TASMANIAN GOVERNMENT SENTENCING POLICIES A fact sheet prepared by Civil Liberties Australia May 2014

The Tasmanian Government has a series of concerning proposals to change sentencing practices in Tasmania.  The following is a CLA fact sheet which outlines the problems with the changes. Please feel free to share it with anyone you think may be interested in this very important issue. Our State parliamentarians will be debating these issues throughout this term of parliament and it is important to share information now with people who might have an interest.

TASMANIAN GOVERNMENT SENTENCING POLICIES – A fact sheet prepared by Civil Liberties Australia May 2014

The Tasmanian Government took the following sentencing policies to the 2014 election:

a)      Abolishment of suspended sentences and their replacement with other sentencing options such as home detention and periodic detention

b)      Creation of mandatory minimum prison sentences for: assaults against police; serious sexual offences against children; and ‘illegal protests’ that hinder access to a workplace

Civil Liberties Australia (CLA) is concerned that these policies would trigger an inevitable rise in the prison population, with a corresponding financial cost to the state, whilst doing nothing to make the community safer. In addition, the policy to crack down on protests is an extreme response which will limit free speech and embarrass Tasmania internationally.

Our prediction is that by 2020 this package, if passed into law, would be seen as a costly mistake that would need to be reversed by future governments.

CLA’s 2020 prediction is based on the following information:

Suspended sentences

• Tasmanian data indicates suspended sentences deliver lower reconviction rates compared to other sentencing options¹
• Suspended sentences are also a highly cost effective sentencing option. It costs the government nothing to impose a suspended sentence while it costs $382/day to keep someone in the Tasmanian prison system². CLA has calculated the cost of abolishing suspended sentences at $20 million per year, once fully implemented³
• The policy would therefore abolish a tried and tested cost effective sentencing option and replace it with costly options that are yet to be proven such as home detention

It should also be noted that the Tasmanian Law Reform Institute’s Final Report on Sentencing in 2008 carefully considered suspended sentences and, after weighing all the available evidence, recommended that suspended sentences are “a useful sentencing option that should be retained” and that a “statutory presumption in favour of activation” be created to improve the operation of suspended sentences by requiring judges to activate a suspended sentence following the commission of a further crime unless it is unjust to do so. That legislative amendment was included in the Justice and Related Legislation (Further Miscellaneous Amendments) Bill 2009 which was passed into law and commenced operation on the 1^st of January 2011.

Mandatory minimum prison sentences

• There is no evidence that mandatory minimum prison sentences deter crime whilst there is ample evidence they do create unjust outcomes⁴
• Specifically in relation to assaults against police, the Final Report on Assaults on Emergency Service Workers by the Tasmanian Sentencing Advisory Council rebuts the assertions from the Tasmanian Government that assaults against police are increasing in the State and that the policy has worked in Western Australia⁵
• The Government’s premise to this policy is that judges are too lenient and out of touch with community expectations. The Tasmanian Jury Study⁶ was a groundbreaking piece of research that found sentences imposed by Tasmanian judges do in fact reflect community expectations that are informed by the facts of the particular case. The research highlights the importance of relying on public opinion which is informed by the facts of a particular case, rather than public opinion informed by the media.

‘Illegal’ protest that hinders access to workplaces

• Under existing Tasmanian law, a protest that causes a public nuisance or involves trespass on private land can be broken up by police. These existing laws do a good job of balancing the rights of workers on the one hand and, on the other, the rights of the community to free speech and protest
• The right of the community to protest against a particular business is especially important when there is a commercial profit being derived from use of a public resource
• The existing laws are contained in thePolice Offences Act 1935and allow for a $650 fine or 6 months imprisonment for trespass and about half that for a nuisance committed on public land.
• To increase the fine from $650 to a mandatory $10,000 (or 3 months imprisonment for a second offence) is an extreme response that will embarrass Tasmania on the international level.

For further information please contact Richard Griggs, Tasmanian Director of Civil Liberties Australia, on griggs@cla.asn.au

¹ Bartels L (2008) page 271, Sword or Feather? The use and utility of suspended sentences in Tasmania available at: http://eprints.utas.edu.au/7735/2/Lorana_Bartels_01Whole.pdf and Bartels L (2009), page 92, ‘The weight of the Sword of Damocles: A reconviction analysis of suspended sentences in Tasmania’, Australian and New Zealand Journal of Criminology, 41: 72-100 (available from CLA by request)

² 2014 Report on Government Services: Table 8A.7: http://www.pc.gov.au/__data/assets/pdf_file/0015/132324/rogs-2014-volumec-chapter8.pdf

³ http://tasmaniantimes.com/index.php?/pr-article/richard-griggs-cla-abolishing-suspended-sentences-could-cost-20-million-per/

⁴ Report on Sentencing, Tasmanian Law Reform Institute: http://www.utas.edu.au/__data/assets/pdf_file/0004/283810/completeA4.pdf

⁵ http://www.sentencingcouncil.tas.gov.au/publications/Assaults_on_Emergency_Service_Workers.pdf

⁶ http://www.aic.gov.au/publications/current%20series/tandi/401-420/tandi407.html