Very commendable Mirko, the first thing to do is to take control of the legal and justice system away from the legal profession. When you have vested interests, working purely for money, as well as dispensing justice, only one result can be obtained, our present system.

Whilst we have a system only catering for the economic elite, you can't have truth in sentencing, justice or even proper equal representation. Economic elitism is behind our legal system, so it will always fail.

The legal profession exasperates the problems a million fold, by their exorbitant charges and economic discrimination, disregarding the need for proper justice. When you look at the facts, it's not hard to see who is causing the collapse of our legal system and denying justice to the vast majority of citizens.

We have lawyers defending and prosecuting people getting paid huge amounts, (conflict of interest). Lawyers as judges, magistrates, getting paid huge amounts, (conflict of interest). Drawing up of legislation, criminal and civil laws by lawyers, getting paid huge amounts, (another conflict of interest). The law reform commission, (lawyers being paid huge amounts) advising on what and how laws should be changed. Add politicians, mostly lawyers, getting paid huge amounts who decide legislation (another conflict of interest) and you can see the problem.

Until this glaring deceitful disengaging of the populaces right to being fairly treated is removed, nothing will change. What we need is courts free from costs, investigations designed for the truth not convictions nor legal technicality outcomes. Get rid of legalese and its accompaning useless jargon. And stop the legal profession dressing up like clowns or bad cross dressers, from the draconian past.

I tend to agree - the British legal system is founded on one key tenet - better to let ten guilty men go free than imprison one innocent man.

The problem is, that the system does not necessarily protect the innocent. It protects those who can afford to pay the exorbitant lawyers fees. Judges have effectively been reduced to umpires in a match between two lawyers. And the judges are all ex-lawyers anyway, so they're not going to push for reform.

The Australian model is founded upon the British model, but what is so wrong with, say, the German or Japanese models?

Ask any lawyer and they will tell you the adversarial system is not about establishing the truth, rather, it is about two opposing sides. It is for this reason, there is never an 'innocent' verdict, rather 'not guilty'.

The inquisitorial system utilised overseas is effective. Take a look at Japan's crime rate, or that of Germany. You'll find they let off a lot less blatantly guilty people, and imprison fewer innocent ones.

The solution is not alterations to sentencing, rather, adopting a less profit-oriented legal system entirely, that has been proven to work.

Though watch the lawyers kick and scream if you even suggest it... and yet I'm sure they'd have the gall to pretend they aren't biased.

I would like to ask what exactly is 'proportionality' and how do you plan to measure it?

On the matter of fines, fining a poor person $100 for stealing an item, which they need the cash for because their Centrelink payment has been canceled for eight weeks under the new welfare scheme is going to have a vastly disproportionate impact to giving the same fine to a wealthy person who stole it for fun.

So, once again, I would like to know how 'proportionality' will be measured under such a mandatory sentencing scheme, and what exactly is the goal you're trying to achieve?

I agree that it is unfair and possibly scary that some people get away with violent crimes, but I don't think retributive justice is the answer.

I think that this is a crazy idea. Every state election we have two sides trying to out do each other, "We're tougher on crime than you lot". Jail sentences are actually increasing as are the number of people in jails.

We need decent legal aid, victim impact statements and rehabilitation for prisoners not grids. Mirko under your grid the HIH criminals would walk free (while they earn $5 billion to repay society). Our system is not perfect but yours would be worse.

What will the do-gooders say to Mirko Bagaric’s claim that: “The empirical evidence shows that rehabilitation doesn’t work.” The usual suspects routinely rubbish any run of the mill poster on OLO for saying this, but here is a lawyer saying the same thing. Will he be called ignorant and uninformed by the usual know-alls who regularly display more care for criminals than they do for victims?

“It is false that we should rely on judges to achieve proper sentencing outcomes. Judges are not trained in sentencing. They do not have some sort of mystical fairness antenna. Their hunches are not superior to those of other people in the community. Let’s take all hunches out of the system and ensure that all offenders get their just deserts”, writes the author.
How many times have laymen said that and been howled down by smart alecks and an arrogant judiciary? When state governments such as in SA listen to the electorate and try to do something about the ridiculous sentences handed down by judges, the Chief Justice complains that the government is ‘undermining’ the public’s faith in the Courts.
The public lost faith in the Courts long ago!

