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Social Justice Report 2001: Chapter 4: Laws mandating minimum terms of imprisonment (‘mandatory sentencing’) and Indigenous people

Social Justice Report 2001

Chapter 4: Laws mandating
minimum terms of imprisonment (‘mandatory sentencing’) and
Indigenous people


of minimum mandatory imprisonment laws

Northern Territory laws

Western Australian laws

minimum mandatory imprisonment laws from other mandatory sentencing

developments in mandatory minimum imprisonment laws

developments in the Northern Territory

developments in Western Australia

about mandatory minimum terms of imprisonment

of human rights obligations

effectiveness of mandatory minimum imprisonment laws






the seriousness of the offence in response to community concern

minimum terms of imprisonment and their impact on Indigenous people



On 13 April 2000,
the Senate requested the Human Rights and Equal Opportunity Commission
to inquire into all aspects of the agreement between the Northern
Territory Government and the Commonwealth regarding the Territory’s
mandatory sentencing regime; the consistency of mandatory sentencing
regimes with Australia’s international human rights obligations;
and Western Australia’s mandatory sentencing regime.[1]

On 3 May 2000,
I wrote to the President of the Senate confirming my intention to
conduct the following project over the next 12 months:[2]

  • assess the
    continued impact of mandatory sentencing laws in the Northern Territory
    and Western Australia on Indigenous Australians;
  • assess the
    impact on Indigenous Australians of the additional discretion placed
    in the Northern Territory Police through the deal with the Commonwealth;
  • develop a
    methodology against which to assess the appropriateness and success
    of diversionary schemes in the Northern Territory and Western Australia,
    and assess these schemes on this basis.

The project involved
targeted research including the collection of statistical information
and an analysis of legislation on mandatory sentencing and juvenile
diversion in the NT and WA. As the NT diversion scheme is relatively
new, it was essential to conduct interviews and meetings with relevant
people in the NT to gain an understanding of the operation of the
scheme in practice. We interviewed lawyers, police, correctional services,
community leaders, program coordinators, youth workers and young offenders
in the Alice Springs region, Darwin, Tennant Creek, Katherine and
Groote Eylandt. In the WA, we commissioned a researcher, who held
meetings with officials of the Department of Juvenile Justice, police,
Aboriginal Legal Service, children’s legal service, Juvenile
Justice Teams and young Indigenous offenders at two juvenile detention

During the course
of the project, we also developed a set of human rights principles
for the conduct of best practice diversion of young offenders, drawing
on relevant human rights treaties and standards. These have been published
in a Human Rights Brief on best practice principles for the diversion
of juvenile offenders (see below).

The next two
chapters report the outcomes of this project. In this chapter I examine
mandatory minimum imprisonment regimes (or ‘mandatory sentencing’
laws) in the Northern Territory (NT) and Western Australia (WA) and
various changes to the operation of the laws in the last year. The
next chapter then examines the Juvenile Pre-Court Diversion Scheme
introduced in the NT as part of the mandatory sentencing deal, as
well as diversionary options for juveniles in WA and, more briefly,
schemes operating in other Australian jurisdictions.

The newly elected
NT government repealed mandatory sentencing laws on 18 October 2001.
Despite this, a review of the impact of the laws remains pertinent
for a number of reasons. First, mandatory sentencing laws continue
to operate in WA. Second, there is a risk that mandatory sentencing
laws will continue to be considered and introduced in Australia despite
various arguments against their use. The recent introduction of mandatory
sentencing for people smugglers by the federal government, despite
their public opposition to the NT laws, is a case in point.[3]
Similarly, an examination of mandatory sentencing laws highlights
the continuation of systemic discrimination against Indigenous people
in criminal justice processes in Australia.

of minimum mandatory imprisonment laws

Northern Territory laws

In 1996 the NT
Government introduced laws which established mandatory minimum periods
of imprisonment or detention for adults and juveniles found guilty
of certain property offences. The legislation was intended to implement
a platform of zero tolerance on crime, particularly theft. The laws
have commonly been referred to as ‘mandatory sentencing’
provisions, although this does not fully convey the gravity of the
provisions which can more appropriately be described as mandatory
minimum terms of detention or imprisonment.[4]

The Juvenile
Justice Act 1983
(NT) provided compulsory minimum sentences of
detention of at least 28 days for children aged 15 and over who are
convicted of certain property offences for a second or subsequent
time unless diverted by the Court to a program approved by the Minister.[5]

The offences
covered by the provisions were stealing (other than shoplifting);
robbery; assault with intent to steal; unlawful entry; unlawful entry
with intent; being armed with intent to enter; unlawful use of a vessel/vehicle;
receiving stolen property; receiving to obtain reward; criminal damage;
and possession of goods suspected of being stolen.[6]
In addition, if a shop issued a trespass notice against a customer
and that person was subsequently found guilty of stealing from the
shop, the offence attracted a mandatory minimum term.[7]

The property
offences attracting mandatory terms of imprisonment for adult offenders
were the same as for young people,[8] although the
system of ‘strikes’ or convictions worked differently. For
a first offence an adult had to be sentenced to imprisonment for at
least 14 days. This rose to a minimum of 90 days imprisonment for
a second offence and a minimum of 12 months imprisonment on each subsequent
occasion.[9] For both juveniles and adults, mandatory
terms could not be served concurrently with terms of imprisonment
imposed for non-property offences or for mandatory terms imposed on
another day.[10]

These provisions
were slightly ameliorated for adults in 1999 with the introduction
of ‘exceptional circumstances’ provisions. These provided
that defendants before the court for a single property offence that
was trivial in nature could have a non-custodial penalty imposed on
them if they could prove that they cooperated in the investigation
of the offence; that there were mitigating circumstances (other than
intoxication); that the offence was an aberration from their usual
behaviour and that they were otherwise of good character and had made
efforts towards restitution. A sentence imposed under the exceptional
circumstances provisions did not amount to a ‘strike’ for
the purposes of the mandatory imprisonment provisions.[11]
The exception is only available once to each defendant from the date
the provisions commenced.

One of the most
remarkable features of the mandatory minimum imprisonment regime was
the manner in which the same minimum term was imposed for a diverse
range of offences regardless of how trivial or serious the offence.
This is illustrated by the list of maximum penalties in the table

Table 1 Maximum
penalties for offences attracting mandatory imprisonment in the Northern

210 Stealing (other than shoplifting)
211 Robbery
years - life
212 Assault with Intent to Steal
years - life
213 Unlawful Entry
year - life
214 Unlawful Entry with Intent
215 Armed with Intent to Enter
218 Unlawful Use of Vessel/Vehicle
229 Receiving Stolen Property
231 Receiving to Obtain Reward
251 Criminal Damage
years - life
Offences Act 1979
61 Goods Suspected of Being Stolen

NT case study

Sara is a 19
year old Aboriginal woman who moves between Alice Springs and bush
communities. Sara has been accessing youth services since she was
15 years old. At first referral to crisis accommodation she reported
sexual abuse by a number of men. Her chronic petrol sniffing commenced
at this time. Other issues Sara identified included family fighting,
drinking, and lack of family to stay with. Sara had been notified
on nine occasions to Family Youth and Children’s Services as
a child requiring care. Sara was charged with a property offence in
1997. She had never been in trouble before. The charge related to
breaking a car window because she was hungry and needed some money.
She was sentenced to 14 days imprisonment.

NT case study

A man was taken
into protective custody because he was intoxicated.[15]
He was not suspected of any criminal activity. The man unpicked the
seam on the mattress in the cell while he was sobering up. He was
charged with criminal damage which carries a mandatory minimum period
in gaol.

Western Australian laws

Mandatory sentencing
or ‘three strikes‘ laws came into effect in WA on 14 November
1996 in the Criminal Code Amendment Act (No.2) 1996.[16]
The laws were devised initially against a background of community
concern about home burglary and were part of a package of changes
to burglary offences which included the creation of a new offence
of home burglary,[17] an increase in the maximum
sentences for home burglary and burglary committed in circumstances
of aggravation, and the introduction of a mandatory minimum 12 months
imprisonment or detention for repeat home burglary (the ‘three
strikes’ provisions).

For adults, the
Criminal Code (WA) now requires the court to impose a sentence
of at least 12 months imprisonment for a person convicted of home
burglary who has previously served a custodial sentence on at least
two occasions for home burglary. It expressly prohibits suspension
of the term of imprisonment and requires that the calculation of previous
offences includes those offences that may have been committed when
the offender was a child.[18] There are no exceptional
circumstances provisions.

For juveniles
(offenders aged 10-17 years inclusive), the WA laws also require a
12 month sentence in a juvenile facility for the third or subsequent
strike of home burglary.[19] The laws apply to children
as young as ten years of age. Juveniles sentenced under the laws are
not eligible for parole until they have served at least six months
– or 50 per cent – of their sentence.[20]
This is in contrast to adults sentenced to imprisonment, who are eligible
for parole after serving one third of their sentence.

WA case study

Although the
legislation assumes that every offence of home burglary is equally
serious, ‘home burglary’ covers a wide range of circumstances.
In one case, a 12 year old Aboriginal boy from a regional area, with
a history of welfare intervention, educational problems and substance
abuse, was sentenced to 12 months detention for entering a house in
company with others and taking a wallet containing $4.00. His previous
burglaries consisted of entering a laundry room in a hotel where nothing
was removed and a school canteen where a can of soft drink was taken.

The effect of
the provisions relating to juveniles has been slightly altered through
judicial interpretation. In February 1997, the President of the Children’s
Court held that the courts have the power to order the juvenile’s
release on a 12 month Conditional Release Order (CRO).[22]
Other decisions have seen the Court:

  • give credit
    for time spent on remand and backdating of sentences
  • only count
    convictions as ‘strikes’ when they occur within a two
    year period [23]
  • discount previous
    convictions as ‘strikes’ where the Court refrained from
    giving a penalty under Section 67 of the Young Offenders Act 1994.[24]

Ironically, the
WA Government has relied upon the use of CROs by the judiciary to
argue that judicial discretion has remained under mandatory detention
provisions laws and to differentiate the laws from those provisions
in the NT. The Attorney-General in the newly elected Government has
stated, for example, that there is:

flexibility in the system as the judiciary could still impose a
non-custodial sentence where this was considered more appropriate…
If there is a glimmer of hope, the judiciary can still divert them
from detention, but in most cases, they represent a real threat
to the community that must be addressed.

