Beyond Abuse

Important Information

The bill being introduced in Tasmania includes:

  • 4 years’ imprisonment for the crime of rape where a victim is under 17 years at the time of the offence;
  • 4 years’ imprisonment for the crime of persistent sexual abuse of a child or young person where at least one of the unlawful sexual acts is an offence of rape;
  • 3 years’ imprisonment for the crime of persistent sexual abuse of a child or young person where there are circumstances of aggravation and none of the unlawful sexual acts is an offence of rape; and
  • 2 years’ imprisonment for the crime of penetrative sexual abuse of a child or young person where there are circumstances of aggravation.

Myths sourrounding Minimum Manadatory sentencing.

There is so much misinformation around minimum mandatory sentencing generated by certain sections of society that Beyond Abuse believe that the following answers to some of these myths may be useful.

MMS concerns.

Some of the myths surrounding MMS include that it will reduce the amount of offenders who plead guilty as some will say that perpetrators have nothing to lose by pleading not guilty if facing MMS, which will mean more trials. Some sections of the community believe that more trials will equal more stress for victims, and more instances of acquittal.

In reality:

If that were the case why have any laws or penalties if we are afraid of offenders pleading not guilty? The justice system must be prepared to prosecute a case on the evidence.

Something else certain sectors argue is that going to court will further traumatise the victim. Whilst this is true in some cases the DPP should not insult survivors by underestimating their resilience to give evidence. Yes, it is upsetting but that’s not a reason to not do it – also often the Criminal Justice System uses survivor vulnerability as an excuse to avoid COSTS of trial. Absolutely outrageous!

In the modern age there are likely to be far fewer cases of one word against another, as offenders more and more employ the use of digital technology in their offending;

For example SMS, photos, social media, mobile phone calls (message bank) amongst others leaves a digital trail of the offending. This means substantial evidence of offending and the offender will plead guilty in the face of that evidence.

For the same reason there is likely to be fewer acquittals in the age of digital evidence trials in cases where offenders plead not guilty.

There will still be a gap between the MMS and the maximum and average sentence. The incentive to plead guilty arises from the gap between the possible sentence if FOUND guilty versus the ‘plea deal’ or discount for early guilty plea. While the current gap presently is between the potential or likely FOUND guilty sentence of 3 – 4 years versus early guilty plea of 6 months, under MMS the MMS of 2, 3 or 4 years (depending on offence) will be versus the available sentence of the state average which is 6 years, and maximum of 14.5 years.

That is still substantial incentive to plead guilty. If the new low bar is set at 4 years then the new sentencing average for cases where a person is FOUND guilty will be higher by definition. The ‘plea’ deal could be that the prosecution only seeks the MMS.

Anti MMS arguments.

Unintended consequences – parliament cannot foresee all possible situations and some people may get caught in the legislation in a manner that the community would find inappropriate

In reality:

  1. The legislation contains exceptional circumstance provisions
  2. It will not apply to mentally challenged persons
    Click here to see the Fact Sheet
  3. MMS will not apply when parties are close in age (for example in a peer relationship)
  4. Most abuse cases are not exceptional circumstances, they are very familiar cases of adults abusing children where it is clearly inappropriate and unacceptable

One of the biggest arguments against MMS is that it will be removing judicial discretion

In reality:

  1. Judges have proven themselves consistently to be out of touch with community standards
  2. Judges have proven themselves including recently to carry substantial bias or prejudice
  3. Judges have proven themselves to fail to account for the body of evidence (ignoring Victim Impact Statements, not adducing balanced expert reports, etc)
  4. Judge’s sentences are failing to establish adequate deterrent or punitive response, risking Tasmania being regarded as a safe haven for offenders. There has been anecdotal evidence of this for the last 60 years and unfortunately things have not changed
  5. Judges will still have the discretionary power not to use MMS in certain circumstances.

Nothing has changed in 20 years!

A quote from Beyond abuse’s Steve Fisher was “I am absolutely livid that my abuser was allowed to do a deal, as I wanted nothing more than to get into the witness box and tell the story of his depravities to make sure he got a decent sentence. There are other survivors in this trial that feel the same way and we feel ripped off”. Steve Fisher 2003

In this case the perpetrator (Garth Stephen Hawkins) had 7 victims with the charges being 1 count of indecent assault, 3 counts of maintaining a sexual relationship (now known as Persistent Sexual Abuse of a Child) and 1 count of carnal knowledge against the order of nature . Because he pled guilty, he effectively received a sentence of 4 and a half years (non parole).. This was given in 2003 almost 20 years ago.

Looking forward to a very recent case (2022) where a 12 y.o year child was sexually assaulted by a 27 year old adult, and charged with 9 counts of rape plus as the learned sentencing judge said in her sentencing remarks “in addition to the 9 specified cases already outlined there were numerous other occasions” (of abuse). this perpetrator received a 2 year sentence with one year suspended and a 6 month non parole period. 6 months, for giving a victim a life sentence.

Changes in law are required now. After 20 years of advocating for stricter sentencing Beyond Abuse believe, in reality, sentences have not increased in that time despite the expectations of the Tasmanian community and the education of those people making the decisions with regards to the devastation child sexual abuse causes. Beyond Abuse believe this must change and the time for that change is NOW.

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