Yesterday, the Victorian Attorney-General, Robert Clark, announced an intention to legislate tougher penalties for assaults on police and emergency services workers. According to the media release, the legislation would operate by imposing a mandatory sentence on top of whatever sentence the court considered appropriate in the circumstances and it would function as a sliding scale, starting at 6 months for assault, 12 months for serious injury offences and 5 years for murder.
This proposed system looks a lot like the "sentence enhancement" system used in America for certain features of offending, such as the use of a firearm. A sentence enhancement approach instantly raises, to my mind, the following questions:
- Given the principle of totality in sentencing, will courts discount the sentence they would otherwise impose so that, when the mandatory penalty applies, the sentence is proportionate to the overall offending?
- How is a court to formulate an appropriate initial sentence while ignoring part of the circumstances of the offence, such as the fact that the attack was on a hospital worker, or a police officer who was performing a public service?
- If the court does not ignore the part of the circumstance of the offence that attracts the sentence enhancement, does this mean that feature is being doubly counted, as it contributes both to the initial sentence and the enhancement?
Surprisingly, the Criminal Bar Association does not see anything radical in this proposal, while the Law Institute thinks it will not be effective as a deterrent (
link). Curiously, the Criminal Bar Association compares the proposal with WA's mandatory sentencing laws (s318 of the WA Criminal Code), which only sets a mandatory minimum, rather than prescribing a sentence enhancement. This difference will, I predict, cause the courts significant difficulties in the future. Given what we saw when
Sentencing Act 1991 s6AAA was introduced, and all the complaints about how that was an artificial process, this has the potential to attract even greater complaints as it is not a hypothetical exercise, but one that has real effects on the sentence being imposed.
