The issue of mandatory sentencing has been in the media recently, with NSW Premier Barry O’Farrell announcing the proposed introduction of mandatory sentencing laws for alcohol-fueled one-punch attacks.
Under the proposed new laws, defendants found guilty of fatal offences involving violence while under the influence of alcohol or drugs will receive a minimum of eight years in jail, and a maximum of 25.
The penalty for assault has also been increased by two years, and mandatory minimum sentences introduced for cases where defendants are under the influence of an intoxicating substance at the time of the offence.
It is suggested by the O’Farrell Government that these new laws will act as a deterrent to potential offenders, and reduce the level of alcohol and drug-fueled violence in NSW.
The proposed introduction of mandatory sentencing legislation for one-punch assaults is also seen to be a response to media reporting and the resulting community attitudes towards alcohol-fueled violence.
The changes have come about after the recent publicity surrounding the fatal alcohol-related assaults of teenagers Thomas Kelly and Daniel Christie in Sydney’s Kings Cross.
Mandatory sentencing is often controversial.
Advocates of mandatory sentencing believe that it creates more consistency in sentencing outcomes, and allows penalties to be given which reflect the community standards of the time.
But it is also seen to take power out of the hands of the judge or magistrate because they are not able to exercise their judgement and assessment of all the factors involved when deciding what sentence is appropriate.
Creating a mandatory sentence for assault means that other factors that may have contributed to the situation won’t be taken into consideration, which may result in unfair and overly harsh sentencing.
A number of lawyers have questioned the overall fairness of the laws, and have raised concerns about the effects that mandatory sentencing laws may have on the courts.
Are mandatory sentencing laws for one-punch attacks necessary?
The law already has a provision for assault occasioning grievous bodily harm along with murder and manslaughter, and it has been argued that introducing further laws creates unnecessary complications and is unlikely to change the outcome.
According to recent statistics from the NSW Bureau of Crime Statistics and Research the average minimum sentence for homicide offenders is 8.5 years, which is similar to the eight-year minimum sentence imposed under the new legislation.
Are mandatory sentencing laws fair?
Alcohol induced one-punch assaults are not the first time that mandatory sentencing has been brought in to penalise alcohol-related incidents.
Mandatory disqualification periods have been in place for drink driving charges for years, and having a minimum disqualification period means that magistrates and judges have to either impose that period of disqualification or not penalise the defendant at all by giving them a section 10 dismissal or conditional release order.
Mandatory sentencing laws don’t allow magistrates or judges to properly take mitigating factors into account and give an appropriate penalty to cases that might not be as serious as to warrant the minimum penalty.
Under the suggested one-punch legislation, alcohol impaired offenders who are found guilty of assault could face higher penalties than an unimpaired offender who committed a similar offence with intent simply because they were under the influence of an intoxicating substance at the time.
The one size fits all approach taken by mandatory sentencing shifts the focus from rehabilitation to penalisation, and means that where some offenders could potentially reduce their likelihood of reoffending through a more lenient sentence with a focus on rehabilitation, they will no longer have this option and will instead end up serving a lengthy prison sentence.
With mandatory sentencing, rather than the judge or magistrate taking different factors into consideration and deciding an appropriate sentence, the police and prosecutors make the decision when they choose which charges they believe are the most appropriate.
Does mandatory sentencing work as a deterrent?
According to a report undertaken by the Sentencing Council of Victoria, mandatory sentencing is unlikely to be effective.
There are a number of reasons why mandatory sentencing doesn’t work as a deterrent, particularly when it comes to alcohol-related offences.
To be an effective deterrent, an offender would be required to rationally assess the likelihood of receiving a harsh prison sentence and decide not to commit a crime on that basis.
When it comes to alcohol-related assaults, it is unlikely that an intoxicated person would be capable of reasonably considering the consequences beforehand.
The Sentencing Council report reveals that there is no evidence of correlation between the severity of a penalty and the level of offending for a particular offence.
Given this evidence it would appear unlikely that increasing the penalty for alcohol-related assault is going to deter people from committing an offence.
Mandatory sentencing also puts increased pressure on the courts and the criminal justice system as a whole.
With harsh minimum penalties, defendants are less likely to plead guilty, so matters that have a mandatory minimum sentence are more likely to proceed to a defended hearing rather than being dealt with quickly.
Without any incentive to plead guilty, simple matters can take up a lot more time for everyone.
Mandatory sentencing laws have not been proven to act as a deterrent and they can lead to unfair and overly harsh sentencing.
In this case, it appears that the NSW Government is introducing this legislation in response to community attitudes, but it is unlikely that introducing mandatory sentencing for alcohol-related assault will make any real difference.