Judge Madgwick QC,
Chapter 7 Courts and Imprisonment
Coroners rarely commented on judicial and sentencing processes. In a number of cases information regarding this process was available and is commented upon in recommendations concerning courts, imprisonment and related government programs. The need for coroners to examine the administration of justice is considered in chapter 10.
The increasing rate of over-representation of Aboriginal people in prison raises obvious questions regarding recent 'law and order' legislation by state and territory governments, the availability of non-custodial options, adequate representation and the sensitivity of the judiciary to the situation of Aboriginal defendants. While many Aboriginal people are imprisoned for serious offences, the continuing imprisonment of Aboriginal people for the trifecta and other less serious offences, as discussed in chapter 4, remains disturbing.
Table 7 indicates that a high number of breaches occurred in the area of the judiciary using imprisonment as a last resort (R92), failure of governments to introduce programs to reduce the incidence of motor vehicle offences (R95) and imprisonment for non-payment of fines (R121). The numbers are small denying meaningful comparison. Nevertheless, Table 7 indicates that the breaches are concentrated in New South Wales, Queensland and Western Australia.
Table 7a Breaches of Recommendations by Authority and Period
Recommendation 92 - Imprisonment as a Last Resort
All jurisdictions have implemented this recommendation at the legislative level except for Northern Territory 1 and Tasmania 2. These jurisdictions do not claim full implementation of the recommendation. However, recommendation 92 provides the foundational principle for the thirty recommendations concerning courts and imprisonment.
The increasing over-representation rate of Aboriginal people in prison provides a strong indicator as to the effect of the non-implementation of this principle.
There were a number of cases which raised questions as to the appropriateness of a custodial sentence or its length. Other cases raised issues concerning the trifecta, break and enter and the need for independent prosecution of offences in which police have an interest. Other criminal legislation and diversionary schemes are also discussed.
There were six cases where there was sufficient information to conclude that sentences of imprisonment were excessive or not justified. (See also profile 37NSW)
A magistrate sentenced the women who died at Macquarie Fields Police Station (39NSW) to one month imprisonment for a minor cannabis offence. The chairman of the NSW ALS commented that other alternatives were available such as a fine or weekend detention. However, the magistrate at Campbelltown Local Court refused to allow the preparation of a pre-sentence report. The report would have revealed that the deceased's medical history. The deceased was also the mother of three children. The custodial sentence was inappropriate. The deceased's had a need for drug rehabilitation. She committed suicide within 24 hours of entering prison. In the inquest, Coroner Hiatt urged that imprisonment be used as a last resort.
The 24 year old man who died in Rockhampton Prison (14QLD) was three days earlier sentenced to three months imprisonment for damaging government property while attempting to hang himself in a Queensland watch-house. The Coroner found that the deceased was not coping with prison life. An extension of his prison term was clearly not justified, particularly when the Royal Commission recommended that charges not be laid for attempted suicide (see discussion under recommendation 165).
A 17 year old juvenile who died at Lotus Glen Prison (22QLD) was sentenced to two years and ten months imprisonment. He was sentenced to two and half years imprisonment for wilful exposure (masturbation on a private verandah), assaulting a police officer on Palm Island, threatening to give him the AIDS virus, and attempting to escape from police custody. He then received an extra four months for a break and enter offence ($123 of meat and milk from butchers) which he committed whilst he was on bail. The deceased pleaded guilty to all charges at the first possible stage, showed remorse, had no criminal record and a life expectancy of only two years due to the AIDS virus.
The 27 year old man who died at Borallon Prison (74QLD) on 20 April 1995 was serving a sentence for offences which included non-payment of fines. For these minor offences non-custodial options should have been available. The 46 year old man at Long Bay (52NSW) was sentenced to eight months imprisonment for stealing a few electrical tools.
The remaining case (19NSW) is discussed below as it relates to issues concerning the trifecta and break and enter with intent to steal.
The acceptance by magistrates of 'trifecta' charges is a continuing problem. As discussed under recommendation 86, There were five cases where offensive language was used as an initiating charge by police followed by charges of resist arrest and assault police (25QLD, 1SA, 29SA, 53QLD, 45QLD). For the offence of assault occasioning no bodily harm Aboriginal people were twice as likely to be arrested than non-Aboriginal people. For those in prison the rate was three times.
