CONCERN: Minimum terms for violence might not work, a lawyer warns.THE NSW government is implementing a range of measures designed to combat drunken violence within our community, but there are significant concerns about many of these measures, especially mandatory sentencing.
Whilst society should not tolerate such behaviour, doubts have been raised at to whether increasing penalties and introducing mandatory sentences is the answer.
The first series of changes passed through the Parliament in January 2014, including the creation of a new criminal offence known as Assault Causing Death. It applies when any person unlawfully assaults another person and the assault causes their death. Death can be caused either directly by the injuries received from the assault, or as a result of the person who has been assaulted striking the ground or an object as a consequence of being assaulted.
A maximum penalty of 20 years imprisonment is set for this offence. However, if an intoxicated person commits this offence, the maximum penalty is 25 years with a mandatory minimum penalty of eight years imprisonment.
The second series of changes introduced into the State Parliament in February are yet to be enacted, having failed to pass the Upper House of Parliament. They were returned to the Lower House with proposed amendments, which the government rejects.
If the laws are enacted in the form proposed by the government, they will increase by two years the maximum penalty applicable to a number of existing crimes, if committed in public by someone who is intoxicated. They also introduce mandatory minimum sentences for a number of offences, again if committed in public by someone who is intoxicated.
This raises two questions for the community: do the penalties need to be increased, and should those penalties be greater if the crime is committed by an intoxicated person than the lesser penalty handed out to a sober person?
It remains to be seen whether these laws will actually reduce the level of alcohol related violence in the community. People involved in drunken violence are not likely to stop and think in the heat of the moment about the length of prison sentence they will receive if they commit a violent crime.
The Law Society of NSW also suggests that experience over many years shows that an offender’s fear of being caught is a much better deterrent then a potential severe penalty in the event that they are caught.
The imposition of mandatory minimum jail sentences may reduce the likelihood that people brought before the court are actually able to be rehabilitated so that they do not reoffend.
Instead of a person being diverted to some form of rehabilitation program (or entering into such program at an earlier stage), offenders will face lengthy periods of prison time. It is widely considered that such sentences do not necessarily foster rehabilitation.
Our legal system has, for a very long time, proceeded on the basis that a maximum penalty is prescribed for a criminal offence. The maximum penalty provides an outer limit that the sentence cannot exceed. It acts as an indication to the courts of how seriously the community views the offence.
When someone is found guilty of, or pleads guilty to, a criminal offence, it is then for a judge to decide on a sentence. The judge is free to consider the particular circumstances of the offence, and the individual circumstances of the person being sentenced. The judge then applies established rules of sentencing to arrive at a sentence anywhere up to the maximum that is appropriate for the particular crime committed.
It is feared that the introduction of mandatory minimum sentences interferes with this discretion, and has a real potential to create injustices in some cases. It prevents judges from imposing more lenient sentences when a particular aspect of the crime or offender justifies leniency.
It has long been accepted that people who plead guilty to a criminal offence are entitled to a reduction in the sentence they receive. This practice encourages people who have committed crimes to admit their guilt. That in turn has the benefit that it spares victims, police and the courts the distress, costs and inconvenience of lengthy court cases.
The introduction of mandatory minimum sentences may in practice have the effect of nullifying the reduction that offenders receive for pleading guilty. Instead offenders who know what mandatory minimum sentence awaits them may “take their chances” and run their cases to trial in the hope of being found not guilty.
Despite community outrage about recent tragic “one punch” incidents, the legal fraternity continue to have doubts that these laws will have the effect that the government and community desire.
Nicholas Amos is a criminal lawyer at Baker Love Lawyers.