The flaws in baseline sentencing

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Written by Conor O’Brien, partner Doogue O’Brien George Solicitors. Conor is an Accredited Specialist.

I read an interesting and, to me unexpected, article in the Herald Sun last week in relation to problems with baseline sentencing.

The basic principle of baseline sentencing is that a theoretical medium penalty is set by the government and then judges are required to base their sentence around that theoretical medium. The notion that underpins this is, that in some way the Courts are being too lenient to people who were found guilty of offences.

The astonishing feature of the story is that the protagonist, quoted as describing the legislation as, “the worst drafting he’s ever seen” and that it has been written by “someone on a substance” is none other than the Chief Crown prosecutor Gavin Silbert Q.C. Beyond the humour of his gibes, what is really startling is that that legislation of such importance is able to get through without having any long term consultations with the likes of Mr Silbert. It is apparent he will be on the front line arguing about this legislation; that he could make these comments begs the question of what was actually going on under the last Attorney General.

It is my observation that any organisation of any worth within the criminal justice system is opposed to this legislation. The idea that the courts are soft is so ridiculous to those of us who actually spend most of our time in a court room – even writing it seems absurd. That the current Shadow Attorney-General expounds that this is a move made in effort to “better protect the community” shows just how little he understands sentencing. And how myopic and superficial the government’s efforts to “better protect the community” actually are.

When you increase sentencing you increase the chance that one of our family or children will be hurt. Increasing sentences increases crime. Increasing sentences means alienating people from society for an extended period of time, then releasing them into community more dysfunctional than they were. Introducing baseline sentencing funnels people into prisons rather than facilities that may actually turn their lives around. You know, the ones that don’t exist because we’re too busy shoving people into dark holes instead of helping them seek rescue or rehabilitation. If the previous Liberal party wasn’t so obsessed with their media announcements, they might have tried to do something about rehabilitation, as currently there is very little of it happening in the prisons and it is chronically under-resourced. This is through no fault of Corrections or the other agencies, it appears the previous government would rather build prisons, lock people up and win the people’s hearts with grandiose claims of safer communities than actually think about reducing crime.

Let’s look at some statistics. According to Crime Statistics Agency, the numbers aren’t really propping up the Liberal government’s spectacular assertion of crime-fighting powers.

“Over the last 5 years, the number of offences recorded in Victoria has been steadily increasing, with an average annual increase of 4.9%. This followed a 10 year low in the number of offences recorded in 2009.

The offence rate in 2014 was the highest it has been since 2005. This continues a rising trend in the offence rate from 2010.”

The number of offences rose steadily, year on year, when the Liberal government took over power from Labor, in fact, a 20.71% increase from 2010 to 2014. Kapow!

Furthermore, introducing baseline sentences will pose a conundrum that I believe is being overlooked, in favour of greasing the squeaky wheels. Baseline sentence figures are just too high to ever encourage anyone to negotiate a settlement of the matter. Why would you make a practical and pragmatic resolution to a case if your client is going to get many years in gaol where they may have a defence?

Now, let’s take this off the social-media-rant platform and steer away from vote-grabbing politics and have a candid and well-informed discussion, looking at all sides of this multi-faceted debate.

Many of our cases involve people who have never been charged, or been in any trouble before. So imagine, for example, they are facing a long sentence for a driving offence where they have inadvertently killed somebody. Whether they go to prison for one year or five years, it is still a life shattering event for them. They will not be willing to plead guilty when there is no possibility of coming to a resolution.  It also runs contrary to what the Court of Appeal had been advocating about in Boulton’s case which is the use of the community corrections orders to really make an attempt at making the community safer by trying to rehabilitate people. And while we’re on that, the Court of Appeal, the appeal system, I’d like to remind everyone. It exists. If the OPP regard a penalty as too short or lenient, they then appeal the sentence.

This move in baseline sentencing displays a worrying lack of understanding of how the justice system actually works. Rather than the previous government trying to employ this ridiculous whack-a-mole approach to “better protect the community”, we implore the new Andrews-led Labor government to look seriously and objectively at the criminal justice system and see that, something we’ve been long able to boast is, it works.

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