Mirko Bagaric brings to our attention not only the fact that we already know - the Court system is a joke – but also the fact that the whole unsatisfactory mess can be improved with little fuss.

Serious offenders should hang. Just a few of the worst each year, to encourage the others.

1 We need decent legal aid resources and funding. Any indigent person facing a criminal court must not be refused legal aid under any circumstances;
2 To reduce the workload on our Courts and promote an evidence-based approach to an issue, to end liability for possession of any personal use quantity of any currently illicit drug;
3 Convert other minor criminal offenses into matters which may be dealt with by penalty/infringement notice rather than by putting them in Court in the first instance;
4 Increased scrutiny of prosecutors, particularly with regard to their launching of weak cases. Ideally the police will cease to hold this function, and smaller criminal matters dealt in Court will be handled by their state DPP Offices, such Offices actions should be predicated on the balanced interests of the accused and community, rather than just winning at any costs--even with innocent defendants or oppressive outcomes against guilty defendants;
5 A serious examination of our priorities in regard to victimless crimes, or "crimes" against "victims" which Corporations usually are victims rather than natural persons;
6 Get rid of this just desserts idea. Revenge does not equal justice, and notions of specific deterrence seem useless too. It is important that our judiciary in a free society makes balanced decisions, not simply does the bidding of the Executive [or media].

Do you suggest we start with Howard, Bush, Blair, Berlussconni et. al. Plerdsus?

Their violent domestic and foreign policies have probably contributed to most of the otherwise avoidable deaths that have orccured on the planet in recent times.

I appreciate the Mirko’s call for a fairer system. But I share Carkeys’ concerns;

How on earth do you make it proportional without eliminating or severely eroding the notions of mitigating circumstances, severity, genuine remorse, etc? What sort of a system would we have if these things aren’t considered? A system of mandatory sentences without consideration of individual circumstances would be no less fair.

Perhaps we need a fair judges commission, which judges the judges. Perhaps judges should be required to put a judgement in context and comparison with other judgements on similar matters, and be able to vigorously defend their judgements under intensive cross-examination by a judges commission.

Whatever the case, making judges more accountable sounds like a necessary part of the solution.

And let’s be careful about notions such as a ten-fold payback (“thieves would receive a fine equivalent to ten times the value of the goods”). This is certainly not in keeping with proportionality or fairness.

What a great idea. We can do away with courts altogether and have the case heard by twelve good men and true in a local park the day after the arrest. As the sentence is pre determined,only the proof of guilt need be established. Of course this system is loosely based on what I've seen in the far more brutal Middle Eastern justice system. I note that the Middle Eastern system,for all its brutality has failed to stem the tide of crime, either. Maybe there is too many breakable laws these days.

All we need to do is put value back into existing provisions. The term "suspended sentence" should mean suspended from a large oaken beam, by a strong hempen rope.

Another idea would be to bring back the lash. The sight of one of our corporate cowboys getting a Botany Bay dozen in the middle of martin Place, would make headlines around the world. If you sold the TV rights and spectator seats, you might make enough money to pay back some of their fraud.

Remember Henry Bolte's comment in 1966: "If you want to win an election, put on a hanging".

I was interested in the suggestion that Howard etc. should be executed. I would be interested to know what Australian laws they are supposed to have broken. Please don't waffle on about supposed international law, we know that is a joke, just like the UN.

People who trash the general performance of our judiciary are being taken in by media hype. The press, for obvious commercial reasons, looks to report controversy and usually present (and omit) facts in a way which inflames. Injustices do occur, but newspaper reports are very often exaggerated and misleading. When I bother to read the court judgements, I usually find the journalism to be shoddy and the judgements reasonable.

