The release (and unsatisfactory sentence) of paedophile Michael Guider has sped the progress of a bill that will severely punish those found guilty of child sex offences.
We know how it goes. Man violates and/or kills wife, girlfriend, ex-partner, children, or several of these in the one episode; if convicted, he receives woeful sentencing. The community is outraged, and the judiciary explains their sentencing principles and precedent evoked. Everything goes back to business as usual, and the status quo remains.
Last week, the community was enraged as a convicted paedophile and filicide offender, Michael Guider was released from Long Bay Gaol. His child victims (those who still have a voice), protested in horror. As reported in the Daily Telegraph, Guider had been convicted in 1995 of 60 sexual offences against nine girls and two boys, the sentences of which combined to 34 years and three months. However, as the sentences were to be served concurrently, he would only serve an aggregate of 16 years.
Five years later in 2000, Guider was convicted of a further eight sexual offences against another two girls, the sentences of which combined to 35 years, and six months. However, again, the court ordered that the sentences were to be served concurrently, with each other as well as those he was already serving. This meant a startling zero was added to his sentence after the new convictions. In 2002, Guider plead guilty to the manslaughter of 9-year old Samantha Knight, for which he was sentenced to 17 years.
Once again, however, the court ordered that the sentence could be served concurrently so that just eight years would be added to his previous sentence.
Concurrent sentencing has meant that for his heinous crimes which would otherwise attract a total of 86 years imprisonment, he was required to serve 23 of them.
This is hardly justice for the fourteen children and their families devastatingly traumatised by him.
But there are other issues, beyond justice for victims, which need to be considered.
The first of these is deterrence. When concurrent sentencing is used, there is no real incentive for an existing violent offender to stop offending, provided sentences of any new offences remain within the bounds of the original offence.
The second issue relates to the rehabilitative function of sentencing. Here, concurrent sentencing is problematic because of inappropriate signals being sent to the offender as to the relative harm they have caused, and the seriousness of that harm.
In attempting to change their behaviour, it is essential that the person using violence and abuse obtains an awareness of the impact of their behaviour on the targets of that abuse, and that they take full responsibility for that behaviour and its impacts.
Concurrent sentencing has meant that for his heinous crimes which would otherwise attract a total of 86 years imprisonment, Guider was required to serve 23 of them.
Last, but not least, is that concurrent sentencing remains a significant issue in relation to community safety.
When extremely violent perpetrators receive short, concurrent sentences for their crimes, they soon find themselves facing bail hearings (notwithstanding their relatively higher risk to the community as a serious and/or repeat offender), and the court has to decide whether they continue to pose a risk to public safety if released.
In most cases, convicted violent offenders won’t be imprisoned beyond their custodial sentence, but will rather be released with conditions imposed. This is exactly what has happened in the Guider case, despite attempts by NSW Attorney General Mark Speakman to obtain a twelve-month continuing detention order.
In the wake of Guider’s release, the Morrison Government is set to reintroduce a bill to federal parliament this Wednesday. If passed, it would see child sex offenders prosecuted under federal laws facing mandatory minimum sentences, tougher bail conditions, and possible life imprisonment.
The Federal Attorney-General Christian Porter expressed dismay at the inadequacy of sentences currently being handed down in such matters: “It simply beggars belief that nearly a third of all child sex offenders who were sentenced last year were not required to spend a single day behind bars when jail terms were handed out, the average length of time that offenders spent in custody was just 18 months.”
The federal opposition has not previously supported mandatory sentencing, due to concerns it may impact upon jury verdicts and discretion in sentencing. However, is reportedly now open to reconsidering the bill.
This will be one to watch, particularly for international and online crimes. But with the vast majority of violent crime being dealt with under state and territory laws, it is essential that reform takes place at this level.
Effective state and territory reform will require a review of aggregate and concurrent sentencing, which in NSW is dealt with under Part IV of the Crimes (Sentencing Procedure) Act 1999 (NSW). Presently, a court may (in sentencing an offender for more than one offence) “impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.” If the court does not aggregate the sentence, there is a presumption that, except in certain circumstances, sentences for multiple offences be served concurrently.
In setting the term of imprisonment, the court is to take into account the principle of totality, ensuring the overall sentence is just and appropriate, so that it is neither too harsh nor too lenient.
The trouble is, the room for discretion in such cases is wide, leaving it a ripe area for appeal. As we have seen with the Guider case, and many other serial sex offender cases, the court has the capacity to spectacularly miss the mark when it comes to the public’s expectations of justice and community safety.
This time, however, the community outrage seems to be snowballing. People want justice for victims of sex offending, and safer communities for women and children. And until reform is achieved, every sentencing, protection and bail order decision is likely to be under the microscope.