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Mandatory sentencing, and the legacy of Victorian ‘tough on crime’ legislation

By Celina Alba


 

‘Tough on crime’ rhetoric relies heavily upon public perceptions of uncontrolled crime, and leniency by the courts in sanctioning offenders. This approach has been adopted by both major political parties in Victoria, as Liberal and Labor governments in the last decade have introduced legislative reforms justified on the basis that these measures represent community interests and promote their safety. What is the legacy of these policies over the last decade, and has it been successful in achieving their aims? Using mandatory sentencing in Victoria as a case study, appraisal of these legislative schemes show that they have resulted in a rising incarceration rate, and costs have fallen disproportionately on the most vulnerable groups in the Victorian community.


A tough on crime approach has been adopted by successive Victorian governments, particularly in response to high profile criminal events. Toughened parole laws were proposed by the previous Liberal government after the murder of Jill Meagher in 2013, [1] and bail law reforms were introduced by the succeeding Labor government in the aftermath of the 2017 Bourke Street killings. [2]


Mandatory minimum sentencing Acts


Similarly, mandatory sentencing was introduced to address concerns regarding the perceived leniency of sentences made by courts in response to criminal offending. Mandatory minimum sentencing was introduced in Victoria under the Andrews Government, via the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic). The Act amended the Sentencing Act 1991 (Vic) (‘Sentencing Act’) [3] to introduce ‘category 1’ and ‘category 2’ offences. Offences included in the ‘category 2’ classification include manslaughter, trafficking in commercial quantities of drugs of dependence, and carjacking and home invasions, whilst ‘category 1’ offences are more serious than category 2 crimes, covering offences such as murder, rape and aggravated home invasion. [4]


The effect of these reforms is that where a person above the age of 18 is charged with an offence under these categories, the courts would be required to impose a sentence of imprisonment. [5] During the Bill’s second reading, Victorian Attorney-General Martin Pakula emphasised the bill’s aim to ensure ‘appropriate’ sentences would be made in response to crime by reducing the imposition of non-custodial orders, reflecting community expectations that certain crimes would only result in a sentence of imprisonment. [6] This demonstrates that the rationale behind the legislation is firmly rooted in tough on crime ideology that community interests are promoted by ensuring retribution for offenders.

Justifying mandatory sentencing


Mandatory sentencing has been justified on several grounds. Mr Paluka noted that restricting the use of non-custodial orders for certain crimes would send a ‘strong message’ to potential perpetrators that such conduct will be taken seriously and result in jail time. This reflects the contention that mandatory sentencing acts as a deterrent from engaging in crime. Indeed, it is argued that the imposition of a mandatory term of imprisonment will deter potential offenders from engaging in the prohibited conduct, as the consequences it carries are appropriately severe. [7]


Proponents of mandatory sentencing have asserted that it also ensures appropriate retribution, as the mandating of imprisonment ensures that the punishment offenders receive is directly proportionate to the gravity of the crime. [8] Further, it promotes consistency by eliminating or reducing judicial discretion; it is argued that the court’s discretion is too broad, leading to inconsistent, disproportionate and unjust outcomes. [9] As the courts are viewed as unwilling or unable to impose severe sanctions consistently, it is contended that parliament should mandate specific penalties to ensure consistency, and reflect the public’s disapproval of the offender’s conduct. [10] These principles are reflected by Mr Paluka’s comments, stating that the reforms would address the harm experienced by victims and the culpability of offenders, and better reflect community views of sentencing. [11]


Perpetuating re-offending through mandatory sentencing


In tabling the Inquiry into Victoria’s Criminal Justice system report, the Legal and Social Issues committee noted that research had shown that mandatory sentencing schemes are unlikely to achieve their aims, and if they do, would result in high economic and social costs. [12] Indeed, mandatory sentencing has resulted in criticism from the courts, and stakeholders have expressed concerns about its impact on aspects of the community.


