Crime And Crime

Crime damages the ‘community good’. That ‘good’ might be defined as ‘subjective non-interference’ whereby individuals benefit from the protection of the law and its related institutions.

Primarily, in the absence of government, greater distress is caused. Interference should be limited. Punishment should seek to enhance the ‘community good’ by preventing similar or greater offences, offer satisfaction to those injured and help to reform the offender.

As the Attorney General observed in 2009, even though the Criminal Organisation Bill (as it then stood) was a clear attack on freedom to associate and was intended for ‘bikie gangs’, ‘it could be used against any group that falls into this favour regardless of the purposes of gathering’. Paradoxically, librarian Sally Kuether, a mother of three, faces a mandatory six months imprisonment for having a beer with her fiancé and his friend, both members of the Life and Death motorcycle club, in December 2013 pursuant to charges laid under this Act.

Kuether’s case reflects the potential for this Act to infringe on individual actions, which are otherwise entirely legal, on the basis of association. How can such a threat to liberty reasonably be argued to advance the ‘community good’? What benefit would the community need to compensate for such an obvious cost? The Act assumes that it will cause those associations will become obsolete. Whether, in practice, this will be achieved, is far from clear.

1.4. Mandatory sentencing: infringing on individual rights for the ‘community good’

For Bentham, punishment is blame; but not just blame. Punishment should be proportional harm caused. It should be a sufficient deterrent, but not disadvantageous or needless. Regardless of whet...

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...nt and not a threat to the innocent. Punishment should serve justice. Penal sanctions should vindicate the victim, deters future infringements of individual liberty and provides retribution to the offender.

Limiting the right to associate is not illegitimate. Legislation that infringes on judicial discretion and the rule of law unacceptably encroaches on individual liberty. Although these are not the primary concern of Bentham, the ‘community good’ cannot be serviced when these liberties are tampered with.

Mandatory sentencing on the basis of association is a protectionist and unreasonable means of disincentivising association. It arbitrarily infringes on individual liberty.

The legislation should be amended to abolish mandatory sentencing. It could provide a prosecutable limitation to association in itself. Sentencing should be proportionate to the offence.