Aboriginal Law Bulletin
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by Meredith Wilkie
Early in February, the WA Parliament, recalled early for the purpose, hastily passed legislation it claimed was “Carefully targeted at a small but very dangerous group of offenders.”[1] Until the week of its passage, the Bill was restricted to juveniles. In response to criticisms that it would result in much harsher treatment for juvenile than for adults – contrary to accepted principles and Australia’s international obligations – the Bill was amended to include adults within some of its terms. It is now the Crime (Serious and Repeat Offenders) Sentencing Act 1992 and came into effect on 9 March, 1992. At the same time, other legislation was amended to provide increased maximum penalties for offences committed while driving a stolen vehicle.[2]
The Act is, at base, aimed at selective preventive detention of juvenile car thieves. Community concern escalated in the wake of a spate of car thefts by groups of juveniles prepared to resort to violence to achieve the thefts and to protect their escape. The stolen cars are sometimes then used to bait police and high speed police chases ensue. A number of people have died, predominantly innocent drivers or passengers in other cars[3], but including five young unlawful drivers or their passengers.
In addition, the Government has taken the opportunity to attempt an attack on the problem of serious multiple offending by young people - a problem which seemed to have got the better of the responsible department, the Department for Community Services.
Two new sentencing regimes are established by the legislation. The least severe applies to two categories of juvenile (only) offenders:
(i) 'serious repeat offenders' and (ii) those who commit a range of violent offences in the course of stealing a motor vehicle.
(i) A 'serious repeat offender' is one who is about to be sentenced on his or her 7th 'conviction appearance'[4] for a listed serious offence in 18 months. The serious listed offences include burglary, arson and stealing a motor vehicle aggravated by reckless or dangerous driving.[5]
(ii) The motor vehicle theft offenders are caught by this Act on each such offence (and not only on their 7th in 18 months), a provision which confirms that they are its principle targets. It is not stealing a vehicle alone which brings an offender within the ambit of the Act, but the commission of specified violent offences in the course of the stealing (s.10).
The Act requires the court sentencing juvenile offenders in both these categories to apply prescribed sentencing guidelines[6] in deciding whether to impose a custodial sentence and, if so, for how long. The guidelines clearly focus the Court's attention on retribution and incapacitation as opposed to rehabilitation. Sentencing of juvenile offenders who are not captured by the Act will continue to be guided by principles which give primacy to the rehabilitation of juvenile offenders, while sentencing of juvenile offenders under the Act must balance rehabilitation with the protection of the community and property (Schedule 3). However, the sentencing court bound by the guidelines will be free to continue to take into account, as it sees fit, the individual circumstances of the offender, his or her best interests and the desirability of reintegration into the community. In other words, there is still room for the court to design a humane sentence which is proportionate both to the gravity of the offence and to the circumstance of the offender.[7]
None of this leeway is available with respect to 'repeat violent offenders' whether juveniles or adults. These are offenders convicted on their 4th appearance in 18 months for a listed violent offence or their seventh for a listed serious offence with the 7th appearance being for one of the listed violent offences. For these offenders, a sentence of detention is mandatory (ss.6 and 8) - the sentencing court has no discretion. Ordinary sentencing principles, such as the statutory rule that imprisonment should only be used as a last resort[8], do not apply. There is no room for the operation of the minimum standards established by the UN Convention on the Rights of the Child or the UN Beijing Rules.[9]
The sentencing court has a discretion as to how long (or short) the sentence of detention will be. In doing so the court must apply the sentencing guidelines mentioned above. However, if the sentence imposed by the court is less than 18 months, the effect of the Act is to increase it to 18 months (ss.7 and 9). Moreover, release is not automatic after 18 months - the legislation imposes continued indeterminate custody on all offenders involved. That period of indeterminate custody may only be terminated, in the case of juveniles, by the Supreme Court (s.7). In the case of adults, the effect is of a sentence at the Governor's Pleasure (s.9).
Juvenile detainees, under the Act, have no standing to petition the Supreme Court for release. Instead, the application for review of their custody must come from the head of Community Services (if they are in a juvenile detention centre) or of Corrective Services (if in a prison). The Act, on this point, overrides the rule applicable to other juvenile offenders - that imprisonment in an adult prison cannot be imposed on a person under the age of 16.[10] We can expect that, with all three juvenile detention centres full to capacity almost all of the time, the courts will be forced to use imprisonment even more than at present and possibly for younger children. Alternatively, the Director General of Community Services may be more inclined to use his power to apply to the court to transfer juveniles in detention into the prison system[11] in order to make room for the influx of young offenders for whom a sentence of detention is now mandatory.
