Question 4–1 Noting the incarceration rates of Aboriginal and Torres Strait Islander people:
(a) should Commonwealth, state and territory governments review provisions that impose mandatory or presumptive sentences; and
(b) which provisions should be prioritised for review?
4.3 In Australia, the typical approach to legislating criminal offences is to provide a maximum penalty that may be imposed upon conviction, based on the parliament’s assessment of the relative severity of the offence. This approach gives courts a broad discretion to impose a sentence up to, and including, the maximum based on a range of factors. These factors include the impact of the offence on the victim and the circumstances of the offending and the accused. In sentencing an offender, the court must consider whether a particular case meets the threshold for imposing a term of incarceration, taking into account and balancing the purposes and principles of sentencing.
4.4 It is unusual for legislation to set minimum or mandatory penalties for criminal offences. Mandatory sentencing laws require that judicial officers deliver a minimum or fixed penalty (for the purposes of this paper, a term of imprisonment) upon conviction of an offender. The removal of the usual discretion of the court to consider mitigating factors or to utilise alternate sentencing options to deal with an offender are defining features of such provisions. Mandatory sentencing laws may apply to certain offences, or to a particular type of offender—for example, repeat offenders.
4.5 While mandatory sentencing laws are found in most Australian jurisdictions in various forms, the ALRC focuses on the impacts of mandatory sentencing for offences that stakeholders have identified as having a disproportionate impact on Aboriginal and Torres Strait Islander adult offenders.
The impact on Aboriginal and Torres Strait Islander peoples
4.6 During preliminary consultations, stakeholders across the country overwhelmingly supported the repeal of mandatory sentencing provisions. The ALRC has heard that such provisions have a disproportionate impact on Aboriginal and Torres Strait Islander peoples.
4.7 Western Australia (WA) and the Northern Territory (NT) have high Aboriginal and Torres Strait Islander populations, coupled with historically extensive mandatory sentencing regimes. Both jurisdictions were identified by stakeholders as currently having mandatory or presumptive sentencing provisions that have a significant impact on their Aboriginal and Torres Strait Islander populations. These provisions are discussed below.
4.8 In WA, mandatory penalties apply to convictions for grievous bodily harm offences; and to offenders convicted on multiple burglary counts. These were identified by stakeholders as having a disproportionate impact on Aboriginal and Torres Strait Islander populations.
4.9 In WA, a mandatory minimum term of imprisonment—75% of the maximum—is imposed upon conviction for causing grievous bodily harm when committed in the course of an aggravated home burglary. The maximum penalty for grievous bodily harm is 10 years imprisonment, or 14 years if committed in circumstances of aggravation. This means that an offender would receive, at a minimum, seven and a half years, or 10 and a half years imprisonment.
4.10 Western Australian law also imposes a minimum term of imprisonment for repeat burglary offenders. An adult offender with two prior convictions for burglary must, upon the third conviction, be sentenced to at least two years imprisonment.
4.11 The offence of burglary covers a broad range of conduct and the mandatory minimum sentences may be problematic, given the variance in the nature and gravity of conduct for which individuals are charged with burglary. This has been noted by the Australian Human Rights Commission, in an example of a young offender:
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.
4.12 The ALRC has also heard that, in some instances, Aboriginal offenders are being charged with burglary after entering dwellings looking for food, or having wandered in and out of houses in communities in a way that may not necessarily be regarded as inherently ‘criminal’ in the context of those communities.
4.13 Notwithstanding these concerns, a 2001 WA Department of Justice review of the mandatory sentencing provisions applicable to home burglary offences concluded that the amendments ‘had little effect on the criminal justice system’, and did not make any recommendations regarding their retention or otherwise.
4.14 More recently, amendments to the WA legislation tightened the regime by providing that an offender who commits their first, second and third burglary on a single night would now be captured by the ‘three strikes’ law, whereas prior to the changes multiple counts could be counted as a single ‘strike’ in such circumstances. Some stakeholders referred to these amendments as further affecting Aboriginal and Torres Strait Islander offenders. The ALRC has heard that an offender might enter a number of homes in a night while, for example, heavily intoxicated and looking for food. They might have no prior offending history, and there may be no harm or violence involved, but the judicial officer would be required to impose a sentence of two years imprisonment under the ‘three strikes’ regime.
