Queensland judges who feel a defendant does not deserve jail time would still be forced to hand out sentences of up to seven years under the Palaszczuk government’s proposed answer to the state’s contentious anti-bikie laws.
The Queensland Council for Civil Liberties attacked the government’s mandatory sentencing model for gang crimes, saying its only exemptions – for informants – would encourage fabricated evidence and raise the spectre of police corruption.
The QCCL president, Terry O’Gorman, said the draft laws going before a parliamentary committee on Wednesday were “slightly less severe” than the Newman government’s Vicious Lawless Association Disestablishment Act (Vlad), which mandated 15 to 25 years extra punishment for gang crimes.
O’Gorman said mandatory sentencing remained fundamentally unjust and unfair, and could lead to the “outright absurdity” a court being forced to send a defendant to jail for seven years for a crime that would otherwise not have attracted a jail term.
He pointed to the supply of recreational amounts of cannabis within a group of friends as potentially triggering the extra punishment under the proposed “serious organised crime circumstance of aggravation”.
The Palasczuk government has retained the mandatory sentencing measure as a tool intended to help investigators break the code of silence that protects organised crime groups.
Other sweeping reforms proposed in the government’s serious and organised crime legislation amendment bill include consorting laws and raising maximum jail terms for child exploitation and drug trafficking.
The only way of evading extra jail time for a gang crime would be to provide useful cooperation to police in a serious criminal investigation.
In notes to the draft laws, the government says that is among amendments that “potentially breach the fundamental legislative principle” of the Legislative Standards Act 1992, which requires laws to have sufficient regard to individual rights and liberties.
But this was justified because the punishment would only apply to someone the state proved beyond reasonable doubt was “a participant in a criminal organisation” who committed a prescribed offence “at the direction of, in association with, or for the benefit of a criminal organisation or a participant in a criminal organisation”, the notes state.
O’Gorman said these prescribed offences included money laundering, which could capture someone who was handed $100 by a bikie looking to buy a bag of dope for personal use.
The government kept mandatory sentencing in the draft, despite a committee for the Wilson taskforce review into organised crime laws voting four to two against mandatory sentencing, with only police unions in favour.
But O’Gorman said the government appeared to have since made its decision by consulting police and merely briefing the other parties, including the Queensland Bar Association and Queensland Law Society.
The Wilson taskforce report noted concerns including the unjust effect of mandatory sentencing on Indigenous communities in Western Australia and the Northern Territory and in people smuggling cases.
It also noted that mandatory sentencing was an incentive for an accused to provide false information in the hope that they could avoid the sentence.
The QCCL called on state parliament crossbenchers to reject the seven-year mandatory sentencing to avoid “serious miscarriages of justice”.
One of those crossbenchers, Rob Pyne has indicated he expected crossbench opposition to such measures and others, including a ban on wearing bikie colours in public, was unlikely to prevail.
This was because the Liberal National party was unlikely to oppose any parts of Labor’s gang laws package on civil liberties grounds, Pyne said.
O’Gorman said the high court’s observation that under Vlad it was “quite possible that a person who would not receive a custodial sentence in the lower range of seriousness (for the offence the person was arrested for) would nevertheless be sentenced to a mandatory 25 years’ imprisonment” held for the new laws.
The explanatory notes to the Palaszczuk government bill state that: “If the base component (the sentence a person gets for the offence that person was arrested for) does not require the offender to immediately serve a sentence of imprisonment, the offender is to immediately begin to serve the mandatory component”.
O’Gorman said: “We will inevitably witness the spectre of a person fabricating evidence and falsely accusing someone of a crime that they have not committed in order to avoid the mandatory sentence.”
“A regime of mandatory minimum sentencing arguably can spawn, as in other jurisdictions here and overseas, police corruption.
“An important point is judges are going to have to sentence people to jail when an individual judge will say in the circumstances of this, I’ve been told by parliament I must give you this sentence, even though I personally think it is unjust.
“That’s the whole problem with parliament and mandatory sentencing: it’s parliament saying one size fits all.”
O’Gorman said the discretion that would be given to Queensland prosecutors to apply the extra punishment would mirror “the now discredited US mandatory sentencing scheme”, which the US was in retreat from.
This scheme was “filled with examples of prosecutors misusing their position and forcing people to plead guilty under threat of indicting them for offences that carried large mandatory sentences”, he said.