The Senate and
Legal Constitutional References Committee also saw the use of CROs
as a factor that balances the severity of the length of sentences
with safeguards with respect to juvenile offenders.[26]

Such discretion
is, however, severely limited. The courts have only two choices for
a juvenile: 12 months detention or a 12 month CRO. They are unable
to go below the minimum 12 months in either case or to impose a more
appropriate order on a particular juvenile. Similarly, juvenile offenders
are liable to 12 months detention if they do not comply with the terms
of a CRO. This can result in disproportionate outcomes, particularly
when it is the child’s first experience of detention and/or the
child is young.[27]

The policy of
the Children’s Court is to use sparingly CROs as an alternative
to detention. The President of the Court has prioritised age as the
key determinant in assessing an offender’s suitability for a
CRO.[28] Hence they have been mainly imposed for
offenders aged 14 years or under. [29] There are
instances of CROs being imposed for ‘exceptional circumstances’
such as Aboriginal children stealing food.

The factors taken
into account do not fully meet the requirements of either the Convention
on the Rights of the Child or the International Covenant on Civil
and Political Rights that justice procedures for children should take
into account a full range of factors, especially the desirability
of promoting the child’s reintegration and rehabilitation. For
example, between the end of 1997 and October 1999, the Children’s
Court refused to order a CRO in 15 matters involving young Indigenous
people where it was identified that they all had multiple problems
arising from substance abuse, lack of accommodation and family breakdown.[30]

The former WA
Government has stated that this type of judicial discretion in relation
to juvenile offenders was not the intention of the legislation. When
the first judgment on CROs was made, the WA Government foreshadowed
legislative change to close this discretionary ‘loophole’.
They have since tolerated it only because the judiciary was seen to
be ‘exercising its discretion in a responsible and appropriate

The WA laws
continue to place significant restraints on judicial discretion in
relation to juvenile offences, leading to outcomes that do not adequately
take into account the best interests of the child.

minimum mandatory imprisonment laws from other mandatory sentencing

It has been argued
that mandatory sentencing has existed in many jurisdictions in Australia
without attracting significant negative comment from human rights
defenders in Australia and internationally.[32]
These laws are of two types: mandatory penalties, which include statutory
fines for transport violations and minimum fines, and mandatory imprisonment
laws for violent offences, sexual offences and murder. An example
of the latter are provisions in the Sentencing Act 1995 (NT),
introduced in 1999, for mandatory imprisonment of adults for certain
violent and sexual offences.[33]

There are significant
differences between the laws described above and mandatory minimum
terms of imprisonment. In the case of mandatory penalties for traffic
offences, for example, the mandatory provisions do not require a deprivation
of liberty.

Those laws which
require mandatory imprisonment with no minimum period for violent
or sexual offences do not per se breach human rights obligations.
Human rights concerns about mandatory minimum terms of imprisonment
are not based solely on the ‘mandatory’ requirement, but
on whether this results in unjust, disproportionate or arbitrary sentences.
Other mandatory regimes, which are not the focus of this report, would
need to be assessed on the same basis.

developments in mandatory minimum imprisonment laws

developments in the Northern Territory

There has been
significant change in relation to mandatory sentencing laws in the
NT over the past 18 months.

Pressure had
been mounting on the federal government to override the NT legislation
following the death of an Aboriginal boy in Don Dale Juvenile Detention
Centre in Darwin in February 2000. In March 2000, the Senate Legal
and Constitutional References Committee recommended that the federal
Parliament override the laws as they related to juveniles by the passing
of the Human Rights (Mandatory Sentencing of Juvenile Offenders)
Bill 1999
. The United Nations Committee on the Elimination of
Racial Discrimination also expressed concern about the laws.

As a result,
an agreement was reached between the Commonwealth and the NT Government
on 10 April 2000 relating to mandatory sentencing for juveniles in
the Northern Territory.[34] The agreement required
the NT Government to amend legislation to ensure 17 year olds were
treated as juveniles and not as adults by the criminal law [35]
and for the Commonwealth to commit $20 million over four years towards
the establishment of a pre-court diversion scheme for juveniles and
an Aboriginal interpreting service. The agreement preserved mandatory
minimum sentencing laws.

On 18 August
2001 a new Government was elected in the NT. On 18 October 2001 it
passed legislation to repeal mandatory sentencing provisions for juvenile
and adult property offenders. [36] The repeals came
into effect from 22 October 2001. The Government’s rationale
was that mandatory sentencing had:

in the imposition of unjust and inappropriate sentences of imprisonment
while having no positive impact on the crime rate. There is no evidence
to suggest that under mandatory sentencing offenders have been deterred
from committing property offences. Moreover, the mandatory sentencing
regime for property offences provides no scope for discretion except
insofar as it commits the imposition of greater sentences. This
has resulted in a regime that operates unfairly and inconsistently

The legislative
changes wholly repealed mandatory sentencing for juveniles. For adults,
it repealed mandatory minimum sentences for several of the more minor
offences and created a presumption of imprisonment for a series of
offences known as ‘aggravated property offences’. [38]
This presumption of imprisonment differs from the previous mandatory
sentencing provisions as it does not specify minimum sentences. Instead
it only applies to aggravated circumstances (thus removing some of
the more minor property offences caught by the previous legislation)
and provides the court with discretion to impose a community work
order or home detention order or not to impose imprisonment if exceptional
circumstances exist. The definition of exceptional circumstances is
left to judicial interpretation.

developments in Western Australia

The WA mandatory
minimum sentencing laws were examined by the Senate Legal and Constitutional
References Committee in its March 2000 report on the Human Rights
(Mandatory Sentencing of Juvenile Offenders) Bill 1999
. The Committee
commented that the WA laws in practice are not as obviously in contravention
of Australia’s obligations as the NT laws. [39]

While the Committee
did not consider that the WA provisions were as bad as those in the
NT, they did state that ‘we are comparing bad with bad and we
are trying to prioritise badness’.[40] Accordingly,
the WA laws should also be overturned by passing the Bill. The WA
Government defended the laws and restated its position that it would
not repeal the laws.

On 10 February
2001, a new Government was elected in WA. It was required under the
Criminal Code to review the operation of the mandatory sentencing
provisions after they had been in operation for four years. This review
was conducted by the Department of Justice during 2001, with the report
of the review tabled in the WA Parliament on 15 November 2001.

The review sought
to evaluate both the effectiveness of the provisions and operational
issues concerning their implementation. Overall, the review concluded
that rates of imprisonment for burglary for adults have varied little
since the laws were introduced, supporting the view that the mandatory
detention provisions ‘have had little effect on sentencing patterns
of adult burglary offenders’.[41] Likewise,
overall there was ‘no reduction in the number of offences committed
after the introduction of the amendments’.[42]

In addition to
this lack of effectiveness, the review identified a number of significant
concerns with the operation of the scheme. It found that, in relation
to adults, a:

lack of
clarity on what constituted a strike, in combination with limited
available information on police records for certain offences which
made it difficult to determine whether a burglary was in a place
of habitation, led to some problems in determining the status of
a conviction.

The review found
that these problems ‘still exist to some extent’. [44]
This lack of clarity could result in some delays in court, through
adjournments while police records are reviewed in order to establish
whether a defendant is a ‘third striker’. [45]
Similar difficulties were found to exist for juvenile defendants.
While Department of Juvenile Justice records are more detailed than
those of the police, they are also significantly more complicated.

As a consequence,
the review concluded that ‘the process required to establish
the repeat offender status of a home burglar is cumbersome, manual
and time consuming’ [46] and ‘has impacted,
to some degree, on the workload of prosecutors and defence counsel
and on the workload of the President of the Children’s Court’.[47]

The review found
that the ‘three strikes’ provisions have had little impact
on the adult courts, with only eight instances of mandatory imprisonment.
This was due to the fact that ‘under most circumstances someone
facing their third conviction for home burglary would be sentenced
to imprisonment anyway and 12 months would be below or at the bottom
of the range of sentences being considered’. [48]

Despite this,
the review conceded the possibility of ‘unfairly harsh and counterproductive
outcomes’ [49] for adult offenders under the
provisions. For example, there is no time limit on the accumulation
of strikes for adult offenders. One case was cited in which an offender
had reached a second strike stage and then not offended for several
years. In search of food she then offended again and qualified as
a repeat offender. The Court considered that the minimum sentence
of 12 months imprisonment required was harsh in the circumstances.
[50] While this situation can on occasion be averted
through the negotiation of different charges with the prosecutor,
the review acknowledged that this is an unsatisfactory outcome as
it transfers discretion from the judiciary to the more individualised
and less transparent prosecutorial level.

Concerns were
also expressed about how the scheme determines what constitutes a
strike (in terms of both the sequence of offences as well as the number
of offences that can lead to the recording of a strike). Examples
were cited of offenders committing numerous home burglary offences
with the knowledge that they would all contribute to a single strike
and not classify them as a repeat offender. [51]
By implication, the system of strikes has resulted in some offenders
being treated more leniently than they might otherwise be. On the
other hand, an example was provided of an offender who pleaded not
guilty to an offence at the same time as pleading guilty to two other
offences. He became a repeat offender and was sentenced to a 12 month
term of imprisonment. He was subsequently found guilty of the third
offence and sentenced to a further 12 months. If he had been dealt
with at the same time as the previous offences, he would only have
received one 12 month term. [52]

The review also
identified an impact on the operation of the Drug Court, which is
precluded from hearing cases concerning repeat offenders. This prevents
the Drug Court from providing early intervention for some drug users.

