Greens Vote Against Mandatory Sentencing Laws


Lidia Thorpe - Speech in Parliament: I rise today to speak on the Justice Legislation Miscellaneous Amendment Bill 2018. This bill is an omnibus bill that covers a range of areas, but today I intend just briefly to address the proposed changes to sentencing. The Greens will make a fuller statement on this bill in the upper house.

This bill proposes mandatory sentencing for injury offences committed against emergency workers, custodial officers and youth justice custodial workers who are on duty, as well as the offences of aggravated carjacking and aggravated home invasion.

The Greens have a longstanding position against mandatory sentencing and statutory minimum sentencing for any offence. We do not support the creation of specific offences and punishments. The Greens believe it is critical to maintain the discretion of the courts to apply a sentence relating to the specific circumstances of each case.

We are deeply concerned by the level of abuse experienced by our emergency service workers, including our ambulance and hospital workers. No-one should have to work in an environment where they are at risk of being injured. Everyone deserves to be safe at work, but this is not the way.

Mandatory sentencing will not act as a deterrent. When someone is mentally ill and lashing out at themselves and everyone around them, they do not stop to think, ‘How long will I get in jail for this?’. That is presuming they even know about this change in the law, which seems highly unlikely.

Mandatory sentencing will simply exacerbate social disadvantage and injustice. It disproportionately incarcerates vulnerable groups whose offending is related to entrenched disadvantage, intergenerational trauma and inequality.

The Greens are not alone in our deep concerns regarding this bill. The Federation of Community Legal Centres, the Law Institute of Victoria and the Victorian Aboriginal Legal Service, and a large range of community service groups, such as mental health carers and family violence organisations, have all indicated their dismay at the introduction of this bill. Their concerns are numerous. I will briefly outline them.

They include the lack of stakeholder consultation regarding this bill beyond the police and ambulance unions; the lack of proportionality in the laws — all injury offences to emergency workers are to be classified in the same category as murder and rape; and armed police are to be considered as vulnerable emergency workers.

There are human rights concerns, particularly in regard to the disproportionate effect this bill will have on vulnerable persons, such as those with mental health conditions and young persons, bearing in mind that ambulance paramedics and police are often called upon to incidents involving persons with mental health issues and/or drug related issues.

The concerns also include increased risk of disproportionately incarcerating Aboriginal and Torres Strait Islanders, already 12 times more likely to be in prison than non-Aboriginal people. Aboriginal people suffer more ill health and more mental illness than non-Aboriginal people, and are thus more likely to be in contact with these workers in a distressed and disturbed state. They are also over-policed, so mandatory sentencing is a recipe for disaster for my people.

Mandatory sentencing also increases the risk that front-line workers, families or victims of family violence will not call 000 because of their fears regarding a patient, relative or partner’s subsequent prosecution and incarceration.

Concerns also include the perverse effects of mandatory incarceration on the justice and correction systems and the lack of any evidence of its effectiveness in either preventing crime or making communities safer.

Next is the concern about the interference in the independence of the judiciary and the proposal to introduce a legislated imbalance between consideration of punishment rehabilitation, deterrence and community protection. Courts and judicial officers are very experienced in weighing up all the circumstances and considerations of any particular case, and in the vast majority of instances they get the balance right. The Director of Public Prosecutions (DPP) can always and often does appeal sentences it thinks are too lenient.

Finally, their concerns include the creation of a victims’ hierarchy, whereby an injury to an emergency worker is deemed more serious than an injury to any member of the public or a child, for example. The courts already take this into account when sentencing.

The Greens have met with stakeholders who have reiterated these concerns in the strongest terms. Mandatory sentencing is contrary to the principles of natural justice and judicial discretion and to the independence upon which our court system is based. Every case is different and will often involve a complex set of circumstances around the commission of the offence and the offender. Judicial officers are required to consider, among other things, the future safety of the community, the aggravating and mitigating circumstances of the offence and that justice is served.

The particular circumstances of the victim of a crime such as assault will also be considered by judges — for example, whether the victim was a child, a domestic partner, an older person, a disabled person, an emergency worker or a person in any other occupation assisting or working with the public. This can be difficult, but our judicial officers have been able to successfully balance these factors in the vast majority of cases for decades. Appeals can and have been lodged by the DPP if it feels a sentence was inadequate. Mandatory minimum sentences can seem to be the solution when the public feel that a sentence is too low. However, the public is rarely made aware of all the circumstances and evidence involved in a particular case, and it has been shown that when they are, the majority either agree with the sentence imposed or feel it was too harsh.

Mandatory minimum sentences inhibit the ability of judicial officers to impose a sentence which is proportionate to the circumstances of a particular offence and are a particular problem when a magistrate or judge is unable to fully apply the mitigating circumstances to a case which would otherwise result in a person receiving a lesser sentence than the mandatory minimum.

Mandatory sentencing also blocks Aboriginal people’s right to undertake the Koori Court process, where cultural considerations are taken into account. Mandatory minimum sentences do not prevent future crimes being committed but will see a larger proportion of people serving jail time when that may not be the necessary or the best outcome in a particular case. 

It is deeply disappointing that the Andrews government is taking its lead from the Leader of the Opposition on justice policy and creating a race to the bottom on law and order issues, particularly on these mandatory sentencing laws. We have seen mandatory sentencing in the Northern Territory deepen social inequity and injustice, particularly for Aboriginal people. To think a supposedly progressive government would introduce it in Victoria is deeply disturbing. The Greens will be looking to amend this bill in the upper house.