Mandatory Sentencing for Assaulting Elderly Persons - Essay Example

Mandatory Sentencing for Assaulting Persons Over 60 Years Causing AOBH and/or GBH [Student’s Name] [Institution Affiliation] Executive Summary There is an increase in the number of assaults on the elderly people aged 60 years and above in Western Australia causing occasional bodily harm and grievous bodily harm to the victims. The established legislations of dealing with these kind of assaults are lacking and do not adequately ensure that justice is served for these victims. As a result, there is need to establish legislations for ensuring that there is no prevention of the sense of justice for the offender and the rest of the society. Some of the sentences offered by judges concerning these assault cases are very light and hence justice for the victims is not served. This report proposes a change in legislation such that there is mandatory sentencing for offenders who assault people over 60 years of age causing Assault occasioning bodily harm (AOBH) and grievous bodily harm (GBH). This legislation should set a minimum legally allowable punishment of an imprisonment term ensuring that offenders receive similar imprisonment for assaults done under the same circumstances. The mandatory minimum requirements will back the criminal justice system aims of incapacitation as well as deterrence. These mandatory minimum sentences will potentially reduce sentences disparities about those who assault elderly people over 60 years causing Assault occasioning bodily harm (AOBH) and Grievous bodily harm (GBH). Introduction The Sentencing Act 1995 (W.A.) provides a statutory framework of sentencing in Western Australia. WA enacted mandatory sentencing in 1996 owing to the WA criminal code. The amendments required the imposition of a minimum 1-year prison term for juvenile and adult offenders convicted of residential burglary (Sallman, 2005). Whereas these amendments in criminal codes address offences against the person, property and the administration of justice, there are areas that fall outside the scope of the code; for instance, legislation on assault of people over 60 years who cause Assault occasioning bodily harm (AOBH) and grievous bodily harm (GBH). The legislation is open to interpretation by numerous judicial actors, which means that whereas some sentences against people who assault old people are fair, others are very light. This report proposes a change in legislation- mandatory sentencing for those who assault persons over 60 years of age causing AOBH and/or GBH in Western Australia. This would offer an effective deterrent for causing bodily harm and would enable justice to be served in the eyes of the community. Overview of Mandatory Sentencing in Western Australia A mandatory sentence refers to a court decision setting whereby the law limits the judicial discretion. The persons who would be convicted of old people assault should be punished with at least a minimum number of years in prison. Mandatory sentences prohibit people convicted of certain offences from being placed in probations (Siegel, 2011). In Western Australia, mandatory sentencing law were enacted in 1996 for both adult and juvenile offenders and require that offenders go to jail for the minimum prescribed period for particular offences (Kenny, 2008). This law was enacted through amendment of the Criminal Code (WA) 1913 (Morgan et al., 2001). The WA laws provide that when persons are convicted the third time or more for home burglaries, both juvenile as well as adult criminals have to be sentenced to at least 1-year detention or imprisonment in spite of of the severity of the crime (Criminal Code, WA, 1913) (Richards, 2011). These mandatory detention laws do not allow the convicted persons to appeal against the sentence. The amendments are referred to as “three strikes and you’re out” sentencing legislations (Morgan et al., 2001). Under these amendments, a person who has no less than two prior convictions for robbery is needed to serve not less than one year in case he or she is convicted again (Kenny, 2008). The WA government also brought in further adjustments to the code when it prescribed a fixed imprisonment detention or sentence for juvenile and adult offenders cause grievous bodily harm to police officers or other public officials {s297 (5) Criminal Code (WA) }. These laws have exposed Australia to attack over these mandatory sentencing legislations in WA. The laws have been criticized for their inability to reach the set standards through incorrectly treating accused offenders especially indigenous and juvenile Australians (Le Plastier, 2005). Justification of Mandatory Sentencing for Those Who Assault Old People Although the mandatory sentencing rules have been criticized because of some of its adequacies, it is well suited to address the issue of assault on old people, which has been increasing considerably. Australia regards itself to be in the front position in