WA case study

Q was a 14 year
old boy from a regional area who was sentenced in relation to one
aggravated burglary, one charge of possession of cannabis and breaching
a CRO. The burglary offence occurred when the complainant and his
wife were at home although they were not disturbed. The co-offender
entered the house and stole $15. Q was a lookout and did not enter
the house at all. Q spent 21 days in custody and 37 days subject to
a strict supervised bail regime. Q had a very serious cannabis problem
and was prepared to address it by attending counselling sessions.
He would smoke up to six cones of cannabis a day. His offending was
clearly related to his need to obtain money for drugs. Also he was
due to be taken by an older cousin to a remote community to be taken
through the law. The Sentencing Judge indicated that if there was
a choice, a sentence of detention of less than 12 months would have
been imposed, however, as a result of the three strikes legislation
a 12 month sentence of detention had to be imposed. It seems that
this would have been a perfect case for the Drug Court regime which
has been operating in the Children’s Court since the end of 2000.
As a result of mandatory sentencing such an option could not be considered.

In relation to
juveniles, the review found that:

  • the provisions
    have been used rarely in the Children’s Court. There have been
    143 juvenile convictions of 119 individuals under the law since
    it was introduced in 1996.
  • the law has
    impacted significantly on Aboriginal juveniles primarily from non-metropolitan
    areas. 81 per cent of the 119 juvenile offenders were Aboriginal
    and 61 per cent of juvenile offenders lived outside metropolitan
  • on 22 occasions
    CROs have been imposed on juveniles instead of detention. [54]

The significance
of the mandatory detention requirements for juveniles is the admission
by the review that ‘while it is likely that for the most part
juveniles sentenced to detention under section 401 would have gone
into detention anyway, a few would not and for others shorter terms
may have been considered more appropriate

The review also
found in relation to juveniles that the mandatory detention provisions
have a degree of arbitrariness and unfairness due to the calculation
of strikes and the exercise of discretion to divert some juveniles
but not others (concern about the lack of access to diversion for
young Aboriginal offenders in WA is discussed in detail in the next
chapter). [56]

Despite these
very significant concerns with the operation of the law, the Attorney-General’s
response to the review was that it demonstrated that ‘the overwhelming
majority of those convicted under the laws have an appalling history
of offending’. In support of this he stated that ‘juveniles
caught by the laws had, on average, 50 prior convictions’. As
a consequence, he concluded that ‘he was satisfied the laws were
targeting a very real problem with serious property offences’.

A less sensational
description of the juvenile offender profile is provided by a research
project by the WA Aboriginal Justice Council, which examined the circumstances
of the 110 third strike cases (involving 73 Indigenous juveniles)
which could be identified in the records of the Aboriginal Legal Service
of WA. This review found that 73 Indigenous juveniles accounted for
the 110 third strike sentences that could be identified. Of these,
54 individuals were dealt with just once and 19 individuals more than
once (with only four individuals dealt with under the three strikes
law four times or more). [58]

It is disingenuous
to suggest that the WA laws target the most serious repeat offenders
and accordingly must remain. They do not. Serious repeat offenders
are sentenced to terms of imprisonment of greater length than the
mandatory minimum. The laws are irrelevant for such offenders.

The Attorney-General
sought to distinguish the laws from the recently repealed NT laws
on the basis that ‘the WA laws only related to the very serious
offence of home burglary’. As a consequence, the Attorney stated
that the Government has no intention of repealing the legislation,
despite his concern at the impact of the laws on Indigenous people,
particularly those in regional areas. [59]

about mandatory minimum terms of imprisonment

We assert
with absolute confidence that mandatory penalties are inevitably
capricious, arbitrary, unfair and unjust
. [60]

From the time
they were proposed in the NT and WA, mandatory minimum terms of imprisonment
or detention have been the subject of criticism from a variety of
perspectives, including breaches of human rights, ineffectiveness,
cost and the disproportionate impact on Indigenous people. [61]

of human rights obligations

The Human Rights
and Equal Opportunity Commission has raised significant concerns about
the human rights implications of mandatory minimum terms of imprisonment
on a number of occasions since these provisions were introduced. [62]
Similarly, three of the six United Nations human rights treaty committees
also expressed concern about the human rights implications of mandatory
detention laws during 2000.

The following
concerns relate to the imposition of mandatory minimum terms of detention
for juveniles. They apply equally to the NT and WA laws.

Best interests
of the child as a primary consideration (article 3.1, Convention on
the Rights of the Child (CROC))

The best interests
of the child should be a primary consideration in all actions concerning
children, including actions by courts of law, administrative authorities
and legislative bodies. Mandatory detention laws were explicitly intended
to achieve deterrence and retribution rather than rehabilitation,
and there is no evidence that the best interests of children have
ever been a concern, let alone a primary consideration, in their development
and enforcement in either WA or the NT.

require special measures of protection (article 24, International
Covenant on Civil and Political Rights (ICCPR))

Every child has
the right to receive from his/her family, society and State the protection
required by his or her status as a child. This also entails the adoption
of special measures to protect children. Under the WA system no concessions
were given to child offenders over adult offenders. Although the Children’s
Court found a ‘loophole’ in the legislation in the case
of children, this was not the intention of the laws and provides only
a limited capacity to provide for children’s special needs. Further,
in WA, children must serve a longer proportion of their sentence than
adults before being eligible for parole.

of children as a measure of last resort (article 37(b), CROC)

The arrest, detention
or imprisonment of a child should be used only as a measure of last
resort and for the shortest appropriate period of time. Clearly, laws
which impose a mandatory minimum term of detention do not so allow.
Although in the NT second time juvenile offenders could be diverted
to an approved program, this diversion was limited to a small number
of program options and could only be imposed once. The introduction
of the police diversion scheme was a welcome improvement, but the
courts were still prevented from considering alternatives to detention
in cases before them. In WA, the use of CROs by the courts is an extremely
limited alternative to a mandatory minimum term of detention.

A variety
of dispositions must be available for child offenders (article 40.4,

There must be
a variety of dispositions available to ensure that children are dealt
with in a manner appropriate to their well-being and proportionate
both to their circumstances and to the offence. Mandatory minimum
terms of imprisonment preclude consideration of a range of appropriate
dispositions. The laws do not allow the circumstances of the offence
or the offender to be taken into account in sentencing so as to ensure
an appropriate sentence for the individual case.

and reintegration of a child offender should be the essential aim.
A child offender should be treated in a manner which takes into account
his or her age (article 40.1, CROC)

should be an aim of all actions taken in the case of juvenile offenders.
However, the objectives of both the NT and WA laws have not been rehabilitative
as much as deterrent and retributive. For children from remote Indigenous
communities, detention has not assisted them in reintegrating into
their community effectively. Other alternatives tailored to the child’s
rehabilitative needs cannot be imposed. The use of CROs in WA has
not ensured that this rehabilitative and reintegrative purpose is
consistently applied (as the examples of instances refusing CROs above

Mandatory detention
laws in the NT have not allowed courts to take into account whether
the child is 11 or 17 years old – the mandatory minimum term
has applied regardless. In WA the judiciary has been able to take
into account a juvenile offender’s age when considering their
sentence but is limited to ordering a CRO.

The following
concerns relate to the imposition of mandatory minimum terms of detention
for juveniles and adults. They apply equally to the NT and WA laws.

must be reviewable by a higher tribunal (article 40.2 (b), CROC; article
14.5, ICCPR)

The conviction
and the sentence must be capable of review by a higher tribunal. The
NT and WA laws remove sentencing discretion and prevent an appeal
court from reconsidering the penalty prescribed as a compulsory minimum.

The United Nations
Special Rapporteur on the Independence of the Judiciary has also expressed
concern that mandatory minimum imprisonment laws restrict the right
of appeal:

This right
of appeal, which is again part of the requirement of a fair trial
under international standards, becomes nugatory when the trial court
imposes a prescribed minimum sentence. There is nothing in the sentence
then for the Appellate Court to review. Hence, legislation prescribing
mandatory minimum sentences may be perceived as restricting the
requirements of a fair trial process and may not be supported under
international standards.

must not be arbitrary (article 37(b), CROC; article 9.1, ICCPR)

No one should
be subjected to arbitrary arrest or detention. According to the UN
Human Rights Committee, sentencing may still be arbitrary notwithstanding
that it is authorised by law. [64] Arbitrary has
been interpreted more broadly to include such elements as inappropriateness,
injustice and lack of predictability. Further, custody could be considered
arbitrary if it is not necessary in all the circumstances of the case,
which indicates that detention must be a proportionate means to achieve
a legitimate aim. Mandatory sentencing clearly breaches article 9(1)
when it is imposed for trivial as well as more serious offences. [65]
Mandatory minimum sentences for property crimes inevitably impact
at the lower end of the scale (as courts are more likely to impose
sentences above the mandatory minimum in the case of more serious
offences). The punishment of imprisonment in many cases simply does
not fit the crime. Inconsistencies in determining what constitutes
a strike under the WA legislation, with the consequent imposition
of 12 months detention or imprison[66] ment for
some but not others, also constitute arbitrariness (see further case
studies below).

On 28 July 2000,
the United Nations Human Rights Committee expressed concern that:

regarding mandatory imprisonment in Western Australia and the Northern
Territory, which leads in many cases to imposition of punishments
that are disproportionate to the seriousness of the crimes committed
and would seem to be inconsistent with the strategies adopted by
the State party to reduce the over-representation of indigenous
persons in the criminal justice system, raises serious issues of
compliance with various articles of the Covenant…

Laws and
policies must be non-discriminatory and ensure equality before the
law (article 2, article 26, ICCPR; article 2.1(a), (c) and 5(a) International
Convention on the Elimination of All Forms of Racial Discrimination

The ICCPR prohibits
direct and indirect discrimination in the enjoyment of rights contained
in the ICCPR, which includes freedom from arbitrary arrest and the
right to review of sentence. Race discrimination, both direct and
indirect, is also prohibited under CERD. The Commission has argued
that mandatory sentencing laws in the NT and WA are indirectly discriminatory
on the basis of the pattern of sentencing which has a disproportionate
impact on Indigenous people. It has also argued that, in the NT at
least, the selected offences are committed overwhelmingly by Indigenous
people. [68]

On 24 March 2000,
the United Nations Committee on the Elimination of Racial Discrimination
expressed its concern:

about the
minimum mandatory sentencing schemes with regard to minor property
offences enacted in Western Australia, and in particular in the
Northern Territory. The mandatory sentencing schemes appear to target
offences that are committed disproportionately by indigenous Australians,
especially juveniles, leading to a racially discriminatory impact
on their rate of incarceration. The Committee seriously questions
the compatibility of these laws with the State party’s obligations
under the Convention and recommends to the State party to review
all laws and practices in this field.

and mental condition must be taken fully into account (Principle 5,
Declaration on the Rights of Disabled Persons; Principle 6, Declaration
on the Rights of Mentally Retarded Persons)

If judicial proceedings
are instituted against persons with a disability, the legal procedure
applied should take their physical and mental condition fully into
account. Some people with mental illnesses, personality disorders
and intellectual disabilities have poor impulse control. When angry
or frustrated they tend to lash out and damage property. This may
lead to charges of criminal damage. Under the mandatory sentencing
provisions in the NT such charges attracted an automatic term of imprisonment
unless brought within the exceptional circumstances provision.

