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David Gibson[*]
In March 1997, the Northern Territory government, through amendments to the Sentencing Act and the Juvenile Justice Act, commenced a regime of mandatory imprisonment for a range of property offences, including theft, criminal damage, unlawful entry, unlawful use of a motor vehicle, robbery and receiving stolen property.
Under the scheme, adult offenders were to be imprisoned for 14 days for a first offence, 90 days for a second offence and a year for a third offence. Juvenile offenders were to be imprisoned for 28 days for a second offence.
As Senior Solicitor of the Northern Territory Attorney-General’s Department Policy Division from 1994 to 1997, I had been responsible for the preparation and passage of the Sentencing Act. It became my responsibility to provide policy advice on the mandatory sentencing proposal and, when Cabinet decided to proceed with the proposal, prepare the amending legislation to implement mandatory sentencing.
It is my belief that the introduction of mandatory sentencing represented a situation where the normal considerations which dictate the development of legal policy were over-ridden by political considerations, ultimately producing a law that was not only unfair, but was likely to achieve the opposite effect to what was intended.
Calls for tougher sentencing have long been a part of the Australian political landscape and governments, both left and right, have often succumbed to the temptation to criticise the leniency of particular court decisions. Usually these outbursts have been Pyrrhic gestures, designed to diffuse media outrage or public anxiety. Governments, for all their huffing and puffing, have generally respected the dividing line that separates legislative will and judicial independence — but not in the Northern Territory.
In the mid-90s, Northern Territory crime rates were significantly higher than the national average. The rate of homicides and assaults, in particular, was dramatically higher than in any other jurisdiction. Crime was luridly covered by the local tabloid, the NT News, and was a common topic of conversation on talkback radio and at backyard barbecues.
In a jurisdiction with a population of less than 200,000, where politicians are keenly attuned to the concerns of their tiny 3500 member electorates, crime was a big issue.
A succession of Chief Ministers and Attorneys-General had proudly proclaimed themselves ‘tough on crime’. Yet aside from lambasting the occasional court decision and calling for tougher sentences, they had not, with several limited exceptions, attempted to limit judicial discretion.
A change to this approach was signalled in 1994, when the governing Country Liberal Party as part of its electoral platform announced its intention to introduce mandatory sentences of 28 days for property offences. When Shane Stone became Chief Minister of the Northern Territory in 1995, the promise was activated and the process by which the proposal would become law was commenced.
Ordinarily, the development of legal policy is influenced by three groups — the politicians, the bureaucrats and the practitioners — each with its own eco-system of influences and priorities.
Politicians live in a world governed by public opinion and media coverage. Contrary to popular prejudice, the vast majority (left and right, Territory and non-Territory) are sincerely committed to addressing the concerns of the electorate. Certainly this can be complicated by egomania and personal ambition (as is the case in virtually all fields of human endeavour), but the actions of politicians need to be interpreted in light of the fact that they are punished and rewarded, both in the media and at the polls, according to their ability to appear to be responding quickly and effectively to issues as they arise. They rarely get credit for the great amounts of work they do out of the spotlight, however credible.
Bureaucrats, on the other hand, do all their work out of the spotlight. Their role is to gather the information which is used to develop policies and legislation, and to put together the briefings which ultimately form the basis of Cabinet and ministerial decisions. The bureaucrat’s world is one of research, consultation, statistics, theories and budgets. Intellectual consistency, technical accuracy and cost effectiveness are the measures by which the quality of their work is assessed.
The practitioners — judges, lawyers, police and agency employees — exist in the very real, if somewhat narrow, world of the criminal justice system, striving to deal with the thousands of cases which pass through the system each year. Within this world, there are differing priorities; for example, lawyers and judges would place the greatest stress on the preservation of legal principle and the rule of law, while for police the main priority would be the effectiveness of law enforcement. If the system works well, the different elements of the system interact in such a way that cases are processed fairly and effectively.
These three groups govern the development of legislation and legal policies, yet a quaint paradox of this system is that generally the greater amount of practical experience you possess, the less influence you are likely to have on the decision-making process.
Cabinet is composed mostly of non-lawyers. Attorneys- General are often not lawyers themselves. If they are, then they are usually politicians rather than lawyers by temperament, with the aversion to detail that that entails. The role of modern politicians requires them to handle a wide range of issues, often flitting from one to the other as circumstances dictate. They have neither the time nor inclination to become enmeshed in the detail of any issue beyond what is necessary for the purposes of media interview or parliamentary debate. Whatever knowledge they have of the technical aspects of any particular issue will usually have been provided in briefings by public servants or advisers.
