THIS occasion, in this court, is the ideal occasion to reflect on one of the most important assets that we have in this country, of the threats that it faces and of the ways in which it ought to be protected.
I speak of independence of the judiciary, something which has particularly in recent months come under attack in ways which perhaps many would not even recognise.
Cases will always arise that excite the attention of the public; some cases in which parts of the community, fuelled by sensationalised reporting, believe that the justice system has failed and that this perceived failure is a result of the flaws in the system, in particular the granting of too much discretion to judges who are out of touch with community expectations. The recent spate of so called “one punch or coward punch” attacks are cases in point. The sentencing of Kieran Loveridge in November after he randomly punched and killed Thomas Kelly in Sydney is a recent, high-profile example.
After the media proclaimed the outcome to be a grossly lenient sentence and an example of a justice system out of control there ensued a frenzy of uninformed criticism and personal attacks on the integrity of not only the justice system but the sentencing judge.
The NSW Bar Association condemned such conduct. President Phillip Boulten SC warned of the potential for such criticism to undermine our system of justice.
Last week the NSW government introduced a number of very positive and sensible moves designed to combat the serious problem of alcohol and drug fuelled violence amongst the young. We in Newcastle are proud to say that many of the measures adopted were based on the so-called Newcastle solution, which has delivered a real reduction in alcohol fuelled violence amongst the young, contrary to the predictions of the operators of licensed premises.
Regrettably however, and against the strongest advice of the Bar and many others whose direct working knowledge of the criminal justice system should have caused the government to listen, it has also introduced mandatory sentencing for drug and alcohol related violence. In doing so the government eroded the independence of the judiciary.
On Monday night, the Chief Justice of NSW Tom Bathurst said several questions were to be answered, including: whether the minimum was to apply to most cases; whether it applied where the offender had pleaded guilty; if juries would convict where they knew the mandatory minimum sentence would apply; and whether it meant fewer offenders would plead guilty or seek to rehabilitate themselves.
He warned that if those questions could not be answered in the affirmative, then the laws would result in injustice.
He said victims’ interests were not the only factor in sentencing – others included punishment, deterrence, rehabilitation and protection of the community.
The Bar has pointed out that there is no evidence that mandatory sentencing reduces the incidence of crime. Mandatory sentencing will not lead to a reduction in alcohol fuelled violence – it will not be a deterrent. It is entirely unrealistic to assume that such offenders consider the likelihood of incarceration before they commit such impulsive crimes. No intoxicated offender is likely to take into account this change in the law.
It has the potential to produce unjust sentences and create anomalous distinctions between intoxicated and sober offenders.
It may well result in a reduction in the number of guilty pleas resulting in a large increase in the number of trials, greater cost to the community, delays for other cases and a greater deal of stress for the victim.
Mandatory sentencing will increase the prison population. At upwards of $60,000 per prisoner per year that is not something the community can afford.
It undermines the important principle of rehabilitation by requiring that offenders remain exposed to the prison system long after they have been rehabilitated.
A 2012 NSW Bureau of Crime Statistics and Research study found that ‘‘increasing the length of stay in prison beyond current levels does not appear to impact on the crime rate after accounting for increases in arrest and imprisonment likelihood’’. It concluded that policy makers should focus more attention on strategies that increase the risk of arrest and less on strategies that increase the severity of punishment. The Bar endorses this approach.
The debate which has stemmed from recent judicial criticism and the enactment of mandatory sentencing must be continued by the profession. The Chief Justice has announced a new program of education and explanation of the sentencing process for the community and the media.
The new regime requires ongoing monitoring and careful consideration by a community which I am confident, if properly informed, would opt to protect the independence of the judiciary, over a political quick fix.
Peter Cummings SC is president of Newcastle Bar Association. This is an excerpt from his address to Newcastle Court for the opening of the law term yesterday.