Mandatory sentencing
laws diminish the courts’ ability to take into account circumstances
where a person’s disability is relevant to the sentence they
should receive. In one case in June 2000 a 24 year old intellectually
disabled man was jailed for 90 days in the NT. The magistrate stated:

This Court’s
hands are tied, of course, by mandatory sentencing. It’s clear
that this defendant suffers from an intellectual disability, and
I can quite confidently say that, but for mandatory sentencing,
I think I would not have imposed a sentence which would have resulted
in this man being imprisoned for so long. It may well be that I
may have even suspended it fully.

Although under
section 78A(6B) of the Sentencing Act 1995 (NT) there was a
provision for the court not to order imprisonment for first time adult
offenders in exceptional circumstances, the conditions required to
meet the exceptional circumstances provision were narrow and did not
take into account mental disability. In fact, because they required
that the offending behaviour be an aberration of usual behaviour,
they implicitly excluded persons whose behaviour might be influenced
by a persistent disorder. There were other ways to avoid imposing
a mandatory sentence of imprisonment in the NT, but these were limited
and generally not of benefit for those with behavioural disorders
or intellectual disabilities. [71]

As set out above,
there are no exceptional circumstances provisions which would enable
a court to take a disability into account under the WA provisions.

consistency of international obligations across all levels of government
(article 50, ICCPR; article 2, CERD)

CERD requires
that the federal government rescind, nullify, repeal or amend all
laws (at any level of government) that are inconsistent with the Convention.
The ICCPR contains a similar requirement. In March 2000 the Committee
on the Elimination of Racial Discrimination expressed concern at the
failure of the Commonwealth Government to ensure compliance of the
States and Territories and recommended that:

the Commonwealth
Government … undertake appropriate measures to ensure the consistent
application of the provisions of the Convention, in accordance with
article 27 of the Vienna Convention on the Law of Treaties, at all
levels of government, including states and territories, and if necessary
by calling on its power to override territory laws and using its
external affairs power with regard to state laws.

Having discussed
the deal between the NT and Commonwealth Governments to preserve mandatory
sentencing in April 2000, the United Nations Human Rights Committee

While noting
the explanation by the delegation that political negotiations between
the Commonwealth Government and the governments of states and territories
take place in cases in which the latter have adopted legislation
or policies that may involve a violation of Covenant rights, the
Committee stresses that such negotiations cannot relieve the State
party of its obligation to respect and ensure Covenant rights in
all parts of its territory without any limitations or exceptions
(art. 50). The Committee considers that political arrangements between
the Commonwealth Government and the governments of states or territories
may not condone restrictions on Covenant rights that are not permitted
under the Covenant.

Mandatory detention
regimes in both the NT and WA also breach the principles and recommendations
of significant reports such as the report of the Royal Commission
into Aboriginal Deaths in Custody and the Bringing them home

effectiveness of mandatory minimum imprisonment laws

The manner in
which mandatory minimum imprisonment laws in both the NT and WA breach
human rights obligations is so substantial that the laws cannot be
seen as socially useful or acceptable. There are also a range of other
reasons, grounded in the practical operation of the laws, which render
them ineffective as well.

minimum imprisonment laws do not meet their objectives

In his Second
Reading speech introducing the mandatory minimum term amendments,
the NT Attorney-General identified the main benefits of the laws as
deterrence, retribution, incapacitation and ‘sending a strong
message to the community that these offenders will not be treated

In WA, the principal
objectives of the three strikes provisions, as articulated by the
Government at various stages, include deterrence, incapacitation,
rehabilitation and indicating the seriousness of the offence to the
community. The justification has shifted over the course of the laws’
existence.[75] When introduced, for example, the
WA Government explained the objectives of the laws as to ‘deter
burglars and incapacitate those who commit such offences’. [76]
The Senate Committee inquiry into the Human Rights (Mandatory Sentencing
of Juvenile Offenders) Bill 1999
considered that the main objective
of the WA laws was deterrence rather than incapacitation. [77]
The Attorney-General of the newly elected Government recently claimed
that the policy was ‘effective in stopping those people offending
while they are in prison’. [78]

There is little
evidence that these objectives have been met in any substantial way
or that mandatory minimum imprisonment laws have resulted in significant
crime prevention in either the NT or WA.


It is difficult
to isolate the impact of mandatory minimum imprisonment laws from
other developments in the NT and WA. For example, any evaluation of
the WA laws would have to take into account the various reforms to
the offence of burglary, including increased maximum penalties and
the creation of a new penalty for ‘aggravated’ burglary.
[79] One measure of the deterrent effect of mandatory
minimum imprisonment laws is to examine the levels of reports of property
and burglary offences since the introduction of the laws. [80]

In the NT, reporting
trends show that there has been no real change in reporting of property
crime in the NT between 1994 and 1998. Any small changes in the numbers
of property offences in the NT seem to have occurred independently
of the laws. Over the previous six years the numbers of unlawful entry,
motor vehicle theft and other theft began to decline prior to the
introduction of the law, but began to rise again in recent years.
[81] The number of all offences against property
in the NT increased by 24 per cent between 1999/2000 and 2000/2001.

In WA, the number
of residential burglaries reported to the police declined in 1996
after reaching a peak in 1995. However, the decline began prior to
the introduction of the provisions. The annual burglary rate remained
constant during 1997 and actually increased in 1998. [83]
It remained fairly constant over 1998-2001. As noted, the WA Department
of Justice Review of the WA laws found that victimisation rates for
break and enter and reported home burglary offences between 1995 and
1999 are inconclusive. The review suggests that although the mandatory
imprisonment laws may have had a part in arresting an increase in
the rate of burglary, the same could be said for the impact of the
Pawnbrokers and Secondhand Dealers Act 1994, which made it
harder to sell household items. The review stated that there appears
to be no reduction in the numbers of offences committed after the
introduction of the laws. [84]

For the laws
to have any deterrent value, they also must be understood by the groups
targeted. Otherwise, offenders will continue to commit offences without
concern about the consequences. Research suggests that defendants
in the NT viewed mandatory terms as a ‘normal’ court event
and had limited understanding of the court process in general. In
addition, more minor crimes such as criminal damage are often spontaneous,
with offenders not considering the consequences, let alone the likely
sentence. [85] Many property crimes in the NT and
WA are also committed under the influence of alcohol, petrol or other
drugs, which limits the ability for deterrence to play a role in preventing
the offences. [86]


Retribution is
achieved only if the punishment fits the crime. Removing judicial
discretion to determine the length of sentences inevitably leads to
harsh and unfair results. All defendants face the same minimum term
regardless of the objective seriousness of the offence or their subjective
mitigating factors. Mandatory minimum sentences for property offences
breach the well established sentencing principle of proportionality.


generally has higher economic and social costs than community based
supervision, rehabilitation programs or fines. Custodial environments
place the emphasis on physical containment rather than on rehabilitation.
There are serious concerns about the capacity of the prison system
to rehabilitate Indigenous offenders. In some jurisdictions, rehabilitation
is the primary sentencing principle in the children’s court.


literally means removing the offender from the community so that he
or she is no longer in a position to engage in criminal activity.
It is a short term solution for more minor offences, does little to
rehabilitate the person and often has an unacceptably high cost to
the offender and the community.

The goal of incapacitation
is to identify and remove those offenders who are at risk of re-offending.
Mandatory detention laws for repeat offenders seek to predict how
individuals will behave in the future based on how they have behaved
in the past. This is imprecise and can result in the selection and
incapacitation of so-called ‘false positives’: that is,
among those incapacitated will be some who will not offend again.
[88] Courts are in a better position than parliament
to make a prediction about an offender’s future prospects based
on the offender’s background and circumstances established by
evidence before the court.

In addition,
policies based on incapacitation arguments fail to recognise the effects
of imprisonment or detention. There are two gaols in the NT, one in
Darwin and the other in Alice Springs. When one is full, prisoners
are transferred to the other. All juveniles in detention are held
at Don Dale Juvenile Detention Centre in Darwin. Similarly, all juvenile
detention centres in WA are situated in Perth, far from where many
young Indigenous people live and commit offences. A WA Aboriginal
Legal Service study of ‘three strikes’ cases found that
approximately 82 per cent of the juvenile cases it surveyed involved
individuals from a regional (non-metropolitian) area, and that 55
per cent of these were from the Kimberley and Pilbara, between 1000
and 4000 km away from Perth. [89] Incarcerating
Aboriginal people commonly means removing them from their country,
often for the first time in their lives. They are unlikely to receive
visitors at such distances, as many families cannot afford to visit.
This can have a devastating effect on the mental health of the detainee
and serious ramifications for their families including emotional trauma
and loss of income support. This level of upheaval is not warranted
by many of the offences included in the mandatory minimum term provisions.


There is a longstanding
principle that a criminal sanction should symbolise the offender making
reparation to the community. It is not clear how incarceration, with
its attendant financial and social costs, heals the harm caused by
a crime. Certainly, other sentences such as community work contribute
more directly to the community. Other options, such as victim/offender
conferences, allow the offender to make direct reparation to the victim.
These are examined in more detail in Chapter 5.

the seriousness of the offence in response to community concern

In its evidence
to the Senate Inquiry into the 1999 Bill, the WA Government stated
that the legislation was introduced to ‘indicate the very serious
nature of the offence’ in response to community concern about
the high rates of home burglary in WA. [90] On a
superficial level this is an easily achieved and self-fulfilling objective.
It is notable that there has been no real test of whether the laws
have addressed community concerns.

