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Why mandatory prison sentences are wrong

By John Spender - posted Monday, 16 December 2013

It's an old and rightly revered maxim of law and social justice that the punishment should fit the crime. That is why sentencing is left to judges. Mandatory minimum sentences are very much the exception in our laws. The reasons for this are simple.

Courts, with or without juries, decide whether a criminal prosecution is proved beyond reasonable doubt. In the hearing of the prosecution's case the facts concerning the commission of the offence are examined. The accused then has the right to give evidence and call witnesses. When all the evidence is heard the verdict of the jury or, if no jury, the judge, is given.

If the accused is convicted, the judge hears argument on sentence. The judge can give an immediate decision or adjourn to reflect - depending on the circumstances of the case – such as length of the hearing, complexity of the facts, seriousness of the offence, mitigating or aggravating factors, the need for the sentence to act as a warning and deterrent to others, and prospects of rehabilitation.


Sentencing is a tricky and troubling business. Judges are anxious to get it right, and mostly they do get it right – or as right as could fairly and reasonably be expected of them. It is an art, not a science; judges are human beings, not Solomon.

A sentence may seem so severe or so lenient that one side or the other will appeal. Then an appeal court decides the issue, after examining all the evidence before the trial judge.

Sometimes a particular sentence attracts media attention – usually a sentence thought to be too light. Headlines blaze, judges are berated as too soft and out of touch with community expectations, politicians buy in, the government may be asked to act. We all know of such cases, but not of the countless other cases that attract no such publicity or questioning.

I am not saying the system is perfect, or that mistakes aren't made. I am saying that when it gets down to deciding what prison sentence should be given, an experienced lawyer who is a judge, whose business is to get things as right as is possible on the facts before him or her, is the best and most just way of managing the daily work of our criminal courts..

The effect of mandatory sentencing is to replace a judge's decision, given in full knowledge of the facts, with an absolute rule that excludes any knowledge of the particular facts of cases to which the rule applies. If the offence is X, the sentence is Y. End of story. You don't need a judge; the computer can do it for you.

The justification for such extreme departures from our system of justice as mandatory sentences is often perceived public need. Such is the case with the Vicious Lawless Association Disestablishment Act (made law on 13 October 2013) of Queensland. This law (and two associated laws) was put together in the wake of a bikie gang outrage. It was rushed through Parliament without consultation outside Government. The explanatory notes to the VLADA tell us "wider consultation has not been possible because of need to respond urgently." Which is odd, and, you might think, plainly untrue: phone calls could have be made, experienced past and current judges sounded out, opinions sought from lawyers who practiced in criminal cases. A few days and the government would have been far better informed.


But no: such sensible, necessary, and democratic forms of consultation were brushed aside.

Here's a hypothetical case under the VLADA.

Chris is eighteen years old, he lives on the Gold Coast, is short of social skills, poorly educated, and not too bright; he's jobless, and has less than average looks. Dad sexually abused Chris, left home when Chris was eleven and hasn't been heard of since. Mum is a drunk who wipes herself out by lunchtime. Elaine, his fifteen-year old sister, is following mum's example with the bottle. The family lives on benefits and handouts.

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About the Author

John Spender QC was the Member for North Sydney between 1980-1990. Positions held during opposition included Shadow Attorney General, Shadow Foreign Minister and Manager of Opposition Business in the House of Representatives.

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