#teensexting | #sexting | Mandatory minimum sentencing introduced for federal child sex offenders

Federal Parliament has just passed laws introducing mandatory minimum sentences for child sex offenders.

The bill covers the offences the states cannot, such as sex offences conducted overseas.

But it would also set a standard the Commonwealth would encourage states and territories to adopt for their own state child sex offences.

There was some last-minute politicking before the legislation passed, and not everyone is convinced the laws are necessary and appropriate.

What is mandatory sentencing?

There is a well-established principle that magistrates and judges have discretion when it comes to how they apply the letter of the law in sentencing a person for a crime, based on the circumstances of each individual case.

No two crimes are the same and, as a result, the consequences faced by criminals should be and are different.

At the same time, there is also a well-established principle that some types of crimes are especially heinous and should be treated differently — particularly when it comes to the vulnerability of the victims.

This is where mandatory minimum sentencing comes from — setting a baseline punishment for perpetrators of particular offences, and removing some of the discretion that judges have in setting penalties.

How harsh will these penalties be?

The law is aimed at child sexual offences, where victims are aged 16 or younger.

One example is the crime of having sex with a child outside of Australia.

Current maximum penalty Proposed minimum penalty Proposed maximum penalty
20 years 6 years 25 years

Another example is using a carriage service for sexual activity with person under 16 years of age — sometimes colloquially referred to as “sexting”.

Current maximum penalty Proposed minimum penalty Proposed maximum penalty
15 5 years 20 years

In the second example, the Federal Government’s bill says the minimum sentence will not apply to offenders aged under 18.

In other words, if two teenagers are sending each other explicit photos, they will not be pursued for criminal charges.

There are a number of other matters included in the bill, including tougher penalties for repeat offenders.

Why has there been debate over these proposals?

The atrocious nature of such crimes and the desire to be seen as being tough on paedophiles generally results in widespread support for such penalties, but the effectiveness of minimum mandatory sentences is questioned by many experts.

The Coalition thinks some offenders are being given punishments of jail terms counted in months rather than years.

“The overarching point … is the community has an expectation that punishment should reflect the seriousness of the offence, and there are no more serious offences than the type of things this legislation deals with,” Attorney-General Christian Porter said.

The Law Council, speaking as the nation’s peak body for lawyers, argued it set a dangerous precedent.

“Mandatory minimum sentences are abhorrent to the whole notion of sentencing where judicial discretion is essential and can result in perverse jury decisions of not guilty for low-end offending where juries think the sentencing outcomes will be unfair because of the mandatory minimum,” President Pauline Wright said.

“The impact of which will mean court delays while cases are brought to trial and require police to expend further resources.”

Mr Porter described that as nonsense, and cited his own experience as a WA politician bringing in tougher sentences for people who assaulted police, which he argued resulted in a drop in crime.

Ms Wright raised the issue of “sexting” — suggesting a scenario where an 18-year-old begins a relationship with a 15-year-old, and they send explicit photos to each other.

She argued the older partner would face years in jail as a result of the laws, as well as if they had sexual contact with their younger partner.

This is the position that was advanced by the Greens, and raised in criticism of the bill by the Labor Party.

The Opposition also cited numerous studies casting doubt on whether minimum sentences served as a deterrent, and its limited effect on preventing reoffending.

“While we maintain our opposition to mandatory sentencing, because it doesn’t work and makes it harder to catch, prosecute and convict criminals, we will not insist on our amendments,” Labor’s Murray Watt told the Senate.

“Protecting the welfare of children will always be Labor’s overriding priority and concerns.”

The laws will have to be reviewed within the next three years.


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