Mandatory eight-year jail terms for intoxicated “single-punch killers” announced by the O’Farrell government are a positive move towards injecting fairness into sentencing.
The reform suffers from one main defect: it does not go far enough. An empirically driven and morally sound sentencing system would ensure all perpetrators of serious sexual and violent crime serve no less than five years jail.
The sentencing system is an intellectual basket case. It lacks transparency and an over-arching rationale. Our sentences are unpredictable and often flawed because there are about 300 different (mainly misguided) aggravating or mitigating variables judges can pluck out on a whim.
Common aggravating factors include breach of trust and the prevalence of an offence. Mitigating considerations include previous good character and remorse.
Nearly all of these should be abolished. Empirical studies provide no evidence that giving weight to them will advance the goals of a properly structured sentencing system.
The system should aim to achieve only four goals: reduce crime, punish criminals, minimise cost and to maintain important moral standards.
We should adopt a two-pronged punishment system — nearly all violent and sexual offenders go to jail (often for longer than now), while most other offenders rarely go the jail.
Offenders must get their “just deserts”, achieved by adopting the principle of proportionality — the pain of the punishment should equal the harm of the offence.
There should be a pre-determined grid for all offences — with mandatory jail only for crimes that cause the most distress to victims.
None of the criticisms of mandatory minimum penalties hold up when clear rationale and research inform the grid.
Mandatory minimum penalties are the key cause for an explosion in the US prison population — the US jails nearly five times the number of offenders as Australia.
The US problem is not the framework, but harsh penalties.
It is false to say proportionate mandatory minimum penalties will see more in jail.
Studies show serious sex and violent crimes haunt victims and the perpetrators of these crimes must go to jail.
Minor traffic offenders and welfare cheats don’t shatter lives so they won’t go to jail.
My system would cut jail numbers and guarantee those who deserve to be in jail can’t avoid it by milking the system.
The money saved by reducing jail numbers ($80,000 a year each) should be used to put more police on the streets, the only way to reduce crime.
The claim offences vary too much to enable set penalties is false — crimes are differentiated with enough precision to allow experts to set penalties that match the seriousness of the offence.
It is false to say minimum penalties are extreme because most criminal offences are already dealt with by way of formal or de facto minimum penalties.
We have mandatory penalties for drink driving and speeding — more than 80 per cent of matters are dealt with by on-the-spot fines that virtually no one challenges in court).
Perversely, we have minimums for relatively minor offences, but none for serious offences.
Mandatory jail terms for serious sexual and violent offences will not necessarily work (general deterrence does not work and most violent offenders do not reform unless the savings from the prison budget there are more police on the streets.
These serious offenders deserve longer penalties, proportionate to the seriousness of their crime.
Let’s hope the O’Farrell government’s first step will lead to more far-reaching reforms — the community should not have to prop up a primitive and unduly expensive and complex sentencing system.
Mirko Bagaric is professor and dean of Deakin University law school and co-author of Sentencing in Australia.