The criminal record of the 19 year old man who died at Long Bay Prison (19NSW) is illustrative. He was first sentenced on 5 January 1990 to six months imprisonment for the offences of:
The laying of each of the six charges is open to question. Six months imprisonment for these offences seems difficult to justify in light of the deceased's age, psychiatric problems and absence of criminal record.
The 'multiple charge syndrome' was not directly addressed by the Royal Commission but was raised in 1994 by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in their Report entitled Justice Under Scrutiny. 3After being informed that 'some magistrates were quite resistant to suggestions of police provocation' 4 the Standing Committee recommended that:
There is also evidence of police use of alternatives to the traditional trifecta. A recent study also found that between 1990 and 1992 the only people imprisoned in New South Wales for malicious damage were Aboriginal. 6 As noted above, the man who died at Long Bay Prison (19NSW) was convicted of malicious damage and maliciously destroy property. This practice is confirmed in the Justice Under Scrutiny Report where the Committee stated:
Break and Enter
In a report commissioned by the Juvenile Justice Advisory Council of NSW the authors note that Aboriginal people were over-represented in the category break and enter with intent to steal. 8 It has also been found in New South Wales that Aboriginal people received shorter prison sentences for break and enter offences than non-Aboriginal people, although this figure is distorted given that they are less likely to be given diversionary options. 9 This may indicate that Aboriginal people are falling prey to the pressure of police clean up rates. The man who died at Long Bay Prison (19NSW) was sentenced to two years imprisonment for burglary and break and enter with intent to steal. Charges of theft or trespass may be more appropriate in some cases.
The high numbers of Aboriginal people incarcerated for assault police, assault without harm and break and enter (see chapter 4) raises questions about police arrests and uncritical acceptance by the judiciary of police evidence. Police have an interest if they are the complainants, and have incentives to improve their clean up rates for break and enter, 10 which are traditionally low. This environment encourages 'police verbals' or process corruption. 11 It raises the issue of conflict of interest in prosecution. 12
Police currently both prosecute and have the running of investigations into offences in which they have a significant interest. Given the historical relationship between Aboriginal people and police, and their vulnerability to arrest, 13 their prosecution should be vetted by an independent body. The recent decision of the New South Wales Office of the Director of Public Prosecutions to prosecute all local court matters in a scheme being piloted in the Dubbo and Campbelltown regions is welcome. 14 All states should consider such schemes. The use of police prosecutors in local courts is as anachronistic as the use of justices of the peace (see recommendation 98). Shifts in these practices are essential to the effective implementation of recommendation 92.
Since 1989, when imprisonment as a last resort was the first recommendation of the Muirhead Interim Report, Aboriginal prison numbers have risen in all states, and Aboriginal prison numbers in South Australia and New South Wales have doubled. A large part of the problem in those states that have introduced legislative statements of principle that imprisonment is to be a last resort 15 seems to be that the operative provisions of the legislation continue to work to the disadvantage of Aboriginal people. 'Truth in sentencing' provisions in New South Wales, Northern Territory, Western Australia, Victoria, South Australia and Western Australia, and related legislation such as the Young Offenders Act 1995 (WA), directly offend the principle of imprisonment as a last resort.16
Recent maverick proposals of States and Territories include the Northern Territory Government's mandatory minimum gaol terms for all prisoners aged 17 and over convicted of property crimes. Juveniles face mandatory detention on their second conviction. A Bill to this effect is apparently to be introduced into Parliament in 1996. An arbitrary punishment for all whose offending behaviour falls within this broad spectrum violates the principle of incarceration as a last resort. It will dramatically increase juvenile and adult remand populations (because of the disincentive to plead guilty) as well as prison populations. The harshest impact will be on trivial offenders and first offenders. It is a profoundly counter-productive legislative proposal. Another new Northern Territory law imposes a fine of $1000 for non-attendance at court, which will lead to more incarceration for fine default. 17
Other indicators of implementation, such as numbers of Aboriginal people in prisons compared to diversionary schemes also reveal non-compliance with the recommendation. 18 A study published in 1995 reported:
The Western Australian case is typical: 41 per cent of prisoners received in 1993 were Aboriginal, but only 24.4 per cent of those serving non-custodial orders were Aboriginal. Considering the profile of Aboriginal offenders, notably the generally higher percentages of the Aboriginal prison population in the lower offence categories (see chapter 4), statutory accommodation of the principle alone is obviously inadequate. Since the comment above was made the statement of principle in s19A of the Criminal Code (WA) was repealed, and replaced by a weaker provision in s6(4) of the Sentencing Act 1995 (WA).
