<< back to archive index Speech Regarding a Bill Date: November 20 2002 Subject: Crimes Sentencing Procedures (Standard Minimum Sentences) 2002 From Hansard The Hon. Dr ARTHUR CHESTERFIELD-EVANS: This bill can best be summed up as disguised and denied mandatory sentencing legislation. It gives the court just enough discretion to avoid its being called mandatory sentencing legislation. It is a clear indication of how thin the line is becoming between the legislature and the judiciary in New South Wales. This bill is effectively sentencing by Parliament. It is effectively the same as mandatory sentencing legislation. In the Minister's second reading speech in the other place he tried to pretend that there is a large difference between the Opposition's approach, which is to demand mandatory sentencing, and the Government's approach, which is to demand standard minimum sentencing. The absurd difference is that the Government wants to placate the people who bay for blood and call for longer sentencing, and also enable the judiciary, who want some discretion to make their own decisions with regard to justice, to at least say, "Oh well, at least they are better than the Liberals". Here we have them arguing over the number of angels on the head of a pin or, in this case, devils on the head of a pin in order to get some sort of respectability as they pander to silly populism. Evidence has been presented to this House by a number of committees that tougher sentencing does not reduce crime in our community, but this conservative Government belligerently staggers on regardless of the facts. An article in the Law Society Journal of October entitled "The Politics of Law and Order" stated: 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. David Brown is a professor of law at the University of New South Wales. In the past five years the prisoner population has almost doubled in New South Wales, and the figure is almost double that of Victoria. The crime rate has remained the same, despite this increase in the prisoner population. Approximately 44 per cent of all prisoners are serving sentences of less than a month, which is an immense administrative burden. In addition, a large number of people are in gaol on remand. Many of those people receive sentences that are less than the time they have already served, or they are found not guilty. Therefore, they have spent time in gaol unnecessarily. Despite the Government's huge gaol building program, it has introduced this bill under the guise that it is not mandatory sentencing. The Government seeks to sit on both sides of the voting fence-to cater to those who believe that imposing more gaol sentences will solve crime and to those who believe that judges should have discretion. The Government seeks to give the impression that standard procedures will be a new initiative. This foolish, right-wing measure will waste money and create enormous human misery. Gaols are fundamentally universities of crime and play a poor rehabilitative function. On the weekend I attended a seminar hosted by the Centre for Intellectual Disabilities, which is concerned about the number of people with intellectual impairment in the prison system. This concern was drawn to the Government's attention by the report of the Select Committee on the Increase in Prisoner Population and the report of the inquiry of the Standing Committee on Law and Justice on crime prevention through social support. The Government has not taken the slightest notice of those well-researched and thorough reports. It simply agrees with the view of Alan Jones that punishment acts as a deterrent without having any evidence to that effect. The Australian Labor Party is just another silly conservative party and it has no credibility. The Government has two policies: what it says and what it actually does. It professes to be progressive with respect to crime diversion initiatives, yet it spends enormous amounts of money building more gaols to house more prisoners just to gain country votes. That is absolutely appalling. The Minister for Community Services also attended the seminar and spoke about other initiatives in crime diversion. I think she is probably embarrassed by the silly direction of the Government, but she was not at liberty to say so. The Government claims to have used evidence cited in the Law Society Journal, which states: Coalition sentencing policies are based in part on a paper "Sentencing: A Coalition Perspective" prepared by the Shadow Attorney General Chris Hartcher in September 2001. The proposals involve three key elements, the first of which is the setting of mandatory statutory minimum sentences for property and violence of offences. Sentencing guidelines (grids) would be set by "community panels", although no detail has been provided as to how such panels would be constituted and would operate … Some embarrassment flowed to the Coalition after the Premier got hold of an internal Coalition response by Shadow Community Services Minister, Brad Hazzard. Much to the delight of the Premier, the Hazzard paper provides a compelling critique of most of the Hartcher Coalition proposals. Hazzard notes that the NT and WA governments lost power in the 2001 elections "in part arguably due to voter backlash over mandatory sentencing". Further there is "no evidence that gaoling more people under mandatory sentencing will reduce crime by any substantive levels". He argues that statutory minimum sentences, "mandatory sentencing by another name", will substantially increase the prison population and have major cost ramifications. Hazzard states that "mandatory and minimum sentencing reduces the level of accountability of the criminal justice system by transferring the punishment decision to the prosecution, who are not open to public scrutiny as are judges" and that the policy could actually "reduce consistency in sentencing and slow down sentencing". In addition, Hazzard notes mandatory minimum sentencing may discriminate against "vulnerable people such as Aborigines, people with mental health issues and intellectual disabilities". Perhaps in recognition of some of the force of Hazzard's arguments, the Coalition dropped the proposal to extend mandatory minimum sentences to property offences from the final policy as publicly released. The second limb of the policy is the introduction of mandatory life sentences for the murder of police officers. Such a policy if enacted would, like all mandatory sentencing, produce injustice in that it would prevent the judge from doing justice in the individual case, preventing the process of making the punishment fit the crime, or tailoring the sentence to the circumstances of the case. Mr Hazzard disagrees with the policy and the Government has embarrassed the Opposition by suggesting that its policy does not lean towards mandatory policy as much as the final policy of the Opposition. The Government has this silly mandatory policy but pretends otherwise, which is gross hypocrisy. Neither the Minister for Community Services nor Brad Hazzard could tell those present at the seminar that they disagree with increased sentencing. Therefore, I told participants that they could either vote for the Australian Democrats or for the Greens. I suggested that they vote for the Australian Democrats because we are honest and have progressive social policies based on a real desire to improve society, rather than seeking cheap votes through silly legislation. The Hon. John Jobling: That is why your voting base is evaporating. The