I received a message via Facebook. My correspondent wrote:
G’day Michael- on Facebook and other sites, there’s a lot of calls for mandatory sentencing for those who assault Police and Paramedics. Have you written anything about this in terms of why it would or wouldn’t work and if there are any other legal implications and other issues? Luke
In fact I have written on this subject. On 26 December 2015 on my Emergency Law Facebook page I responded to a story in the Adelaide Advertiser – Amanda Blair: Harsher jail terms for assaulting ambos won’t make them safer.
In my comment I said:
At the risk of offending many people who read this blog, I feel I have to comment on this giving the criticism Ms Blair has received for her comments. Because I agree with her – mandatory jail sentences are not and never have been the answer to any crime problem. Mandatory sentences do not achieve deterrence, they just move the discretion. With mandatory sentences it comes down to the police to decide who goes to gaol (do they charge the alleged offender or not). When the police make the decision the person cannot explain their situation and the decision is not made in public with published reasons, as must occur when a judge imposes a sentence.
A prison sentence may have some deterrence affect on an individual but little effect on others. A person who is intoxicated is unlikely to think ‘I’d better not hit this person because someone I don’t know in other circumstances went to gaol for something that may nor may not be similar’. At that point in time the implications of punishment are not likely to be on their mind.
As for references, like Ms Blair and other commentators, I can’t point to specific criminological research but it is I think well accepted that gaol is a very expensive and ineffective way to reduce crime at large and carries with it much higher costs and broader social implications.
Remember too that assault is more than just physical contact. People may ‘hit’ a paramedic but many of them will not be guilty of any offence – see for example https://emergencylaw.wordpress.com/…/tasmania-alcohol-affe…/. The offender there was guilty of assaulting a paramedic, but was not guilty of assaulting the police officer involved even though he quite clearly intended to hit him. Other people will be not guilty because of the impact of the very injury or crisis that has brought them into contact with paramedics and that can include the impact of drugs and alcohol. Some people will take drugs or alcohol knowing they turn into jerks, for others it may be a poor and unexpected result. If they don’t understand what they are doing, or intend to do it, they will not be guilty of any offence. If there’s no offence, there’s no sentence.
For a more detailed discussion see https://emergencylaw.wordpress.com/…/responding-to-violenc…/
There were a number of comments to that post including the following:
Hi Michael,
Firstly, I would like to emphasize that I’m not offended, I just have some questions / comments.
You mention that under mandatory minimum sentencing, it comes down to the police as to who goes to gaol. I don’t quite understand your comments on this point.
As I understand, whether a person is charged with assault comes down to two things.
1) The victim wanting to press charges, and
2) There being sufficient evidence for police to proceed with laying charges.
This does not change if there are minimum mandatory sentencing rules in effect. There would still be many instances where the victim decides that they do not want to press charges. However, if the victim wants to press charges, then assuming there is sufficient evidence, police will charge them. This does not mean the alleged offender will automatically go to prison.
The alleged offender, once charged, would still have to go to court, be able to make their case and would need to be found guilty before any sentencing is imposed. As you rightly pointed out, if the alleged offender is found not guilty for whatever reason, then there is no sentencing.
From what I understand, there are examples where following minimum mandatory sentencing for assaults against police, the rate of assaults has decreased. I certainly agree that this will not be a deterrent for all. But it will be a deterrent for some and I’m assuming that is where the incidences of a reduction in assaults have occurred. Saying that, if talking about strategies relating to reducing occupational violence, then any changes to the legal system should only be thought of as a part of the solution (with some States benefiting from changes, while others already have fairly strict legislation).
I replied:
Dear …
You say:
“As I understand, whether a person is charged with assault comes down to two things.
