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THE TRUTH ABOUT MANDATORY SENTENCING
March 2000


What's it about?

Pity the poor Northern Territorians who have been portrayed in the media, Southern States based of course, as a collection of hillbillies prepared to lynch an Aboriginal for stealing a pack of cigarettes. No surprise then that our Northern friends have raised the shutters and hunkered down for the length of the siege.

It's not enough that their sovereign right to make laws was hijacked by the Commonwealth in overriding their euthanasia legislation, they are now cast as the villain in a farce that has more to do with culture and States' rights than any real concern for the victims of harsh laws.

The issue has been before Territorians in two election campaigns, and on both occasions the sponsoring Country Liberal Party has prevailed. Southerners fail to grasp the reality that intense parochialism is a precondition of any successful NT political campaign, and this habitually includes an appeal to the need to appear to be "tough on crime".

How easy it is for urban dwelling Southerners to stand indignantly on our high horses whilst we allow victims of heroin to nightly die in dingy alleys and ignore the ridiculous inconsistencies in State laws. And what mugs the Southerners have proved ourselves to be - all more fuel to the fire for NT politicians to appeal to the rugged individualism of their constituency. This is not to say that the mandatory sentencing laws are right, but rather to question the mood of self righteousness that has permeated the controversy in the Southern States.

What is mandatory sentencing?

It's a minefield of euphemisms: "do the time and do the crime" and "three (or two) strikes and you're out" are two of the favourites. Basically it means that a judge or magistrate has no option other than to impose a prison sentence for some offences, not based on the circumstances of the crime, but rather the number of convictions that precede the latest offence or the specific type of offence.

The model emerged in 1997, when the NT Sentencing Act imposed mandatory sentences for second property offences. Like so much public debate on so-called "law and order" issues, it emanated from the political arena rather than the judiciary or the legal profession, egged along by talkback radio and the local media.

What's wrong with it?

How many times have you heard a tabloid journalist or talkback shock-jock proclaim the need for tougher laws on crime? How often are judges and magistrates lambasted for their lenient sentencing? In Victoria, a former Attorney-General sought public feedback on appropriate sentences for various crimes, to a flood of replies. So why not follow the will of the people and set "mandatory" sentences for some crimes? After all, are we a democracy or not?
Sure, but there is also a separation between the legislature that make laws on behalf of the people and the judiciary that interprets them, normally with an appropriate sentencing discretion. For instance, we all know that murder is a crime in an entirely different league to the theft of a bottle of milk. That difference is reflected in the maximum sentences for these crimes: if you intentionally take a person's life you can expect to spend many years in jail, and though judges have a discretion when sentencing the offender, they know that the legislature has designated a maximum sentence that clearly reflects the seriousness of the crime.
Mandatory sentencing turns this model on its head. In the NT a second conviction for a property offence (e.g. theft) can bring with it a mandatory 28 day sentence. Of course it is inconsistent - a far more serious offence can result in a non-custodial (no prison) sentence. In cases where the crime is other than a property offence, juveniles tend to be sentenced to prison only as a last resort. And there is no doubt it discriminates against isolated Aboriginal communities where property crimes are rife, in a Territory where the majority of prisoners are Aboriginal, and the Inquiry into Aboriginal deaths in custody has rightly garnered international attention.

Think about it this way: in life we all crave certainty, it is a basic drive that attempts to deal with the turmoil of change and our need for security. Fair enough, but this doesn't translate well into the complexities of the criminal justice system. There are so many issues that enter the determination of an appropriate sentence: the age of the offender; their criminal history; their backgrounds and education; the reports of professionals that often propose sentencing options, to mention just a few. It is for these reasons that judges are permitted to move within a sentencing ambit to take into account the myriad of circumstances that can surround the commission of a crime.

Our verdict

In a perfect world we would place the welfare of young offenders before the interests of property owners, but that ignores the emotional investment people have in their hard-earned goods. How do you feel when you walk in the front door to discover your under-insured belongings have waltzed out the back door?

Of course you're justifiably angry, and when a cynical radio host appeals to that fury, you might just buy their argument that "they should all be locked up". So let's admit it's an emotional issue, but at the same time take a step back from the edge and look at this soberly, bringing to the argument all the logic and reason that should precede the decision to remove a person from society and their family.

At the least we should be consistent - if mandatory sentencing applies to certain property crimes by young offenders, then why not for white collar criminals who "steal" their workers' entitlements, or politicians caught rorting the public purse?

How about the hypocrisy of a federal government that chooses to intervene in one set of laws passed by the NT government but declares mandatory sentencing to be, as the PM apparently stated on Sydney radio, an issue for the NT government. Sure the mandatory sentencing laws should be changed, but it's not going to happen while we naively entrench the position of politicians more interested in the votes of their constituents than the opinions of citizens thousands of miles from a NT ballot box.

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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