The Aussie criminal justice scene is fascinating. A headlong retreat from the 30 year failed experiment with 'offender centred' sentencing is getting cross-party support. Instead of justice as therapy for the offender they are unapologetically going back to justice to balance the scales for the victim, to deter, and to incapacitate offenders.

The NSW government has announced a serious (8 year) mandatory prison sentencing for 'king hit' assaults while drunk or under the influence of drugs. Instead of the whining we would expect from Labour and the Greens here it has been welcomed by the political opposition.

What a contrast with New Zealand's recent reversion to 'tag and release' policing, and prosecutors under severe cost pressure to drop charges or plea bargain.Our National government has leapt on the crime reduction response to the toughening up of the last few years as an excuse to take the pressure off criminals just when the message should be driven home. National is treating criminal justice reform like feckless patients treat their prescriptions. Instead of staying the course to wipe out an epidemic, they stop taking the pills as soon as they feel better. We'll pay the price here as the infection breaks out again

Rawdon Christie interviewed me this morning as spokesman for our client the Sensible Sentencing Trust.

I emphasized the need for law to be more simple and certain. We are deemed to know the law when in reality it has become so complex and subject to judicial discretion that even lawyers cant tell you in advance the costs and consequences of your actions.

I am sympathetic to the certainty objectives of the NSW approach and support it against fellow lawyers’ hostility to mandatory sentencing. But I think it would be better to start with a more simple kind of offending. 8 years mandatory for a punch could be too arbitrary. It will need carve-outs. For example, a punch could be justified self defence, especially if the confrontation is with more than one threatening person.

The key question should be provocation. When a person is essentially defenceless there is no excuse.

There is no excuse for kicking a person on the ground in the head. We should trial mandatory law in the assault area first by borrowing an approach used in Europe, where a kick in the head is deemed to be evidence of intent to kill or recklessness about killing.  Accordingly the charge for head kicking of a person on the ground, or any serious bashing of a person on the ground, could be attempted murder, with intention deemed, and a minimum sentence prescribed in the absence of a serious miscarriage of justice.

We need it to be simple folklore, known to everyone in the land, whether thug or not, that the result of deliberate kicking people in the head on the ground will be serious time in jail, even if it is your first offence. In other words, it should be folklore that if you attack a person who is no longer in a position to respond or to threaten you, with actions likely to cause permanent brain injury, there is no defence.

The research on what works as a violent crime deterrent is very unequivocal. Speed and certainty of consequence beats severity of sentence.

Judges and lawyers hate mandatory sentencing. They hate certainty in rules. They have some justification for concern. It can be harsh, and have unintended applications. Judges, prosecution and defence may collude to avoid charges or convictions that will attract the application of the minimum where it seems excessive.

But from my experience lawyers never test their fears and preferences against rigorous research – asking what will best reduce temptations to crime for the marginal offender (the one most likely to be affected by the probability of detection, conviction, punishment and being obliged to serve the sentence in full).  They do not acknowledge what I think the be their primary reason for hating mandatory sentencing – that it diminishes their power and  the importance of what they do. They cease to be the controlling spiders at the centre of the web, deciding what happens. Under mandatory sentencing what happens is determined by the law, and the offender’s behaviour, not the lawyer lottery.

President Clinton’s 1996 criminal justice reforms brought in the mandatory sentencing matrix at a federal level in the US. The huge number of lives saved as their violent offending rates plummeted are the kind of political bequest SST wants to leave.