1) The victim wanting to press charges, and
2) There being sufficient evidence for police to proceed with laying charges. “
That is not correct. What determines whether or not charges are laid is whether police believe there is sufficient evidence and whether, all things considered, they wish to bring charges and what they charge people for. The attitude of the victim is only one consideration. If a victim does not want to cooperate with police then that may make it harder to prove but if the police think they can prove the case without the victim’s cooperation they are entitled to bring charges. If that was not the case no-one would be charged with murder or assault on children. Domestic violence is one situation where increasingly police bring charges even where the victim asks them not to because it is intended to send a message that this is a crime like any other. In the Australian criminal justice system the victim is a witness but the question of whether or not there is a crime does not depend on them. Police can bring charges the victim doesn’t want them to and can refuse to charge people even if the victims want them to. It is ultimately the Crown, not the victim, that presses charges.
As a prosecutor the police (like the Director of Public Prosecutions) has to consider many things, the evidence, the likelihood of success, the community interest in the prosecution etc (see http://www.odpp.nsw.gov.au/prosecution-guidelines).
With respect to mandatory sentences, it’s up to police to decide what to charge a person with. Assume there is a mandatory sentence for assault occasioning actual bodily harm. The police can choose to prosecute for that offence with the mandatory sentence or try a lower offence e.g. Assault that doesn’t carry the mandatory sentence. If the mandatory sentence applies to assault, they could chose to charge a person with ‘offensive behaviour’. Or perhaps they’ll make a decision to issue only a caution because they don’t think the mandatory punishment is warranted. In all these cases it’s the police who exercise discretion but not in public and without giving detailed reasons for their decision, as a judge must do.
As for a decrease in rates of ‘assault police’ I have no data on that but even if it were true it would be hard to say there was a direct causal link and that it was the increase sentence not other things that may have had that effect. It may be that courts or juries are unwilling to convict if they think the mandatory sentence is too great; some police may also chose not to prosecute for those offences in the same circumstances.
None of that denies that there will be circumstances where gaol is the appropriate penalty, but if one wants to stop violence, mandatory gaol sentences will not be effective.
Australian Emergency Law 
Whilst you draw attention to a possibility that the police decide on who they charge, (my personal experience says they can be forced to charge) mandatory sentences DO prevent a common judicial problem of lawyers and judges manipulating the system to get the defendant stood down. Ie, drug use is a way for a lawyer to have them sent to drug court for a wrist slap. As law lecturers say “The law and justice are not the same”
Drug courts are not an ‘easy way out’ but an attempt to actually deal with an issue and therefore reduce the risk of offending. There are many that would say that a mandatory gaol sentence rather than say the option of a drug court, or community service, or supervised good behaviour bonds etc would be an example of ‘law’ but not ‘justice’. Justice is blind because, in the criminal context, the interests of both the offender and the prosecution (remembering that criminal law is a trial between the state and the accused, not the victim and the accused) have to be balanced.
Thanks Michael. I think the debate in general about mandatory sentencing (not just in relation to this topic) is an interesting one. There’s many who are disillusioned with the courts or more to the point, the decisions that are being made and I guess, rightly or wrongly, many feel that if the discretion is taken out of the equation, we the public, might be more satisfied that an offender has received the penalty owed to them. An interesting debate….
Luke, I’ve seen studies (but can’t put my hand on them) that when people are given the sort of information that the judges have they are less dissatisfied with the sentence. The problem is that the media love a good beat up so they can spin a story and tell people that the sentence is inadequate, and people who are the victims of crime naturally feel that but they have a vested interest in the outcome – hence the rule you can’t be judge in your own cause – but they make great media fodder. Sentencing is very hard, wildly inaccurate but most notably, draconian sentences and prison are ineffective in reducing crime. It’s like anything, assuming that all offenders are alike and therefore one penalty will solve the problems is not going to work. Everyone is different, the circumstances in each case is different, what might work to actually reduce the risk of re-offending in the future will be different. Mandatory sentences removes the ability of a court to consider those issues but as I say it doesn’t actually remove discretion, just hides it. Mandatory sentencing: ‘a well-known solution to every human problem — neat, plausible, and wrong’ – H. L. Mencken, 1910.