In a media release
following the review of the WA laws, WA Attorney-General Jim McGinty,
claimed that the laws target only the most serious repeat offenders.
[91] However, according to one study, only 40 per
cent of the cases involved the complainant or someone else being present
when the offence took place. Only 5.4 per cent involved violence or
threats of violence. [92] This does not discount
the seriousness of the offence of home burglary, but does indicate
that there are a variety of circumstances of offending.

The serious nature
of these offences may be ‘indicated’ in a variety of other
ways than mandatory minimum sentences, including maximum penalties,
guideline judgments [93] and community education.
Further, and more importantly, there are many more ways that the offences
can be prevented.

If the community
were better informed about the practical operation of these laws,
their ineffectiveness and the possible injustices which could occur,
even victims may well chose other options for dealing with repeat
property offenders. [94]

Cost effectiveness

Much of the political
rhetoric used in debates about mandatory minimum terms of imprisonment
focuses on the financial costs of property crime to the community.
However, the costs of incarceration are themselves high.

In the NT, the
daily average cost per adult prisoner in 1999/2000 was $144.34. [95]
Using these averages, it cost $2020.76 for 14 days, $12, 990.60 for
90 days and $52.684.10 for 365 days of imprisonment. [96]
For juvenile offenders, the average daily cost of detention was as
high as $540.43. [97] This would equal $15, 132.04
for 28 days detention.

In WA, it cost
$180.85 to keep an adult offender in prison per day.[98]
It cost $437.64 to detain a juvenile offender per day.[99]

NAALAS has estimated
that NT Correctional Services spent an additional $4,981,266 on the
imprisonment of property offenders as a result of mandatory sentencing.

Overseas studies
of mandatory sentencing laws show similar results. Cost benefit analysis
done by RAND Corporation in the USA estimates that every million dollars
spent on implementing California’s three strikes laws would prevent
60 serious crimes, whereas providing parent training and assistance
for families with young children at risk would prevent 160 serious
crimes. [101] After a two-decade boom in prison
construction and increase in prison numbers, cost and ineffectiveness
are causing some US states to roll back their mandatory sentencing
laws. Louisiana, Connecticut, Indiana and North Dakota have dropped
their mandatory sentencing laws and returned discretion to the judges.[102]

on sentencing principles and operation of the criminal legal process

Aside from violating
human rights principles, mandatory minimum terms of imprisonment or
detention undermine sentencing principles which are well-established
in Australia and abroad. [103] Included in the
general principles of juvenile justice laid out in the Young Offenders
Act 1994 (WA) are principles requiring consideration of a young person’s
age, maturity and cultural background. [104] The
Act also states that detention should only be imposed on a young person
as a last resort and, if required, for as short a time as is necessary.[105]

It is notable
that the Juvenile Justice Act 1983 (NT), in contrast to other jurisdictions,
does not include an objects clause, general juvenile justice principles
or sentencing principles.[106]

Many of the judicial
officers responsible for imposing mandatory minimum terms of custody
have criticised the NT provisions. For example, in Trenerry v Bradley,
each of the three judges delivering the decision made adverse comment.[107]
Justice Mildren commented:

minimum mandatory sentencing provisions are the very antithesis
of just sentences. If a court thinks that a proper just sentence
is the prescribed minimum or more, the minimum prescribed penalty
is unnecessary. It therefore follows that the sole purpose of a
prescribed minimum mandatory sentencing regime is to require sentencers
to impose heavier sentences than would be proper according to the
justice of the case.

Mandatory minimum
terms of custody have also been controversial in a number of international
jurisdictions. For example, the High Court of Fiji recently held that
a mandatory minimum of three months imprisonment for possession of
less than 10 grams of cannabis was unconstitutional because it was
grossly disproportionate to the offence.[109] Justice
Shameem stated:

minimum terms do not allow the judiciary to apply proper sentencing
principles, and do not permit for adjustment according to the personal
circumstances of the case.

Mandatory minimum
sentences also undermine the criminal justice process by shifting
discretion from the judiciary to police and prosecutors, at least
in regard to the offences attracting compulsory custody.[111]
Once a matter reaches the sentencing stage the result is inevitable,
but at the stage of charging and prosecuting there is scope for an
offence that does not attract a mandatory minimum to be substituted,
provided it is appropriate to the alleged facts. For example, a charge
of offensive behaviour may be preferred to one of criminal damage.
The decisions made by police and prosecutors are less open to public
scrutiny and safeguards than judicial decision-making. There is hence
more danger that these decisions could be made in a capricious or
arbitrary manner.

Mandatory sentencing
laws also distort the actions of defence lawyers, who may ‘horse
trade’ for charges without the penalty attached, or seek to get
multiple charges heard in a block. There is also evidence in WA that
matters that may constitute a strike are concealed from the court
in order to avoid the mandatory minimum sentence.[112]

Incorrect applications
of the laws have also led to unjust outcomes. The most tragic example
of this in the NT was the case of a 15 year old boy from Groote Eylandt
who died on 10 February 2000 while serving a mandatory minimum term
of detention. The boy died in Royal Darwin Hospital after committing
suicide in his cell at Don Dale Juvenile Detention Centre the night
before.[113] A significant aspect of the evidence
at the inquest was that the boy was mistakenly classified as a third
striker when sentenced. He need not have been in custody at all.

In WA there have
been difficulties in identifying repeat offenders for the purposes
of the law. In one case police alleged that a 16 year old boy from
a remote community was a repeat offender and he was therefore remanded
in custody to Perth for sentence. He faced only one charge of home
burglary, which occurred in his community. He entered the house with
some friends when the owner was absent, cooked some food and watched
TV. He spent 44 days in custody in Perth away from his family. When
it was established that he was not a repeat offender, the Children’s
Court President sentenced him to a Youth Community Based Order for
three months. He had already served the equivalent of a three month
sentence of detention.[114]

minimum terms of imprisonment and their impact on Indigenous people

Mandatory minimum
sentencing laws in both the NT and WA impact disproportionately on
Indigenous people. While data on mandatory provisions in both the
NT and WA are poor, [115] the differential impact
of the laws can be shown.

In WA, Aboriginal
juveniles account for 81 per cent of all identified ‘three strikes’
juvenile cases since the introduction of the law. This is despite
Aboriginal juveniles constituting approximately one third of all offenders
who come before the Children’s Court (ie, they are disproportionately
represented in third strike offences).[116] Moreover,
61 per cent of third strike juvenile cases were from non-metropolitan
areas. In 93 per cent of these cases, the offender was Indigenous.[117]

In the NT in
2000/2001, approximately 79 per cent of prisoners sentenced for all
property offences were Indigenous.[118] Indigenous
people comprise 63 per cent of adult prisoners and 75 per cent of
juvenile detainees in the NT.[119] Only 28.5 per
cent of the NT population are Indigenous.[120]

Although property
offences are committed overwhelmingly by men,[121]
it was argued to the Senate Inquiry in 2000 that the number of women
sentenced under property laws in the NT has increased at a greater
rate than men.[122] The NT Government submitted
to the Inquiry that only 2 women were sentenced solely on the basis
of mandatory sentencing in 1996/97 which rose to 22 in 1998/99.[123]
Although the numbers are still not large, this indicates a substantial
increase in women sentenced to detention.124

In WA, 15 per
cent of Indigenous people arrested for burglary were women, excluding
those of unknown ethnicity. Indigenous women make up a greater proportion
of the total number of women arrested for the offence (approximately
44 per cent) compared to the proportion of Indigenous men of all men
arrested (37 per cent).[125]

The Commonwealth
Government has argued at various stages that the mandatory sentencing
laws are not discriminatory because they apply equally to Indigenous
and non-Indigenous offenders.[126] The prohibition
of discrimination, however, is more extensive than prohibiting a direct
differentiation of treatment. Article 1.1 of CERD, for example, includes
racial discrimination ‘in purpose or effect’ and clearly
includes indirect discrimination.[127] The definition
of discrimination requires that governments take differential impacts
on particular racial groups into account.

There are a number
of factors that can lead to a disproportionate impact of mandatory
detention laws on Indigenous people, including the following:

i) Selection
of offences subject to mandatory detention

The selection
of offences that were subject to mandatory detention in the NT specifically
targeted offences overwhelmingly committed by Indigenous people, especially
young people, while specifically excluding offences generally committed
by non-Indigenous people.

In 1996 three
quarters of matters (75.6 per cent) involving Indigenous juveniles
in the NT were property offences, compared to 61.4 per cent for non-Indigenous
juveniles. Nearly half (49.2 per cent) of all Indigenous juvenile
appearances were for breaking and entering. As much as 77 per cent
of juvenile offences for breaking and entering and 73 per cent of
stealing of motor vehicles involved young Indigenous offenders.[128]

On the other
hand, other property offences were not targeted by the laws. In the
NT in 1996, roughly 77 per cent of adult fraud offences and 100 per
cent of juvenile fraud offences involved non-Indigenous defendants.
Fraud is not included in the mandatory sentencing laws.[129]
Likewise, shoplifting, which involves more non-Indigenous juveniles,
was not included.

In WA, after
excluding the cases of unknown Indigenous status, only 4.7 percent
of fraud offences involved Indigenous people while 42 per cent of
vehicle theft and 44 per cent of burglary offences involved Indigenous

In its dialogue
with the UN Human Rights Committee in July 2000, the Commonwealth
Government argued to the Committee that the selection of particular
offences as appropriate for mandatory sentencing is a reasonable and
legitimate objective of criminal law. Indeed, the Committee has determined
that not every differentiation is discriminatory if the criteria for
such differentiation are reasonable and objective. However, as discussed
in the Social Justice Report 2000, this margin of appreciation
does not extend to invidious discrimination. Further, mandatory sentences
for some of the minor offences under the laws could not be considered

ii) The
exercise of police discretion

The decisions
made at the pre-court level are usually at the discretion of the law
enforcement agency. These include:

  • whether or
    not to issue an informal warning at the point of apprehension;
  • whether to
    issue a formal caution or refer to another diversionary program,
    or to proceed with arrest;
  • whether to
    issue a summons or charge; and
  • whether to
    grant bail and attach conditions to that bail.

