Mandatory Sentencing – Blind Justice?

There is currently much ado about how to tackle violent street crime “fuelled” by alcohol.

Lady JusticeVarious groups call for tougher laws, others blame Magistrates and Judges for not being tough enough on criminals at first instance, whilst other groups call for curtailment of the availability of alcohol.

We live in an age where “violence” seems to be part of our every day life.

Children are raised on diets of video games that require skills in violence in order to complete each level of the game, they have access to movies and TV shows that are riddled with sex, violence, anti-social conduct and bad language.

All the while, we have politically correct groups that seem to want to control our society and tell us that disciplining our children is the wrong way to go, such that its not uncommon for young people today to level charges and AVO’s against their parents with the aid of the very instrumentality that tries to maintain law and order – the Police.

And we wonder where Society has gone wrong.  It’s pretty clear isn’t it?

The answer according to the Government – (among other things) is to introduce Mandatory Minimum Sentencing.

Never mind the fact that every case is different and must be adjudicated on its own facts.   No, this supposes that ‘one size fits all’ when it comes to punishment.  In the meting out of Criminal Justice –  Justicia – Lady Justice – since the 15th century, is portrayed as being blindfolded meaning that she is objective in judgement without fear or favour.  Hence the expression – Blind Justice. The O’Farrell Government has (it seems) stripped the blindfold from Justicia’s face.  Well done, Barry O’Farrell – not long ago you took away our right to silence – now we are about to have mandatory sentencing.

Persons engaged in the Criminal Law must study at length the principles of sentencing.  Over the last 20 or 30 years, sentencing has become quite an art form.  Case law and legislation dictate many and varied principles that must be adhered to in the sentencing of persons before the courts.  However, with the introduction of mandatory sentencing, the proper sentencing process is effectively nullified and as stated by Mr Nicholas Cowdery, is a “recipe for injustice”.

Over this past week, there has been much discussion on talk back radio and other media outlets, regarding “mandatory sentencing”.  It appears that the public, are overwhelmingly in favour of it – that is – of course, until one of their loved ones is facing such a sentence over a “silly mistake”.

We must be mindful, that this proposal of mandatory minimum sentencing does not only apply to cases involving death.  The Government model proposes it be extended to cases where ‘drug or alcohol are involved’ in the causing of ‘grievous bodily harm’, ‘actual bodily harm’, ‘sexual assault’ and ‘affray’.  At law, classification of injuries have a very broad meaning.  ‘Actual bodily harm’ can be merely a ‘bruise’ resulting from a blow.  Some people bruise more easily than others.  But now, if you strike someone in a drunken or drug crazed haze, and cause an injury, however so slight, and you are found guilty of ‘assault occasioning actual bodily harm’, then off you go – no questions asked – 2 years in prison.  No need to go into all of the sentencing principles.  The law says you must serve a mandatory minimum sentence of 2 years in prison.  That settles it.  ‘Where drug and alcohol are involved’ – the Mandatory Minimum Sentencing provisions will apply.  Well may we ask what is the ‘threshold’ of affectation from drugs or alcohol that tips the offender over into the Mandatory Sentencing regime.  This will prove a nightmare for the courts.

It is to be hoped that these new laws will only apply to matters dealt with on indictment.  For example, the 4 years mandatory minimum sentence for ‘Affray’ is beyond the jurisdiction of the Local Court which is limited to sentencing to a maximum of 2 years for any single offence.  If this is so, then the Mandatory Minimum Sentence provisions won’t apply to the Local Court where the vast majority of anit-social type offences are dealt with.  Where does that leave the majority of cases.  Perhaps a new Summary Offences provision would be fitting – see

The Government link below sets out the list of offences for which mandatory sentencing will apply.

It is likely that various groups will call for the same principles in many other crimes.  Why shouldn’t they.  If its good enough for the select few offences – why not other offences.

The ultimate result will be a nightmare for the courts and a dramatic increase in the prison population, where the stupid kid that got drunk and injured someone, will come out a real criminal, having learnt from the ‘school of crime’ – prison, and probably more violent.

This is not to say the persons shouldn’t be put in prison.  Clearly they should.  These recent reprehensible acts of violence call for nothing short of long prison terms if convicted, but mandatory minimum sentencing is not the answer.  It takes the judicial function (which should be in the hands of judges) and puts it in the hands of the politicians who are ever eager to be seen to pander to lobby groups in order to win votes or maintain a popular position.  The ultimate effect is ‘redress’ for the victims, which is not what the criminal justice system should be about.

In his book “Lost for Words”, John Humphrys, an icon of English journalism over a period of some 45 years, in discussing ‘manipulative language’ by politicians wrote [1]:

“Who’s the Victim? …… Take ‘balance’. Politicians from all parties tell us endlessly that the criminal justice system needs ‘rebalancing’ in favour of the victim.  That’s a pretty safe position to defend.  Surely we must all be on the side of victims.  So if the system needs rebalancing in their favour let’s get on with it.

But this is a manipulation of the word’s meaning.  Those famous scales in the hands of Blind Justice are not meant to symbolize balancing the interests of the victim against the interests of the accused.  They are there to weigh the evidence of the prosecution against that of the defence.  That’s it.  The interests of the victim are no different from the interests of society as a whole: to see justice done, nothing more and nothing less.  Victims might well want revenge – it is the most human of instincts – but the judicial system should not.  One of its purposes is to prevent it.”

He continued:

“What is generally meant by ‘rebalancing’ the system is making it easier to get a conviction by lowering the burden of proof – by tipping the scales a bit.  It means that fewer of the guilty will be acquitted.  It also means that more of the innocent will be convicted.  There may or may not be a good case for doing this but it has nothing to do with redressing the balance in favour of the victim.  How would sending an innocent man to jail do this?  But, of course, no politician would couch the argument in those terms and expect to get away with it – so the call is for ‘rebalancing’ instead.”

While we hope that the recent public condemnation and proposed changes to the law, will curb further instances of alcohol fuelled violence, mandatory sentencing laws are not the answer and may cause a greater injustice to those who find themselves subject to the jurisdiction of the Criminal Law.

[1] Lost for Words.  The Mangling and Manipulating of the English Language. Hodder and Stoughton 2004. (p.305)

Comments are closed.