Mandatory minimum prison sentences for ‘illegal’ protests are a mistake for both justice and practical reasons. Both ‘poor’ law and ‘poor’ taxpayers, says CLA’s Richard Griggs.
Turning point for state’s justice
By Richard Griggs, Tasmanian Director of Civil Liberties Australia
Our justice system in Tasmania has come to a crucial turning point. If we go down the path our Government suggest, it will be a mistake we all regret in the years to come.
The State Government proposes the creation of mandatory minimum prison sentences for three categories of crime – ‘illegal’ protests, assaults against police and sex offences.
The protester laws were the first written and have passed through the Lower House. The Upper House will soon decide which way we turn on this critical issue.
Under our current legal system, what happens is that our magistrates and judges weigh up all the facts of the case and decide an appropriate sentence.
It is judicial officers in courts who hear all the relevant evidence and can determine the appropriate sentence, not politicians in parliament.
Under mandatory sentencing the courts have their hands tied by parliament. Instead of courts calculating the sentence based on the circumstances, parliament passes a law requiring a certain minimum length of sentence be imposed in all cases in the future, regardless of how different one might be from another.
Approach is problematic
This approach is problematic in both principle and practice.
It diminishes the principle of the separation of powers (that parliament and the courts have separate and different roles) and the important checks and balances provided by independent courts. It’s dangerous if courts are made subservient to parliament and lose the ability to make independent decisions based on the facts before them.
In practical terms, the Government’s proposal will lead to unjust outcomes in individual cases because the court is prevented from tailoring sentence to meet the facts of the particular case.
Parliament can’t ever predict every single case that will be captured by laws they write and therefore can’t know that every single offender should go to jail.
Can you imagine a farmer being jailed for standing up against coal seam gas exploration on his farm? Or a grandfather doing time behind bars for taking his tinny onto the Derwent to protest the return of the super trawler? We might see both scenarios become a reality if these laws get passed by Parliament.
If life were black and white, perhaps mandatory sentencing would be ok. But life is actually made up of shades of grey and our courts need to retain the power to take account of all the evidence and decide a sentence.
Mandatory sentencing is also based on the faulty assumption that courts are too soft on offenders and are out of touch with community expectations.
Recent Tasmanian research has indicated that courts actually do a very good job of meeting community expectations.
A survey conducted by the University of Tasmania, called the Tasmanian Jury Sentencing Study, asked jurors what they thought of the sentence handed down in the case which they sat through after hearing all the evidence.
Fifty percent of the jurors thought the judge was too harsh in the sentence chosen and the other fifty percent thought the judge was too lenient.
So Tasmanian judges are doing a good job of meeting the mid-point of the broad spectrum of public opinion. Instead of being ‘too soft’, they are actually just about spot on.
It is also uncertain whether mandatory sentencing actually works in reducing the target crime. Supporters of mandatory sentencing argue the logic that if offenders know they will be certain to go to jail they will be less likely to offend. But that logic relies on the assumption offenders follow the debates of parliament and then take the time to reflect on that before making a rational decision to commit a crime.
Ironically, mandatory sentencing only works on people who were never going to commit the crime in the first place.
There’s no evidence that mandatory sentencing is an effective deterrent to crime. That was the conclusion the Tasmanian Law Reform Institute reached in its comprehensive 270 page inquiry into sentencing in 2008.
To claim that mandatory sentencing is effective in reducing crime is stretching the truth. So mandatory sentencing might get a politician a good media headline, labelling them ‘tough on crime’ but it achieves little in practice. It isn’t an effective deterrent to crime, it diminishes the principle of separation of powers, and it leads to unjust outcomes in individual cases.
‘Tough on crime’ actually means ‘tough on taxpayers’: it costs more than $130,000 to house, feed and supervise a prisoner for a year in Tasmania. If we saw one hundred people sent to jail for a year because of this proposal that would cost taxpayers more than $13 million dollars.
The Upper House will of course hear from groups who support the laws. There are business interests who support mandatory sentences for protesters, the Police Association support mandatory sentences for those who assault police and there are child welfare groups who support mandatory sentences for sex offenders.
I understand the anger from these groups, especially child welfare groups. However, we can’t let our fury at these offenders run so wild that we fritter away fundamental principles of justice that have taken centuries for our society to develop.
Need to be on guard
Parliament will need to listen to the concerns of groups such as these but balance what they hear against the concerns of others in the community who don’t want mandatory sentencing in Tasmania and see the dangers in the proposal.
Parliament will also need to be on guard to the danger that mandatory sentencing will never catch up to the desires of some in the community. We run the danger of being back here again every two-to-three years to talk about parliament raising the mandatory sentences higher.
I ask all Tasmanians to reflect on the seriousness of fundamentally changing our justice system. I urge our Legislative Councillors to maintain support for the separation of powers by voting against mandatory prison sentences.
Richard Griggs, the Tasmanian Director of Civil Liberties Australia, works in Hobart as a lawyer. He is petitioning the Upper House to vote against mandatory prison sentences for protesters. You can sign the petition at the Tasmanian Parliamentary website. He is also speaking against the laws at a public rally in the Hobart City Hall on Saturday 16August at 12 noon.
This article was to be first published in the Sunday Tasmanian on 10 August 2014.