Mandatory sentencing : a criminological perspective

This paper will give a ‘criminological perspective’ on mandatory sentencing. It will however largely avoid the issues of the effect of mandatory sentencing provisions on the judicial process and judicial independence, as this has already been covered by Sir Anthony Mason. It will also avoid the legal issues concerning the constitutional, human rights and international law aspects of mandatory sentencing which will be covered by later speakers. The aim will be to give a brief overview of research which evaluates the effects of mandatory sentencing provisions in terms of the available evidence of whether they meet their stated aims of deterrence, selective incapacitation and the reduction of crime rates. This will be done in two parts, first in relation to the more extensive experiment in mandatory sentencing in the USA which has provided some of the impetus and metaphors ("three strikes") for recent Australian developments; and second the recent mandatory sentencing provisions in Western Australia (WA) and the Northern Territory (NT). Evidence from both the US and WA (NT is hard to assess because of the lack of proper monitoring and criminal statistics) indicates that mandatory sentencing does not produce the effects of deterrence, selective incapacitation and crime reduction which are its stated justifications and does produce a range of damaging side effects in terms of distortion of the judicial process, wildly disproportionate sentencing, additional financial and social cost and deepening social exclusion of individuals and particular communities. So what is left are the less acknowledged underpinnings of mandatory sentencing in the form of the symbolic politics of law and order, the politics of social exclusion and a displacement of racial anxieties and hostilities onto the terrain of the legal. In fashioning this necessarily brief overview a number of sources have been heavily drawn upon, in particular the excellent work by Neil Morgan from UWA (Morgan, 1995;1999; 2000); Dianne Johnson and George Zdenkowski in their detailed report to the Senate Inquiry (2000); and a number of articles appearing in 1999 in an excellent special issue of the UNSW Law Journal, all of which are highly recommended for further reading.

Sentencing policy : the politics of law and order

Against the advice of their own parliamentary committees, and despite the experience of other jurisdictions, both the Government and Opposition parties seem to be intent on outbidding each other on mandatory sentencing regimes in the lead-up to the 2003 NSW election, says DAVID BROWN.

Sentencing and public confidence in Australia: The dynamics and foci of small group deliberations

This study is the first of its kind in Australia to use the deliberative small group methodology to explore participants’ deeper, nuanced thoughts on specific criminal justice issues in order to gain insight into the underlying beliefs that influence people’s opinions on sentencing. The use of small group discussions allows an analysis of the dynamics of people’s interactions and the potential of these to elicit deeper, more thoughtful deliberation. Participants’ comments around two policy areas – mandatory sentencing and the use of alternatives to imprisonment – were founded on concerns about the need for judges to tailor the sentence to fit the specific circumstances of each case. The methodology itself has shown that people may change their initial opinions on complex issues when given the opportunity to discuss and reflect on their beliefs.

After three strikes-the continued discriminatory impact of the sentencing system against indigenous Australians: suggested reform

Three strikes laws are discriminatory but not for previously advanced reasons. The three strikes laws are merely an acute example of a fundamentally flawed sentencing system that discriminates against economically and socially disadvantaged people, particularly the group that is the focus of this article – Indigenous Australians. The repeal of the Northern Territory's mandatory sentencing laws has not remedied the unfair manner in which sentencing law and practice operate against Aboriginals; either in the Northern Territory or generally. Criminal punishment systems around the world punish a disproportionate number of socially deprived people. In Australia, Indigenous Australians were grossly over-represented in Australian jails prior to the three strikes laws and will remain so unless steps are taken to address their disadvantage. The obvious solution to redress the over-representation by Indigenous Australians is to provide them with the same social opportunities and resources as the rest of the community. This is overly ambitious – at least in the short term. This article suggests a more attainable change in sentencing law to remedy some of the disadvantages experienced by Aboriginals. It suggests that far less weight should be accorded to prior convictions in the sentencing calculus.

