Remorse and sentencing: We can’t treat terror like tax
Analysis for The Australian by Professor Mirko Bagaric, Swinburne University of Technology
It is hard to imagine a more dreadful plan than to fire a machine gun into thousands of random, innocent civilians. Equally, it is hard to imagine a lighter jail sentence — just 7½ years — for making arrangements for such a crime.
The sentence imposed on Ali Khalif Shire Ali last week by the Victorian Supreme Court for preparing that terrorist plan is egregiously lenient, so much so I believe it debases the integrity of the criminal justice system. He could have been given life in jail.
Ali, 23, planned to shoot as many civilians as he could and take hostages at the New Year’s Eve celebrations attended by thousands at Melbourne’s Federation Square in 2017. His plan came undone when he tried to buy an AK-47 assault rifle from undercover police. He told police the attack would occur during the countdown to midnight, at which point he planned to “go hard”.
The sentencing judge noted that Ali “planned to commit an evil act, designed to cause the deaths of many innocent people”. The judge also observed that had Ali succeeded it would have resulted in a “terrifying and horrifying toll” and added that his plan was “a random and despicable act”.
At the sentencing hearing, Ali said he was sorry for his actions and that he now renounced Islamic State, which he blamed for radicalising him through online videos. The sentencing judge stated that Ali appeared to find some “redemption, or was at least on the path towards it”.
The fact an expression of remorse can reduce the severity of any penalty represents one of the key failings of the sentencing system. It is impossible to distinguish genuine remorse from a strategic statement designed to secure a lighter sentence.
Feeling remorseful for committing or attempting to commit such a heinous crime is hardly a commendation for which a would-be mass killer should be rewarded. Rather, this is the minimally decent response we can expect from a normal human being. Remorse at committing a terrible crime is no more commendable than driving on the left-hand side of the road or not being cruel to animals. It is expected behaviour. It is quite misguided that our worst criminals can receive significantly lower penalties merely for disavowing their crimes.
Ali’s light penalty severs the connection between the seriousness of the crime and hardship of the sanction. The need for proportionality between the two considerations is a fundamental bulwark of justice. Also, his penalty does not reflect the cardinal status that the safety of the community should have in the sentencing calculus.
This lurch towards light sentencing has seen some terrorists treated as if they were tax dodgers; in 2015 Martin Douglas Aitchison was sentenced to eight years’ jail for fraudulently claiming almost $6m on BAS returns to save his struggling business and fund an extravagant lifestyle.
Ali is a relatively young offender and courts often will give a discount for this. Aitchison was 64 at the time and the empirical data shows it is older offenders who have the lowest rate of reoffending. The community almost certainly has nothing to fear when Aitchison is released, but there are no proven rehabilitation programs for terrorists. Australians have good reason to be concerned when Ali is released and presumably closely monitored by the security services. Cameron Stewart revealed in this newspaper in 2014 that it can cost taxpayers up to $8m a year to have a single Australian jihadist monitored around the clock by security agencies.
Following Ali’s arrest his brother, Hassan, committed his own terror attack in Melbourne’s CBD in November 2018, setting his car on fire before stabbing three people, killing one. Hassan then goaded police into shooting him and was killed.
If we are to treat offenders who plan to kill countless innocents in a similar manner to tax cheats we have moved beyond a properly balanced and just sentencing system.
Indeed, even calling it a “system” may be overstating things. It is a process where unaccountable (albeit well-intentioned) judges pick and choose sanctions that feel right, but are not necessarily informed by empirical facts regarding the relative seriousness of criminal offences or data regarding what might be achievable through a state-imposed sanction.
The best manner in which to make things fairer would be for our governments to impose minimum sentences for serious sexual, violent and terror offences. Governments baulk at this, fearing a backlash from the legal community, which argues that minimum sentences don’t achieve individualised justice and can lead to overly punitive outcomes.
But this can be remedied with a system of mandatory sentences where the imposed penalties are not overly severe — we should keep them proportionate with the least serious offence of the relevant category of crime. It is why mandatory loss-of-licence penalties for drink-driving are so effective and popular, even among lawyers.
And that is the reason no person who commits a terrorist act involving the loss of life should spend less than 30 years in prison. Offenders who are thwarted from committing such crimes, such as Ali, should receive no less than 20 years — the 10-year reduction being a concession for the fact that ultimately no lives were lost.
It is a failure of our governments that they resist such reform.
This article is republished from The Australian. Read the original article.
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