defense of human rights. As a result, it is important that measures be put in place to ensure that the old people, over 60 years are not assaulted. These people are one of the most vulnerable groups in the society whose rights can be trampled on by criminals. Mandatory sentencing would reduce assaults and ensure that there is uniformity in sentencing. This will ensure that potential criminals as well as repeat offenders avoid crime, as they are certain of the sentence in case they are caught. The seriousness of the fate that these old suffer is evident in the following reported case in Western Australia where thieves beat Sydney Brady, an 89-year old man in a vicious attack in Perth during a home invasion (WAtoday, 2011). The two offenders assaulted the man, left him with severe injuries on the hands, ribs and the head, and he even had to undergo an emergency surgery before his admission in the intensive care unit. This shows that the injuries than the man suffered were very serious. The two perpetrators were charged with aggravated armed robbery, aggravated burglary, and aggravate bodily harm. In court, these two perpetrators were not needed to enter a plea and they did not make any application for bail. This was an inhumane act and because of this case, there was a call by MP Peter Abetz to give offenders who bash old people a mandatory sentence. Nonetheless, the Premier, Colin Barnett, argued that although he was disgusted with the assault on Sydney Brady, mandatory sentencing laws were not the solution for assault on elderly people. The assault on Sydney highlights the plight of the elderly in the Western Australian society. Thugs are attacking the elderly leaving them bruised, bettered and hospitalized and there is thus need to hand them an automatic mandatory sentence. Mt Lawley MLA Michael Sutherland has been one of the individuals who have been calling for a countrywide introduction of mandatory sentence for criminals and thugs who prey of the vulnerable and elderly people after an increase of violent cases against pensioners in the Western Australia (Harold, 2012). Mandatory detention provisions need to be introduced as measures of combating these perceived law and order issues in Western Australia. The alternative means currently used serve light sentences on those who assault the elderly; there is thus need for a very effective anti-assault for addressing the issue. Western Australia is failing in protecting human rights of the elderly-those over 60years. The attacks on the elderly are some of the most repulsive crimes, which therefore have to attract severe prevention sentences in place to deal with the attacks. The best deterrent sentences and due process necessitate mandatory sentences, which will remove judgment from the judges, whose role is to sentence and which restrict them with the requirements that they have to offer a particular minimum sentence without consideration of the events of the assault. Majority of the criminals who appear on severe assault charges in respect to the elderly people deserve and should get serious sentences. The code for mandatory sentences should be included in Criminal Code (WA) 1913. Overview of the Mandatory Sentencing Legislation The WA mandatory sentencing legislation for those who assault people over 60 years causing them Assault occasioning bodily harm (AOBH) and grievous bodily harm (GBH) should be incorporated in the Criminal Code (WA). It should be primarily given effect via amendments of the criminal code, which defined sentencing regimes applying to juveniles and adults respectively. The mandatory sentencing legislation should apply to two types of elderly assault Assault occasioning bodily harm (AOBH) Grievous bodily harm (GBH) The legislation on mandatory sentencing should be based on the ‘Three Strikes and You’re In’ law. This should impose a ‘shall’ obligation on the judges who will preside on such cases to sentence the juvenile and adult offender to an incarceration for a certain duration upon the commission of a third assault of a person aged over 60 years (Colvin & Linden-Laufer, 2005). The number of previous instances, which the offender has been sentenced for one or more relevant elderly people assault after the enactment data of the law should determine the least amount penalty ordered by mandatory sentencing. The minimum penalties connected with every occasional sentencing or sentencing should be Strike 1: 90days imprisonment Strike 2: 180days imprisonment Strike 3 or more: more than 2 years imprisonment Under the mandatory sentencing regime, the minimum of imprisonment term connected to a sentencing occasion for offenders who cause Assault occasioning bodily harm and Grievous bodily harm to persons over 60 years should be entirely determined by these offenders number of previous strikes (Colvin & Linden-Laufer, 2005; Kenny, 2008). The response to the juvenile crime should also be different from that of adults. Juveniles are different from