Pressure mounts to abolish mandatory sentencing
By Jo Ellis
DARWIN — The death in custody of a 15-year-old Aboriginal youth on February 10 has increased calls for the abolition of mandatory sentencing laws in the Northern Territory and Western Australia. Sentenced to 28 days for stealing textas and stationery, the young man hung himself with bedsheets in his room at the Don Dale Juvenile Detention Centre in Darwin.
Despite this tragedy, NT chief minister Denis Burke has rejected calls for the repeal of mandatory sentencing laws. Prime Minister John Howard is also resisting calls for federal legislation to override the NT's laws.
The WA government has also rejected calls for it to review its mandatory sentencing laws. WA attorney-general Peter Foss said Canberra should butt out of the state's affairs and worry about more important matters "like the GST and illegal immigrants".
The youth is the first person to die as a direct result of mandatory sentencing legislation in the Northern Territory. His death has angered many.
In the NT, a petition calling for the immediate repeal of mandatory sentencing is being widely circulated and a rally will take place on February 22, the day the NT parliament resumes sitting.
Andy Gough, spokesperson for the Territory Greens, stated "I fail to see how Denis [Burke] can sleep at night after this tragedy, to have so boldly defied overwhelming public outcry and federal investigation."
The NT Country Liberal Party government and the federal Coalition government also face pressure from outside the NT. In August, senators Bob Brown (Australian Greens), Trish Crossin (ALP) and Brian Greig (Australian Democrats) jointly introduced a private member's bill which seeks to override state laws and ban mandatory sentencing of juveniles. This bill is due for debate in the Senate soon.
A recent Senate inquiry, held to assess the effects of mandatory sentencing upon juveniles, received 94 submissions. Ninety of these argued against mandatory sentencing.
The submissions were from a wide range of groups, including the NT Law Society, Aboriginal organisations, church groups and lobby groups for young people. Some even foreshadowed deaths like that this month, stating that mandatory sentencing of young people increases their emotional ill health and the risk of suicide.
The federal government has also come under pressure internationally and from its own members. Some Liberal MPs want to see a conscience vote in federal parliament on the issue, although the Prime Minister has rejected this suggestion.
Mandatory sentencing laws were introduced in the NT in 1997. Under the legislation, any person more than 17 years old who is found guilty of certain property offences incurs a mandatory prison sentence of 14 days for the first offence, 90 days for the second offence and one year for the third (unless "exceptional circumstances" exist).
The property offences that incur mandatory sentences are theft, criminal damage, unlawful use of a vehicle, receiving stolen property, assault with intent to steal and robbery. Sex offences and violent crimes against another person also incur mandatory sentences. "White-collar crime", such as fraud, is not subject to mandatory sentences.
Juvenile offenders (15 and 16 year-olds) incur 28 days' detention for a second or subsequent offence.
Magistrates have no discretion in determining sentences. People who commit serious offences often get exactly the same punishment as those who commit very minor offences.
The following "crimes" have all incurred a penalty of 14 days' jail: receiving a stolen can of beer, stealing a cigarette lighter and stealing $9 worth of petrol. In May, a homeless Aboriginal man was imprisoned for a year after he was convicted of stealing a towel from a clothesline.
The most recent example involves a 21-year-old Groote Eylandt man who, on February 16, was sentenced to 12 months' imprisonment. His crime was the theft of a bottle of cordial and biscuits (to the total value of $23) from a work site on Christmas Day, 1998.
His lawyer, Stewart O'Connell, from Northern Aboriginal Legal Aid, said, "It makes you embarrassed to be a lawyer in the Territory when this happens".
Mandatory sentencing has the greatest impact on Aboriginal people. Despite the Royal Commission into Aboriginal Deaths in Custody's 339 recommendations on the subject, Aboriginal people are still 14 times more likely to be imprisoned than non-Aboriginal Australians.
In the NT, 72.8% of the prison population is Aboriginal (Aboriginal people make up 25% of the NT's population). Many of those jailed are from remote areas and, whilst in prison, are cut off from their families and communities.
The NT's laws also have a severe impact on young people. Since the introduction of mandatory sentencing there has been a 145% increase in the detention of people under 18. The majority of people sentenced under mandatory sentencing are under the age of 24.
Mandatory sentencing legislation is a direct breach of the International Convention on the Rights of the Child which recommends that imprisonment of young people be "a measure of last resort".
Sibylle Kaczorek, from the Youth Rights Action Group, says that mandatory sentencing's "focus on property crime clearly discriminates against people from a low socioeconomic background, in particular indigenous people and young people".
The Aboriginal and Torres Strait Islander Commission (ATSIC) submission to the Senate inquiry states that the "vast majority of both adults and juveniles appearing before the courts for the principal offences which fall under the mandatory sentencing regime are Aboriginal", whilst "the types of property offences (fraud) excluded from the mandatory sentencing regimes are precisely the offences where the majority of both adult and juvenile offenders are non-Indigenous".
The death of the 15-year-old is especially tragic because it was preventable. Without mandatory sentencing legislation, it is unlikely that he would have been imprisoned for the extremely minor offence that he committed.
Burke has refused to consider the death a result of mandatory sentencing. And despite having no statistics that show that mandatory sentencing has reduced crime in the NT, the NT government refuses to consider repealing the legislation.
Howard's insistence that this is a state issue (despite passing legislation that overrode NT euthanasia laws) shows that his government considers human rights — particularly those of Aboriginal people — to be of minimal importance.