& Objections to Mandatory Sentencing General problems created by Mandatory Sentencing Include - the Independence of the 1) The The legislature (Parliament) which makes 1) Reluctance of Juries to Convict Accused The Independence of the Judiciary Guidelines for Sentencing the law seeks to do the work of the Judiciary Juries may be reluctant to convict the The independence of the judiciary is a key When sentencing an offender judges must (Courts) who decide on legal disputes and accused in circumstances where they think principle of the . For a trial to be take into account both the purposes and impose punishments. the mandatory minimum sentence is unjust. fair the judge must be independent and principles of sentencing. This occurred when the mandatory sentence not be swayed by public opinion or political 2) Judicial Discretion for murder was the death penalty. Juries objectives of the parliament. Purposes of Sentencing Mandatory sentences exclude the operation would convict the accused on manslaughter The Crimes (Sentencing Procedure) Act 1999 of judicial discretion and prevent the court instead. The independence of the judiciary is seen (NSW) states the purposes of sentencing from being able to give proper consideration in the sentencing process. Parliament which a judge must consider: to the circumstances of the offence and the 2) Higher rates of refusal of bail legislates the maximum sentence for (a) that the offender is adequatelypunished for offender. The inevitable prison sentence, determined each crime but the judge decides on the the offence, by the mandatory sentence, increases the appropriate sentence for each offender 3) Increased Role of Prosecutor incentive to run away. As a result more bail according to the law and the facts of the (b) to prevent crime by deterring the offender Sentencing discretion is transferred from the applications are refused. case. and other persons from committing similar judge to the police and the prosecutor as the offences, sentence now depends on the charges laid. 3) Expansion of prison populations A judge must decide on the appropriate (c) to protect the community from the offender Higher rates of refusal of bail leads to a higher sentence by considering the individual (d) to promote the rehabilitation of the offender circumstances of the offender, the 4) Principles of Sentencing prison population. More offenders will also (e) to make the offender accountable for his crime, and the victim. The decision of the Judges are unable to apply the principles spend longer in prison due to the mandatory actions of imprisonment as a last resort and sentence. This has a significant financial cost. judge should not be influenced by moral (f) to denounce the conduct of the offender proportionality. perspectives but should be given 4) Less Cooperation with Police according to the law. (g) to recognise the harm done to the victim of the crime and the community. 5) Rehabilitation Mandatory sentences deter cooperation What is a Sentence? Mandatory sentences do not account for the with police as no discount can be given for A sentence is a decision made by a judge to Judges provide reasons for sentencing circumstances of the offender and prohibit cooperation. They also result in fewer guilty punish a person who has been found guilty decisions which must be based on the law. therapeutic approaches to sentencing. pleas as often no discount can be given for a of a criminal offence. Reasons for a sentencing decision are an guilty plea. important part of checks on the power of A sentence can often involve the offender judges because reasons allow an appeal 5) Increase in Sentencing Across the Board being held in a prison. This is known as court to check the law has been applied The introduction of mandatory sentences in a ‘custodial sentence’ or a ‘sentence of correctly. Canada led to an increase in sentences across imprisonment’. the board as the courts sought to ensure Principles of Sentencing proportionality and consistency in sentencing. What is a Minimum Mandatory Sentence? In addition to the purposes of sentencing A minimum mandatory sentence is when Mandatory Sentencing and the Rule of Law there are principles of sentencing parliament removes the judge’s discretion established by common law and The independence of the judiciary is a key and legislates a minimum period of that must be applied in every case. Some of principle of the rule of law. For a criminal trial imprisonment. these are: to be fair the judge must be independent and Instead of a judge deciding on a not be swayed by public opinion or political • imprisonment only when no other punishment which fits the crime a judge objectives of the parliament. Mandatory punishment is appropriate must sentence the offender to at least the sentencing undermines the rule of law as the • the punishment must fit the crime minimum mandatory sentence dictated in independence of the judiciary is removed. (proportionality) legislation. By removing the discretion of the judge • similar crimes should receive similar mandatory sentencing can lead to sentences sentences (consistency) that are not proportionate to the offence. Fair Trial “The independence of the judiciary is a It is the role of the judiciary to determine The legal system is based on protecting the key principle of the the appropriate sentence by taking both the interests of the victim, offender and society, rule of law” purposes of sentencing, the principles of and must consider the rule of law implications Civil Rights sentencing, and the individual facts of the for law reform. case into account.

