Written by Andrew Fraser
September 15, 2014
There used to be a joke long before self-government that you could tell with your eyes shut when you were entering the ACT, such was the difference in the quality of the road surface.
This was a game played most often on the Kings Highway (the Coast road) between South Canberra and Bungendore as the road left the ACT for Queanbeyan and then came back into the Territory around the Burbong Bridge and out again a few kilometres further on (just past the turn-off for the new Headquarters Joint Operations Command complex).
The point of the game was the difference between a vast state with three tiers of government and a multitude of competing interests as opposed to a little city for which a national government (its only overseer) could usually find another million or so in a quiet moment in Cabinet seized by a clever Minister for the Interior.
While the roads might have come to achieve a rough equivalence over the years, there remain some very worthwhile differences for our island in the ocean of NSW.
One very important difference, in the area of criminal justice, was on brief display in recent weeks, getting far less fanfare than it deserved.
This was the decision by the ACT Government, announced by Attorney-General Simon Corbell, to not follow NSW and Victoria with mandatory sentencing for one-punch assaults resulting in death.
The Attorney's very clear position was put after the Victorian Government introduced into Parliament legislation for a mandatory 10-year jail term for one-punch assaults occasioning death.
NSW has already legislated earlier this year for eight years. The Victorian proposal, yet to pass the state Parliament, would be Australia's toughest laws on such killings.
The sentences apply whether death was caused by the punch, or by the victim striking his or her head in the fall.
No-one could fail to be moved by the horror of families losing a young loved one to these coward punches. In a number of cases, the eight or 10 years in prison for the perpetrator would not be enough to match the criminal responsibility involved.
But in a number of other cases the mandatory term would not do justice.
The problem is that one size does not fit all.
The NSW Bar Association made this point very clearly in a briefing paper prepared in relation to the NSW legislation.
As quoted in the Criminal Law Journal, the association said its “primary objection to such laws is that they remove judicial sentencing discretion, with the consequence that the actual circumstances of the offence and the offender will not be taken into account, and unjust sentences will result.”
The association gave a number of examples (with O as offender and V as victim), including:
Discretion in sentencing is what’s needed. Assigning the correct amount of criminal responsibility to the ever-varying acts that come before the courts can't be done with a cookie cutter. And it shouldn't be done by legislators, however well-intentioned.
Parliaments should set maximum terms for offences and it should be for judges, dispassionate, thorough and impartial judges, to mete out sentence on the facts and circumstances of each individual case.
But, cries the chorus, those judges shouldn't be deciding these things because they weren't chosen by the people and so are “out of touch”. The fact they are unelected, and so not beholden to any interest, is one of the great strengths of the system.
It seems Australians are often in two minds about judges. Led by many of our media commentators, we can be quick to deride them in the course of conversation (and letters to editors) while simultaneously proclaiming our trust in them. Of the 30 occupations listed in the Roy Morgan Image of Professions Survey 2014, High Court judges were fourth and Supreme Court judges ninth when rated for honesty and ethics, scoring 74 and 70 per cent approval respectively (numbers our legislative leaders would die for).
And while some commentators harp on about “soft” sentences, studies show that the public actually thinks (when we really do stop and think) that judges get it right.
The key is information – and this is no recent discovery.
A 2002 Issues Paper for the Tasmanian Law Reform Institute by Professor Kate Warner, of the University of Tasmania, noted an English study commissioned by the Home Office, which explored whether providing information had an effect on levels of public knowledge; and whether any improvements in knowledge that resulted had an impact on attitudes and confidence in the criminal justice system.
Professor Warner wrote, "The study found that providing simple factual information about crime and sentencing can improve public knowledge about crime and sentencing in the short term at least and that it has an impact on attitudes and confidence in the criminal justice system.
"After receiving the information, participants were less worried about being a victim of crime, and less likely to say sentencing is currently too lenient."
So, despite all the heat and glare, when we actually get the facts on crimes, and those who commit them, we think the system works.
With the ACT Opposition pressing Mr Corbell to look closely at the Victorian proposal, and with the fact of the recent NSW legislation bearing down on him, the ACT Attorney was not without pressure in his recent decision. While not perhaps of the level of intense negative campaigning that helped bring about the demise of the respected lawyer Greg Smith as NSW Attorney-General, it was pressure nonetheless.
That Mr Corbell was able to resist it was a win for a system that wasn't broke.
Andrew Fraser is a criminal lawyer at Armstrong Legal. firstname.lastname@example.org