Hon. Dr ARTHUR CHESTERFIELD-EVANS: We believe in doing the right thing and if leaders did the right thing people would follow. The former Attorney General, Jeff Shaw, has recently been appointed a justice of the Supreme Court of New South Wales. I congratulate him on his appointment because he is a fine man. I very much doubt that he would have supported this initiative if he were still a Minister. In fact, when the Hon. Jeff Shaw resigned the Hon. Helen Sham-Ho asked him where he would be the following week because she did not want to lose touch with him. He replied that he did not have a phone number as yet. I was a bit taken aback when I heard that remark and I wondered whether he resigned because he could not stomach the nonsense coming from this electorally driven, populous and unthinking Government with respect to law and order policies. This unfortunate bill amends the Crimes (Sentencing Procedure) Act 1999. Item [1] of schedule 1 inserts new section 3A, which sets out the purposes of sentencing as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender. (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. Paragraphs (a) to (d) implement the just deserts principle of sentencing, where the sentencing of the offender should be proportional to the nature of the crime. Although the bill refers to rehabilitation, the general tenet is punishment. When the bill was presented to me by the Minister's minder, who explained the bill at a 12.30 p.m. meeting last Tuesday, I asked whether the Government would provide evidence that putting people in gaol for longer periods will decrease crime and act as a deterrent. The minder gave me a strange look and said, "No, I am not sure what the Government will do, but it is the Government's position that increasing sentences deters crime." That was a fair summary from a minder. He meant that there was no evidence but that the Government would do it anyway. Far be it for the Government to let the facts get in the way of a good story. Item [2] of schedule 1 replaces existing section 21A of the principal Act with a new section that outlines the aggravating and mitigating factors that must be taken into consideration when sentencing an offender for a crime. Proposed section 5A sets out a table of standard non-parole periods for 19 serious offences that comprise violence, drug offences, armed robberies with wounding, and breaking and entering into any house, and committing a serious indictable offence. The bill will also establish a Sentencing Council under proposed part 8B. The council is to provide advice to the Minister on standard minimum non-parole periods and guideline judgments, report on sentencing trends and practices, and conduct research. That is similar to what the Bureau of Crime Statistics and Research already does. Indeed, it might be said that the Judicial Commission looks at sentences and tries to get them standardised and if a sentence is outside a certain range there is an appeal by the defendant's solicitors or the Department of Public Prosecutions. In fact, these guidelines already exist, and the Government is merely putting them in legislation for electoral purposes. It is a big irony that the Government complains when the Greens call a division for electoral purposes when half the legislation that is being rushed through-it is defined as urgent to avoid the standing order ban on giving us more notice-is said to be urgent when it is no such thing. The Democrats oppose this bill. We believe that the law has served well in developing precedents as guidelines for judges and magistrates to refer to when sentencing offenders. In Jurisic's case the Court of Criminal Appeal delivered the first formal guideline sentencing judgment in a case on dangerous driving causing death. Since then guidelines have been developed for armed robbery in R v Henry, break and enter in R v Ponfield, guilty plea sentencing discounts in R v Thompson and drug couriers in R v Wong, which was recently overturned in the High Court and is probably one of the reasons the Carr Government wants to introduce this bill. David Brown, one of the co-authors of Rethinking Law and Order, wrote a very interesting article titled "The Politics of Law and Order" for the October edition of the Law Society Journal. In the article, which I have quoted, he gave examples of similar schemes in other jurisdictions. The Criminal Justice Act 1991 in England provided for a sentencing framework in which just deserts proportionality was the primary sentencing aim. The Halliday report by the Home Office made a number of criticisms about the Act, suggesting that "crime reduction is best served by targeting offenders and improving prison and probation rehabilitative services instead". Minimum and mandatory sentencing or strike penalty regimes in both the United Kingdom and America have failed to reduce crime. In the United Kingdom a minimum sentence of at least seven years imprisonment was imposed under the Crimes (Sentences) Act 1997 for a third offence in drug trafficking and three years for a third burglary unless "unjust in all the circumstances". After one year of the operation of the three strikes burglary provision and three years after the commencement of the three strikes drug trafficking provision, not a single mandatory penalty had been passed on a domestic burglar and only four persistent drug dealers had received the mandatory seven-year sentence. In America 24 States have forms of three-strike mandatory sentencing that mainly deal with serious offences such as murder, rape, robbery, arson and assault. In California less serious property offences were included. In 1996 the Rand corporation did an analysis that projected that the Californian prison population would rise from 115,534 in 1993 to more than 350,000 by 2000 and eventually reach almost 500,000. There has also been an increase in the number and length of preliminary hearings, resulting in a backlog of cases and longer delays. This bill was originally proposed by the Coalition, and I am sure the Liberals would be proud of the fact that the Labor Government is foolishly adopting its policies. I note that Brad Hazzard, to his credit, was a dissenting voice. Unfortunately, the Carr Government is trying to outdo its counterparts in the conservative parties; it is just staggering on, ignoring the evidence and the logic. This bill will increase the discretion available to the prosecution and plea bargaining pressures will increase, as will the prisoner population, diverting more resources from education and crime prevention. We totally oppose this legislation. We believe that Australia has lost its history. Australia brought many convicts here, treated them with some humanity and let them go, although some of them had been sentenced to death or life imprisonment for murder and other such crimes. Indeed, they gained profitable lives; their lives were rehabilitated. They made a new life for themselves and built the foundations of a country here. Yet we are turning our back on that. If I had a little longer I would produce the convict emancipation and rehabilitation bill 2002 basically to try to do some of that work again. This bill goes in exactly the wrong direction. We will simply build expensive gaols, universities of crime, towers of human misery, and this bill will be right up there causing these problems and basically making a large number of people have a worse life. The Government should be ashamed of itself."

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