WWW.RULEOFLAW.ORG.AU The Rule of Law Pyramid highlights key Rule of Law Principles Find more online about the rule of law and mandatory sentencing at: www.ruleoflaw.org.au/education/mandatory-sentencing/ Support for Mandatory Sentencing 2) Crime Reduction by Imprisonment Assault Causing Death Supporters of mandatory sentences claim In January 2014 the the Crimes Act 1900 To find someone guilty of Assault Causing Support for mandatory sentences for that imprisonment reduces crime because (NSW) was amended to create a new Death while intoxicated the prosecution must many offences are often supported by the the offenders are incapacitated in a criminal offence called prove beyond a reasonable doubt following claims: correctional institution and therefore not a Assault Causing Death. four elements: threat to the community. 1) Consistency in Sentencing Assault Causing Death, is defined in ss25A 1 Intent to Hit (mens rea) Mandatory sentencing provides a Evidence about whether mandatory and 25B of the Crimes Act 1900 (NSW). Intent to hit is all that is required for this consistent sentence for an offence not sentencing effectively reduces crime is 1 element of the offence, not intent to kill the person charged with the offence. It contradictory . The Law Enforcement (Powers and or injure. It is much easier to establish prevents consistency of punishment of Responsibilities) Act 2002 (NSW) and the intent to hit than it is to show intent to kill similar offenders for similar crimes. 3) Deterrence or injure. Where the ‘hit’ was accidental That mandatory sentences provide for Crimes (Sentencing Procedure) Act 1999 the mens rea will not exist. (NSW) were also amended to provide for Consider the hypotheticals below in terms harsher sentences is said to deter people alcohol and drug testing in relation For example: it would be very hard of the mandatory minimum sentences for from commiting a crime. to the offence. to argue that a person who punches assault causing death: someone in the face with a closed fist Research shows that the greatest deterrent did not intend to hit them. Self-induced intoxication was removed Hypothetical 1: is the expectation of being caught and as a mitigating factor that judges can Geoff was intoxicated and socialising with dealt with, not the punishment at the end of The Accused Hit the Victim (actus reus) consider when sentencing for criminal 2 friends at a bar when Sam, a complete the process.1 offences in NSW. It must be shown the accused actually stranger, hurled insults at Geoff and his hit the other person. friends. In the case of Assault Causing Death, it What is the offence? is questionable whether a person who What does hitting mean? Sam continued making insulting comments is intoxicated and unable consider the Crimes Act 1900 (NSW): Hitting the other person with their own and after 20 minutes of this pushed Geoff consequences of their actions clearly, or Section 25A - Assault Causing Death body or with an object held by the person is considered hitting. aggressively. Geoff punched Sam in the someone who commits a ‘crime of passion’ “(1) A person is guilty of an offence face who then fell and hit his head on will think of the mandatory sentence they ground. Sam died later in hospital due to may face and be deterred. under this subsection if: The Hit led to the Death (Causation) a) the person assaults another 3 injuries sustained by the fall to the ground. person by intentionally hitting the Causation, which is the link between the 4) International Perspective other person with any part of the hit and the death can be established by Hypothetical 2: medical evidence, a finding by a court or person’s body or with an object the NSW Coroner. Tom was having a few drinks with mates at Mandatory sentences have been used held by the person, and a nightclub. After a few hours he became widely for Federal drug offences in the involved in an argument with his friend United States. In 2015, President Barack b) the assault is not authorised or Proof of Intoxication excused by law, and 4 Fred. Tom tried to break off the argument Obama commuted the sentences of 46 c) the assault causes the death of If the accused has a blood alcohol and headed for the door of the club. Fred mainly non-violent offenders who had been the other person.” concentration of 0.15 (0.05 is the legal followed, continuing to yell and argue with convicted under mandatory sentencing limit for driving a vehicle under the Tom. laws2: influence in NSW) or has other drugs in A person who is found guilty of Assault their body they can be charged under Causing Death is subject to a maximum Section 25B. On the steps of the night club, Fred, still “Over the last few years a lot of people sentence of 20 years imprisonment yelling, caught up with Tom. In frustration have become aware of the inequities The accused’s drug/alcohol Tom pushed Fred’s shoulder, causing him in the criminal justice system...I am concentration must be tested at a Section 25B of the Crimes Act 1900 NSW hospital within six hours of the offence. to overbalance, fall down the steps from commuting the sentences of 46 prisoners states that a person who is: the landing and hit his head on the path who were convicted many years or in below. Fred later died in hospital. • over 18, some cases decades ago. These men “For somebody who commits the same and women were not hardened criminals • intoxicated, offence with a clear mind, stone-cold Hypothetical 3: but the overwhelming majority have • found guilty of Assault Causing Death sober, the mandatory minimum penalty Jim left the pub with his girlfriend. Both been sentenced to at least 20 years, is subject to a maximum sentence of does not apply. What’s going on here?” have had a number of alcoholic drinks. A 14 of them had been sentenced to life 25 years, and a minimum mandatory stranger attacks Jim and his girlfriend with for non-violent drug offences...so their sentence of 8 years imprisonment. Nicholas Cowdery AM QC, a broken bottle. Jim’s girlfriend punches punishments didn’t fit the crime.” Former NSW Director of Public the attacker in the head repeatedly. The 2 Prosecutions. attacker falls to the ground and dies. - President Barack Obama 1. http://www.abc.net.au/news/2014-02-05/does-mandato- ry-sentencing-reduce-crime/5225986 WWW.RULEOFLAW.ORG.AU 2. https://www.whitehouse.gov/blog/2015/07/13/pres- WWW.RULEOFLAW.ORG.AU ident-obama-announces-46-commutations-video-ad- dress-america-nation-second-chance