4.15 Some stakeholders also reported that the mandatory term of six months imprisonment that applies to the offence of assaulting public officers, including police officers, was a common charge laid against Aboriginal and Torres Strait Islander offenders in WA.
4.16 None of the offences noted above allow for the term of imprisonment to be suspended.
4.17 The ALRC acknowledges that the manner in which data is collected and reported makes it difficult to directly attribute disproportionately high rates of incarceration with the use of mandatory sentencing. However, the two most common categories of offence recorded for Aboriginal and Torres Strait Islander offenders in WA are ‘acts intended to cause injury’ and ‘unlawful entry with intent’, categories into which the above offences that attract mandatory penalties would fall.
4.18 The NT has had mandatory sentencing for some decades. In 1997, mandatory penalties applied to a range of property offences and operated on a ‘three strikes’ basis. Adult offenders faced mandatory minimum terms of imprisonment at each ‘strike’ (14 days, 90 days, 12 months). In 2001, the laws were repealed following the suicide of a 15 year old Aboriginal boy mistakenly mandatorily detained for his second minor property offence (theft of stationery worth $50 from a council building).
4.19 Currently, the NT Sentencing Act classifies individual offences into one of five offence levels. The legislation requires a court to impose either a term of ‘actual imprisonment’ or a ‘minimum sentence’, depending on the offence level and whether or not the offence is a second or subsequent offence by the offender. This means that there are mandatory terms of imprisonment attached to some offence levels, and mandatory minimums for others.
4.20 The ‘lower end’ offences that attract mandatory penalties include common assaults, assaults on police, unlawful stalking, robbery, and assault with intent to steal. Where a person has a previous conviction for a ‘violent offence’, the court must impose a term of actual imprisonment. When an offender with no prior convictions is convicted of unlawfully causing harm to a victim and that victim ‘suffers physical harm as a result of the offence’, the court must impose a term of actual imprisonment.
4.21 There is an ‘exceptional circumstances’ provision, which allows a court to deviate from the mandatory minimum term of imprisonment where it is satisfied that the ‘circumstances of the case are exceptional’, but it must still impose a term of actual imprisonment.
4.22 The following example referred to on ABC’s Lateline demonstrates how the law applies:
‘Gloria’ is a young Aboriginal mother of four from a remote town on the northern tip of Arnhem Land. Gloria admitted to drunkenly hitting another woman who taunted her about the death of her mother. The harm caused to the victim was described by the prosecutor as being ‘a blood nose and soreness to her chest’. Gloria had appeared in court once previously for a minor offence.
In court, the magistrate told defence counsel, ‘[t]he test is that unless you can establish some exceptional circumstances, then I must sentence this lady to three months imprisonment’. Defence counsel submitted, ‘It was a spur of the moment thing, it’s not something she needs deterrence from because she’s not a habitual offender. She’s not finding herself before the court time and time again’.
With no exceptional circumstances offered, the Magistrate sentenced Gloria to three months imprisonment, as mandated. It was suggested that, prior to the introduction of mandatory sentencing laws, Gloria would have likely received a fine for the offence.
4.23 A review of the NT’s mandatory minimum sentences for violent offences was conducted in 2015. The review concluded that the introduction of the provisions:
coincided with a reduction in offending and reoffending dropped, but this was thought to be due to another crime reduction initiative;
did not increase the overall percentage of violent offenders sentenced to prison, although it did result in changes to the type of imprisonment option used;
led to an increase in sentence length for repeat violent offenders sentenced in the Court of Summary Jurisdiction, but not for first-time violent offenders or offenders sentenced in the Supreme Court;
was followed by an increase in the consistency of sentence outcome and sentence length for repeat violent offenders, but had relatively little impact on consistency of outcomes for first-time offenders;
resulted in an increase in the length of time and number of court appearances required to finalise defendants who pleaded guilty, and may have contributed to a decrease in the percentage of defendants with a final plea of guilty; and
did not lead to an increase in the number of prisoners held for assault offences (the majority of violent offences).