adult offenders biologically, socially and psychologically and hence, the response to juvenile assault on old people should be different (Richards, 2011). In addition, there should be exceptional circumstances’, which should be introduced as a component of the mandatory sentencing command. Under the exceptional circumstances, the presiding judge should have the discretion not to impose a particular imprisonment term once the following conditions are met: The assault was minor in nature There was reasonable justification for the offender to do what he did Such conditions are important to ensure that those convicted are deserving of the prison term. The following real-life example shows that there is need to set exceptional circumstances. A case of an elderly person who assaults a young boy and upon learning this, the boy’s father takes it upon himself to go to the elderly person house and assault him. Such a father should not have to go to jail for this assault, there should be a lighter sentence for such a case. Although there have been cases of inadequate sentences for elderly persons assaulted under the current law there is need to establish special circumstances under which the mandatory sentencing for assault is not applied. The onus should be placed on the defendant to convince the court that the conditions were met. In addition, there should be a mechanism for making sure that sentences deemed inadequate are referred to the court of appeal. Under the new mandatory sentencing for those who assault old people, the impact of the number jailed for such assaults would be expected to rise, especially as second and third offenders enter the country prison and then at a slowing rate as criminals are deterred from assaulting people aged over 60 years (Spohn, 2007). As a result the mandatory sentencing law would service its purpose- that of deterrence. Deterrence should be the main aim of the minimum imprisonment for assault on old people. Mandatory sentencing would offer reliability in sentences and it would be an answer to the widespread public concern on elderly people assault. There are two justifications for mandatory sentencing: incapacitation and deterrence. The incapacitation and deterrence model seeks to reduce future crime and in this case assault on elderly people aged 60 years and above. Deterrence would make crime more costly and hence reduce crime (Spohn, 2007). Incapacitation would occur by removing those who assault old people from the society. The incapacitation model shows that criminal behind bars cannot harm the people outside. The Western Australia community is worried about the increasing number of assaults on elderly people, views expressed even by Michael Sutherland when he stated that there is an increase of violent cases against pensioners in Western Australia (Harold, 2012). According to the general deterrence premise, increasing the possibility of punishment as well as apprehension deters individuals in a society from committing crime (Spohn, 2007). Mandatory sentencing in this case targets the individuals who assault old people and is comparable to the mandatory sentencing for assaulting police and other public officials in Western Region, a legislation put in place because of the increase in the number of police assault cases. Mandatory sentencing would be sufficient punishment for deterring criminals in western region from attacking the elderly. Beccaria (2000) posited that the most successful method of administering justice is by increasing its swiftness, firmness, as well as harshness. When sanctions are fixed, immediate, and relentless, they send the people a message that the law enforcers will not tolerate crime. The deterrence model purports that law-abiding people are not different from criminals (Spohn, 2007). Criminals usually reasonably maximize their individuals self-interest or utilities subject to constrains (incomes, prices) which they encounter in the market place and other places (Beccaria, 2000). Increasing the severity, swiftness and certainty of punishment for those who assault elderly, will lead to the utilitarian objective of reducing crime. Reducing crimes is the most important aspect in setting punishment under the utilitarian model. The sentencing will be useful, as the physical restrain of imprisonment will prevent the offenders from committing more crimes against the society through the sentence period. Under these models, crime reduction is the principal aspect in setting punishments. Mandatory sentencing has been accused of being harsh to indigenous offenders especially the youth in Western Australia as they are the group, which usually engage in burglary because of their poor living conditions (Cuneen & White, 2007). The rehabilitative model is important in this case because it supposes that the society is the main basis of criminal activities and that criminality is mostly a result of societal factors (Lily et al., 2002). As a result, criminal actions