Studies have
shown Indigenous people are overrepresented, in comparison to their
representation in the population, at all stages of the pre-court process.[131]
However, decisions made at the pre-court level can influence whether
an Indigenous person is more likely to receive a more serious response
for the offence. For example, research indicates that Indigenous youth
are brought into contact with the criminal justice system earlier
than non-Indigenous children and this early ‘contamination’
contributes to the development of criminal careers.[132]
If diversionary schemes exclude repeat offenders, then it is likely
that many Indigenous youth will not benefit from the diversionary

This has an impact
on mandatory sentencing laws. Diversions do not count as strikes under
WA ‘three strikes’ laws or under the now-repealed NT laws.
If Indigenous juveniles are more likely to be formally charged on
first or second offences, they are more likely to be counted as repeat
offenders for the purposes of sentencing under the mandatory sentencing
laws. The coexistence of mandatory sentencing laws and juvenile diversion
programs thus runs the risk of ‘bifurcating’ juvenile justice,
with first time offenders being diverted and repeat offenders, who
are largely Indigenous, being perceived by the courts as ‘hard
core’ juvenile offenders.[133] This issue
will be dealt with in more detail in the next chapter.

iii) Socio-economic

The disproportionate
impact of mandatory sentencing on Indigenous people cannot be solely
attributed to factors which occur from the moment of offending onwards.
A range of environmental and socio-economic factors contribute to
the shaping of criminal behaviour and can influence the response made
by law enforcement agencies.

factors include the location of the offender. Many Indigenous people
in WA and NT live and commit crimes in rural and remote areas. A statistical
analysis by NAALAS of a sample of mandatory sentencing cases in the
NT revealed that 76 per cent of defendants were from remote areas,
and 70 per cent involved offences committed in remote areas.[134]
In WA, two thirds of juveniles jailed under the laws come from rural
areas.[135] The type of offence and the likelihood
of being detected may differ considerably depending on the size of
the community, services in the community and opportunities to offend.

factors play a large role in determining rates of offending. The disadvantaged
position of Indigenous people is well-documented. It is reflected
in a lack of employment opportunities, inadequate housing, educational
disadvantage, poverty, high rates of substance abuse and lack of access
to essential services, especially in remote areas. Poverty and boredom
have both been cited as reasons for property offences among youth
in the NT.

An examination
of young male attitudes to detention in remote communities reveals
that laws can be ineffectual when they are imposed without attention
to the social, economic and cultural context of the offenders. In
the NT, for example, there are many reports that young Indigenous
offenders from remote communities view detention as a positive experience
because it provides them with status and access to resources not available
in their communities. In Alice Springs we were told by young Indigenous
offenders that Don Dale Juvenile Detention Centre is not so bad and
that they have good sporting facilities. On Groote Eylandt we were
told that for young people, detention in Darwin was the only opportunity
to experience a plane flight. Others have gone so far as to suggest
that detention is a replacement rite of passage.[136]

However, as Emma
Ogilvie and Allan Van Zyl point out from their current study of young
offenders in the NT, detention is not a replacement rite of passage
but rather provides an ‘opportunity for a different experience
from that available in the remote communities’. This point is
critical because:

While there
may be issues of status associated with incarceration, the adolescent
criminality in the Northern Territory is primarily born out of boredom,
resulting from marginalisation and lack of access to resources …
The attractions of detention … are therefore seen by some as

The importance
of recognising the social context of these young Indigenous males
is hence extremely important for crime prevention policy. If detention
has become a routine means for marginalised and disadvantaged young
Indigenous people to access a different experience, it is questionable
whether this functions as a deterrent at all. Further, once young
people are incarcerated, it becomes another means of constructing
identity within a detention environment. This raises policy challenges
to provide the experience they seek in other ways. Addressing economic,
social and educational issues must be a priority in any crime prevention
strategy. This approach ought not to be undermined by superficial
laws which pull communities apart rather than bring them together.

Australia has
an obligation, under article 2 of the International Covenant on
Economic, Social and Cultural Rights
(ICESCR), to realise progressively
the economic, social and cultural rights of all Australians. Related
to this principle is the obligation to ensure that adequate programs
are developed and implemented to counter the marginalization of a
specific sector of society, as well as ensuring that the level of
rights enjoyed does not fall below a core minimum level. This is of
particular relevance to remote and regional areas in the NT and WA.

In 2000/01, the
Australian Bureau of Statistics was contracted to compile an Experimental
Index of Socio-Economic Disadvantage by the Commonwealth Grants Commission
for its inquiry into relative Indigenous need. The index shows where
Indigenous disadvantage and need is greatest on a national scale,
by ATSIC regions.[138] Regions are ranked as ‘most
disadvantaged’, ‘more disadvantaged’, ‘less disadvantaged’
and ‘least disadvantaged’. Regions in WA and the NT account
for eight of the nine regions in the ‘most disadvantaged’
category, as well as the two of the nine regions in the next category
of ‘more disadvantaged’.[139]

Similarly, our
consultations in the NT on juvenile diversion revealed that substance
abuse and family violence are key factors in juvenile offending behaviour.
According to the NAALAS study of mandatory sentencing cases in the
NT, 63 per cent of defendants were affected by substance abuse, including
alcohol and petrol.[140]

In WA, substance
abuse was identified in 55 of 110 juvenile cases surveyed by the Aboriginal
Legal Service of WA.[141] These figures indicate
the necessity for the development of alternatives to incarceration
as a response to substance abuse. For example, although a high number
of home burglaries in WA are committed by drug users, repeat burglary
offenders are automatically precluded from the new WA Drug Court.[142]

The laws in both
the NT and WA can be said to target a pattern of offending that is
often brought about by socio-economic disadvantage, which makes Indigenous
people more vulnerable to imprisonment under the laws and which can
influence Indigenous over-representation in offending patterns. The
impact of disadvantage on offending patterns is accepted as a key
challenge by all governments in their crime reduction strategies.
However, initiatives to date have clearly failed to reduce overall
crime in any significant way.


From whatever
perspective they are examined, mandatory detention laws in WA and
the NT are bad law. They are ineffective in deterring crime and rehabilitating
offenders, they are costly and they are manifestly unjust.

The WA provisions
are more complex than those in the NT and have avoided much scrutiny
because of this. But we must remember that the WA provisions impose
much harsher penalties on juveniles than the NT laws ever did –
12 months minimum detention as opposed to 28 days. Like the NT provisions,
the WA laws have resulted in situations of injustice, with individuals
receiving sentences that are disproportionate to the circumstances
of their offending.

I applaud the
new NT Government for acknowledging this and repealing the provisions.
Once more, I call for the WA Government to repeal its mandatory detention
provisions and for the federal Parliament to exercise its responsibilities
to ensure compliance by the WA Government with Australia’s international
human rights obligations by overriding the laws if necessary.

As the introductory
chapter of this report notes, in the context of 10 years since the
Royal Commission, we must remain alive to the consequences of these
laws. The removal of young people to detention centres and prisons
far away from their communities has a particularly painful resonance
for Indigenous families and communities. The Bringing them home report
outlined the impact that child removal policies have had in the past.[143]
As one submission to that inquiry stated, ‘The juvenile justice
system is mimicking the separation policies of the past’.[144]

In our consultations
with people in the NT, older Indigenous people in particular express
pain and sorrow that the younger members of the community cause trouble,
and are fearful of the long term consequences for community and cultural
life. It must be remembered that many of the victims of property crime
and violent crimes are Indigenous people themselves. It is in the
communities’ interests to prevent crime. When all else seems
hopeless, some Indigenous people have asked for key troublemakers
to be taken away to detention. This is a sign of desperation, not
of choice.

In remote communities
the mandatory sentencing laws are seen as yet another law which has
been imposed on them from outside. They have become synonymous with
imprisonment and removal overall. Imprisonment is not seen as the
solution to offending behaviour and does not make offenders accountable
to the Aboriginal community. Communities have been struggling daily
with levels of criminal activity, and have asked for help to address
the underlying causes of crime and social breakdown. While there are
many good initiatives in the NT and WA which have begun to address
these issues, the introduction of mandatory sentencing laws runs counter
to these efforts. Both literally and symbolically, the laws undermine
Indigenous and non-Indigenous attempts to redress the inequality in
Australian society.

1 Senator
Grieg, the Hon B, Hansard, Senate, 13 April 2000, p14033.

2 In
this letter I provided a preliminary assessment of the WA and NT schemes.

3 Border
Protection (Validation and Enforcement Powers) Act 2001
s233(c). Under the Act, first time ‘people smugglers’ receive
a mandatory minimum five years and repeat offenders eight years, up
to a maximum of 20 years.

4 The
heading of the relevant division in the adult legislation is ‘Minimum
Mandatory Imprisonment for Property Offences’. The heading forms
part of the legislation for interpretative purposes: Interpretation
Act 1978
(NT), s55(1).

5 Juvenile
Justice Act 1983
(NT), s53AE(2). The maximum custodial sentence
that can be imposed is 12 months: s53AE(10)(b). See Chapter 6 for
more information about post-court diversion.

6 Juvenile
Justice Act 1983
(NT), Schedule 1.

Both the Sentencing Act 1995 (NT) and the Juvenile Justice
Act 1983
(NT) provide that stealing offences are ‘property’
offences if the defendant is on retail premises unlawfully. Trespass
notices are issued under s9 of the Trespass Act 1987 (NT) and
are written confirmation that the person has been warned not to return
to the premises. Anecdotal evidence suggests that trespass notices
are regularly issued to people who are not alleged to have committed
an offence in the shop.

8 Sentencing
Act 1995
(NT), Schedule 1.

9 Sentencing
Act 1995
(NT) ss78A(1)-(3).

10 Juvenile
Justice Act 1983
(NT) s53AE(9) and Sentencing Act 1995 (NT)
s78A(6A); cf s52(1). ‘Strikes’ accrued according to the
number of sentencing days rather than the number of offences. In other
words, if a defendant was before the court for sentence on a particular
day for three offences each committed on a different day that amounted
to one ‘strike’ for the purposes of the mandatory imprisonment

11 Sentencing
Act 1995
(NT) s78A(6B)-(6C), (6E).

The ranges within the maximum terms themselves reflect different degrees
of aggravation within each offence.