Policy lawyers usually have little practical experience themselves, often coming to government with no background in the areas of law in which they ultimately find themselves advising the Attorney-General and Cabinet. They too are often refugees from the arid regions of legal detail, drawn to policy work by the possibility of working in the more general environment of public policy. Their knowledge on any given issue will be borne of research rather than actual experience. Yet they are generally the ones who decide what recommendations will be made on an issue and in most cases those recommendations are accepted, because what knowledge the politicians usually have on the issue is supplied to them by the bureaucrats in the first place and they will rarely be in a position to question it.
The relative inexperience of politicians and bureaucrats stands in stark contrast to the often decades of experience accumulated by those who actually work in the criminal justice system. They, best of all, understand the issues and technicalities that the criminal justice system has to deal with every day. Yet in order for their voices to be heard in the policy process they have to rely on the fact that they will be consulted, and if they are, that their point of view will be accepted or understood.
Therefore it would be an alarming prospect for the soundness of democratic decision-making if consultation was not central to the development of legal policy. With inexperienced politicians and bureaucrats, the input of the key players of the criminal justice system is usually the difference between good laws and bad, a barrier which usually prevents populist notions such as mandatory sentencing from becoming law. Yet this consultation does not always occur. Sometimes this is inadvertent, usually because of the inexperience of the policy officer. Sometimes it is deliberate, at the direction of the government for political reasons, usually to prevent the mobilisation of opposition to a particular proposal. This was the case with mandatory sentencing.
Mandatory sentencing was very much a piece of political populism. That it became law owed much to the energy and dynamism of Chief Minister Stone. Inheriting the position from the popular Marshall Perron in 1995, Stone was seen as the Territory’s first southern-style leader. He was an aggressive operator, in contrast to the more folksy Perron, eager to make his reputation.
Stone had quickly mastered the essential Territory political skill of thumping the Territory tub. He littered his speeches with references to his ‘fellow Territorians’, berating ignorant southerners who dared to question the Territory’s rights. He successfully exploited that Territorian self-image which so resonated with the electorate — that of a brash and individualistic Territory which derived much of its identity from being antagonistic to the south, rather than being a pale imitation. Just why this self-image has such a hold in the Territory is hard to explain, when most of its non-Aboriginal inhabitants live in the suburban comfort of Darwin or Alice Springs. Perhaps it is a legacy from the long ago days when the Territory was (mal)administered from first Adelaide and then Canberra. Perhaps it is the isolation and the romance of the outback, combined with the sub-conscious need of a small jurisdiction to develop a distinctive personality.
Whatever the reason, it’s a formula which had kept the CLP in office since self-government in 1978 and the result was a government which had little fear of losing office, operating in a political climate which actually generated energy from offending southern sensibilities. It was this environment that made possible the birth of mandatory sentencing.
Stone was a ‘doer’, a dynamic operator with a driving ambition to push the Territory into statehood. He was keen to make his mark and tackling the crime rate was the ideal opportunity to do that. He favoured zero tolerance policing (an idea gained, somewhat surreally, from a magazine article on Rudy Guiliani’s New York) and mandatory sentencing for property offenders.
Just why the CLP focused on property offences was curious. It was the one area of crime in which the Northern Territory rates were comparable to the rest of the country. Statistics available at the time, adapted from police annual reports by the Australian Institute of Criminology, showed that offences against the person were much higher in the Territory (for example the assault rate was more than twice the national average). By comparison, while break and enter and stealing rates were approximately 30% higher than the national rate, the robbery and motor vehicle theft rates were actually lower.
But property crimes happened in Darwin and Alice Springs, and news of the latest burglaries and break-ins was frequently splashed across the front pages of the NT News. And more than half the seats in the Northern Territory parliament were based in these two towns.
The traditionally accepted method for governments to encourage courts to increase sentences for a particular offence is to increase the maximum penalty for that offence, indicating to the judges that the legislature now regarded the offence as more serious.
But Stone and his government believed that the courts were too intrinsically liberal ever to increase sentences for property offences to the extent that they wanted, no matter how much they increased the penalties.
There was no empirical basis for this view. In fact there were no statistics at all that could be used to measure the level and adequacy of sentencing in the Northern Territory. Certainly there were the raw details of the actual sentences passed, but short of sitting in the courts and listening to the circumstances of each crime and the background of each offender, there was no way to get a true picture of what was happening.