While most people have their own notions of fairness (eg, ‘an eye for an eye’), defining fairness in a way applicable to every situation is extremely complicated, as any law student soon realises. By way of example, one difficult issue is whether punishment ought to reflect consequences or intentions – consider the following cases:

Person A shoots at another person, but due to poor aim, misses.

Speeding driver (B) accidentally kills a pedestrian.

Should person A receive a lesser sentence because he has poor aim?

Should the speeding driver be treated harshly because he's unluckier than those who speed without incident?

In answering this question a judge will consider numerous issues including the wickedness of the offence, the effect on the victim, the need for deterrence, the prospects of rehabilitation, the need to protect the community. I think this is a reasonable approach and delivers consistently just results.

A ‘grid system’ on the other hand, as with all variations on mandatory sentencing, is not flexible enough to deal with each case on its merits.

Which is our priority - consistent sentencing or consistent justice?

It seems everyone has narrow minds.
It takes abroad mind to see there is no inconsistancy when people get different sentences for the same crime.
Circumstances are as different as there are leaves in a forest. No crime is exactly the same.
Why can't people see that. They do not search into the hearst of humanity and passion.
All they see is the statute books, page 657, paragragh 42, line 2c.
How silly.
Long hard jail sentences on the head of Man does not stop people committing crimes.
This was learned by the kings of England in the 18th century.
Giving 100 lashes to men who stole a loaf of bread meant that next time they will steal two loaves, until the kings ships had to leave Engand with so many convicts that they populated the world.
Yes, we are going back to the 18th century in the name of being modern.

It is Western Governments (using their overbearing force) that have made the UN a joke Plerdsus. 192 countries have called for a ceasfire - only 3 haven't - and guess what - these countries (USA, UK and Isreal) are marked by their dogmatic use of violence and overwhelming fire power. Being the most 'forceful' - only makes you the biggest bully. Ultimately (as mankind discovered through the painful years of slavery abolition) the greatest and most admirable display of human strength is peaceful resistence to brute force.

On other levels, these "people" (US and British politicians) would be charged for armed robbery. Using lables like "state", "sovereign", etc - do not hide the facts of their actions - mere words to fool some people - but quite obviously, right around the world (including neutral countries), not most of the people. The US and the UK are exposed for their greed and violence. The sooner we can distance ourselves from complicity the better.

Steve Madden wrote .....<<We need decent legal aid, victim impact statements and rehabilitation for prisoners not grids. Mirko under your grid the HIH criminals would walk free (while they earn $5 billion to repay society). Our system is not perfect but yours would be worse.>>

I agree with most of what Steve says about needing a far better legal aid - but victim impact statements shoud really determine the severity of the crime - and the punishment. The more the victim(s) is/are impacted, then the more severe the punishment should be.

However I totally disagree with his assumption that the HIH thieves would walk away free under this system.

After all they were charged with stealing the money of how many people and got away with it now? Now if they were charged with the individual stealing of every individual persons money AND the sentence was a compulsory accumulative sentence, rather than a concurrent one .... then we would see some justice

K£vin,

I am glad you agree with me that the UN is a joke. It would be wonderful if the lion could lie down with the lamb, but that only happens in fantasies, not real life. When terrorists attack you, you either reply in turn or go under. Considering that current revival in religion (no doubt due to the increasing uncertainty of life) the current buzzphrase could be the one spoken by Chaplain Howell Forgy at Pearl Harbor in 1941 when the crew were manually taking shells to the guns on the battleship New Orleans:

"Praise the Lord and pass the ammunition".

If you think that the current struggle in the Middle East is going to be solved peacefully you must live in cloud cuckoo land. It could extend to become a war between the West and the whole muslim world. We are closer to nuclear war than we have ever been.

Israel is our ally, and Hezbollah is the enemy.

Each day the UN is looking more and more like the League of Nations.

With India having the same voting power as Nauru it has never been remotely democratic.

Thank heavens we have a sea boundary.