As mandatory sentencing restricts judicial discretion, it limits a judge’s powers to consider the case’s particular circumstances and mitigating factors that may warrant a reduced sentence. [13] This can result in mandatory sentencing schemes disproportionately impacting first time and minor offenders, as well as vulnerable groups such as young people, women and First Nations. [14]


Indeed, imprisonment generally increases the likelihood of re-offending as it reinforces offender’s ‘criminal identity’, exposes offenders to a learning environment for criminal behaviour, and it fails to address the actual drivers of crime. [15] Indeed, young people are particularly vulnerable to the effects of mandatory imprisonment and incarceration, as it results in a rise of criminogenic behaviour learned within the prison system. [16]


Notable cases


The following cases highlight these issues. In DPP v Bowen (‘Bowen’), the respondent, charged with the category 2 offence of trafficking in a commercial quantity of a drug of dependence, had been sentenced by the trial judge to a community corrections order combined with 12 months of imprisonment, on the basis that this sentence would best advance their prospect of rehabilitation and reduce their risk of re-offending. [17] Although the Court of Appeal viewed this sentence as appropriate in this case, [18] the trial judge could only make such an order if the exception in s 5(2H)(e) of the Sentencing Act applied; ie, only if ‘substantial and compelling circumstances that are exceptional and rare’ warranted departure from a sentence of imprisonment. [19] As the trial judge failed to consider this section, and the offender’s circumstances did not meet this ‘almost impossible’ standard, [20] the court was required to sentence the respondent to three years of imprisonment. [21] This case demonstrates how the mandatory sentencing regime has prioritised retributive aims over outcomes that could have better served the offender, and by reducing their risk of recidivism, the community as well.


This trend was followed by the recent decision of R v Buckley (‘Buckley’), where the applicant was sentenced to three years of imprisonment for the category 1 offence of aggravated carjacking. [22] As a category 1 offence, only a sentence of imprisonment could be imposed unless a special reason under s 10A of the Sentencing Act applied, such as if ‘substantial and compelling circumstances that are exceptional and rare’ existed. Despite noting that the crime had been committed by the applicant several weeks after his eighteenth birthday, and evidence that the applicant was exceptionally immature and would be particularly vulnerable in prison, the trial judge was obliged to impose a custodial sentence as it did not meet the standard for a ‘special reason’. [25] The Court of Appeal noted that the applicant’s circumstances were not ‘exceptional and rare’, but rather all too common in the criminal justice system, [26] thus making it impossible for the applicant to avoid a custodial sentence. This resulted in criticism by the Court of Appeal of the mandatory sentencing regime, as the community would have been better served by a sentence that would have promoted the applicant’s rehabilitation. [27]


Mandatory sentencing’s increase in incarceration rates


Mandatory sentencing has contributed to the soaring incarceration rate in Victoria generally. In 2019-2020, 13.1% of the matters heard in the Magistrates’ Court resulted in a custodial sentence, in comparison to 4.9% in 2004-2005. [28] Similarly, in the County and Supreme Court the number of custodial sentences increased from 40% in 2004-2005 to 74% in 2018-2019. [29] Considering these figures, it is unsurprising that Victoria’s prison population increased by 58% from 2010 to 2020. These have resulted in both fiscal costs to the government, and indirect costs to prisoners, their families, and society generally. [31]


Furthermore, mandatory sentencing particularly impacts First Nations, as several category 1 and 2 offences are also ‘crimes of poverty’ relating to property offences and theft. As such, mandatory sentences that attach to these offences will disproportionately impact people of low socio-economic status and certain racial groups, including First Nations. [32] Indeed, First Nations offenders are particularly affected by the loss of judicial discretion, as judges are unable to consider mitigating factors and the intersectional disadvantage they experience, or consider alternative options to imprisonment. [33] This disproportionate effect has been recognised by the UN Committee against Torture, which recommended in 2008 and 2014 that Australia abolish mandatory sentencing for its impact on First Nations. [34] As such, the effect of mandatory sentencing and other tough on crime initiatives has led the rate of imprisonment among Aboriginal adults to increase from 1,106.4 per 100,000 Victorian adults in 2010 to 1837.7 per 100,000 in 2020. [35] This is in contrast to the general adult imprisonment rate, which was 135.1 per 100,000 in 2020. [36]


