11.01.2018
Western Australia
8.19 WA legislation imposes mandatory penalties upon conviction in relation to certain types of offenders, and to a number of offences.
Repeat home burglary
8.20 During initial consultations, sentencing for repeat home burglary (known as the ‘three strikes’ rule ) was commonly raised as being of particular concern, and as having a disproportionate impact on Aboriginal and Torres Strait Islander people. The ‘three strikes’ rule provides that an adult offender with two prior convictions for burglary must, upon the third conviction, be sentenced to at least two years imprisonment.[29]
8.21 Previous reviews concluded that this mandatory penalty ‘had little effect on the criminal justice system’, but did not make any recommendations regarding its retention or otherwise.[30] The offence of burglary can capture 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. For example, Legal Aid WA submitted that ‘a person who steals a wallet from a table inside a motel unit by reaching through the window, commits a burglary’.[31]
8.22 Legal Aid WA’s submission offers some insight into the reasons why Aboriginal and Torres Strait Islander offenders may be disproportionately impacted by the repeat burglary provisions:
Most young Aboriginal clients commit offences together. It may be that they are out at night because home is not safe, they are hungry, they are curious or they are simply with the wrong people at the wrong time. Many of them are considered by police as parties to the offences committed by others simply by virtue of agreeing with police that they were ‘a lookout’, without any plan to commit the actual offence.[32]
8.23 The Aboriginal Legal Service WA (ALSWA) confirmed that this provision impacted a number of their clients and provided the following example:
ALSWA acted for B who was a 20-year-old Aboriginal female from a regional location who came to live in Perth. She commenced a relationship and starting using drugs for the first time. B acted as a lookout while her boyfriend committed various burglaries. She was a repeat offender under the legislation despite having no prior convictions other than an offence of providing false details as a juvenile. The client was sentenced to the minimum mandatory term of 2 years’ imprisonment; the prosecutor stated at sentencing that this case was not the type of case that the amendments to the ‘three strikes home burglary laws’ were aimed at and that the conduct did not warrant imprisonment.[33]
8.24 In another example, ALSWA described how, but for receiving timely legal advice, a young Aboriginal male may have been mandatorily imprisoned for repeat home burglary after a ‘third strike’, in which the offender entered a home he believed to have been a friend’s house to eat cereal and listen to music.[34]
Breach of violence restraining orders
8.25 The Restraining Orders Act 1997 (WA) provides the legal framework for the issuing of orders designed to ‘restrain people from committing family violence or personal violence by imposing restraints on their behaviour and activities, and for related purposes.’[35] The Act provides for a presumptive penalty for repeat breach offenders. Section 61A(5) of the Act provides that an offender convicted of three or more breaches of a violence restraining order (VRO) will be subject to a presumptive term of imprisonment. The legislation allows a court to divert from the presumptive penalty in limited circumstances.[36]
8.26 ALSWA reported ‘serious concerns’ that ‘consent is not a defence’[37] to breaching a VRO, and that breaches of this type remain subject to the presumptive sentencing regime.[38] While most VRO are issued by a judicial officer, the WA legislation also provides for the issuing of a family violence restraining order by police officers.[39] A breach of a police issued order can result in a relevant conviction for the purposes of the mandatory presumptive penalty. ALSWA noted that police issued orders
do not require the provision of sworn evidence, are not subject to judicial oversight, do not necessarily take into account the views of the victim and are often made by police as a matter of convenience, for example, sometimes police orders are issued against the female victim because the residence belongs to the male and the female is able to access alternative accommodation.[40]
8.27 The Law Reform Commission of WA examined section 61A in the context of family and domestic violence. It reported that stakeholders in the Kimberly region had raised concerns that police orders were frequently not understood by the person bound by the order; or the person did not recall its existence because it was served on them at the scene, often when they were intoxicated.[41] Nevertheless, the Commission was of the view that the limited discretion in s 61A should be retained.[42]
Other offences
8.28 Stakeholders identified the following additional penalties to the offences for consideration:
- assault public officer (Criminal Code Act Compilation Act 1913 (WA) s 318(4))
- breach violence restraining order (Restraining Orders Act 1997 (WA) s 61A )
- reckless driving committed during police pursuit (Road Traffic Act 1978 (WA) s 60B(5))
- dangerous driving causing death or grievous bodily harm committed during police pursuit (Road Traffic Act 1978 (WA) s 59 (4A)); and
- dangerous driving causing bodily harm committed during police pursuit (Road Traffic Act 1978 (WA) s 59A(4A)).
8.29 In relation to driving offences, NATSILS and ALSWA referred to the same case study:
‘John’ was charged with one count of reckless driving, one charge of driving without a licence and one charge of failing to stop. John made a rash and unfortunate decision to drive a motor cycle to work because his employer, who normally picked him up for work, was unable to do so.
When he saw the police he panicked, sped off, drove through a red light and veered onto the wrong side of the road. He had a relatively minor record—his only prior offences were failing to stop, excess 0.02% and driving without a licence. These offences were dealt with in 2010 by the imposition of fines and John had not offended since that time.