It is time the pendulum swung back to real life sentences. With some modification. Perhaps we could have sentencing by numbers. No.1 could be treason, premeditated murder, rape and child molestation. Death by injection. No appeal.
No2, a lesser crime but still bad,20 years with no parole, no remission for deliberate crimes against persons.
And so on ,lesser crime could have parole or remission but never the first two.
Then every one would know where they stood and it wouldn't matter if judges were bleeding hearts or hearts of stone.
That crime would get that penalty. That is very clear and just.

Mickijo,

I personally have a few problems with your sentencing structure(s)

1. It is all well and good being convicted of treachery and treason, however, what would you call a turncoat who betrayed his country to another – and was then given sanctuary in the country? …. Would you then demand he be returned for his execution? I am sure the god almighty Americans would demand …. But would they also acquiesce a return of a traitor?

2…Rape is also another highly contentious issue, for there are many rapes which turn out to be somewhat a matter of matter of vexatious petty revenge for some imagined slight. Yes – there are many pack rapes as well as some vicious rapes, and these really need to be addressed, but who would be Solomon …. And separate them in degrees? Surely you would not have them all lumped into one mass crime of similar disparity?

3. Would child molestation be treated the same as child bashing occasioning severe physical trauma? How would you judge the difference –or severity for that matter? Why now do we see that women getting laughable sentences compared to male offenders? We now see that a woman has been charged with sexual offences against a girl over a period of two years – it will be very interesting to see what kind of sentence she attracts for her crime.

Personally I have no problem with an intentional murderer being done away with – but once again, it would have to be proven without doubt!! After all they had no compunction killing another person, so I would have no compunction finishing his also.

4. OK – Now violence against a person is usually not much in question and should be addressed as such. But again, how would you define domestic violence? Keep well in mind, despite cries to the contrary, domestic violence is almost 50/50.

It is as one poster says, not an easy task, because each person commits a different type of crime, for a different reason

kekenda, I am no lawyer so I cannot answer the depth of your questions but what seems wrong to me is that two different judges can give two different judgements on the same two crimes.
If you get a 'soft' judge, he/she may let the alleged crim off with a warning and the crim simply goes and does it all again, simply because he/she has learned nothing by being let off.
It happens far too often for it to be permitted to go on .
The law has become a tame wimp because bleeding hearts win every argument.
If you deliberately hurt someone you must be taught that you too can be hurt.
The law is not respected because it does not earn respect.It is a joke.

Mickijo,

I also am no lawyer and perhaps like you, would think this world a far better place without them in many instances, as their collective morals are on a par with politicians. I have in two occasions have had severe actions being taken against them by a court - but that is another story.

Judges are in my opinion mere second rate lawyers overseeing two morons and deciding which of the two tell more plausible lies - sound familiar? AND of course you are so correct when you say that "The law is not respected because it does not earn respect." You are also correct when you say it is a joke, but the problem is that the joke is usually on us..... the decisions that have been handed down from some Magistrates and many Judges most definitely do not reflect community values and I have seen (as no doubt you also) so many repeat convicted offenders laughing their way out of courts with less than a slap across the wrist for crimes worthy of many years in jails.

You have however, shown some prejudice when you make use of the word "alleged" crim - everyone must be afforded the benefit of innocence until proven guilty - THEN, and only then should they be punished for their transgressions - that much should be quite clear.

We have too many laws and of course, we have too many more being made which mean absolutely nothing to the people. What we have now are so many laws, that no one can understand them – what we have a re so many simple and effective laws that are just not used properly and effectively by the judiciary who are far out of touch with the populace – they are just plainly incompetent!

– but then again would you go to the extreme of the sharia laws?

Oh – by the way my name is kekenidika – not kekenda

Thank you.

kekenidika, sorry about the name, by the time I get to respond to other's posts,severe I-can't-remember-the name has set in and I have to make a guess, no disrespect intended.
I used the word 'alleged' because a person is ,as far as I know, not a criminal until judged.As far as I know.
I would resist with all vigour any form of sharia law coming into this country. Despite some saying it is similar to westminster law, it is a law worthy only of brutal,dogmatic,backward countries. In fact our government should legislate against any form of practice of sharia. It is foreign and totally unAustralian.