Hence, tough on crime policies such as mandatory sentencing, despite appearing politically popular, fail to serve the community and in fact disproportionately impact the most vulnerable of society. However, politicians continue to view tough on crime policies as representative of community interests. Shadow Attorney-General Michael O’Brien addressed the Court of Appeal’s criticism of mandatory sentences in Buckley as showing ‘a lack of respect for a democratically elected parliament’, demonstrating that the court preferred their own view over ‘those who have been elected by the community.’ [37] This is in spite of a study that showed jurors strongly support judicial discretion in sentencing, and studies that demonstrate informed members of the community sentence offenders more leniently than judges do. Indeed, in assessing the impact of mandatory sentencing, [38] the Legal and Social Issues Committee noted the numerous concerns stakeholders expressed and recommended a review of the mandatory sentencing regime. [40]


Although this may mark the beginning of reforms to mandatory sentencing, the enduring influence of the tough on crime approach persists in other areas. In June it was reported that the Victorian government had planned to delay the progress of legislation aimed at protecting youth offenders and First Nations children, purportedly due to concerns of appearing ‘soft on crime’ before the state election. [41] While the government has since introduced alternative legislation aimed at protecting First Nations children, [42] this highlights the political reluctance to take a less punitive stance on crime. However, as the research on the consequences of these initiatives demonstrate, these policies fail to serve the community, and entrench existing inequalities in the community.


 

References

[1] ‘Victoria's to tighten parole laws in wake of Jill Meagher's murder, to be 'the toughest in Australia’, ABC News (online, 25 June 2013) <https://www.abc.net.au/news/2013-06-25/tougher-parole-laws-in-response-to-jill-meagher27s-murder2c-t/4778982>.

[2] ‘Melbourne car attack: Bail law reform announced by Daniel Andrews in wake of Bourke St rampage’, ABC News (online, 23 January 2017) <https://www.abc.net.au/news/2017-01-23/bourke-st-rampage-prompts-bail-law-review-in-victoria/8202300>.

[3] Sentencing Act 1991 (Vic) (‘Sentencing Act’).

[4] ‘Sentencing Schemes’ Sentencing Advisory Council (Webpage, 12 February 2021) <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-schemes >.

[5] Ibid.

[6] Victoria, Parliamentary Debates, Legislative Assembly, 13 October 2016, 3860 (Martin Pakula, Attorney-General).

[7] Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014) 13 [28].

[8] Adrian Hoel and Karen Gelb, Sentencing Advisory Council, Sentencing Matters: Mandatory Sentencing, (August 2008) 12.

[9] Law Council of Australia (n 7) 17 [51].

[10] Hoel and Gelb (n 8) 12.

[11] Victoria (n 6).

[12] Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s criminal justice system (March 2022) 541.

[13] Hilde Tubex, ‘Mandatory sentencing leads to unjust, unfair outcomes – it doesn’t make us safe’, The Conversation (online, January 5 2016) <https://theconversation.com/mandatory-sentencing-leads-to-unjust-unfair-outcomes-it-doesnt-make-us-safe-52086>.

[14] Hoel and Gelb (n 8) 18.

[15] Law Council of Australia (n 7) [39].

[16] Australian Law Reform Commission (‘ALRC’), Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report No 133, December 2017) 276 [8.13].

[17] DPP v Bowen [2021] VSCA 355 [12] (‘Bowen’).

[18] Ibid [69].

[19] Sentencing Act (n 3) s 5(2H)(e).

[20] Bowen (n 17) [11].

[21] Ibid [71].

[22] Buckley v The Queen [2022] VSCA 138 [7] (‘Buckley’).

[23] Sentencing Act (n 3) s 10AD(1).

[24] Ibid s 10A(2)(e).

[25] Buckley (n 22) [7].

[26] Ibid [43].

[27] Ibid [8].

[28] Ibid 49.

[29] Ibid 50.

[30] Ibid 57.

[31] Productivity Commission, Australia’s prison dilemma: Research paper (October 2021) 12-13.

[32] ALRC (n 16) 276-7 [8.15].

[33] Legal and Social Issues Committee (n 12) 542.

[34] ALRC (n 16) 276-7 [8.15].

[35] Legal and Social Issues Committee (n 12) 61.

[36] Ibid.

[37] David Estcourt, ‘Court of Appeal condemns mandatory minimum sentencing,’ The Age (online, July 14 2022) < https://www.theage.com.au/national/victoria/court-of-appeal-condemns-mandatory-minimum-sentencing-20220714-p5b1ni.html>.

