Mandatory sentences undermine court discretion, says legal body
The Law Council of Australia has announced its opposition to mandatory sentences for Commonwealth child sex offences.
In a statement, the Law Council said that mandatory sentencing would undermine court discretion in determining appropriate punishment and would not act as a deterrent. Law Council President Arthur Moses said that, while child sex offending was abhorrent and deserved the full force of the law, mandatory sentencing also opened the door to other unintended consequences.
“Child sex offences are the most heinous of crimes and deserve the most serious punishment,” he said. “[However], the Law Council in principle opposes mandatory sentences as there are risks this may produce injustice in some circumstances. Mandatory sentencing risks triggering unintended consequences that are at odds with the intention of the laws and fundamental principles which underpin the administration of justice. Whatever the crime, judges always must retain discretion to ensure sentences are appropriate to the facts of a case. If judges make mistakes or are not applying accepted sentencing principles, then their decisions can be appealed.
Moses said that courts need to be able to take into account all the factors of the offending and mitigating circumstances in each individual case.
“Sentencing is not a one-size-fits-all exercise, but this is the effect mandatory sentencing has,” he said. “For this reason, court determinations in such matters – which take into account all the factors of the offending and mitigating circumstances – are vital. Judges should not be reduced to being the rubber stamps of predetermined sentences.”
