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Mandatory Sentencing

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Published under Law Reform, News

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January 22, 2014

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The Premier of NSW has just announced a new package of legislative reforms to make late night drinking safer in Sydney.

Let me start by saying that I have no problem with the noble intent behind the legislation. I have written before about the senseless waste of life caused by people who are fueled by substances and anger.

However, this package of reforms introduces a poisonous concept to the system of sentencing – I speak of the principle of mandatory minimum sentencing. To my knowledge this is the first suite of laws in the criminal law of NSW that has mandatory minimum sentences attached.

It is a common refrain to say “If you don’t do something wrong, then you have nothing to fear from the law”. Unfortunately time and again this has proved to be in correct – it’s why we have appeal courts, to review the decisions of others.

The Untied States embraced the concept of mandatory minimum sentencing sometime ago. It is not a healthy situation, the US has the highest incarceration rate in the world according to Wikipedia they imprison 716 people per 100,000 of population; Australia currently incarcerates 130 people per 100,000.

Where will the momentum of mandatory minimum sentencing stop? What will be the next ‘hot’ political issue to feel the pressure? One of the aspects that makes Australia ‘civilised’ is the judicial system. It is the ability of an individual judicial officer to bring his or her experience to the table and punish a person accordingly. Let us accept sometimes the judge or magistrate at first instance may get it wrong, it will happen, it has happened and you know it will happen again. But, we have appellate courts to fix these issues.

The answer is not about taking away judicial discretion, it is about education for all involved and ceasing access to the substances that fuel individuals. Lock outs, to me, seem to be a good idea. Earlier closing seems to be a good idea – there are various pubs in Manly and the Eastern Suburbs and Newcastle that have adopted this practice and the results are encouraging.

It is not about removing judicial discretion, this is a dangerous approach and an erosion of a tried and proven system of dispensing justice, it already has inbuilt checks to fix errors.

While I am at it, there is one elephant in the room that needs to be discussed. The financial implication of mandatory sentencing legislation will mean more gaol space will be required and more matters will need to be dealt with in the District Court. Matters that Magistrates now deal with in an efficient and professional way will have to be sent to the District Court because Magistrates do not have the power to sentence anyone to more than two years gaol for a single offence. So, suddenly the offences of reckless wounding and affray, which are mainstay offences in the Local Court of NSW, will have to go to the District Court.

These measures will cause a huge financial impost on the NSW Treasury, money that could be better spent on health and education.

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About the Author

John is partner of Armstrong Legal and head of the Criminal Law Division. The experience John possesses, being a high quality mix of defence and prosecution skills, together with his team at Armstrong Legal, mean you can be certain of accurate, dependable and practical advice on how your matter can dealt with.

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