Additional comments by Labor Senators
1.1
Labor senators agree with the majority of the report, except for the
recommendation made in respect of the proposed mandatory minimum sentences for
firearms trafficking offences. We wish to draw attention to the strong
opposition of the peak law organisations and state prosecutors who submitted
evidence to the inquiry in this respect.
1.2
Labor senators highlight that the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers, produced by the
Attorney-General's Department, states that minimum penalties should be avoided.
This is because they, inter alia:
-
interfere with judicial discretion to impose a penalty
appropriate in the circumstances of a particular case;
-
may create an incentive for a defendant to fight charges, even
where there is little merit in doing so;
-
preclude the use of alternative sanctions such as community
service orders that would otherwise be available in Part IB of the Crimes
Act 1914; and
-
may encourage the judiciary to look for technical grounds to
avoid a restriction on sentencing discretion, leading to anomalous decisions.[1]
1.3
In this particular instance, Labor senators are of the view that the
imposition of mandatory minimum sentences for firearms trafficking offences should
be avoided. The better approach would be to implement a regime of penalties for
firearms trafficking offences reflecting that proposed by Labor when it was in
Government.
1.4
In November 2012 the then Labor Government introduced the Crimes
Legislation Amendment (Organised Crime and Other Measures) Bill 2012 into the
House of Representatives. This bill, which lapsed in the Senate at the end of
the 43rd Parliament, expanded existing cross-border firearms
trafficking offences in the Criminal Code Act 1995, introduced
new international firearms trafficking offences, and introduced new aggravated
offences for dealing in 50 or more firearms and firearms parts. It was intended
that the new 'basic offences' would attract a penalty of 10 years imprisonment,
consistent with existing firearms trafficking offences. However, it was
proposed that the 'aggravated offences' would attract a higher penalty of life
imprisonment, the same maximum penalty applied to drug trafficking. In the
words of the then Minister for Justice, this would 'send a strong message that
trafficking in firearms and the violence it creates will not be tolerated'.[2]
1.5
Labor senators urge the Government to adopt a similar sentencing regime
in relation to the proposed firearms trafficking offences. This would still send
a strong message to serious criminals but avoid the issues associated with
mandatory minimum sentences and better preserve judicial discretion.
Recommendation 1
1.6
The imposition of mandatory minimum sentences for firearms trafficking
offences should be replaced with increased penalty provisions, as set out in
the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill
2012.
Senator the Hon Jacinta Collins
Deputy Chair
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