Mandatory Indefinite Sentencing – A Good Idea?

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How would you feel if you were sent to prison for an indefinite period of time?

Such a scenario had been proposed by the Victoria state government before its election defeat over the weekend

In a bid for popularity, the Liberal Napthine government had planned to introduce indefinite prison sentences for persons who repeatedly commit serious crimes.

With popular political parties wanting to appear ‘tough on crime’, the election defeat may not mean the end of the proposal, and there is little doubt that ‘mandatory’ and ‘indefinite’ sentencing schemes will continue to play a part in Australian politics for years to come.

Under the former government’s plan, a person found guilty of homicide or a serious sex offence after being released from prison for a similar offence could be imprisoned for the rest of their lives, unless they were able to prove to a court that they no longer present a danger to the community.

A person detained under the proposed laws would not be allowed to apply to a court to determine whether or not they are a danger to the community until they have served a minimum term equal to the non-parole period which they would have received.

This could mean that persons convicted of serious offences which prescribe lengthy minimum non-parole periods (such as murder or serious sex offences) could need to wait up to 30 years before being assessed by the courts.

Further, these persons would not be eligible for parole during the entirety of their sentence.

Would such an approach be justified, or is it too harsh?

Unsurprisingly, politicians from both ends of the spectrum and legal commentators have voiced their opinions about the proposal.

On the one hand, the Coalition government lauded the idea, arguing that it would be necessary to protect the community from violent criminals.

Former Premier Denis Napthine vehemently defended the government’s “tough on crime” stance, stating that, ‘when dangerous criminals are behind bars, they are not out on the street able to commit further crimes and hurt more innocent victims.’

At the other end of the spectrum, legal commentators raised concerns that the measures could amount to a breach of human rights, and could further stretch Victoria’s already overcrowded prison system – with the taxpayer footing the bill.

It costs the Australian taxpayer over $300 a day to keep a person in prison – and with recidivism (re-offending) rates estimated to be around 50%, there are serious concerns that Victorian prisons would become overcrowded if the plan were reintroduced by the incoming government.

How would the state cope with the influx of prisoners?

Were the plan reintroduced or reworked, it would seem that there is only one viable solution to overcrowding – the construction of more prisons; again, eating into taxpayers’ money.

Opponents of mandatory sentencing schemes argue that these high recidivism rates indicate that prison is often an ineffective measure.

They suggest that sentencing schemes that focus on rehabilitation rather than punishment are more cost-effective and beneficial to both the individual and the community in the long run.

Legal commentators suggest that mandatory sentencing is inherently dangerous, as it removes a court’s discretion to determine the appropriate penalty based on a whole range of factors, including the nature of the offence itself and any subjective features of the person being sentenced.

Generally, when a court is deciding what penalty to impose, the magistrate or judge reads a volume of materials including the “facts” of the actual case, and also any reports that might be handed-up to the court, after which it will hear verbal submissions from both the prosecution and defence lawyers.

After weighing up all of the materials and arguments, the court is in a good position to determine a penalty that reflects all of the features of the case.

However, mandatory and indefinite sentencing regimes take-away this important function of the courts and effectively ‘pigeon-hole’ individuals, imposing blanket, and sometimes inappropriate, sentences which fail to take into account the individual factors in each case.

This is inherently dangerous for several reasons.

Consider the following scenario: a “hit man” plans and carries out a cold-blooded murder of a family.

Such a heinous crime might be considered significantly more serious than a ‘heat of the moment’ punch-up where a person intended to harm, but not to kill, a person – yet the other person tragically ended up dying.

Mandatory sentencing regimes can require the same penalty to be imposed in each case, regardless of the person’s personal features or the significant difference in criminality.

They take away the important function of the courts to consider a range of factors when imposing appropriate sentences.

Although the Liberal party in Victoria has been ousted, proposals for mandatory and indefinite sentencing keep coming up from both sides of Parliament – and only time will tell whether the proposals of the outgoing party will be adopted or reconfigured by other political parties in the future.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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