Liberty Victoria warns that the Sentencing Amendment (Emergency Worker Harm) Bill 2020 Will Make us Less Safe

Sentencing Amendment (Emergency Worker Harm) Bill 2020

Liberty Victoria is strongly opposed to the Sentencing Amendment (Emergency Worker Harm) Bill 2020 (“The Bill”).

The Bill reflects the Government’s intention to further entrench a system of mandatory sentencing that fails to make the community safer. Indeed, by removing and restricting exceptions to mandatory imprisonment for certain categories of offences against emergency workers, and by necessity exposing offenders who are youthful and/or have good prospects of rehabilitation to the criminogenic effects of imprisonment, the Bill will actively make us less safe.

The Bill, if enacted, would amongst other things:

• Remove the jurisdiction of the Magistrates’ Court of Victoria to hear injury offences against emergency workers;
• Prevent an alleged offender from relying on the exception to mandatory sentencing of impaired mental functioning where that impairment was substantially caused by self-induced intoxication; and
• Place a reverse onus on alleged offenders who have aided or abetted offences against emergency workers to demonstrate their involvement was “minor” in order to avoid the mandatory sentencing provisions;

The Bill reflects a dangerous pattern of the Government seeking to legislate in response to individual court cases that have received adverse attention from sections of the media. That is not a considered or responsible way of enacting legislation. Such an approach fails to consider the many pitfalls of rushing to address individual court outcomes through the blunt instrument of removing judicial discretion in sentencing. To that end, it should be emphasised that the evidence is clear that, when fully informed, members of the public agree with the sentences imposed by judicial officers in most cases.  

On many occasions, Liberty Victoria has warned of the dangers of mandatory sentencing. So too have the Law Council of Australia and the Law Institute of Victoria. Sadly, it appears that both major political parties are in lock step in ignoring those warnings. Liberty Victoria has warned that the system of mandatory sentencing introduced and entrenched over the past seven years would invariably be “ratcheted up” over time. See Mandatory sentencing unnecessarily cruel says human rights group and Proposed changes to community correction orders will not make us safer.  That is precisely what is now occurring.

As Liberty Victoria has previously argued, the problem with mandatory sentencing is that it makes us all less safe. Further, it removes the discretion from the relevant judicial officer to impose a sentence that is appropriate having regard to the circumstances of the particular instance of the offence. It is contrary to the fundamental sentencing principle that the punishment should be proportionate to the seriousness of the offence having regard to the circumstances of the offender.

The central problem caused by mandatory sentences was eloquently described by Mildren J in Trenerry v Bradley (1997) 6 NTLR 175 at 187 “Prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences. If a Court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case”.

Liberty Victoria shares the Law Council of Australia’s concerns that mandatory sentencing regimes:

(1) Undermine the fundamental principles underpinning the independence of the judiciary and the rule of law;

(2) Are inconsistent with Australia’s international obligations, particularly Australia’s obligations with respect to the prohibition against arbitrary detention as contained in Article 9 of the International Covenant on Civil and Political Rights (ICCPR); and the right to a fair trial and the provision that prison sentences must in effect be subject to appeal as per Article 14 of the ICCPR;

(3) Increases economic costs to the community through higher incarceration rates;

(4) Disproportionately affect vulnerable groups within the community, including Indigenous Australians and persons with a mental illness or intellectual disability;

(5) Potentially result in unjust, harsh and disproportionate sentences where the punishment does not fit the crime;

(6) Fails to deter crime;

(7) Increases the likelihood of recidivism because prisoners are placed in a learning environment for crime whereby inhibiting rehabilitation prospects;

(8) Wrongly undermines the community’s confidence in the judiciary and the criminal justice system as a whole; and

(9) Displaces discretion to other parts of the criminal justice system, most notably law enforcement and prosecutors, and thereby fails to eliminate inconsistency in sentencing.

(10) Such concerns have been echoed by the Law Institute of Victoria’s comprehensive submission on mandatory sentencing in 2011, which noted that “[t]he overwhelming evidence from Australia and overseas… demonstrates that mandatory sentencing does not reduce crime through deterrence nor incapacitation, and may lead to increased crime rates in the long run, as imprisonment has been shown to have a criminogenic effect”.

The Government has failed to explain why mechanisms other than mandatory imprisonment, such as guideline judgments in the Court of Appeal, are not more appropriate to achieve systemic reform to sentencing law for certain categories of cases, such as offences involving emergency workers. Notably, the Sentencing Advisory Council has previously recommended the use of guideline judgments in order to achieve consistency in sentencing.  Despite this, there has only ever been one guideline judgment in Victoria, in 2014, on community correction orders. The time has come for stakeholders to make greater use of guideline judgments rather than rushing to further restrict the direction of judicial officers to do justice in the individual case.

In conclusion, emergency workers are entitled to be safe when undertaking their important responsibilities. This Bill, if enacted, will not achieve that end. Indeed, it will only see more people imprisoned and exposed to the deleterious effects of imprisonment, at ever more expense to the public. Rather than taking such an approach, the Government should protect judicial discretion in sentencing, and take a principled stand against those who, in recent years. have seen responsible sentencing policy in Victoria transform into a knee-jerk law and order auction.

For comment, please contact Liberty Victoria on 03 9670 6422 or info@libertyvictoria.org.au.