The Law Society Strongly Opposes Mandatory Sentencing
Monday, 18 January 2021
The Law Society of Western Australia is firmly opposed to mandatory sentencing in any form as there is no evidence that it works to deter criminal behaviour and is in fact more likely to result in harsh and disproportionate sentences. The Law Society’s opposition to mandatory sentencing is consistent with the policy position of the Law Council of Australia.
The Law Society updated and released two Briefing Papers on this issue, “Mandatory Sentencing” and “Mandatory Sentencing and How it Contributes to the Incarceration of Aboriginal and Torres Strait Islander Peoples in Western Australia” in July 2020. For almost 25 years, mandatory sentencing has been used by successive governments in Western Australia (WA) as a ‘populist approach to sentencing’ to counter media hysteria, attract voter support and to give the perception of being ‘tough on crime’. These laws impose minimum sentences for certain offences, preventing judges from considering the personal circumstances and mitigating factors of each case.
Politicians proposing mandatory sentencing laws claim to be responding to the public calling for harsher sentences, with the courts perceived as too lenient on crime. However, the judge is the only person who has all of the evidence of a case and an offender’s circumstances available to them, and mandatory minimum sentences unnecessarily limits the judge’s options to consider all the circumstances.
Mandatory minimum sentencing disproportionately impacts upon particular groups within society, including Indigenous peoples, juveniles, persons with a mental illness, cognitive impairment, and the impoverished. Such regimes are costly and there is a lack of evidence as to their effectiveness as a deterrent or their ability to reduce crime.
Importantly, mandatory sentencing may lead to harsh and disproportionate sentences where the punishment may not fit the crime. It may also result in significant economic costs to the community, both in terms of the cost of increasing imprisonment rates, and increasing the burden upon the already under-resourced criminal justice system, without sufficient evidence to suggest a commensurate reduction in crime.
Law Society President Jocelyne Boujos said that mandatory sentencing laws raise serious concerns as to a Government’s respect for the independence of the judiciary. Mandatory sentences are also inconsistent with international human rights law, especially in relation to their disproportionate impact on Indigenous people.
Ms Boujos said that limiting judicial discretion can lead to injustice, and research demonstrates that lengthy custodial sentences do little to rehabilitate offenders or protect the community.
The Law Society recommends implementing alternatives to mandatory sentencing, such as justice reinvestment strategies and diversionary non-custodial options, which may be more effective for reducing crime while remaining compatible with the rule of law and Australia’s human rights obligations. This is also the approach advocated for by former Western Australian Chief Justice of the High Court of Australia, Robert French AC, in the Justice Project which the Law Society of Western Australia strongly endorses.
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The Law Society of Western Australia is the peak professional association for lawyers in the State. The Society is a not-for-profit association dedicated to the representation of its more than 4,000 members. The Society enhances the legal profession through its position as a respected leader and contributor on law reform, access to justice and the rule of law. The Society is widely acknowledged by the legal profession, government and the community as the voice of the legal profession in Western Australia.