are determined by societal factors such as lack of employment opportunities, poverty, and racial discrimination and hence the criminal justice system should endeavor to eliminate or mitigate the harmful forces. Since, structural defects in the society has led to an increase in the number of assaults on the elderly, the criminals also deserve rehabilitation. Rehabilitation is very important particularly in this case as most of the people who will be incarcerated will be repeat offenders. To ensure that mandatory sentencing works in this case and for people convicted of burglary, correctional treatment programs can successfully prevent the first time offenders and repeat offenders from repeating such crimes (Whitney et al., 2000). Some of the supporters of this model that lengthy incarceration is not important in reducing crimes as correction treatment programs can effectively reduce criminal activities. Nonetheless, while rehabilitation should be an important intent punishing criminal, it should not be at the expense of incapacitation and deterrence. The other model, which supports the mandatory sentencing for those who assault the elderly, is the ‘just deserts” retribution model as it purports that committing crime is in itself adequate good reason for punishment. The offense moral gravity for this type of assault validates punishment (Whitney et al., 2000). The punishment level is established by the gravity of the criminal activity with more serious crimes attracting harsher punishment. The assault on Sydney Brady is a good real-life example, which shows the seriousness of the assault on the elderly causing Grievous Bodily Harm. Conclusion Mandatory sentencing legislation for those who assault elderly people will ensure that two people who have assaulted elderly people under the same circumstances receive the same sentence; this will deter prevention of the sense of justice for the offender and the rest of the society. Mandatory minimum statutes are justified in this case because of the nature of the criminal activity, as it is essentially harmful to the victims and dangerous to the rest of the society. Mandatory minimum sentences should thus be adopted under the various grounds: first, it is just based solely on the just deserts doctrine, assault on the elderly is so heinous, and the legislatures have moral responsibility of establishing sentencing with minimum legally allowable punishment of an imprisonment term. The mandatory sentences are warranted as they match with the seriousness of the offence, including the gravity to the Western Australia society. Secondly, the mandatory minimum requirements support the criminal justice system objectives of incapacitation as well as deterrence. Lastly, these mandatory minimum sentences will potentially reduce sentences disparities about those who assault elderly people over 60 years causing Assault occasioning bodily harm (AOBH) and Grievous bodily harm (GBH). References Beccaria, C. (2000). On Crimes and Punishments and Other Writings, eds. Richard Bellamy. Cambridge: Cambridge University Press. Colvin, E., & Linden-Laufer, S. (2005). Criminal law in Queensland and Western Australia: Cases and commentary. 6ed. Sydney: Butterworths. Criminal Code (WA) 1913, s401(4), s297(5) Cuneen, C., & White, R. (2007). Juvenile Justice: Youth and crime in Australia. 3ed. South Melbourne: Oxford University Press. Harold, F. (2012) Toughen Laws for Vulnerable: MLA, inmy Community, Retrieved on September 22, 2012 from http://www.inmycommunity.com.au/news-and-views/local- news/Toughen-laws-for-vulnerable-MLA/7622413// Kenny, R. (2008). An Introduction to Criminal Law in Queensland and Western Australia. 7ed. Sydney: Butterworths. Le Plastrier, B. (2005). Western Australia’s Mandatory Sentencing Laws and Australia’s International Legal Obligations. Dialogue 3:2, pp 1-15 Lilly, J., Cullen, F. & Ball, R. (2002). Criminological Theory: Context and Consequences. 3ed. Thousand Oaks, cal.: Sage Publications. Morgan, N., Blagg, H., & Williams, V. (2001). ‘Mandatory Sentencing in Western Australia and the Impact on Indigenous Youth’. Perth: Aboriginal Justice Council of Western Australia. Richards, K. (2011). What makes juvenile offenders different from adult offenders?‘ Trends & Issues in crime and criminal justice Australian Institute of Criminology. Sallman, P. (2005). Mandatory Sentencing: A Birds Eye View. Journal of Judicial Administration, 177, p.189 Siegel, L. (2011). Criminology. 11ed. Belmont, CA: Wadsworth Publishing. Spohn, C. (2007). The Deterrent Effect of imprisonment on Offenders‘ stakes in Conformity. Criminal Justice Review, 18(1), 31-50 WAtoday. (2011). Thieves who ‘bashed’ 89 year-old man ‘inhumane’ WA News. Retrieved from http://www.watoday.com.au/wa-news/thieves-who-bashed-89-yearold-man- inhumane-20111017-1lsvy.html October 17 2011 Whitney, K., Flynn, M., & Moyle, P. (2000). The Criminal Codes Commentary and Materials. 5ed. Sydney: LBC Information Services. Read More