Mandatory Sentencing and Indigenous Australians

The United Nations Committee on the Rights of the Child raised concerns about the enactment of new legislation in two states, where a high percentage of Aboriginal people live, which provide for mandatory detention and punitive measures of juveniles, thus resulting in a high percentage of Aboriginal juveniles in detention.

Patricia Monemvasitis Carroll & O'Dea Mondaq 21 March 2014

The recent debate of the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 ('the Act') in New South Wales Parliament has sparked discussion of the impact mandatory sentencing has on Australia's indigenous population.

The Act is intended to 'tackle drug- and alcohol-related violence' by, according to Premier Barry O'Farrell, 'promot[ing] personal responsibility of offenders'. The Act introduces an eight year mandatory prison sentence for "serious assault offences involving alcohol". The legislation follows the deaths of Thomas Kelly and Daniel Christie, who were both assaulted in the Kings Cross area by offenders under the influence of alcohol.

However, the President of the New South Wales Bar Association, Phillip Boulton SC, has commented that "There's no evidence at all that mandatory sentencing ever decreases the amount of crime that's committed and it has the ability to act unfairly on vulnerable and disadvantaged groups."

In particular, concerns have been raised about the potential impacts the proposed legislation may have on the State's indigenous population. Ray Jackson, from the Indigenous Social Justice Association, has commented that

Our people drink, our people fight, not all of them, but a minority do...And the coppers are going to concentrate on those people. They're going to go before the courts, under mandatory sentencing and be slammed straight into jail

The current "legal package of reforms" also includes increases in the quantum of fines for public order offences such as offensive conduct or language (doubled to $500) and "failing to move on when intoxicated when asked by a police officer" (increased from $200 to $1,100). Julia Quilter from the University of Wollongong's School of Law has raised concerns about the "flow-on effects" of such changes for Indigenous Australians, as the inability to pay such fines may result in the offender "going back into jail."

Furthermore, John McKenzie from the NSW Aboriginal Legal Service has criticised the originally proposed introduction of mandatory sentences for "less serious assault charges", including assault occasioning actual bodily harm, assaulting police and affray. McKenzie predicted that such mandatory sentences would be likely to put "an additional 1,000 Aboriginal prisoners [in gaol] each year".

Australia has been criticised previously in the international arena for imposing mandatory sentences on offenders. In 1997, following the introduction of "three strikes"-style mandatory sentencing legislation focused on property crime'" in Western Australia and the Northern Territory, the United Nations Committee on the Rights of the Child raised concerns about:

the enactment of new legislation in two states, where a high percentage of Aboriginal people live, which provide for mandatory detention and punitive measures of juveniles, thus resulting in a high percentage of Aboriginal juveniles in detention.

Speaking on the Western Australian and Northern Territory legislation, Indigenous lawyer Megan Davis said

One of the main arguments in favour of Mandatory Sentencing is that the laws are not discriminatory but that they apply equally to everybody. But in fact the laws are in essence designed to target those property offences that are committed predominately by individuals who come from a low socio-economic background.

And what sector of the low socio-economic in Northern Territory and Western Australia predominately commit these offences? Indigenous Australians.

Davis further explained how curbing judicial discretion acutely affects Aboriginal Australians

Under Mandatory Sentencing laws a judge does not have the discretion to review all the facts the circumstances of a crime. The legislature effectively binds the discretion of the judiciary. And perhaps even worse for young indigenous Australians with an undeniable lack of trust in the police, it delivers judicial discretion further down the structure of the Administration of justice and essentially places greater power in the hands of law enforcement, the police
When asked to comment on whether the NSW Legislation would "disproportionately affect Aborigines" Premier Barry O'Farrell replied "'I don't believe that's the case'".

The legislation came into effect earlier this month.

The Government has since narrowed the range of offences that will attach mandatory minimums, excluding less serious offences such as assault occasioning actual bodily harm. Furthermore, it has been announced that "mandatory minimums would only apply to offences that happened in public places".

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Mandatory sentencing laws attempt to undermine independency of judges

Mandatory sentencing laws undermine the independence of our judges, says Morry Bailes - Image: The Advertiser

Morry Bailes The Advertiser 10 November 2013

Mandatory sentencing is an issue that has all too commonly been hijacked for political gain, leaving the wider community to believe the rhetoric used to justify its place in law, without real and genuine debate.

The South Australian Parliament recently passed a Bill called the Criminal Law (Sentencing) (Suspended Sentences) Amendment Act, which will take from a judge the ability to suspend a sentence of imprisonment in certain circumstances.

Our law is not a patch on what has been passed by the Queensland Parliament, which introduced mandatory minimum sentences of imprisonment for certain offences. It was a knee-jerk reaction to a complex issue. It is also the thin edge of the wedge.

So, what is wrong with politicians telling judges exactly what to do? Everything.

When a judge sentences a person he or she gets to hear all of the facts put by both the prosecution and defence. The judge is able to take into account all of the circumstances of a crime, hear from victims and victims' families and from the accused person, and make a complete assessment of all of the relevant facts and law.

It is only after this level of scrutiny that a sentence can be regarded as fair. Although sentencing principles and precedents exist, every offence and the facts surrounding it are different.

Our criminal justice system is grounded upon the need to impose punishment and create deterrence, but it is also based upon the concept of mercy.

While some politicians would have you believe that judges are soft on crime, allowing them to take the electorally popular high ground, that is simply not true.

A judge's job is not to be soft or hard, but to judge - fairly. That necessitates taking into account both sides of a story, including personal circumstances. If that ability is taken away, why have a judge at all?

Mandatory sentencing is a politician trying to do a judge's job from afar and without the individual facts relevant to the case. Put simply, it leads to unfair and unjust outcomes because it removes the courts' discretion to assess matters on their merits.

Interestingly, members of the public invited to perform the role of a sentencing judge in a mock scenario at court open days invariably impose a sentence "less than" that imposed by the judge in the actual sentencing hearing.

Before you pass judgment on this at times highly contentious debate, consider this. We are yet to see any evidence that mandatory sentencing makes communities safer or deters crime.

Instead it results in increased rates of incarceration in a discriminatory, unfair and unreasoned manner and is a poor use of taxpayers' money. In particular, mandatory sentencing can impact unfairly on indigenous people, young people and those with a mental disability.

As I expressed in last week's column, our courts of law ensure that administrative decisions made by executive government (government agencies) are fair and correct, and that laws passed by Parliament are actually lawful.

Mandatory sentencing laws passed by parliaments are an attempt to undermine the independence of our judges. It subverts our judiciary, pure and simple.

It strikes at the very heart of the doctrine of the separation of powers which is the cornerstone of Australia's democracy, one that we ought to be proud of and ought to defend.

For everybody's sake, let's not follow Queensland's lead.

Morry Bailes is SA Law Society president.