically that is the way it works now. Guidelines, or baselines, aim to provide a way for the public to understand a pattern of sentence," he said.

Justice Harper has his doubts that the public actually has an appetite for harsher sentencing as portrayed in media reports, pointing to studies (including a 2011 Tasmanian Study of 698 jurors) that have consistently shown that the more individuals know about a crime and the people involved, the less likely they are to think that sentencing is too lenient or inappropriately applied.

A significant concern for some is the impact on mandatory sentences on judicial independence. "It undermines the authority of the court," explains Mr Morrissey. "The clear message is that the government of the day does not trust the sentencing skills and bona fides of the courts." Further, he says, it removes from judges the ability to show mercy or clemency "where it would be better to do so. For example, where an offender is able to be reformed, and has dependents".

Justice Harper is also concerned that "mandatory" sentences will, unless they are not strictly mandatory but have an appropriate degree of built in flexibility, compromise the ability of judges to take into account factors such as guilty pleas, which save the courts time and money and indicate a degree of individual responsibility for the crime has been accepted by the offender.

Professor Gans is not so sure that judicial independence is at risk, believing that the exceptions included in the sentencing provisions will be sufficient: "What people seem to be talking about is actually judicial flexibility," he said. "But with the current mandatory sentencing ? for gross violence and for the 'one punch' offences, there are exceptions that give flexibility. The exceptions really make it 'pushy' sentencing rather than mandatory sentencing."

An anticipated impact of mandatory sentences is more contested trials, running for longer. "If you have everything to lose, and you're facing 10 years anyway, you may as well fight it," said Justice Harper.

Mr Morrissey agrees: "It will require a much more combative stance. There is absolutely no reason for an offender to plead guilty."

Professor Gans points out that this is not the first time in history that mandatory sentencing has existed: "A hundred or more years ago there was nothing but mandatory sentencing".

Mr Morrissey's analysis is that sentencing became more lenient throughout the last century, with a turning point somewhere in the 1970s. He believes that the popularity of harsher sentencing and 'tough on crime' approaches rises in times of economic stress when people, and governments, feel vulnerable.

He is critical of laws being created in response to specific, albeit, horrific cases. "We end up with 'so and so's' law, that sort of thing. It infantilises the debate about what is needed. Laws are for general application. Change to our laws, and sentencing, should happen on the basis of evidence and data."

He believes that if current sentencing practice is thought to be inadequate the way forward is an inquiry into sentencing, including examination of the reasons for it and its efficiency in achieving that purpose: "If we are concerned for sentencing to be a deterrent, then data should be sought to find out whether it actually deters people, and that data and research needs to be uncompromised by partisan interests". He notes that some of the US states known for harsh and swift prison sentences are now moving away from those policies as prison populations become unsustainable.

Justice Harper maintains that a dispassionate evaluation of the costs of sentencing measures to the public purse – measuring the dollar value of additional court time, preparation of cases and representation by public prosecutors , plus prison expenditure – needs to be part of the debate about any changes to sentencing, and mandatory sentencing in particular.  The benefits also need to be considered in the equation: actual and perceived community safety, confidence in the justice system, crime rates and effectiveness as a deterrent.

When it comes to analysis of the length of sentences for crimes, including minimums and maximums, and comparative sentencing (for example, establishing relativities between murder and armed robberies), Harper is strongly in favour of calling in the experts – that is, criminologists, whose business it is to study crime, and other experienced professionals representing different interests in the justice system.

Whatever sentencing changes are adopted, community attitude will be pivotal even while future governments deal with the impact of reforms on prison populations, crime rates and the operation of the courts and public confidence: "If the public perception is that sentences are too low, then that is a problem regardless of the reality," said Professor Gans.

"Some people would argue that courts should be independent of public opinion, and in a sense that's right, but in some ways, the courts are acting for the public will – although of course court should not be overwhelmed by public opinion."

This article originally appeared in MLS News, Issue 12, October 2014.