Making the fun stop : youth justice reform in Queensland

In 2013 the newly elected conservative Liberal National Party government instigated amendments to the Youth Justice Act 1992 (Qld). Boot camps replaced court ordered youth justice conferencing. In 2014 there were more drastic changes, including opening the Children’s Court proceedings to the public, permitting publication of identifying information of repeat offenders, removing the principle of ‘detention as a last resort’, facilitating prompt transferral of 17 year olds to adult prisons and instigating new bail offences and mandatory boot camp orders for recidivist motor vehicle offenders in Townsville. This article compares these amendments to the legislative frameworks in other jurisdictions and current social research. It argues that these amendments are out of step with national and international best practice benchmarks for youth justice. Early indications are that Indigenous children are now experiencing increased rates of unsentenced remand. The article argues that the government’s policy initiatives are resulting in negative outcomes and that early and extensive evaluations of these changes are essential.

‘Structuring’ judicial sentencing discretion : consistency, guidance or pandering to the punitive?

Until quite recently, most Australian jurisdictions gave statutory force to the principle of imprisonment as a sanction of last resort, reflecting its status as the most punitive sentencing option open to the court.1 That principle gave primary discretion as to whether incarceration was the most appropriate means of achieving the purpose of a sentence to the sentencing court, which received all of the information relevant to the offence, the offender and any victim(s). The disestablishment of this principle is symptomatic of an increasing erosion of judicial discretion with respect to sentencing, which appears to be resulting in some extremely punitive consequences.

What sort of mandatory penalties should we have?

The argument in favour of a widespread fixed penalty regime - adopting a primary rationale for punishment would facilitate a more coherent and exacting approach to sentencing - the central objections against fixed penalties are that they are too severe and lead to unfairness because they are unable to incorporate all the relevant sentencing variables - by adopting a utilitarian ethic as the primary rationale for punishment, these problems can be circumvented - no utilitarian justification for disproportionate punishment, and penalties should not exceed the seriousness of the offence - no foundation for most sentencing considerations - by disregarding irrelevant considerations, the remaining can be incorporated into a fixed penalty system - the way would then be open for a coherent sentencing law system in which criminal justice is governed by pre-determined rules and principles as opposed to the intuition of sentencers.

The mandatory life sentence for murder : an argument for judicial discretion in England

In 1965, alongside the abolition of capital punishment, a mandatory life sentence for murder was implemented in England and Wales. The mandatory life sentence served as a signal to the public that the criminal justice system would still implement the most severe sanction of life imprisonment in cases of murder. Nearly 50 years later, this article examines whether the imposition of a mandatory life sentence for murder is still in the best interests of justice or whether English homicide law would be better served by a discretionary sentencing system. In doing so, the article considers debates surrounding the political and public need for a mandatory life sentence for murder by drawing upon interviews conducted with 29 members of the English criminal justice system. This research concludes that a discretionary sentencing framework is required to adequately respond to the many contexts within which the crime of murder is committed.

The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing

Parity in sentencing is the principle that offenders who are parties to a crime should, all things being equal, receive the same penalty. While it is a well-established principle, the reality is that its scope is greatly limited by the largely unfettered nature of the sentencing calculus. Things are rarely equal between offenders due to the large number of variables that current orthodoxy maintains are relevant to sentencing. This makes application of the parity principle unpredictable, resulting in the paradox that parity highlights the unfairness that it is meant to mitigate: inconsistency in sentencing. This article contends that parity will remain an aspiration, as opposed to a concrete principle, until the instinctive synthesis approach to sentencing yields to a more transparent and precise decision-making process. The article focuses on Australian jurisprudence, but the analysis applies to all jurisdictions where sentencing has a considerable discretionary component (including the UK and the USA--apart from the limited circumstances where mandatory sentences apply).

Sentencing Indigenous and Non-Indigenous Women in Western Australia’s Higher Courts

This article presents results from an exploratory study seeking to examine the role of sentencing in the continuing overrepresentation of Indigenous women in Western Australia’s prisons. Sentencing data from Western Australia’s higher courts indicate that Indigenous women were less likely than non-Indigenous women to be sentenced to a term of imprisonment when appearing before the court for comparable offending behaviour and histories.