Civil Liberties Australiaspacer


By Kate Fitz-Gibbon Senior Lecturer in Criminology, Monash University, and James Roffee Senior Lecturer in Criminology, Monash University

The Victorian Liberal Party recently announced that, if elected in November 2018, it would introduce mandatory minimum sentences for repeat violent offenders as part of its crackdown on crime.

Heralded as a “two-strike” approach, the proposal applies specifically to repeat offenders and 11 violent crimes, including murder, rape and armed robbery. Shadow Attorney-General John Pesutto claimed the proposed new sentencing laws were “unprecedented” in Victoria and “will be certainly among the toughest measures that anyone has sought to introduce in our criminal justice system”.

Although obviously intended to improve community safety, mandatory minimum sentencing policies run counter to the significant body of evidence indicating that this approach to sentencing is costly, unlikely to improve public safety nor effective in deterring future offending.

Despite this, such political promises are neither new nor unique to Victoria.

Mandatory maximum and minimum sentencing policies have been introduced to varying degrees across other Australian states and territories. Western Australia, the Northern Territory, Queensland, New South Wales and Victoria have each introduced minimum terms of imprisonment for a variety of different offences.

At the Commonwealth level, the Migration Act imposes mandatory minimum terms of imprisonment for aggravated people-smuggling offences.

The widespread uptake of such policies should not, however, be considered an indicator of their success in practice. Successive reviews and inquiries have revealed that mandatory sentences fail to achieve their stated aims and have unintended consequences in practice, particularly for marginalised and diverse communities.

Failure to enhance public safety

The limits and dangers of mandatory sentencing schemes are well-established in Australian and international research.

Importantly, we know the threat of a mandatory minimum term of imprisonment does little to deter future offending. Therefore, the approach fails to achieve its aim of reducing offending and increasing public safety.

While policies that promise definite and lengthy terms of imprisonment for repeat violent offences may appear attractive within populist politics, they undermine long-established principles of proportionality and individualised justice.

In sentencing offenders for serious violent crime, senior members of the judiciary are in an expert position to determine the appropriate sentence to be imposed. Politicians lack the qualifications and experience to determine sentences, though they can pass legislation that reflects public concern and gives the judiciary the power to determine sentences for punishment, deterrence and rehabilitation.

By weighing up the individual facts of a case, a person’s offending and their individual circumstances, a judge works to apply a just sentence. Such a complex act of sentencing should not be used by politicians as a response to populist concerns.

The cost? Large, and increasing year-by-year

The failure of mandatory sentencing to achieve its stated aims also comes at a significant cost to public money. By their very nature, such policies divert more people into the prison system and for lengthier periods of time. The result is greater cost.

Take the recent Victorian policy announcement for example. In 2015, the Productivity Commission found that it cost A$103,000 annually to imprison one person in a secure Victorian prison facility. Victorian Opposition Leader Matthew Guy estimated the proposed sentencing laws would impact 3-4,000 people “over a period of time”.

On this basis, over the government’s four-year term, if 3,000 additional people were imprisoned for one year, the opposition’s proposed policy would cost – at minimum – an estimated $309 million. If this cost were repeated each year for the four-year term of government, the cost of the policy would be a minimum of $1.236 billion.

From a purely economic perspective, the cost of this approach is staggering. That $309 million will not be spent on tackling the underlying causes of crime or implementing evidence-based criminal justice policies.

And, at a time when Victoria – and many Australian jurisdictions – is imprisoning more people than ever, any policies that increase prisoner numbers must be seriously reconsidered.

Politics replaces judicial justice

Policies such as that announced by the Victorian Liberals are commonplace in the lead-up to state elections, when parties often mount “law and order” campaigns.

Politicians will often promise tougher criminal justice policies, usually in the form of longer terms of imprisonment, or zero-tolerance policing. This is all sold as taking action to “keep the community safe”.

The political nature of such reforms was evident in 2014. Following a series of high-profile “one-punch” homicide deaths, NSW introduced a minimum term of eight years’ imprisonment for offenders who were intoxicated while committing such a crime. Championed by then-premier Barry O’Farrell and later introduced by Mike Baird, the harsh approach to sentencing was touted as a response to public outrage over increasing levels of alcohol-fuelled violence.

Over two years on, the Law Council of Australia has appealed for the abolition of the law, noting that mandatory minimums “create greater law and order problems” than they solve.

The Victorian Liberals’ proposal for mandatory minimum sentencing has met with significant criticism from the legal, academic and civil liberties communities. Their concerns are well founded.

Australian states and territories must move away from populist, ineffective “law and order” policies in favour of evidence-based and individualised responses to serious criminal justice concerns.

This article appeared first on The Conversation: in April 2017.


Print Friendly
Facebooktwittermailby feather

 Leave a Reply

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

Commenting ...our policy

We welcome comments, for alternative views and to generate debate. We check comments before they are published, to make sure they are on-topic, family-friendly and in keeping with our publishing principles. To make sure your comments are published, please...

  • stay on topic
  • leave out swear words and bad language
  • be careful not to libel or defame any body
  • do not be -ist: (race, age, sex, etc)
  • avoid posting someone else's copyright material, and
  • concentrate on the factual more than the emotional (though there's room for both)
If your comments stray from these principles, they may not be posted, or may be edited to remove bits we find offending or inappropriate.

If you see something in a comment that you think is objectionable, please let us know your reasons.

We usually post comments at the bottom of articles, with a link off the Home page as well. But we may use them elsewhere, or as a separate article (we also reserve the right to not post them at all, at our sole discretion). See also our Terms of Use and Privacy policies links below.