Mandatory sentencing: is it time to celebrate?

Issue 

BY GARY MEYERHOFF Picture

DARWIN — Mandatory sentencing has been a hot topic in the Northern Territory since it was implemented by the Country Liberal Party government four years ago. The new Labor government, elected in August, repealed the legislation that imposed mandatory sentencing for property offences on October 19.

The mandatory sentencing for property offences law was introduced in the NT by then CLP chief minister Shane Stone (now national president of the Liberal Party). Under its provisions, an adult first offender for property offences received 14 days' imprisonment, three months for a second offence and 12 months for the third offence. Juveniles received 28 days for a first offence, although magistrates had the option of diverting young people into a non-custodial alternative at the first offence stage.

The system was harsh and punitive. People were jailed for trivial offences such as stealing a packet of biscuits or a towel from a backyard.

A campaign to have the NT mandatory sentencing legislation repealed was started immediately after it was introduced, led by the Darwin Community Legal Service and the Northern Australian Aboriginal Legal Aid Service. This campaign had its ups and downs, but was revitalised earlier this year when Denis Burke's CLP government passed the Public Order and Anti Social Conduct Act.

A number of large rallies were held at parliament house to protest against the new act, as well as mandatory sentencing. Protesters also aimed to put pressure on the Labor Party to ensure that it would repeal mandatory sentencing if it was elected.

During the NT election campaign, the ALP moved further to the right to get votes. Labor promised more police, harsher drug laws and a night curfew for young people under 16.

However, on mandatory sentencing, the ALP remained strangely quiet. Labor leader Claire Martin did not declare that the ALP would repeal mandatory sentencing until the Socialist Alliance distributed a press release demanding that Labor state its position. She then stated that mandatory sentencing would be repealed "at the first opportunity".

What Martin did not say was that she was only referring to mandatory sentencing for property offences. Mandatory sentences also apply to people found guilty of the possession of "illicit substances". Life sentences are also mandatory for homicide (which in the NT literally means life, not 12 years).

Both the CLP and the ALP advertised extensively that if elected, Martin would repeal mandatory sentencing. This was not the case.

But many social justice activists have believed the Labor line. Activists involved in the campaign to end mandatory sentencing have packed up shop and gone home. On October 19, celebration drinks were held at a local bar.

Unfortunately, the celebrations were held too soon.

'Unfortunate'

First of all, Labor did not repeal mandatory sentencing "at the first opportunity". A number of young people and adults were given mandatory sentences after the ALP was elected. Peter Toyne, the new attorney general, told ABC radio nothing could be done until parliament sat in October. It was "unfortunate" that people would still be affected before then, he said.

After her election as NT chief minister, Martin could, and should, have called an amnesty on mandatory sentences until the ALP repealed the legislation in parliament. She could also have made the repeal legislation retrospective to the day she was elected. She did not.

What does the abolition of mandatory sentencing for property offences mean? People are now less likely to be jailed for trivial offences. Lawyers are not yet clear on Labor's new sentencing guidelines, but it looks like most property offenders will get community work orders. However, the penalty for "home invasion/burglary" has been increased to 10 years' jail.

In most cases, it will be mandatory that an offender completes a community work order or goes to jail. What this means is that magistrates still do not have discretion in every case.

Many proponents of the repeal of mandatory sentencing legislation have fought hard to have discretion returned to magistrates in all cases. This fight needs to continue.

Labor's sentencing guidelines are basically mandatory sentencing with some adjustments and a new name. We need to watch how these guidelines are applied. NT Labor's web site spells out its true position:

"Labor is opposed to any soft sentencing approach. The community expects those who deserve to go to jail to be imprisoned as a punishment and as a deterrent to others.

"Labor will amend the Sentencing Act to state expressly that it is the intention of the Parliament that people who commit the crime of housebreaking, burglary, entry and damage to homes, cars or business premises will go to jail, unless extenuating circumstances exist.

"Even if extenuating circumstances exist, the community expectation is that punishment is still to be severe and that the community should benefit from the punishment. Therefore, for the few people who do not go to prison for these offences they will be required to perform punitive work orders in community directed projects for the benefit of the community under strict supervision, e.g. removing coffee bush from public spaces."

"The insertion of a clause setting out the intention of the Parliament's wishes to see serious criminals go to jail will be a new initiative and the first benchmark that Judges and Magistrates will have to consider and comply with. This initiative will address the community's concerns about judges being soft on crime."

Tougher drug laws

At the same time, Labor is to repeal the two parts of the Public Order and Anti-Social Conduct Act and toughen the provisions that deal with drug users. In opposition, Labor voted against the anti-social conduct bill in parliament after the CLP refused to accept deputy opposition leader Syd Stirling's amendments to make the law harsher towards drug users. (Stirling is now deputy chief minister and minister for police.)

Labor has also promised to double the size of the police drug squad. This is two steps forward and one step backwards.

Will the repeal of mandatory sentencing for property offenders improve the situation for indigenous people in the Northern Territory? Even without mandatory sentencing, the NT will retain its notoriously racist police force. Racism remains rife and systemic. Homelessness among indigenous people will remain chronic and they will remain the main victims of punitive council by-laws. Many indigenous people will continue to be jailed for the non-payment of fines.

On ABC TV's Australia Talks on October 4, I asked Martin: "If another young person suicides in the Don Dale detention centre, is it your fault or [former CLP Chief Minister] Denis Burke's?" Martin didn't answer. What I didn't know then was that on that same day, another Aboriginal person died in custody in Darwin.

Conservative governments continue to focus on dealing with the symptoms of our sick society rather than deal with the causes. Liberal and Labor governments refuse to understand that jailing people does not serve to rehabilitate them or prevent crime.

If mandatory sentencing for property offences is fundamentally flawed, then isn't mandatory sentencing for drug and others offences also flawed? Why isn't Labor repealing mandatory sentencing completely?

The answer is that Labor governments are no different to Liberal governments when it comes to law and order issues. The recent announcement by the NSW Labor government that it is to expand the state jail system, including building new jails, is further evidence of this.

Rather than open new jails, or expand existing institutions, jails should be closed and the resources diverted to addressing the root causes of criminal activity.

[Gary Meyerhoff is standing on the Socialist Alliance's NT Senate ticket, which is headed by Larrikiah elder June Mills. Meyerhoff is also a member of the Democratic Socialist Party. Visit the Socialist Alliance web site at .]