June 12, 2018

Don’s Dynamite – June 2018

This week the Dynamite will give our local politicians a well-earned break.

We’ll just let our city fathers and our local State MP deal with the weighty matters which confront them each and every day.

So this week, the Dynamite deals with the issue of ‘mandatory sentencing’.

Agitators in the community seek mandatory gaol sentences for all types of offences – from driving offences through to a zero tolerance when it comes to dealing with emergency service workers.

Some offences are plain in terms of deserving mandatory gaol sentences for serious offences – or are they…

First we have murder. As retiring District Court Judge John Robertson said in a recent article in the media, “Murder is one of those crimes that again can touch anyone – a moment of wild passion, you lose control and there’s a weapon nearby”.

But take the case of a “woman, who after years of domestic violence, when her abuser, her husband, is asleep, shoots him in the back of the head and she’s convicted of murder. They get the same sentence. Is that right? Of course it’s not” said Judge Robertson.

So when it comes to driving offences, some of which are what would be termed lesser charges, occur in tragic circumstances and in some cases through a moments inattention.

So think of it like this – you have a sound reputation, both in the community and in business. You might even have an unblemished driving record – but if there is a mandatory term of imprisonment set for your offence, then it doesn’t matter what a jury might think, it doesn’t even matter what the presiding Judge might think. You get the mandatory sentence and you go to gaol for the mandatory period.

That all sounds fair – or does it?

Judge Robertson is fiercely against mandatory sentencing. As the Judge is reported as saying – “A civilised society should put their trust in judicial officers to use their discretion based on individual circumstances.”

I can recall that on at least two occasions, governments sought to have mandatory terms of imprisonment for offenders who drove while they were disqualified. The prisons quickly filled up and the laws were repealed and the offenders released from prison. So what was the point of all that – imprisonment in appropriate circumstances would be necessary, but not right across the board.

Those who assault or otherwise hinder emergency workers should be subject to serious sanctions. I have, in the past been an advocate for zero tolerance in these cases. My approach to such offences has been somewhat diminished following a personal experience with police officers. Whilst I am not advocating that police officers should be excluded from the definition of emergency workers, there should be a very measured approach to dealing with them.

If mandatory sentencing really did work then there should be no need for the crime of murder on our statutes. We all know, though, that as Judge Robertson said, a moment of wild passion or anger and it’s all over – regret is not a consideration.

So, say you’re an older driver and you have an accident and someone is killed. You are charged with a relatively minor offence in the scheme of things – but you get sent to gaol. There is no deterrent effect for others because you were involved in an ‘accident’. An accident that could happen to anyone. What is clear though, is that having an unblemished record, being a model citizen and having a good traffic history, count for naught.

The counter argument might run like this – what is the point of being a model citizen given that in a moment it could all count for nothing. Judge Robertson got it right –

“A civilised society should put their trust in judicial officers to use their discretion based on individual circumstances.”

That doesn’t mean judicial officers will always get it right – but it’s probably the best we can do given that we all suffer from human frailties.