Whether to retain mandatory sentencing
4.24 Stakeholders consulted by the ALRC to date strongly supported the repeal of mandatory sentencing provisions as they:
unacceptably constrain the exercise of judicial discretion;
displace discretion to other parts of the criminal justice system, most notably to police and prosecutors;
are inconsistent with the rule of law and the separation of powers, by directing the manner in which the judicial power should be exercised;
contradict the principle of ‘imprisonment as a last resort’;
reduce the incentive to plead guilty, resulting in increased workloads for the courts; and
do not operate to deter offenders, and may in fact increase the likelihood of reoffending, as periods of incarceration diminish employment prospects, positive social links, and other protective factors that help prevent recidivism.
4.25 Each of these arguments have been well ventilated previously. Representatives from across the legal sector, including those working in defence, prosecution and among the judiciary, have indicated strong opposition to mandatory sentencing on the basis of these arguments, both in Australia and in comparable international jurisdictions.
4.26 Stakeholders suggested that the mandatory sentencing provisions in WA and in the NT disproportionately affect Aboriginal and Torres Strait Islander offenders because:
they attach to some offences where Aboriginal and Torres Strait Islander peoples find themselves disproportionately charged;
this group is highly visible and easily identifiable, particularly in smaller communities; and
the impact of the provisions tends to exacerbate a range of problems already faced by this cohort that tend to lead to recidivism.
4.27 Of the stakeholders consulted by the ALRC to date, none have indicated support for mandatory sentencing provisions. However the ALRC acknowledges that proponents of such laws argue that they:
promote consistency in sentencing;
deter individuals from offending;
denunciate the proscribed conduct;
ensure appropriate punishment of the offender; and
protect the community through incapacitation of the offender.
4.28 In 1999, the ALRC stated that ‘mandatory detention offends against the principle of proportionality’, noting the comments of the High Court in
Chester v R,that
it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender.
4.29 The ALRC also highlighted at that time that ‘mandatory detention violates a number of provisions in the International Convention on Civil and Political Rights (ICCPR) including the prohibition on arbitrary detention in Article 9’. In reference to NT and WA provisions affecting juvenile offenders, the ALRC considered ‘these violations of international and common law norms so serious’ that it recommended federal legislation to override the laws unless the Parliaments of WA and the NT repealed them.
4.30 Mandatory sentences may also be discriminatory and breach art 2 of the ICCPR in their disproportionate impact on Aboriginal and Torres Strait Islander peoples.
4.31 In 2014, the United Nations expressed concern about Australia’s mandatory sentencing provisions, noting their disproportionate impact on Aboriginal and Torres Strait Islander peoples. The Committee against Torture recommended that Australia ‘review mandatory sentencing laws with a view to abolishing them, giving judges the necessary discretion to determine relevant individual circumstances’.
4.32 The ALRC acknowledges that, as a consequence of how data is categorised, it is difficult to attribute the numbers of Aboriginal and Torres Strait Islander peoples in prison to the impact of mandatory sentencing provisions.
4.33 The ALRC has not yet had the opportunity to review each jurisdiction’s offence provisions to identify all those provisions that attract mandatory penalties, noting that some mandatory sentencing provisions are likely to have little impact on Aboriginal and Torres Strait Islander offenders. For this reason, the ALRC has not made a proposal in this area, but reiterates its previous opposition to mandatory sentencing and, in light of the work necessary to identify each relevant law, questions whether governments should review provisions that impose mandatory and/or presumptive sentences, with a view to restoring judicial discretion. The ALRC also invite submissions on which provisions should be prioritised for review, noting the focus of this Inquiry, as well as case study examples demonstrating the application of these provisions.
For the purposes of this part, the ALRC is not referring to strict liability offences.