It is widely accepted that the majority of children caught in this new penal net will be Aboriginal. The Department for Community Services itself estimates that just over one-half will be Aboriginal.[12] Thus, in direct contradiction of the findings and recommendations of the Royal Commission into Aboriginal Deaths in Custody - which stress the urgent need to reduce the over-representation of Aboriginal people in custodial situations[13] - the WA Government is intent on imposing an extreme regime which will necessarily have the effect of dramatically increasing the extent of that over-representation.
It has been put to the Government that this disproportionate adverse impact will contravene the International Convention on the Elimination of All Forms of Racial Discrimination, which prohibits effective and indirect discrimination as well as intentional and direct discrimination. Rob Riley, Executive Director of the Aboriginal Legal Service (WA), has made the point that this is in fact a repeat of the notorious Aborigines Act 1905 under which Aboriginal people could, be forcibly removed from or into missions and settlements. This, he says, is another Act enabling the Government to lock up Aboriginal people and throw away the key.[14]
What evidence is there - apart from the evidence of our own eyes - for these assertions of a discriminatory effect?
The first point to be made - one relevant too to an assessment of the Act as an exercise in targeting a 'core group' or in 'selective incapacitation' - is that WA juvenile justice statistics are woefully inadequate. Over-counting of juvenile offenders is acknowledged to be at least in the order of 25% and widely believed to be much higher. The individual's computerised record - on which the decision will be made whether he or she is covered by the Act - is equally unreliable. Rod Broadhurst, Senior Research Fellow at UWA's Crime Research Centre, which has responsibility for collating and publishing all WA crime and justice statistics, says:
The timing and number of 'conviction appearances' are the two key dimensions in the implementation of this legislation aimed at identifying and classifying high risk offenders. Yet the data currently collected does not reliably record either the timing or the number of 'conviction appearances'. It is not an actuarial record of the 'criminal careers' of juvenile offenders.[15]
All available data, however, point to a significant over-representation of Aborigines among those juveniles who will be trapped by this Act. Aboriginal children are over-represented at arrest (25% of juveniles arrested in 1990; 4% of the juvenile population) but the level of their over-representation becomes even more extreme as we look both at the more serious types of offending and at the use of harsher penalties.[16] Thus, Aboriginal juveniles were 43% of juveniles arrested for offences against the person in 1990.[17] Overall, the Aboriginal juveniles arrested faced an average 5.5 charges each while non-Aboriginal juveniles faced an average 2.7 charges each.[18]
Of juveniles appearing in the Children's Courts in WA in 1990, Aborigines were most likely to receive a custodial sentence. In fact Aboriginal juveniles were almost eight times as likely to be incarcerated as non-Aborigines: 12.4% of Aboriginal juvenile offenders were sentenced to custody compared with 1.6% of others.[19] Aboriginal children constitute a majority of juveniles in detention. In 1989-90, Aborigines constituted 67% of sentenced admissions to juvenile detention centres.[20] Aboriginal juveniles are also much more likely to be incarcerated in adult prisons or police lock-ups (where more than half of WA prisoners serve their sentences). In 1990, 82 (66%) Aboriginal boys of a total of 124, and 7 (78%) Aboriginal girls of a total of 9 girls, were received into adult prisons.[21] In the same year, 150 Aboriginal boys (90%) and 37 Aboriginal girls (97%) served sentences (often more than one each) in police lock-ups.[22]
These figures, I think, are sufficiently informative, although perhaps barely so, for us to be confident that the majority of juveniles at risk under this new legislation will be Aborigines.