13 Johnson,
D & Zdenkowski, G, Mandatory Injustice: Compulsory Imprisonment
in the Northern Territory
, Centre for Independent Journalism,
Sydney, 2000, p104.

14 This
case was related to us in the course of consultations in the NT in
July 2001.

15 The
Police Administration Act 1978 (NT), s128(1) enables the police
to apprehend people without a warrant if they are intoxicated in a
public place and detain them until they are sober. This is referred
to by police as protective custody.

Mandatory sentencing legislation has been introduced previously in
WA. In 1992 the WA Labor party enacted the short-lived Crime (Serious
and Repeat Offenders) Sentencing Act 1992
(WA) which targeted
high speed pursuits in stolen vehicles. It was shown to have no deterrent
effect and was repealed in 1994. See Morgan, N, ‘Mandatory Sentences
in Australia: Where Have We Been and Where Are We Going?’, (2000),
24, Criminal Law Journal, pp164-183.

17 The
laws apply to burglaries that are committed on places that are ordinarily
used for human habitation, including hotel rooms, caravans and tents.

18 Criminal
Code 1913
(WA), s401.

19 Criminal
Code 1913
(WA), s401(4)(b).

20 Young
Offenders Act 1994
(WA), s121(1).

Aboriginal Legal Service of WA and the WA State Policy Office of ATSIC,
Submission to the Senate Legal and Constitutional References Committee
Inquiry into the provisions of the Human Rights (Mandatory Sentencing
for Property Offences) Bill 2000
, Submission 47, p5.

The Police v DCJ (unreported Children’s Court of WA), 10 February
1997. In the judgment, the President refers to Intensive Youth Supervision
Orders (IYSO). A CRO is a sentence of detention but offenders are
immediately released on an IYSO. The judgment has not been challenged
on appeal.

‘P’ (A Child) v The Queen (CCA 122 of 1997), 4 November
1997,WA Court of Criminal Appeal. As result of this appeal the three
dates of conviction for juveniles must be within a two year period.
Further, as a result of R v Herbert William Mackay (CCA 150 of 1997)
on 10 December 1997, an adult’s previous Children’s Court
convictions for home burglary only contribute to current repeat offender
status if they occurred less than two years previously.

‘G’ (A Child) v The Queen (CCA 121 of 1997), 4 November
1997, WA Court of Criminal Appeal.

25 McGinty,
The Hon J, ‘Review shows mandatory sentencing targets chronic
offenders’, Press Release, 15 November 2001. See also Foss, The
Hon P, Hansard, Legislative Council (WA), 15 March 2000.

26 Senate
Legal and Constitutional References Committee, Inquiry into the
Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999
March 2000,op.cit, p13.

27 Department
of Justice (WA), Review of section 401 of the Criminal Code,
Department of Justice, Perth, 2001, p26.

28 The
Police v DCJ (unreported Children’s Court of WA), 10 February
1997. The WA Department of Justice (WA), ibid, Section 5, also revealed
that CROs have been used generally ‘where the court has determined
special circumstances have existed – e.g. the offender was very

29 Department
of Justice (WA), op.cit, p24.

Submission to the Senate Legal and Constitutional References Committee,
March 2000, op.cit, Submission 66, p28.

31 Second
Reading speech to the Criminal Law Amendment Bill 1997, cited
in Department of Justice (WA), op.cit, p8.

32 See
debate on the Juvenile Justice Amendment Bill (No.2) and Sentencing
Amendment Bill (No.3)
between Syd Stirling, Dr Peter Toyne and
Dennis Burke in First Session, Ninth Assembly, NT Parliament, 16 October

33 Sentencing
Act 1995
(NT), Schedules 2 and 3.

34 Howard,
J & Burke, D, Media Release, 10 April 2000.

Sentencing of Juveniles (Miscellaneous Provisions) Act 2000 (NT),
s4 implemented this commitment. Any 17 year old charged as an adult
but not sentenced at the date of commencement is entitled to be dealt
with as a juvenile: s7. These provisions commenced on 1 July 2000.

36 Juvenile
Justice Amendment Act
(No. 2) 2001 (NT); Sentencing Amendment
(No. 3) 2001 (NT).

the Hon Dr P, Attorney-General, Hansard, Legislative Assembly
(NT), Ninth Assembly, First Session, 16 October 2001.

38 An
aggravated property offence is defined as an offence under the following
sections of the Criminal Code: s211, s212, s213, s215, s218 (where
subsection 2 applies), s226B (where subsection 3 applies), s251 (where
subsection 2 applies) and an attempt to commit an offence under s213.
In addition s226B creates a new aggravated property offence of home

39 Senate
Legal and Constitutional References Committee, March 2000, op.cit,

40 ibid,
p116, quoted from Law Council of Australia evidence to the Inquiry.

ibid, p28.

, p29.

43 Department
of Justice (WA), op.cit, p15.

44 ibid.

45 ibid.


, p17.

ibid, p21.


50 ibid,


ibid, p23.

53 Morgan,
N, Blagg, H & Williams, V, Mandatory Sentencing in Western
Report prepared for the Aboriginal Justice Council
(WA) (forthcoming), p78.

ibid, pp23-24.

55 ibid,
p25. Emphasis added.

56 ibid,

57 McGinty,
The Hon J, op.cit.

Morgan, N, Blagg, H, & Williams, V, op.cit, p65.

McGinty, The Hon J, op.cit. See also ‘Mandatory terms
to stay’, The West Australian, 16 November 2001, p3.

60 Johnson,
D, & Zdenkowski , G, op.cit, p18.

For a useful summary see Johnson, D, & Zdenkowski, G, ibid,
Ch 2, pp4-6.

62 See,
for example, HREOC, Bringing them home, Report of the National
Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their Families, HREOC Sydney 1997, pp528-530; Aboriginal
and Torres Strait Islander Commissioner Social Justice Report 1999
HREOC Sydney 1999
ch 5; HREOC Submission to the Senate Legal and
Constitutional Legislation Committee Inquiry into the Human Rights
(Sentencing of Juvenile Offenders) Bill 1999
; Aboriginal and Torres
Strait Islander Commissioner Social Justice Report 2000, HREOC,
Sydney, 2000, pp67-85.

Data’ Param Cumaraswamy, UN Special Rapporteur on the Independence
of Judges and Lawyers, address to the UNSW Symposium, Mandatory
Sentencing Rights and Wrongs
, UNSW, 28 October 2000, p10.

64 UN
Human Rights Committee, A v Australia, UN Doc: CCPR/C/59/D/560/1993,
30 April, 1997.

See Joseph, S, Schultz, J, Castan, M, The International Covenant
on Civil and Political Rights: cases, materials, and commentary
Oxford University Press, Oxford, 2000.

66 See
Johnson, D & Zdenkowski, G, op.cit, pp97-104 for examples
of cases in the NT.

67 Human
Rights Committee, Concluding Observations of the Human Rights Committee:
, UN Doc: HRC/A/55/40, 28 July 2000, Section 3.

68 Arguments
on why mandatory detention provisions are discriminatory were discussed
in Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2000, op.cit, Ch 3.

69 Committee
on the Elimination of Racial Discrimination, Concluding Observations:
, UN Doc: CERD/C/304/Add.101, 19 April 2000, para 16.
See also: United Nations Committee on the Rights of the Child, Concluding
Observations: Australia,
UN Doc: CRC/C/15/Add.79, 10 October 1997,
para 22; United Nations Committee against Torture, Concluding Observations
on Australia, Un Doc: A/56/44, 26 November 2000, paras 52, 53.

70 Sydney
Morning Herald,
‘New call to end mandatory laws’, Tuesday
25 June 2000.

71 S78(1) of
the Mental Health and Related Services Act 1998 (NT) enables
a court to dismiss a charge against a person if it is of the opinion
that the person is suffering from a mental illness or is mentally
disturbed. This provision does not apply to people who are intellectually
disabled or who have personality disorders, impulse disorders or acquired
brain injuries. The Sentencing Act 1995 (NT), ss78P-86 enables
a court to order that a person found guilty of an offence be taken
to a hospital for assessment and treatment if s/he appears to be mentally
ill or disturbed. In 1999 the provisions were amended to ensure that
property offenders are eligible for mental health orders. The procedure
is not usually of any benefit to those with behavioural disabilities.
Anecdotal evidence from legal services in the NT also suggests there
has been a marked increase in the number of ‘unfit to plead’
applications before the Supreme Court since the introduction of mandatory

72 Committee
on the Elimination of Racial Discrimination, op.cit, para 7.

Human Rights Committee, op.cit, Section 3.

74 Burke,
D, Hansard, Legislative Assembly (NT), 17 October 1996, p9686.

75 Morgan,
N, ‘Mandatory Sentences in Australia’, op.cit, p168.

Foss, P, Attorney-General (WA), Ministerial Statement, 22 August
1996; also see Mr Prince, K, Minister for Health, Second Reading of
Criminal Code Amendment Bill (No.2), Hansard, Legislative
Assembly (WA), 17 September 1996, p5212.

77 Senate
Legal and Constitutional References Committee, op.cit, p10.

Quoted in The West Australian, ‘Mandatory terms to stay’,
16 November 2001, p3.

79 Morgan,
N, ‘Capturing Crims or Capturing Votes? The Aims and Effects
of Mandatories’, UNSW Law Journal Forum, January 1999,
p6. See also the Department of Justice Review (WA), op.cit.

Note the existence of other variables such as changes in the desire
of victims to report, which may be based on anything from insurance
to perceptions of police efficiency.