A significant number of people who died in custody had mental illnesses (see discussion under recommendation 60 in chapter 6 and152g(vi) in chapter 7). The circumstances of arrest and trial in a number of cases indicate the need for people with mental illnesses to be diverted to appropriate services and facilities (see for example 12NT, A6NSW and A7QLD).
The Queensland Mental Health Plan provides for the establishment of a forensic Court Liaison Service (see A7QLD). This would provide specialised assessment and referral at the time of first court appearance and the establishment of a mobile intensive treatment team to provide assessment and assertive follow-up to prevent people with mental disorders becoming inappropriately involved in the criminal justice system.
State Governments should not claim to have implemented this recommendation where substantive provisions or court practice mean that statements of principle are of no practical benefit to Aboriginal people.
Disadvantage leaves Aboriginal defendants with a typical profile. Relatively high numbers of prior convictions are standard. These are often the legacy of charges never contested in court -either because of distance from court (see Profile 1SA) or the combination of the perceived low chance of acquittal and the promise of a lesser penalty with a guilty plea. The high number of prior offences is a direct result of frequent contact with police. Prior convictions often disqualify Aboriginal people from diversionary options. For some, frustration and alcohol combine to produce acts of violence, overwhelmingly against other Aboriginal people. The presence of aggravating factors in assaults -a stick used in a fight or something more serious -also prevents access to the diversionary options suggested by recommendations 92-121. Statements of principle that imprisonment should be a last resort, and the concomitant availability of diversionary options, should be tailored to address this type of offending. Community service orders and other community level punishments are not soft options. They alone can combat the cycle of imprisonment faced by Aboriginal people.
Recommendation 95 - Motor Vehicle Programs
The Northern Territory is the only jurisdiction which claims to have fully implemented this recommendation. It is clear that motor vehicle offences remain a significant cause of Aboriginal imprisonment. Twenty of the 96 deaths in custody involved motor vehicle offences. Eleven Aboriginal people died in police car pursuit (40NSW, 80NSW, 81NSW, 94QLD, 15WA, 16WA, 17WA, 24WA, 35WA, 86WA, 89WA). Others had committed, or were arrested for committing, motor vehicle theft (7NSW, 67NSW, 34QLD, 41QLD, 68SA), driving while disqualified (3QLD, 74QLD) driving without a licence (45QLD) and driving under the influence (69QLD). This is consistent with chapter 4 which indicated that Aboriginal people are significantly over-represented in a number of motor vehicle offences, particularly car theft, drink driving and driving without a licence.
This continuing problem is a further indication that recommendation 95 has not received sufficient attention from governments. Implementation reports of governments indicate that there are few programs in operation despite claims that this recommendation has been supported or implemented. It is welcome that 'hand brake turn' programmes exist for the rehabilitation of juveniles caught either stealing cars or stealing from cars, but more programmes such as this are needed and Aboriginal juveniles must be given access to them. 20 Such programmes may operate as diversionary options to detention. They may teach young offenders about motor mechanics and driving skills. If well constructed they may lead onto apprenticeships and training schemes rather than a cycle of re-offending and longer detention.
Legislative impediments also need to be removed. In Victoria for example, fines are not an option on a second conviction for driving while disqualified.
Recommendation 96 - Judicial and Court Officer Cross-Cultural Training
Three jurisdictions claim full implementation of this recommendation (New South Wales, Victoria and Northern Territory). Court judgments which could throw light on implementation were only available in two cases. In the death at Lotus Glen (22QLD) the deceased appealed against the severity of his sentence (see discussion in recommendation 92). Behrendt states that the courts treated the deceased's HIV condition with 'offensive and callous brevity.'Certainly the record bears that out: 'we understand that he has also been informed at the beginning of 1990 that he had the HIV condition and that he will die from it. He is a person of low intelligence.' This case can be contrasted to the case of the man who died of leukemia (9SA) in Modbury Hospital, South Australia. In that case the deceased protested and cut his wrists after his sentencing was postponed. The judge acceded to the deceased's request and his sentencing was brought forward and carried out by the deceased's bedside. The Coroner found that the deceased was treated humanely in the week of his death.
