Law Council urges Senate to strike mandatory sentences in bills

The inclusions in bills to be debated this week could have life-shattering unintended consequences, says law body

Law Council urges Senate to strike mandatory sentences in bills
The country’s top lawyer body is urging senators to reject new mandatory minimum sentences in bills up for debate this week, saying that the inclusions could have unintended consequences that could potentially ruin lives.

While the bills that contain the provisions have laudable aims, mandatory sentencing has been shown to have no effect on crime rates, while undermining the independence of the judiciary, said Fiona McLeod, Law Council of Australia president.

“Sex crimes and gun trafficking are all patently serious offences and it is absolutely appropriate that harsh maximum sentences are available to our courts. But mandatory sentencing is always likely to trigger unintended consequences that are at odds with the intention of the laws and fundamental principles of justice. The idea of a standardised mandatory sentence may be appealing on a theoretical level, but in practice, mandatory sentences can see people doing life-shattering stints in prison for actions that might have significant mitigating circumstances,” she said.

“For example, a 15 and 17-year-old might be sharing sexual images with each other in a consensual relationship, yet the day the older partner turns 18, under this legislation that 18-year-old would be looking at an automatic five-year sentence. Teenage years can often be marked by rash decisions and regrettable mistakes. A blunt instrument like a mandatory minimum sentence will not take this into account,” McLeod said.

The mandatory minimum sentences included in the firearms bill also has unintended consequences, as demonstrated by an incident involving Victoria’s former top cop.

“Former Victoria Police Chief Commissioner Simon Overland inadvertently carried a magazine containing live rounds of ammunition on a flight from Melbourne to Canberra in 2010. Prior to travelling, Mr Overland had removed a firearm from his bag, but forgot to take out the magazine. Under the proposed laws he could be facing a mandatory five-year jail term,” McLeod said.

“Judicial discretion is a core principle of our justice system for a very good reason. When you take away the ability of a judge to take into account the seriousness of the offence, the degree of culpability of the offender, their personal circumstances or the explanation for offending, you generate disproportionate and, often, unconscionable outcomes,” she said. “Furthermore, there is no evidence that mandatory sentencing is effective at driving down crime, but ample evidence of its long-term criminogenic effect. The US and other jurisdictions are winding back mandatory sentencing regimes because they don’t work. Mandatory sentences actually make it harder to prosecute criminals, by removing the incentive for anyone to plead guilty or to provide information to the police. There is every incentive to fight on and appeal against convictions.”

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