… The magistrate indicated that, if it was not for the mandatory sentencing regime, the sentence would have been less or possibly not one of imprisonment at all.[43]
Northern Territory
8.30 The ALRC understands that the NT Government is in the process of reviewing provisions that impose mandatory penalties. The ALRC welcomes the review. During this Inquiry, stakeholders in the NT identified a number of mandatory sentencing provisions to be particularly problematic in terms of their application to Aboriginal and Torres Strait Islander offenders. NAAJA submitted that:
The following provisions should be prioritised for immediate repeal, as they disproportionately affect Aboriginal people:
- Part 3 Division 6 of the Sentencing Act – Aggravated property offences;
- Part 3 Division 6A of the Sentencing Act – Mandatory Imprisonment for violent offences;
- Sections 120 & 121 of the Domestic and Family Violence Act;
- Part 3 Division 6B of the Sentencing Act – Imprisonment for sexual offences;
- Section 53A of the Sentencing Act – Mandatory non parole periods for offences of murder;
- Section 37(3) of the Misuse of Drugs Act.
The Northern Territory governments should also abolish:
- Provisions which remove the availability of suspended sentences (or other sentencing alternatives) for certain classes of offences or at all.
- Provisions which remove the availability of home detention orders for offences that are not suspended wholly.
- Mandatory minimum fines for traffic offences such as drive unregistered section 33 and drive uninsured section 34 of the Traffic Act.[44]
8.31 CLANT provided a similar list of offences for repeal.[45]
8.32 The Sentencing Act (NT) does not simply apply mandatory sentencing provisions based on the offence committed, but on whether or not the offence is a second or subsequent offence by the offender.[46] This means that there are mandatory terms of imprisonment attached to some offence levels, and mandatory minimums for others.[47]
8.33 The Sentencing Act (NT) classifies individual offences into one of five offence levels. Kingsford Legal Centre submitted that the mandatory sentences in levels 1, 2 and 4 are of ‘particular concern with respect to Aboriginal and Torres Strait Islander people’,[48] and called for immediate reform. Level 2 mandates a term of actual imprisonment, for ‘any person who unlawfully causes harm to another.’ The provision does not require a consideration of the gravity of the harm caused.[49]
New South Wales
8.34 Legal Aid NSW submitted that the mandatory minimum sentence attaching to the offence of assault causing death (while intoxicated) (so called ‘one punch’ laws) was particularly ‘inappropriate.’[50] In a 2017 review of those laws, the Aboriginal Legal Service NSW/ACT submitted that such laws should be repealed, because of the potential for the offence to have a disproportionate impact upon Aboriginal and Torres Strait Islander communities.[51]
8.35 One punch laws were reviewed by the NSW Department of Justice in 2017 which found the law to be largely untested having been introduced in 2014.[52] Nevertheless, the Department stated that it ‘supports the retention of the offences and supports the principle of a lengthy sentence of imprisonment for the aggravated offence’.[53] The Department recommended that the offence provisions be reviewed again in 2020. The ALRC suggests that such a review should also examine specifically the impact of these laws on Aboriginal and Torres Strait Islander people.
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[29]
Criminal Code Act Compilation Act 1913 (WA) 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).
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[30]
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).
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[31]
Legal Aid WA, Submission 33.
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[32]
Ibid.
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[33]
Aboriginal Legal Service of Western Australia, Submission 74.
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[34]
Ibid. The 12 month mandatory term of imprisonment applies where the offence was committed prior to the commencement date of the 2015 amendments. Offences committed after that date are subject to a 2 year mandatory term.
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[35]
Restraining Orders Act 1997 (WA).
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[36]
Ibid s 61A(6).
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[37]
Nor is it a mitigating factor for the purposes of sentencing: Ibid s 61B(2).
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[38]
Aboriginal Legal Service of Western Australia, Submission 74.
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[39]
Restraining Orders Act 1997 (WA) Div 3A.
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[40]
Aboriginal Legal Service of Western Australia, Submission 74.
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[41]
Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws – Discussion Paper (2013) 94. See also, Legal Aid WA, Submission 33.
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[42]
Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws – Final Report (2014) 116.
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[43]
National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Aboriginal Legal Service of Western Australia, Submission 74.
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[44]
North Australian Aboriginal Justice Agency, Submission 113.
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[45]
Criminal Lawyers Association of the Northern Territory, Submission 75.
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[46]
Sentencing Act (NT) div 6A.
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[47]
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. See Sentencing Act (NT) s 78DI.
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[48]
Kingsford Legal Centre, Submission 19.
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[49]
Ibid.
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[50]
Legal Aid NSW, Submission 101.
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[51]
Aboriginal Legal Service (NSW/ACT), Submission to NSW Department of Justice, Statutory Review of Sections 25A and 25B of the Crimes Act 1900 (6 December 2016).
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[52]
NSW Department of Justice, Statutory Review of Sections 25A and 25B of the Crimes Act 1900 (2017) 4.
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[53]
Ibid.