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- 28 August 2002
Sentencing Principles
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The Hon. JOHN HATZISTERGOS [6.08 p.m.]: Community attitudes to sentencing have certainly given judges a beating. This view is not aided by last year's lenient sentence handed down by Judge Latham in the case of R. v AEM (Junior) and AEM (Senior), involving three years for the gang-rape of two Sydney teenagers. The sentence consequently sparked the long debate on sentencing laws and the perceived absence of justice in the court system. It became of concern because the disparity between community opinion and judicial sentencing is such that it may lead to a diminishing of the legitimacy of our court system. Clearly, effective sentencing is an important issue in the minds of the public, and proper debate and discussion has only been hindered by a trigger-happy Opposition.
Talking tough on talkback radio, Opposition members commit a future Coalition government to harsher sentences for every crime that seems to get into the media. The recent flavour of the month is their bravado on mandatory sentencing announced in June, arguing for so-called tougher minimum sentences for rape and drug-related crimes. Last month they called for harsher sentences for hate crimes in another knee-jerk reaction typical of Coalition law and justice policies. Before the last election the then Leader of the Opposition, the member for Lane Cove in another place, talked tough on grid sentencing—a discredited policy emanating from America and one which every section of the New South Wales legal profession has passionately opposed, including the judiciary, the Law Reform Commission and the Director of Public Prosecutions. The public evidently also agreed, as the Government was re-elected for a second term.
Not seeming to have learnt their lesson, they now come back to the community with a mandatory sentencing policy that would affect only 5 per cent of criminal offences and that is as despised as the much criticised mandatory sentencing policies adopted by the Burke Government in the Northern Territory a couple of years ago. Indeed, more than two years ago when the New South Wales branch of the National Party voted to call on its MPs to introduce mandatory sentencing for crimes against property and people, one party member at the annual State conference warned that supporting mandatory sentencing could:
... send out a signal not that we are tough on crime but that we are a bunch of reactionary rednecks who do not understand the justice system.
And when the Leader of the Opposition, Mr Brogden—he is a known wet in his party who previously opposed mandatory sentencing—starts sprouting lines such as "I am tougher than the lot of you", one can smell opportunism and a grab for cheap populism. The reason for this surprising makeover is allegedly that this will be the Tampa for the Coalition—the issue that will win it the next election. Sensibly, the shadow Minister for Community Services, Mr Hazzard, disagrees with Mr Brogden. In a leaked submission, Mr Hazzard argued that mandatory sentencing and minimum sentencing reduce the level of accountability of the criminal justice system. This is because it transfers the punishment decision to the prosecution, which is not open to public scrutiny though the judges are. Instead, Mr Hazzard argued that we should be looking at ways to ensure that judges properly reflect community values yet still have discretion. But do not take Mr Hazzard's word for it. Take this comment from the Hon. John Ryan to the Sydney Morning Herald last year:
I'm totally opposed to any form of mandatory sentencing.
To further highlight the point, the former Attorney General and Leader of the Opposition in this House, in a comment that one would think was made by the current Attorney General, said to the Australian eight years ago:
There is no doubt that the community wants judges to ensure that sentences reflect the severity of the crime; they do not want politicians interfering in the sentencing process.
And if one wants more convincing, the Prime Minister, Mr Howard, was not afraid to voice his opposition to the policy. Only two months ago he was quoted as saying:
I don't agree with mandatory sentencing. Look, as a lawyer and as an individual, I think it's better to leave sentencing discretion to judges.
We on this side agree. It is evidently clear to most people—including Mr Hazzard, the Hon. John Ryan, Mr Hannaford, the Prime Minister and even that sole National Party member who spoke against this draconian policy—that mandatory sentencing is not good law. This proposal runs contrary to the expectations of justice. Taking away discretion from judges and the courts only leads it to reappearing elsewhere, and that reduces transparency and accountability. Courts have to provide written judgments with every sentence, and therein lies the accountability. Deciding on an appropriate sentence is never easy. Simplistic and knee-jerk solutions are never the answer, despite the Opposition's attempts to make it so. What is important is that sentences achieve justice.
In 1996 the New South Wales Law Reform Commission outlined the basic principles of sentencing law to include proportionality, consistency and totality. In short, a sentence must be proportionate to the gravity of the crime, must be consistent in its delivery and must reflect the totality of the offence. These three points seem to provide the common theme emanating from the justifiable community outrage on lenient sentences. The public wants fairness and justice in sentencing, consistent and proportionate to the crime. However, one must be aware of the likes of Opposition members, who are promoting the politics of the lynch mob. As Chief Justice Spigelman of the New South Wales Supreme Court said recently, sentencing is:
... best done by independent, impartial, experienced, professional judges. It is not best done on talkback radio...
In addition to that, nor is it best done in Parliament, and it is simplistic and populist to suggest so. It is unlikely that we as legislators could foresee every possible crime and the circumstances in which it was committed, and propose laws accordingly. [Time expired.]
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