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Mandatory Sentencing

Arrested man handcuffed in a cell in prison.  Mandatory sentencing.

Absurd and over-blown: mandatory sentencing is dumb justice  is the title of an article by Morry Bailes published on 17 December 2015 in Adelaide’s InDaily online news.  The full article is available here.

Morry points out that mandatory sentencing might be popular but it often leads to perverse or disproportionate outcomes.  The total article is a thought provoking read but some of the points he makes follow.

 

In South Australia mandatory sentencing comes in three main types:

  • minimum mandatory sentence for murder
  • recent rules preventing a judge from suspending a term of imprisonment for certain criminal offences where the head sentence is greater than two years, which in reality operates like a mandatory sentence.
  • The third is the plethora of minimum mandatory penalties for a variety of traffic offences such as speeding or drink driving, that are often imposed by the Magistrates Court.

Whilst mandatory sentencing is popular to call for mandatory sentencing to address particular offences that have caused community outrage, there is often little understanding of the existing law and role of judges to vary the sentences that are called for.

Often there is little understanding of existing law and an even lesser comprehension that judges in many cases impose sentences that are greater than the mandatory sentences that are called for.  The point is made that an opposition to mandatory sentencing is not weakness but an understanding of the complexity of sentencing and preserving of discretion to ensure just outcomes.

Without discretion there may be very unjust and unintended outcomes like the following circumstance in California.

The classic tale of the absurdity of mandatory sentencing is captured in the case of Mr Williams who fell foul of California’s “three strikes” laws. Mr Williams committed petty theft by stealing a slice of pepperoni pizza from a group of children on the pier at Redondo Beach, California. He had two previous felonies; as this was his third offence he received a mandatory sentence of 25 years imprisonment for stealing a pizza slice. The then Californian Attorney-General described it as a “victory for the people of California”. Others may think differently.

Traffic offences often come with mandatory minimum fines set irrespective of an individual’s capacity to pay, and regardless of whether a person has lost their job due to the offence and thus their ability to pay the fine. They often hit those of low economic means the greatest.

There is also the question of those in remote, rural and regional areas for whom disqualification from driving can have a disproportionate impact. What is inconvenient for a city dweller who can catch a taxi may be devastating for a farmer and a farmer’s family.

It is not to suggested that offenders ought not be punished, but our sentencing acts are inflexible and our correctional facilities so geared toward conventional imprisonment, that such alternative penalties do not exist.

Our legislators must think carefully about being seduced by community expectations and the ballot box in the mandatory sentencing debate. Rather we should revisit the rigidity of penalties in this state and others for first-time driving offenders, those in remote and rural areas, and those with unique, individual circumstances. Repeat traffic offenders can of course be treated with less sympathy.

Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA.

It may be that a combination of seemingly small misdemeanors can lead to very severe sentencing including jail. Call Adelaide criminal lawyers Williams Barristers and Solicitors, to discuss your options if you are in this situation.

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