The judicial conservatism within Queensland was noted in the Justice Under Scrutiny Report. 21 The House of Representatives Standing Committee found that there was no training for judicial officers or a judicial commission similar to that in New South Wales. The Committee recommended that Queensland fully implement recommendation 96. 22
Recommendation 98 - Justices of the Peace
The Royal Commission found that Justices of the Peace have generally shown a disinclination towards non-custodial options . 23
The Royal Commission noted that the appointment of Aboriginal Justices of the Peace for communities can be appropriate but found that, like the Australian Law Reform Commission, justices should be withdrawn from all criminal cases, at least in areas of high Aboriginal population.
The conservatism of Justices of the Peace can be seen in the case at Ceduna Police Station (1SA). The deceased's bail application was refused by a Justice of the Peace. A magistrate may have very well made a different decision in the circumstances.
Western Australia, South Australia, Queensland and Tasmania have not implemented this recommendation (See 1SA and 33WA). The rate of Indigenous over-representation in prison is the highest in Western Australia and South Australia, where justices of the peace are commonplace. At the time of writing a bill before the South Australian parliament, which if passed will address this continuing non-implementation of this recommendation. When the new Sentencing Act 1995 (WA) is proclaimed it will allow for review by a magistrate of sentences imposed by a justice of the peace. While this is a welcome interim measure, its practical effect is uncertain.
Queensland interpreted this recommendation as requiring Aboriginal justices of the peace.24 Tasmania continues to use justices of peace for sentencing offences which carry no offence of imprisonment. New South Wales, Victoria and Northern Territory state this recommendation has been fully implemented. However, the Northern Territory report only addresses offences carrying a sentence of imprisonment and the New South Wales report carries no explanation as to the manner of implementation.
Recommendation 99 - Interpreters
Queensland and Tasmania claim part implementation while Northern Territory only gives the recommendation qualified support. The Commonwealth and the remaining jurisdictions claim full implementation of this recommendation. However, a House of Representatives Committee recommended that the Commonwealth, Northern Territory, Western Australia, South Australia and Queensland governments urgently and fully implement this recommendation.
The need by Aboriginal people for interpreters in court is critical. In three cases the deceased did not fully understand the English language (65WA, 18NT and A1SA). This led to miscommunication between police officers and the deceased.
The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs found: 25
While any increase in the availability of interpreters is to be welcomed the Committee does not believe that the Commonwealth is doing enough. The Committee heard of people's basic human rights being breached on numerous occasions each day in Australia. This is a intolerable situation and the Commonwealth's response is grossly inadequate. The Commonwealth has ignored the international conventions that are being breached.
The resulting inaction and recent moves by the Federal Government to cut funding available for interpreters is a flagrant breach of recommendation 99, fundamental common law protection and international human rights instruments.
The recent abolition of 'dock statements' in some jurisdictions is another measure which infringes a fundamental common law protection dating back centuries. While there may be strength to the argument that a blanket entitlement to a dock statement is inappropriate in rape trials, or for defendants who are well-versed in the English language and the court process, they were introduced for sound reasons. Irrespective of actual guilt, a prosecutor in cross-examination will have a much more simple job eliciting statements which can be construed as indicating guilt where a defendant misinterprets the question, or cannot express the answer properly. Aboriginal defendants often have this problem. There can be little doubt that increased incarceration of Aboriginal people, and of innocent Aboriginal people, will result.
Recommendation 108 - Funding for Aboriginal Legal Services
Queensland did not provide any information regarding its response to this recommendation, while Western Australia and the Northern Territory stated that they were not responsible for its implementation. Of the remaining States, only South Australia professed to have achieved full implementation.
A few of the cases revealed that funding provided to Aboriginal Legal Services to effectively represent Aboriginal people continues to be insufficient (59QLD, 1SA and 33WA). These cases also indicated organisational problems. These cases are discussed under recommendation 91 (1SA and 33WA) and recommendation 172 (59QLD). The continuing failure of Federal and State governments to properly fund Aboriginal Legal Services is discussed in chapter 12.1.
The comments of Judge Madgwick in R v. Cutmore 26 on funding of Aboriginal Legal Services are noteworthy. These comments were reported by the media earlier this year but their selectivity in quotation was misleading. The Judge primarily focussed on the adequacy of funding for Aboriginal Legal Services. The Judge stated that the solicitor had:
The Judge noted that the breadth and quality of representation would improve with sufficient funding. He stated:
Recommendation 121 - No Automatic Imprisonment for Fines
a. Where legislation does not already so provide government should ensure that sentences of imprisonment are not automatically imposed in default of payment of a fine; and
b. Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant's capacity to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise.
