Populist law and order agenda sees courts lose power

Populist law and order agenda sees courts lose power as mandatory sentencing is expanded.

“The public may not be aware of the speed with which the Napthine government is removing sentencing discretion from the courts”, said Liberty president Jane Dixon QC.

Liberty Victoria has serious concerns about the Sentencing Amendment  (Emergency Workers) Bill 2014, which is presently before the Legislative Council.

The Bill introduces mandatory minimum non-parole periods for a new category of specified offences against emergency workers.
“While emergency workers should be protected, the move towards mandatory sentencing in this state is a radical shift in the balance of power between the legislature and the courts in criminal punishment”, she said.

The government is continuing to erode the powers of the Courts, through the Sentencing Amendment (Emergency Workers) Bill 2014, together with the Crimes Amendment (Gross Violence Offences) Act 2013, Sentencing Amendment (Baseline Sentences) Bill 2014 and the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014.

“Parliament is diminishing the powers of the Courts in a manner never before seen in Victoria”, she said.

“When the mandatory sentencing provisions apply, the courts are unable to exercise discretion even where an offender is otherwise of unblemished character. As a result of mandatory sentencing there are bound to be cases where the families of prisoners end up losing out especially if a gaoled parent loses employment following a gaol term.”

Mandatory sentencing has been an acknowledged failure in the United States and some Australian jurisdictions.
Judges and magistrates will have no choice other than to jail people for a minimum period of between six months to five years for offences against emergency workers on duty, including police.

For example, a road trauma victim who may lash out in distress and end up in gaol for 6 months because they caused a bruise to a member of the fire crew or police force attending the scene.

These laws will stretch Victoria’s already over crowded prisons. It will be up to prosecutors to decide whether to bring charges that have mandatory sentence or proceed with a lesser charge where gaol is not the only option. 

“This leads to arbitrariness in the application of the law" she said.

“More people will contest charges where the case is borderline in order to avoid mandatory gaol.” 

“Research shows that when the public is fully informed about the basis for sentences handed out by courts they agree with them.”
“As it stands, the Court of Appeal has the power to give guideline judgments on sentencing practices and to increase manifestly inadequate sentences, which is a proper safeguard to ensure that sentencing practices meet community expectations whilst protecting the traditional role of the judiciary”.

Read Liberty Victoria's comment in full at http://libertyvictoria.org/SentencingAmendmentEmergencyWorkersBill2014