Victoria’s new Premier Ted Baillieu is hitting the ground running, and one of the first pieces of legislation he wants to introduce is the abolition of suspended sentences and to introduce what he terms baseline minimum sentences.
The consequences of this action will not be what Baillieu blithely predicts them to be — lower crime rates. Instead the courts will be clogged with more trials, judges and magistrates will find ways to prevent cruelty, and if prison numbers in Victoria increase, so will crime rates.
Baillieu’s policy is to abolish suspended sentences because he thinks they are a free kick for offenders. Instead he would rather see offenders locked up. His party plans also to take Victoria down the American road of mandatory minimum terms of imprisonment, such as 20 years for murder or 10 years for commercial drug trafficking.
Both these polices will result in their being less capacity for the DPP and defence lawyers to cut deals that benefit the community. Why would a person accused of a crime agree to plead to a charge on the basis that if he or she is convicted they face certain jail because the courts hands are tied behind their back by a bunch of law-and-order zealots and their mates in the victims-of-crime lobby? Why not simply go to trial and see if a jury convicts you. This is exactly what happens in the US where similar laws have been part of the legal landscape for many years.
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The Baillieu government’s plans also throw a gauntlet down to the judiciary in Victoria. What Baillieu and his would-be Attorney-General Robert Clark are saying to the courts is this — we expect you to send someone to jail for a long period of time even through to do so would be cruel and unjust. Take a young offender who is a small part player in a drug trafficking exercise. He is charged with trafficking a commercial quantity of drugs and faces a minimum of 10 years in jail under the Baillieu plans. This young person has no prior convictions, is battling an addiction to drugs and has simply been duped into participating in a criminal enterprise.
How can a judge whose ethical and moral compass demands that he or she accord justice, mete out a sentence that will destroy that young person’s life? Or what about the woman who faces years of abuse from her partner and murders him — should she have to go to jail for 20 years? Courts must and will find ways to prevent cruel outcomes.
Finally, and from the perspective of the Herald Sun, police, the DPP Jeremy Rapke and the victims-of-crime lobby the most important flaw in the Baillieu plan is that crime rates will not be reduced by sending more people to jail. In fact there is a direct correlation between increased prison numbers and rising crime. There is a wealth of data from the US and Canada that supports this thesis.
One reason is because the cost of incarceration and building new prisons means there is less money available for preventative programs such as those dealing with youth at risk or behavioral counseling facilities. Another reason is simply that jailing people, particularly for lengthy periods, increases the chances of them re-offending within two years of release.
As recently as September this year an article in the prestigious Cardozo Law Review in the US noted that the “claim of crime reduction has been contested as well, with most researchers finding no deterrent effect from mandatory sentencing laws”.
Baillieu’s plans on sentencing a sad testament to what happens when you allow populism and ignorance to underpin public policy.
*Greg Barns is a barrister and a director of the Australian Lawyers Alliance.