The rhetoric advanced to justify mandatory sentencing claims that it is an effective deterrent which reduces the frequency of crime. But research in the United States and in Western Australia, presented to the symposium by Professor David Brown, has shown that it is not. The Northern Territory has not produced any figures to demonstrate that mandatory sentencing has had any effect on the crime rate. The ordinary sentencing discretion takes account of the first two factors and the money argument rings hollow. Sentencing is one of the most exacting of judicial duties.
Punishment is made to fit the crime and the criminal.
To compel a judge or magistrate to impose a mandatory sentence is to demand that he or she quell that sense of fairness which should govern every exercise of judicial power. Mandatory sentencing brutalises the judiciary. When the judicial discretion to fix a fair sentence is taken away, the police power to charge and prosecute becomes all important. In effect, the police decide whether an offender goes to jail or not. Dato' Param Cumaraswamy, the United Nations Rapporteur on the Independence of Judges and Lawyers, told the symposium that the shifting of discretion from the court to the prosecution was a familiar incident of mandatory sentencing regimes.