Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

Mr Deputy Speaker, I thank you for the opportunity to speak in continuation on the Criminal Code Amendment (Firearms Trafficking) Bill 2017. Before I was interrupted, I was speaking about the fact that mandatory sentencing provisions can lead to unjust results. If it is thought desirable to have some form of mandatory minimum sentencing scheme, then it should be drafted in such a way that it allows the court to exercise its discretion apart from the minimum mandatory sentence, if a particular case calls for it.

The submission that was made by the Australian Human Rights Commission to the Senate inquiry held on 6 January 2016 is instructive. This comprehensive submission sets out in detail by reference to legal principle and also to experience elsewhere, particularly in Canada, that mandatory minimum sentences do not—that is, do not—assist the orderly administration of justice. Paragraph 30 of the submission says:

If a sentence is fixed in advance without regard to the circumstances of the offence and the offender, and the court is not permitted to make an assessment of whether such a sentence is appropriate, then the sentence is bound to be arbitrary. There will be no rational or proportionate correlation between the deprivation of liberty and the particular circumstances of the case.

It is also significant to note there's been considerable judicial criticism of mandatory sentencing both on a court being required to impose a mandatory sentence and also in an academic setting. The Hon. Wayne Martin, Chief Justice of Western Australia, in his then capacity as Chair of the National Judicial College of Australia, addressed a federal crime and sentencing conference on 11 February 2012 on the topic of sentencing issues in people-smuggling cases. His observations as to the efficacy of mandatory sentencing are particularly appropriate in the context of this particular legislation. As at 2012, His Honour noted:

On at least 11 occasions … judges imposing the mandatory minimum sentence of 5 years imprisonment for people smuggling have made observations critical of the mandatory minimum varying degrees of stridency.

His Honour stated:

When a legislature is considering exercising the power to set a minimum bound for the exercise of the sentencing discretion, it will hopefully take account of the fact that the prescription of a minimum sentence creates the risk that a court may be required to impose a sentence which is disproportionate to the culpability of the offender, or the seriousness of the offence, or which may prejudice the prospects of rehabilitation and which is to that extent unjust, and will evaluate those risks against the perceived advantages of a mandatory minimum sentence.

These are all very important issues of judicial principle in an area of core competency for judges. It should not be overlooked that errors in sentencing may be able to be rectified upon appeal in certain circumstances, and the law relating to the application of sentencing principles is well traversed and is comprehensive. In fact, it's interesting to note Chief Justice Martin's observations within his address to the federal crime and sentencing conference as to the residual application of sentencing principles, notwithstanding the specification of a mandatory minimum. We as lawmakers should take into account the submissions of the Law Council of Australia, the Human Rights Commission and other civil liberties organisations that have made submissions in connection with this legislation or the prior attempts to impose mandatory minimum sentencing.

In summary, the grounds which I seek to emphasise as the basis upon which this House should oppose, in this legislation, the imposition of mandatory minimum sentences are as follows. Firstly, the fettering of judicial discretion is inappropriate, as a matter of principle. It is generally for the judiciary to determine appropriate punishment. Secondly, there is little, if any, evidence that the imposition of mandatory minimum sentences works to reduce or deter crime. There is certainly nothing in the explanatory memorandum to support the proposition put forward by the minister. The imposition of a mandatory minimum sentence can lead to unjust or unduly harsh sentences. The imposition of mandatory minimum sentences is inconsistent with Australia's human rights obligations, particularly concerning arbitrary detention and the ability to appeal sentences.

See this speech in context