All jurisdictions except Western Australia and Tasmania maintained that they had implemented this recommendation in full. However, several of the cases involve people who were placed in custody at least in part because of non-payment of fines.
In three cases Aboriginal people were arrested and imprisoned for unpaid fines. In the death at Rockhampton Watch house (25QLD) the deceased was arrested for an unpaid fine for obscene language which had a default period of two days imprisonment. The 27 year old man (74QLD) who died at Borallon Prison on 20 April 1995 was serving a sentence which included non-payment of fines. His ineligibility for parole was likely to be extended as there was a further warrant outstanding for non-payment of fines. The 17 year old man who died at Ceduna Police Station (1SA) on 4 July 1989 was arrested for non-payment of fines and faced four days default imprisonment.
1. Royal Commission into Aboriginal Deaths in Custody: Implementation of the Recommendations 1993/4, Northern Territory Office of Aboriginal Development, Northern Territory Government at p.82.
2 . Aboriginal Deaths in Custody: Tasmanian Government Progress Report on Implementation to December 1993 at p.54.
3. House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Justice Under Scrutiny: Report of the Inquiry into the Implementation by Governments of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, November 1994, p.222.
5. Recommendation 56, at 222-223.
6. Simon Eyland, Truth in Sentencing: A Koori Perspective (Unpublished paper) at p.49. Chapter 4.3 also indicates that Aboriginal people were significantly more likely to be imprisoned for property damage offences.
7. Justice Under Scrutiny, op cit.
8. Luke and Cuneen, Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System, Juvenile Justice Advisory Council of NSW, January 1995, at p.12.
9. Simon Eyland, op cit at p.27.
10. Luke and Cuneen Aboriginal Representation and Discretionary Decisions in the NSW Juvenile Justice System Juvenile Justice advisory Council of NSW, January 1995 p12.
11. On process corruption see Royal Commission into the New South Wales Police Force Interim Report February 1996 p46.
12. This avoidance of conflict of interest in prosecution is in the spirit of recommendation 179. The Royal Commission stated in its report that correctional services officer should not be prosectors in cases where cases are brought against prisoners: National Report, Volume 3, p.333.
13. 45-50% of Aboriginal men in their twenties have been arrested once or more in the past five years: Australian Bureau of Statistics Aboriginal and Torres Strait Islander Survey 1994 p .
14. Individual communication with the New South Wales Director of Public Prosecutions.
15. See Justices Act 1902 (NSW), s80AB; Crimes Act 1914 (Cth) s17A, 17B; Sentencing Act 1991 (Vic) s5(4); Penalties and Sentences Act 1992 (Qld) s9(2)(a)(i); Crimes Act 1900 (ACT) s429C; Sentencing Act 1995 (WA) s6(4); Criminal Law (Sentencing) Act 1988 (SA) s11(d).
16. On the Young Offenders Act 1995 (WA) see Aboriginal and Social Justice Commissioner, Third Report, 1995, Chapter 1. South Australian truth in sentencing legislation was introduced before the Royal Commission.
17. Ibid, p316.
18. South Australian Department of State Aboriginal Affairs Barriers to Alternatives to Custody Report 1996 p71.
19. Broadhurst, R., Ferrante, A. and N. Loh, Crime and Justice Statistics for Western Australian 1992, University of WA Crime Research Centre, December 1993 p. vii.
20. A Good Turn That Deserves Another Police Life August 1996, p8-10.
21 . House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Justice Under Scrutiny: Report of the Inquiry into the Implementation by Governments of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, November 1994, p.235-6.
22. Recommendation 64, ibid, p.xix.
23. National Report, Volume 3 at p. 74-5.
24. Queensland Government, Royal Commission into Aboriginal Deaths in Custody: Progress Report on Implementation, December 1994, p.96.
25 . House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Justice Under Scrutiny: Report of the Inquiry into the Implementation by Governments of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, November 1994, p.209.
26. (District Court, Wollongong, DCQ233 RCF/L2, Friday 21 April 1995)
A Report prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner
Aboriginal and Torres Strait Islander Commission