We can also confidently predict that for many, perhaps most, of the young Aboriginal people to face 18 months plus detention under the new regime, profound hardship will be the principal effect. An 18 month sentence is now at the upper end of sentences experienced - whether by juveniles or adults - in WA. In the correctional system, 82% of all prisoners received in 1990-91 were sentenced to terms of less than 12 months.[23] For 16 and 17 year old Aboriginal boys in the juvenile detention system, the risk of a sentence over 12 months was, until now, approximately the same. Of the 69 Aboriginal boys admitted to Riverbank in 1989-90, 83% were serving sentences of 12 months or less.[24] For younger Aboriginal boys, the average sentence that year was 3 months and the average actual stay in detention was about 7 weeks.[25]
Two factors, cumulative upon the grossly extended periods of detention now faced by some Aboriginal children, raise deep concerns for their well-being[26] and suggest that these mandatory indeterminate sentences may amount to cruel and unusual punishment even in a legal sense (as they most certainly do in a moral and human sense).
All WA's juvenile detention centres are located in the Perth metropolitan area. Aborigines live predominantly outside the metropolitan area. In the first six months of 1990, of 296 sentences of detention imposed on Aboriginal young people, 42% were from country WA.[27] These sentences would have been served in the metropolitan area, far from family and far from country. For possibly the most serious offences, the country contribution is even higher. Almost two-thirds (65%) of the Aboriginal 16 and 17 year olds admitted to Riverbank in 1989-90 were non-metropolitan youth.[28]
Exacerbating this prolonged isolation for these young people will be the dearth of Aboriginal staff in the institutions and the dearth of relevant programs. In June 1990, only 8% of group-workers in the detention centres were Aboriginal: 12 people in a otal group-worker complement of 163. The Aboriginal Legal Service and the Aboriginal Visitor Scheme make intermittent visits but usually only in respect of particular inmates. The detention centres do try - in truly squalid and inhuman accommodation - to introduce Aboriginal programs and people such as Aboriginal athletes, actors, language workers and police aids. However, these too are intermittent add-ons to a regime which has its roots in an assimilationist ideology, was designed for non-Aboriginal children (to the extent that it can be said to have been 'designed' at all), and which can only be damaging to Aboriginal identity and self-esteem.[29]
It is not merely ironic that the new Act will impact so drastically on Aboriginal youth when their disproportionate presence in the 'target' group can be directly traced to policies of the WA Government. It is arguable that this fact compounds the Government's breach of the international prohibition of racial discrimination. These policies include the failure of the Government to address Aboriginal unemployment rates; the Government's complacency about continuing Aboriginal over-representation in both juvenile and adult custody;[30] and the over-representation of Aboriginal children among children removed from their families by the State.[31] They also include the Government's refusal to admit the significance of police harassment of Aboriginal young people; of the need for an interpreter service in police stations and courts for Aboriginal children;[32] and of the need to ensure support for Aboriginal juveniles under police interrogation.[33] They include the denial to Aboriginal communities of land rights and self-determination and the slow and inadequate response of the Government to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.
Finally, if the responsible department - the Department for Community Services - had been willing to fund adequate, effective, culturally appropriate, community-based programs for Aboriginal juvenile offenders and their families, particularly in the Perth metropolitan area,[34] it is more than likely that a number of the Aboriginal children now at risk of incurring draconian penalties could have been diverted from their offending.
[1] Premier's Second Funding Speech, Assembly, 6 February 1992.
[2] These amendments have the effect of increasing the maximum penalties for a number of 'driving' offences where the aggravated factor is the fact that the car involved was stolen- The maximum penalty for dangerous driving causing death or grievous bodily harm is 4 years: Road Traffic Act 1974 (WA), s.59. When aggravated by the fact of driving in a stolen vehicle, the maximum penalty for dangerous driving causing death has been increased to 20 years and that for dangerous driving causing grievous bodily harm to 14 years: ibid, s.59(3) as amended. Similarly, causing grievous bodily harm carries a maximum penalty of 7 years. If the offence is committed in the course of stealing a car, the maximum is now 14 years: Criminal Code 1913 (WA), s.297. Finally, the maximum penalty for stealing is increased from 7 to 8 years when the aggravating factors are that the thing stolen is a motor vehicle and the manner of driving it is reckless or dangerous: Criminal Code, s.378 (2). Fortunately there is no mandatory minimum penalty applicable in these cases.
[3] Some 17 people died in this way between about April 1990 and the end of February 1992.
[4] A person may be convicted of more than one offence at an 'appearance' in court. The Act is concerned not with total convictions but with appearances which resulted in conviction(s) of (or including) one of the listed serious or violent offences.
[5] These and others are listed in Schedule 1 to the Act. The definition of 'repeat offender' is found in Schedule 2.
