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

Social Justice Report 2001

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

Introduction

Overview of minimum mandatory imprisonment laws

The Northern Territory laws

The Western Australian laws

Distinguishing minimum mandatory imprisonment laws from other mandatory sentencing provisions

Recent developments in mandatory minimum imprisonment laws

Recent developments in the Northern Territory

Recent developments in Western Australia

Concerns about mandatory minimum terms of imprisonment

Breaches of human rights obligations

The effectiveness of mandatory minimum imprisonment laws

Deterrence

Retribution

Rehabilitation

Incapacitation

Reparation

Indicating the seriousness of the offence in response to community concern

Mandatory minimum terms of imprisonment and their impact on Indigenous people

Conclusion

Introduction

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; and
• 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 centres.

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.

Overview of minimum mandatory imprisonment laws

The 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 o [9] >[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 anot [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 below.

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

NT case study [13]

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 [14]

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.

The 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 9 [16] [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 b [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 s [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 [21]

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:

considerable 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. considerable 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. [25]

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] [28] Hence they have been mainly imposed for offenders aged 14 years or [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 manner’. [31]

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.

Distinguishing minimum mandatory imprisonment laws from other mandatory sentencing provisions

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.

Recent developments in mandatory minimum imprisonment laws

Recent 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:

resulted 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 . [37]

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.

Recent 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 la [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] [41] Likewise, overall there was ‘no reduction in the number of offences committed after the introduction of the a [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. [43]

The review found that these problems ‘still exist to some extent’. [44] [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 [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] [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 [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] [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 circumst [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 [53]

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 areas.

• 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 /em [55]

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’. 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]

Concerns 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]

Breaches 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.

Children 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.

Detention 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, CROC)

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.

Rehabilitation 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)

Rehabilitation 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 indicate).

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.

Sentence 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. [63]

Detention 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:

Legislation 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… Legislation 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… [67]

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 (CERD))

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. 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. [69]

Physical 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. 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. [70]

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.

Ensuring 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. 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. [72]

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

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. [73]

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 Inquiry.

The 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.

Mandatory 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 lightly’. [74]

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 offe [76] 76">[76] The Senate Committee inqui Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 ll 1999 considered that the main objective of the WA laws was deterrence rather than inca [77] 77">[77] The Attorney-General of the newly elected Government recently claimed that the policy was ‘effective in stopping those people offending while they a [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.

Deterrence

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] [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 th [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. [82]

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] [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 of [86]

Retribution

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.

Rehabilitation

Imprisonment 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. [87]

Incapacitation

Incapacitation 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.

Reparation

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.

Indicating 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. [100]

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 jud [102]

Effect 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 backgrou [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 necess [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:

Prescribed 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. [108]

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:

[M]andatory 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. [110]

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]

Mandatory 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] 6">[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 [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 discrim [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 people. [130]

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 reasonable.

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 [132] If diversionary schemes exclude repeat offenders, then it is likely that many Indigenous youth will not benefit from the diversionary process.

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 disadvantage

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.

Environmental 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.

Socio-economic 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 compelling 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 compelling [137]

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 n [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.

Conclusion

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 pas [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 (Cth), 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 pu 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.

7 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 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 provisions.

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

12 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.

16 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).

21 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.

22 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.

23 ‘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.

24 ‘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 young’.

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

30 ATSIC 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 2001.

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

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

35 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 J uvenile Justice Amendment Act (No. 2) 2001 (NT); Sentencing Amendment Act (No. 3) 2001 (NT).

37 Toyne, 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 invasion.

39 Senate Legal and Constitutional References Committee, March 2000, op.cit , p116.

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

41 ibid , p28.

42 ibid , p29.

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

44 ibid.

45 ibid.

46 ibid.

47 ibid , p17.

48 ibid , p21.

49 ibid.

50 ibid , p22.

51 ibid.

52 ibid , p23.

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

54 ibid , pp23-24.

55 ibid, p25. Emphasis added.

56 ibid, p26.

57 McGinty, The Hon J, op.cit.

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

59 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.

61 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-Ȓ Aboriginal and Torres Strait Islander Commissioner Social Justice Report 1999 HREOC Sydney 1999 ch HREOC Submission to the Senate Legal and Constitutional Legislation Committee I nquiry 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.

63 Data’ Param Cumaraswamy, UN Special Rapporteur on the Independence of Judges and Lawyers, address to the UNSW Symposi 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.

65 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: Australia , 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: Australia , 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 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 sentencing.

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

73 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.

76 Foss, P, Attorney-General (WA), Ministerial Statement , 22 August ߌ 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.

78 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’ Law Journal Forum, um, January 1999, p6. See also the Department of Justice Revie op.cit.

80 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, p6.

82 NT Police, Fire and Emergency Services, Annual Report 2000-2001 , p41.

83 Morgan, ‘Mandatory Sentences in Australia op.cit , p183.

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, https://www.msaustralia.org.au/ , 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), s R v GDP (1991) 53 ACrimR 112.

88 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 Austral , op.cit, p169.

91 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 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.

95 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, p78.

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

101 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, 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.

107 (1997) 115 NTR 1 reproduced at www.austlii.edu.au (15 September 2000) Martin CJ, at p Angel J, at p Mildren J, at p11.

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

109 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-‰ 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 deten 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 op.cit /em>, 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 o 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 , p25. These figures are similar to those presented in Morgan, N, Blagg, H & Williams, V,

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

119 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 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:

120 Australian Bureau of Statistics, Special Article – Aboriginal and Torres Strait Islander Australians: A statistical profile from the 1996 Censu 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, p32.

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, p81.

125 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.

126 See explanation of the Commonwealth Government’s dialogue with CERD and the Human Rights Committee in Social Justice Report 2000, op.cit, pp67-72.

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

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

129 ibid, p11.

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

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

132 Harding, H & Maller, R, ‘An improved methodology for analysing age-arrest profiles: application to a Western Australian offender population’, (1997), Journal of Quantitative Criminology , p369.

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( Australian Journal of Human Rights , p.58.

134 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.

137 ibid , p4.

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

139 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.

142 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.