Just deserts instead of potluck in sentencing

Mandatory minimum penalties have received a lot of press over the past few years. None of the criticisms have even a veneer of plausibility, where the design of the grid is informed by a clear rationale and research data.

It is false that mandatory minimum penalties will result in an increase in the imprisonment rate. The guiding principle for fixing the penalties is proportionality. This will result in sentences which will have the net effect of making the system fairer and less punitive. Serious sex and violent crimes devastate the lives of victims. Perpetrators of these crimes must go to jail. Minor traffic offenders and welfare cheats don’t shatter the lives of others. They won’t go to jail.

The grids I propose will result in a reduction in prison numbers, but will guarantee that the people who deserve to be in jail will not avoid prison by milking a judicial sympathy gland. The costs saved by reducing prison numbers ($70,000 a year for each prisoner) will be used to put more police on the streets.

It is false that we should rely on judges to achieve proper sentencing outcomes. Judges are not trained in sentencing. They do not have some sort of mystical fairness antenna. Their hunches are not superior to those of other people in the community. Let’s take all hunches out of the system and ensure that all offenders get their just deserts.

It is false that offences vary too much to enable set penalties to be set. Crimes are differentiated with sufficient precision to enable experts to set penalties that match the seriousness of the offence. In the end, most offenders are not unique and neither are most crimes. This is supported by the outstanding success of the AFL and NRL grid sentencing models. In the end, all rapes and serious assaults devastate the lives of the victims. There are no exceptions.

It is false that minimum penalties are an extreme sentencing model. Most criminal offences in Australia are already dealt with by way of formal or de facto minimum penalties. We have mandatory penalties for offences such as drink driving, speeding and disqualified driving. In fact at the moment over 80 per cent of criminal matters are already dealt with by an on-the-spot fine (which serves as a de facto minimum penalty given that virtually no one challenges the fines at court). The perverse aspect of the current approach is that we have minimum penalties for relatively minor offences, but none for serious offences. Incredibly, people who commit rape can avoid a prison term, yet if you get pinged twice for disqualified driving in some Australian jurisdictions it’s mandatory that you serve at least one month in jail (although there is a discretion to suspend the sentence).

Here is an example of the way in which the grid would work. Obscene language would be met with a fine of $100; stealing a car would see criminals $200 worse off and doing 100 hours community work; thieves would receive a fine equivalent to ten times the value of the goods; whereas rapists and muggers who cause serious injury to their victims would serve at least 5 years in jail.

The system being proposed is not a revolution but rather an extension of the method by which most criminal offences in Australia are already dealt with. The proposed reform would make the system goal focused and transparent.

This would lead to a safer and fairer Australia.