[6] Schedule 3 to the Act requires that the court "shall have regard to the need to balance rehabilitation with the protection of the community and property and shall also have regard to such of the following matters as are relevant and known to the court -
(a) the personal circumstances of any victim of the offence;
(b) the circumstances of the offence, including any death or injury to a member of the public or any loss or damage resulting from the offence;
(c) any disregard by the offender for interest of public safety;
(d) the past record of the offender, including attempted rehabilitation and the number of previous offences committed whether prescribed offences or not;
(e) the age of the offender,
(f) any remorse or lack of remorse of the offender, and
to any other matters that the court thinks fit."
[7] As stipulated in Beijing Rule 5: UN Standard Minimum Rules for the Administration of Juvenile Justice, sponsored by Australia, among other nations, and adopted by the UN General Assembly in 1985.
[8] Children's Court of Western Australia Act (No 2) 1988, s.26; Criminal Code, s.19A.
[9] For a discussion of the numerous ways in which the Act contravenes Australia's international human rights obligations, see Wilkie, M., "Statute Note", University of WA Law Review (1992) 22(1), (forthcoming, June 1992
[10] Children's Court of Western Australia Act (No 2) 1988, s.21(1).
[11] Child Welfare Act 1947 (WA), s.l3J.
[12] Personal communication from Mr Terry Simpson, Deputy Director General, Department for Community Services.
[13] See, in particular, National Report, Volume 3, Chapter 21 -'Diversion from Police Custody' and Chapter 22 - Imprisonment as a Last Resort'.
[14] Summary of comments made in a speech at a public forum in Perth, Wednesday 29 January, 1992.
[15] Personal communication.
[16] The latter may indicate more serious offending and longer records. However, discriminatory sentencing cannot be ruled out. Philip Ullah conducted a study of six WA country courts and found that the two factors mentioned above did not fully account for the above-average use those courts made of the custodial sentence. Most of those so sentenced were Aboriginal: Department for Community Services, Report on the Influence of Gender, Aboriginality and Geographical Location on Sentencing Decisions in the Western Australian Juvenile Justice System, 1990.
[17] Broadhurst, R C., et al, Crime and Justice Statistics for Western Australia: 1990, Crime Research Centre, 1991, Table 2.2.
[18] Ibid, Tables 2.2 and 2.3.
[19] Ibid, Table II, p.73.
[20] Wilkie, M., Aboriginal Justice Programs in Western Australia, Crime Research Centre, 1991, p.150.
[21] Broadhurst, RG., op cit, Table 5.3.
[22] Ibid, Table 5.7.
[23] Department of Corrective Services, Annual Report 1990-91, Table 4. For Aborigines only, the proportion of prisoners received who were on sentences of less than 12 months was 90%.
[24] Wilkie, M., op cit, Appendix 4, Table 20.
[25] Data for Nyandi only: Wilkie, M., op cit, Appendix 4, Table 19.
[26] It is not unreasonable to fear, as many do, that Aboriginal deaths in custody will once again increase in this State as a direct result of the Act.
[27] Wilkie, M-, op cit, Figure 9.2, p.142.
[28] Ibid, Appendix 4, Table 18. 58% of children admitted to Nyandi in 1989-90 were non-metropolitan children: Ibid, Appendix 4, Table 17. Unfortunately we have no similar data for the third detention centre, Longmore.
[29] Wilkie, M., op cit, Chapter 10.
[30] In 1990, Aborigines were about 47% of sentenced prison receivals and 78% of sentenced lock-up receivals, and therefore the majority of people sentenced into custody: Broadhurst, R G., op cit, Table 1, p.96 and Table VI, p.105.
[31] Aborigines make up 43% of children in substitute care in WA: Department for Community Services, Annual Report 1990-91, p.16.
[32] Contrary to Article 40.2(vi) of the Convention on the Rights of the Child.
[33] There is no requirement in WA of notification to the Aboriginal Legal Service of the detention of an Aboriginal juvenile. Nor is there a requirement that interrogation may only take place in the presence of a parent or supporter. These matters were the subject of recommendations by the Royal Commission into Aboriginal Deaths in Custody: see National Report, Vol.4, Recommendations 243 and 244.
[34] The Department's failure to do so, together with some examples of successful programs in country areas, are documented in Wilkie, M., op cit.
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