Mandatory jail terms Need a rethink

MANDATORY jail terms do not serve any useful purpose. They do not prevent crime. They create injustice. They undermine the independence of the judiciary. And they represent nothing more than a cynical desire on the part of politicians to garner votes by being seen to be “tough on crime’’.

Just when you thought the new premier Jeremy Rockliff might focus on evidence-based policy, along comes the Liberal government’s third attempt to pass laws that would create minimum jail terms for certain sexual offences involving victims who are children.

Under this proposed amendment to sentencing legislation, mandatory jail terms of two to four years will have to be imposed by courts for rape, persistent sexual abuse or aggravated penetrative sexual abuse, unless the high threshold of “exceptional circumstances’’ is met or the defendant is under 18 or suffering mental impairment.

Fortunately in Tasmania the Labor Party has taken a principled stand on this proposed law previously and voted against it. Just as importantly, legislators in the Legislative Council, who rightly point to the expert evidence that says such laws should not be in the statute books, have also blocked it.

Recently, this columnist communicated with Felix Ellis, a Liberal backbencher from Braddon, after Mr Ellis sent out an email praising the proposed laws. “What was the evidence that shows mandatory minimum sentences reduce crime?” was the question asked. Despite a follow-up, at the time of writing Mr Ellis has not indicated he has any evidence.

That is because there is no link between mandatory minimum sentences and deterrence. And what’s more, mandatory minimum sentences may lead to less chance of detection of crime and conviction rates.

The Rockliff government’s own experts, the Sentencing Advisory Council, in 2016 set out the reasons why mandatory minimum sentences are a dumb idea.

Firstly, it said mandatory sentences “may remove the incentive for offenders to enter a plea of guilty, and so increase the number of trials and result in court delays and increased costs”. This is certainly the experience in states such as NSW and WA.

The council observed that: “In the context of sexual offending, if mandatory sentencing leads to more trials, it will result in increased trauma for victims and a likely reduction in the number of convictions obtained.”

The council observed that: “It is also possible that there will be fewer convictions because jurors may be reluctant to convict an offender in cases where the mandatory penalty potentially applies, if the jury forms the view that such a penalty would be unjust in the circumstances of the case.”

Again this statement has been borne out in jurisdictions in Australia where mandatory sentencing applies.

But perhaps the main objection to the Rockliff government’s proposal is that it undermines the rule of law. In a democracy the rule of law requires that there be a clear separation between courts and the executive. Courts must be free to exercise their discretion so that they can accord justice. To impose mandatory minimum jail terms is to undermine that independence.

Courts are best placed to

terms Mandatory jail more represent nothing cynical desire on than a of politicians the part by to garner votes being seen to be ‘tough on crime’.

sentence individuals because that is their role in a democratic society committed to the rule of law. And in the case of Tasmania the courts have performed their role admirably by taking account of informed community expectations and evidence about the devastating impact of child abuse. In a 2021 Court of Appeal case, the court observed about child sexual abuse: “It is the type of crime that is far too prevalent across the Tasmanian community, and the wider Australian community, and it is a crime frequently committed behind closed doors in the context of family circumstances. Such crime is difficult to detect and causes great harm to victims and families. The community and criminal courts now recognise the gravity and longevity of the damage this type of offending causes to victims, particularly to young children.”

This is not just rhetoric, because courts in Tasmania have increased sentences for child sexual abuse over a number of years. A 2018 paper by the Sentencing Advisory

Council found that sentencing for rape involving a young complainant has increased. The “maximum sentence imposed increased from 12 years to 15 years (an increase of 25 per cent) and the median sentence increased from four and a half years to seven years (an increase of 55.6 per cent)”.

Sentencing for persistent sexual abuse has seen the median sentence doubled from three years to six years (an increase of 100 per cent).

In other words, the courts are doing their job. Of course there will be sentences imposed where there is community disquiet, but that does not show in any way the courts need to be undermined by having to impose mandatory terms. By the way, before you do get outraged by a media report of a sentence imposed by a court, read the sentencing comments from the judicial officer for yourself so you can be informed about the facts of the case before joining the frenzied attack on courts. Hobart barrister Greg Barns is a human rights lawyer who has advised state and federal Liberal governments.