As defence lawyers, we are regularly required to represent a wide nature of defendants accused with a wide array of offences.
Often, the offences for which our clients are charged will outrage the community generally. Consequently, politicians and rule makers will seek to create and amend legislation in line with society’s populist beliefs.
This can often create a difficult playing field for a defence lawyer in that it limits the scope for an otherwise legitimate defence, or creates outcomes not contemplated by society at large.
Proposed amendments by Senator Derryn Hinch
In May 2017 the Senator proposed a new law where convicted paedophiles will have their passports cancelled and will no longer be able to travel overseas. It is intended that this new legislation be introduced to Federal Parliament next month.
Over recent years we have seen the introduction of other legislation which puts sex offender registers which can often be for life and places significant restrictions on those placed on the register.
By large, people agree with such changes because of the general nature of sexual offences and risks to our children. It cannot be disputed that our children should be protected by the courts and law makers.
However, the mandatory sentencing obligations such as the one proposed by Senator Hinch unduly restricts the courts in circumstances where being placed on a register or having ones passport cancelled may seem unjust.
For example, the court has seen in recent times defendants charged with unlawful sexual intercourse when they are 18 years of age and in a relationship with a person of 16 year old. Often charges are brought at the request of parents and can be years after when the two involved are still in a relationship.
The immediate implication is that a defendant would be guilty of the offence with no defence or recourse and placed on a register.
Under the new legislation they would also potentially have their passports cancelled.
This would be a significant penalty that would have adverse effects for the rest of their lives when generally society’s views have changes towards that specific type of behaviour.
Furthermore, with social media more prevalent amongst our children and the sending of explicit ‘selfies’ these too enliven the consequences of this new legislation.
The purpose of this blog is to demonstrate that the full consequences of new laws need to be considered as well as the function of the courts in imposing a sentence and the subsequent penalties before new laws are passed.
If you have concerns , are charged with similar offending or know someone who is charged speak to one of our solicitors for expert legal advice.