81 Aboriginal
Justice Advocacy Committee NT, Submission to the Senate Legal and
Constitutional References Committee Inquiry, op.cit, Submission 35,

NT Police, Fire and Emergency Services, Annual Report 2000-2001,

Morgan, ‘Mandatory Sentences in Australia’: op.cit,

84 Department
of Justice (WA), op.cit, p31.

85 Johnson,
D & Zdenkowski, G, op.cit, p17.

86 An
NT study shows that in 63 per cent of mandatory sentencing cases the
offender was under such influences: Sheldon, J & Gowans, K, Dollars
Without Sense: A Review of the Northern Territory’s Mandatory
Sentencing Laws,
prepared for the North Australian Aboriginal
Legal Aid Service,, p2. In WA, substance abuse
was identified as a problem to the court in 55 out of the 110 cases
involving Indigenous juveniles under the three strikes regime: Morgan,
N, Blagg, H & Williams, V, op.cit, p67.

87 Children
(Criminal Proceedings) Act 1987
(NSW), s6; R v GDP (1991) 53 ACrimR

Roche, D, ‘Mandatory Sentencing’, Trends and Issues in
Crime and Criminal Justice,
Australian Institute of Criminology,
December 1999, p3.

89 Morgan,
N, Blagg, H & Williams, V, op.cit, p66.

90 Morgan,‘Mandatory
Sentences in Australia’, op.cit, p169.

McGinty, The Hon J, op.cit.

92 Morgan,
N, Blagg, H & Williams, V, op.cit, p63.

93 Guideline
judgments have been the practice of the English Court of Appeal for
some years although there is no statutory basis to this. In Australia,
the Chief Justice of NSW issued a guideline judgment in 1998 for the
offence of driving in a manner causing death or grievous bodily harm:
R v Jurisic [1998] NSWSC 597. This decision formalised a longstanding
practice of the Court of Criminal Appeal of indicating what offences
should usually attract a custodial sentence and what offences should
usually attract a substantial term of imprisonment. The Supreme Court
and Court of Criminal Appeal in WA also have a statutory power to
give guideline judgments to be taken into account by courts when ‘sentencing
certain offenders’. The authority of guideline judgments has
recently been thrown into question by the High Court: Wong v The
Queen; Leung v The Queen
[2001] HCA 64 (15 November 2001).

94 See
Sheldon, J & Gowans, K, op.cit, p6 for a description of
a 1998 Neighbourhood Watch workshop which posed sentencing dilemmas
to community members with interesting results.

NT Correctional Services, Annual Report 1999-2000, NT Corrections,
Darwin, p28. Average daily costs are calculated by dividing the total
cost by the daily average population.

96 However,
NT Correctional Services emphasises that average daily costs include
the cost per prisoner of maintaining the whole establishment and that
the cost of keeping one extra prisoner is usually less, provided the
extra prisoners are held within the overall design capacity and staffing
parameters of the Centres: NT Correctional Services, Annual Report
2000-2001, NT Corrections, Darwin, p38.

97 NT
Correctional Services, Annual Report 1999-2000, op.cit, p31.
In 1998/99 the cost per juvenile detainee per day was $343.73. The
substantial increase can partly be attributed to a decrease in detainee
numbers as many costs are fixed regardless of prisoner population.

98 WA
Ministry of Justice, Annual Report 1999/2000, p75.

99 ibid,

100 Sheldon,
J & Gowans,K, op.cit, p7.

Roche, D, op.cit., p4. A new study of the Californian ‘three
strikes’ laws also shows that after seven years the law has had
no significant effect on California’s crime rates. See ‘3-Strikes
Law Is Overrated in California, Study Finds’, New York Times,
23 August 2001.

102 ‘Budget
squeeze opens prison doors’, Sydney Morning Herald, 4
September 2001.

103 Johnson,
D & Zdenkowski, G, op.cit, p15.

104 Young
Offenders Act 1994
(WA), s7(l).

105 Young
Offenders Act 1994
(WA), s7(h).

106 See,
for example, Children (Criminal Proceedings) Act 1987 (NSW)
s6, Young Offenders Act 1993 (SA) s3, Youth Justice Act 1997 (Tas)
ss5, 6 and Children, Young Persons and Their Families Act 1989
(NZ) ss4(f), 208.

(1997) 115 NTR 1 reproduced at
(15 September 2000) Martin CJ, at p3; Angel J, at p9; Mildren J, at

108 (1997)
115 NTR 1 reproduced at
(15 September 2000) Mildren J, at p11.

Justice Shameem found that the mandatory sentence was invalid for
violation of s25(1) of the 1997 Fijian Constitution that states ‘Every
person has the right to freedom from torture of any kind, whether
physical, mental or emotional, and from cruel, inhumane, degrading
or disproportionately severe treatment or punishment’: State
v Audie Pickering
(unreported), 30 July 2001, p25. The judgment
provides a useful summary of international case law on mandatory minimum
terms of imprisonment. It should be noted, however, that the reasoning
in the case flows from the existence of a Bill of Rights in the Fijian
Constitution, the fact that the mandatory penalty was introduced by
way of presidential decree rather than legislation and the particular
circumstances of the defendant.

110 State
v Audie Pickering
(unreported) 30 July 2001, Shameem J, at p9.
For further discussion of mandatory minimum terms and sentencing principles
in other international jurisdictions see: South African Law Commission,
Issues Paper 12, Sentencing: Mandatory Minimum Sentences 14
August 2001. See also Johnson, D & Zdenkowski, G, op.cit, pp129-137;
New South Wales Law Reform Commission, Discussion Paper 33, op.cit,
Chapter 3.

111 See
Sheldon, J & Gowans, K, op.cit, p12.

112 Morgan,
N, Blagg, H & Williams, V, op.cit, p38.

113 An
inquest into the boy’s death began on 11 September 2000 and was
adjourned until 22 January 2001. See: Banks, R, ‘Benjamin: behind
a death in detention’, Rights Now, National Children and
Youth Law Centre, Sydney, September 2001, pp7-8. The Coroner released
findings and recommendations on 19 December 2001.

114 Case
‘A’ in Morgan, N, Blagg, H & Williams, V, op.cit,
p69. Part of the problem in WA is that the process of identifying
a third strike is by manual inspection of Police Records and Children’s
Court sentence records. This is complicated by the fact that home
burglary was not recorded as a separate offence prior to the introduction
of the legislation. Further, cases of ‘aggravated burglary’
which occurred and were recorded after the legislation do not identify
which are aggravated home burglaries. Juvenile and adult record systems
are not able to flag a conviction as a strike. The complications are
multiplied when the charges are lodged in a country court. Department
of Justice (WA), op.cit, pp16-17.

115 This
issue was raised in the report of the Senate Legal and Constitutional
References Committee Inquiry, op.cit, p21.

116 Department
of Justice (WA), op.cit, p24.

117 Department
of Justice (WA), op.cit, p25. These figures are similar to
those presented in Morgan, N, Blagg, H & Williams, V, op.cit,

NT Correctional Services, Annual Report 2000-2001, op.cit,
Table 16, p86.

ibid, p47. Note that there has been a significant increase
in the numbers of foreign nationals, mostly ‘people smugglers’,
in custody since 1999. If these are discounted, Indigenous adults
have comprised 80 per cent of adults in custody in 1999, 2000 and
2001: ibid, p26.

120 Australian
Bureau of Statistics, Special Article – Aboriginal and Torres
Strait Islander Australians: A statistical profile from the 1996 Census
(Year Book Australia, 1999), p2.

121 98
per cent of juvenile offenders sentenced under the three strikes provisions
were male: Department of Justice (WA), op.cit. In the NT, 96
per cent of the sample of mandatory sentencing cases were men: Sheldon,
J & Gowans, K, op.cit, p2.

122 Senate
Legal and Constitutional References Committee, op.cit, p32.

123 ibid,

124 Sheldon,
J & Gowans, K, op.cit, p10, claimed that there was an increase
of 485 per cent of women imprisoned in the NT between 1996/97 and
1998/99 and this increase can be attributed almost solely to mandatory
sentencing laws. However, others have argued that this increase is
due to the large numbers of women in custody for fine defaults: Senate
Legal and Constitutional References Committee Inquiry 2000, op.cit,

Ferrante, A, Fernandez, J and Loh, N, Crime and Justice Statistics
for WA: 2000
, WA Crime Research Centre, UWA, Perth, November 2001,
Table 2.1, p55. Note that 49 males and 8 females are not included
in these calculations as ethnicity is unknown.

See explanation of the Commonwealth Government’s dialogue with
CERD and the Human Rights Committee in the Social Justice Report
2000, op.cit,

See also General Comment 18, United Nations Human Rights Committee,
1989, para 7, for a similar interpretation of article 2 of the ICCPR.

Submission to Senate Legal and Constitutional References Committee
Inquiry, op.cit, p11.


Ferrante, A, Fernandez, J and Loh, N, op.cit, p.50.

Cunneen, C, Conflict, Politics and Crime – Aboriginal Communities
and the Police
, Allen & Unwin, 2001, Ch 2; Bringing them
home, op.cit
, Ch 24.

Harding, H & Maller, R, ‘An improved methodology for analysing
age-arrest profiles: application to a Western Australian offender
population’, (1997), 13, Journal of Quantitative Criminology,

133 Blagg,
H & Wilkie, M, ‘Young people and policing in Australia: the
relevance of the UN Convention on the Rights of the Child’, (1997),
3(2), Australian Journal of Human Rights, p.58.

Sheldon, J & Gowans, K, op.cit, p2.

135 Department
of Justice (WA), op.cit.

136 See
Emma Ogilvie and Allan Van Zyl, Young Indigenous Males, Custody and
the Rites of Passage, Australian Institute of Criminology, Trends
and Issues in Crime and Criminal Justice
, No.204, April 2001.

, p4.

Commonwealth Grants Commission, Final report on Indigenous funding,
CGC, Canberra, 2001, pp31-34.

ibid, p32.

140 Sheldon,
J & Gowans, K, op.cit, p2.

141 Aboriginal
Legal Service of WA and the WA State Policy Office of ATSIC Submission
to the Senate Legal and Constitutional References Committee Inquiry
into the Provisions of the Human Rights (Mandatory Sentencing for
Property Offences) Bill 2000
, Sub142 Department of Justice (WA),
op.cit, p.22.

Department of Justice (WA), op.cit, p.22.

143 Bringing
them home, op.cit
, p596.

144 ibid,
p24. WA Legal Service (Broken Hill) Submission 775 to the Inquiry.