By Seamus Horan

In 2014 the Victorian Liberal government instituted six-month mandatory minimum jail sentences for people who assault emergency service workers, except where there are “special reasons” not to impose it. In December last year two women were found guilty in the Magistrates Court of assaulting a paramedic and, as per the mandatory laws, were sentenced to prison. On appeal this month, the County Court overturned this decision on the basis of the “special reasons” exemption.  Those reasons related to difficult backgrounds, mental health and dependent children. This prompted an outcry from Ambulance Victoria paramedics, who have called for the mandatory minimum sentencing laws to be tightened, with “It’s not OK to assault paramedics” painted onto ambulances across the state. In response, the Victorian Premier Daniel Andrews has promised to tighten mandatory sentencing laws.

In a newsletter from 17 May 2018, the AMA conveyed their “profound disappointment” in the removed jail sentence for the two women, and called upon the government to send a “strong message” that “such acts [should] be met with the mandated penalty”. In response, Seamus Horan wrote the following letter exploring the effect of mandatory sentencing.

I refer to your email newsletter from 17 May 2018 regarding penalties for attacking healthcare workers, specifically discussing the recent assaults against paramedics. I was surprised to read that the AMA is supportive of mandatory sentencing.

Healthcare workers have a right to be safe at work, and often this right is not met. Tragedies in the last year alone have shown us the devastation that attacks on healthcare workers can have. As the peak body representing medical practitioners and students in Australia, the AMA has a responsibility to advocate for change that will make us safer. Advocating for mandatory sentencing does not achieve this.

The AMA supports evidence-based medicine, however it appears this outlook does not extend to the legal system. The evidence indicates that mandatory sentencing fails to produce the desired result of deterring crime, and comes at high social and economic costs. The Law Council of Australia found that mandatory sentencing results in unjust sentences where the punishment does not fit the crime, and that by their very design they disproportionately impact particular groups within society. These groups include Indigenous peoples, juveniles, people with mental illnesses and cognitive impairment, and those who are impoverished. Indeed, in 2000 the United Nations condemned mandatory imprisonment legislation in Western Australia and the Northern Territory for its disproportionate effect on Indigenous Australians, acknowledging the negative health consequences, as well as the social and legal impacts.

If we were to compare the legal system to the medical system for a moment, imagine the medical equivalent of mandatory sentencing. Mandatory clinical guidelines would be unthinkable in medicine. There would be an outcry if they were imposed, particularly if they were imposed by politicians spurred by popular demand. Clinicians would rightly say that the specific circumstances of individual patients should influence which treatment is recommended. This is the job of doctors – if we follow mandatory clinical guidelines, what is the point of having doctors?

Mandatory sentences are unjust because by their design they similarly ignore the circumstances of individuals and lead to unjust results. If we have mandatory sentences, what is the point of judges? Why allow discretionary judgement in any profession? By weakening public confidence in our justice system in this way, we only weaken ourselves.

For further detail of the substantial evidence that mandatory sentencing leads to unjust outcomes and fails to deter crime, I refer you to the article below.

In the era of Fake News and political scepticism, our institutions are under intense pressure. The AMA has the potential to play a moderating role, to champion evidence-based policy and confront populist politics. By supporting mandatory sentencing, the AMA has done the opposite.

Regards,
Seamus Horan

Articles:

Sentencing Matters: Mandatory Sentencing, 2008, Sentencing Advisory Council, Victoria
AMA Media Release

Featured image from WorkSafe Victoria