[38] Kate Warner et al, ‘Mandatory Sentencing? Use [with] discretion’ (2018) 43(4) Alternative Law Journal 289, 293.

[39] Sentencing Advisory Council, Public Opinion about Sentencing: A Research Overview (13 December 2018) 1.

[40] Legal and Social Issues Committee (n 12) 543.

[41] Sumeyya Ilanbey, ‘Andrews government dumps youth offender legislation ahead of election,’ The Age (online, June 5 2022) < https://www.theage.com.au/politics/victoria/andrews-government-dumps-young-offender-legislation-ahead-of-election-20220530-p5apop.html>.

[42] Sumeyya Ilanbey, ‘Child protection bill aims to keep Indigenous families together,’ The Age (online, June 23 2022) < https://www.theage.com.au/politics/victoria/child-protection-bill-aims-to-keep-indigenous-families-together-20220622-p5avlb.html>.


 

Bibliography


A Articles/Books/Reports


Australian Law Reform Commission, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report No 133, December 2017)


Hoel, Adrian and Karen Gelb, Sentencing Advisory Council, Sentencing Matters: Mandatory Sentencing, (August 2008)


Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014)

Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s criminal justice system (March 2022)


Productivity Commission, Australia’s prison dilemma: Research paper (October 2021)


Sentencing Advisory Council, Public Opinion about Sentencing: A Research Overview (13 December 2018)


Warner, Kate et al, ‘Mandatory Sentencing? Use [with] discretion’ (2018) 43(4) Alternative Law Journal 289


B Cases


Buckley v The Queen [2022] VSCA 138


DPP v Bowen [2021] VSCA 355


C Legislation


Sentencing Act 1991 (Vic)


Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic)


D Other


Estcourt, David, ‘Court of Appeal condemns mandatory minimum sentencing,’ The Age (online, July 14 2022) <https://www.theage.com.au/national/victoria/court-of-appeal-condemns-mandatory-minimum-sentencing-20220714-p5b1ni.html>


Ilanbey, Sumeyya, ‘Andrews government dumps youth offender legislation ahead of election,’ The Age (online, June 5 2022) <https://www.theage.com.au/politics/victoria/andrews-government-dumps-young-offender-legislation-ahead-of-election-20220530-p5apop.html>

Ilanbey, Sumeyya, ‘Child protection bill aims to keep Indigenous families together,’ The Age (online, June 23 2022) < https://www.theage.com.au/politics/victoria/child-protection-bill-aims-to-keep-indigenous-families-together-20220622-p5avlb.html>


‘Melbourne car attack: Bail law reform announced by Daniel Andrews in wake of Bourke St rampage’, ABC News (online, 23 January 2017) <https://www.abc.net.au/news/2017-01-23/bourke-st-rampage-prompts-bail-law-review-in-victoria/8202300>

‘Sentencing Schemes’, Sentencing Advisory Council (Webpage, 12 February 2021) <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-schemes >

Tubex, Hilde, ‘Mandatory sentencing leads to unjust, unfair outcomes – it doesn’t make us safe’, The Conversation (online, January 5 2016) <https://theconversation.com/mandatory-sentencing-leads-to-unjust-unfair-outcomes-it-doesnt-make-us-safe-52086>


‘Victoria's to tighten parole laws in wake of Jill Meagher's murder, to be 'the toughest in Australia'’, ABC News (online, 25 June 2013) <https://www.abc.net.au/news/2013-06-25/tougher-parole-laws-in-response-to-jill-meagher27s-murder2c-t/4778982>

Victoria, Parliamentary Debates, Legislative Assembly, 13 October 2016, 3860 (Martin Pakula, Attorney-General)

 

Celina Alba is a penultimate year student at Monash University, studying Laws (Honours) and Arts (International Relations/Politics), and is a sub-editor for the Reasonable Observer. Celina is passionate about human rights, social justice and law reform. She is particularly interested in the power dynamics of politics, the repercussions it has on communities and the role of law in both perpetrating and resolving inequalities. She has volunteered with InvestigatePH, an independent initiative investigating human rights violations in the Philippines, and is currently completing placement at Monash Law Clinics in the Family Law stream.













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