See, eg, Migration Act 1958 (Cth) s 236B; Crimes Act 1900 (NSW) 1900 s 19B(4); Criminal Law Consolidation Act 1935 (SA) s 11; Misuse of Drugs Act (NT) s 37(2); Sentencing Act (NT) s 78F; Domestic and Family Violence Act 2007 (NT) s 121(2); Crimes Act 1958 (Vic) ss 15A, 15B; Road Traffic Act 1974 1974 (WA) ss 60, 60B(3); Criminal Code Act Compilation Act 1913 (WA) ss 297, 318.
The ALRC notes that mandatory sentencing also affects young offenders in some jurisdictions: eg, Criminal Code Act Compilation Act 1913 (WA) s 297(6).
Ibid s 297(5).
Ibid s 401(4)(b). For an example involving a young Aboriginal man, see Western Australia v Ryan (Unreported, District Court of Western Australia, 24 October 2016).
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001 (2002) 105.
Rowena Johns, ‘Sentencing Law: A Review of Developments 1998–2001’ (Briefing Paper No 2/202, Parliamentary Library, Parliament of NSW, 2002) 75, citing Department of Justice (WA), Review of Section 401 of the Criminal Code (2001).
Criminal Code Act Compilation Act 1913 (WA) s 318.
This is because individual state and territory based offences are grouped into categories to allow for systematic ordering and analysis across jurisdictions. As a result, individual offence provisions, such as those that attract mandatory penalties, are grouped in with other offences that do not attach to mandatory penalties: Australian Bureau of Statistics, Australian and New Zealand Standard Offence Classification, Cat No 1234.0 (2011).
Australian Bureau of Statistics, Prisoners in Australia, 2016, Cat No 4517.0 (2016) table 15.
Declan Roche, ‘Mandatory Sentencing’ (Trends & Issues in Crime and Criminal Justice No 138, Australian Institute of Criminology, December 1999). Similar provisions also applied to juveniles.
Leonie Howe, ‘Mandatory Sentencing: A Death Sentence in the Northern Territory?’ (2001) 12(3) Current Issues in Criminal Justice.
Sentencing Act (NT) div 6A.
Ibid sch 2.
Ibid s 78DF.
Ibid s 78DE.
Ibid s 78DI.
Ibid s 78DG.
‘Mandatory Sentencing “Increases Prison Numbers”’, Lateline, 28 May 2014 <http://www.abc.net.au/lateline/content/2014/s4014347.htm>.
Department of the Attorney-General and Justice (NT), Review of the Northern Territory Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 (2015) 7.
Noting that all Australian jurisdictions (with the exception of Tasmania and the NT) have legislated to enforce the principle: Crimes Act 1914 (Cth) s 17A; Crimes (Sentencing) Act 2005 (ACT) s 10; Crimes (Sentencing Procedure) Act 1999 (NSW) s 5; Penalties and Sentences Act 1992 (Qld) ss 4S, 9(2); Criminal Law (Sentencing) Act 1988 (SA) s 11; Sentencing Act 1991 (Vic) ss 4B, 5(4); Sentencing Act 1995 (WA) ss 6(4), 86.
See, eg, Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (2014); Law Society of Western Australia, Briefing Paper Mandatory Sentencing (2016); Tammy Solonec, ‘“Tough on Crime”: Discrimination by Another Name—The Legacy of Mandatory Sentencing in Western Australia’ (2015) 8(18) Indigenous Law Bulletin; Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 6; Nicholas Cowdery, ‘Mandatory Sentencing’ (Speech, Sydney Law School, Sydney, 15 May 2014); Smart Justice, Mandatory Sentencing (2013).
For a detailed discussion on these points, and the Law Council’s response to them, see Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (2014).
Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997) [19.55].
Chester v The Queen (1988) 165 CLR 611, .
Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997) [19.63].
Ibid [19.64], rec 242.
United Nations Committee against Torture, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Australia (2014) .
For example, some people smuggling offences under the Migration Act 1958 (Cth) s 236B.