Murder convictions: a timely review of minimum mandatory sentences

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The Advertiser today reported that South Australia’s Attorney General, John Rau, has determined to review the provision found at Section 32 of the Sentencing Act 1988, inserted in 2007 that provides:

5(ab)         if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years.

The ‘minimum mandatory’ non parole period of 20 years is tempered, at present, by an allowance for a lesser period where “good reason” is shown; the approach has generally been that a ‘garden variety’ murder that does not invoke an especially unusual feature in mitigation will warrant the 20 year minimum. The approach of the Supreme Court in invoking ‘good reason’ in sentencing convicted persons for murder has been cautious and it is fair to say that good reasons to institute a lesser penalty have been rarely found.

While it is perhaps trite to say that the crime of murder will often and generally warrant a non-parole period in the vicinity of 20 years, it is equally correct to say that the penalty is tariff that would be unlikely to be departed from by the Supreme Court even absent the proscribed minimum mandatory where there is not something either relevant to the offending or the offender that allows some degree of sympathy or leniency. The difficulty with the current approach is the rigid statutory test to qualify for a reduction on the basis of ‘good reason’ which is found at Section 32A of the Sentencing Act:

        (a)         the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct;

            (b)         if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

            (c)         the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.

The test does not allow for any consideration that is external to either the conduct of the victim or the conduct of the accused while within the criminal justice system. In short, the provision does not allow for the “shades of grey” that are present in so many instances before the Court. While there is often community support for the concept of minimum mandatory sentencing, this is perhaps more explicable by the apocryphal tales of ‘ivory tower judges’  handing out obscenely light sentences for heinous crimes than it is with reference to the true nature of the sentencing regime in South Australia.

Indeed in instances where there has been a sentence that is ‘manifestly inadequate’ having regard to the circumstances of the offending, a cure already exists in a Crown appeal against sentence; the instrument that is used so commonly where a Judge sitting on the District Court or a Magistrate errs in the exercise of their sentencing discretion. Given that the avenue of a Crown appeal remains open as a check and balance against any excessive leniency or sympathy shown to a convicted murderer, and given that the ‘sentencing ranges’ for murder remain rightly severe, there is little to be gained by maintaining the minimum non-parole period; it operates solely to remove judicial discretion when considering the circumstances of an offence and an offender.

Convicted criminals, particularly murderers, are not generally the subject of much sympathy from either the courts or the community in general. This is understandable. Allowing the sentencing Judge to take into account the full circumstances of a person who stands before them convicted of murder is not, necessarily, a matter of ‘letting them off easily’; rather it allows the forensic process of the court to do it’s work in the hands of both defence and prosecution counsel, and arrive at a sentence that, as always, satisfies the necessities of both general and personal deterrence while also making allowances for the offending to be contextualized by circumstances and proportionality.

Minimum mandatory sentencing, in almost all of it’s forms, has proved to be unsuccessful and reduced the sentencing process from an, admittedly imprecise, science to a rubber stamping exercise that fails to take advantage of the wealth of experience of judicial officers, counsel and expert witnesses in determining an approach to a sentence that allows for the imposition of a sentence that truly fits the crime.