The Stone government view was a gut reaction, a creature of perceptions borne out of news stories, talkback radio and anecdotes. It was on the basis of this gut reaction that they decided to push for mandatory imprisonment, in spite of the fact that for every couple of sentences that attracted public outcry, there were hundreds of decisions being handed down by Territory courts that provoked no outcry and, more significantly, no appeal by the DPP.
But mandatory imprisonment had already transcended rational argument. It had become a political slogan, an expression of the no-nonsense Territory way of doing things. Of course the southerners wouldn’t like it, but what would they know about life in the Territory, where steps are taken that others only talk about? This was government by talkback. Instructions were issued to develop the proposal. Consultation outside government was forbidden.
Objections to the proposal’s internal inconsistencies were put before the Chief Minister and Cabinet but dismissed.
It didn’t matter that juveniles aged 15 and over faced mandatory imprisonment of 28 days for a second property offence, when the rest of the sentencing structure for juveniles was predicated on using imprisonment only as a last resort.
It didn’t matter that virtually every minor property offence coming before the courts was likely to be contested because there was now little incentive to plead guilty.
It didn’t matter that a passenger in a stolen motor vehicle or a small time thief would be forced into gaol, while sexual offenders and perpetrators of violent assaults could, and often did, go free.
It didn’t matter that available criminological studies suggested that it was the fear of being caught rather than the level of sentencing which was the effective deterrent.
It didn’t matter that incarcerating young offenders along with more seasoned criminals was as likely to breed more crime as to prevent it.
It didn’t matter that a policy aimed primarily at placating the white suburban voters of Darwin and Alice Springs would have a catastrophic effect on the (primarily Labor- voting) Aboriginal communities in the far-flung corners of the Territory, where property offences were much higher, and the social dynamic was entirely different. Over 70% of the Territory’s prison population was Aboriginal. By comparison, Aborigines made up only 25% of the Territory’s general population and, in the shadow of the Royal Commission into Aboriginal Deaths in Custody, their representation in the prison population was only going to go up.
The only issue the government was interested in was cost. How many extra prisoners would the proposal produce? Would it be necessary to build a new prison? A gruesome numbers game began — estimations were made on the basis of how many days of mandatory imprisonment would produce how many extra prisoners. Should a first offence be 7 days, 14 or 28? Should a second offence be three months or six months? There was no consideration of what was judicially appropriate. Just how much it would cost.
All this was being driven from the Chief Minister’s office, Stone bringing all his dynamic energy to bear to push the proposal through, calling for new Cabinet submissions overnight, brushing aside any objections. The then new Attorney-General, Denis Burke (who had no legal or criminal justice experience) played a passive role in the process.
In August 1996, the government tabled in parliament for public discussion bills providing for mandatory imprisonment of property offenders. Neither the judiciary, the legal profession, nor any other group outside government had been formally consulted.
Considering the controversial nature of the proposal, public debate was strangely muted. A public groundswell of opinion, one way or the other, was distinctly lacking — a potent illustration of the principle that democracy needs a certain critical mass before it can operate effectively. As had happened many times before, the small size and political climate of the Northern Territory prevented the occurrence of an informed public debate on the issue.
Consider the following features of Territory political– legal landscape.
All senior public servants (including senior law officers and the DPP) are on limited-term contracts, effectively creating an environment which, no matter what the integrity of the individuals concerned, discourages the provision of ‘courageous’ advice, particularly when it is made known what advice is wanted in the first place, as was the case with mandatory sentencing.
The government is a major (if not the major) supplier of legal work to the private sector, and controls lucrative appointments from the ranks of the profession such as judicial positions, government law officers and Queen’s Counsel, creating a significant disincentive for individual members of the private profession to publicly or privately criticise government policy. Usually, the only strident public critics of government legal policy come from the legal aid sector — federally funded and largely beyond the reach of the Territory government although, on occasion, representatives of the Law Society and the Bar make valuable and valiant contributions.
Expert individuals or well-resourced interest groups (both from the right and the left), who might inject expertise or information into public debate, do not exist and operate in the Territory to anywhere near the same extent as they do in the larger jurisdictions.
Media scrutiny of government is restricted. Journalists who write critical stories about the government find that their access to government Ministers and sources disappears. Other local journalists shuttle between working for the local media and taking well-paid government positions, a situation that, irrespective of the integrity of the individuals involved, militates against the existence of an independent media.
The end result is an environment in which the pressures and incentives to acquiesce to the government’s will on public issues are overwhelming, much more so than in larger jurisdictions. If you fall out with the government there’s no place to hide, and it’s time to go back south.
The result was the stifling of debate on mandatory sentencing. Legal Aid and the Aboriginal Legal Services took strong public stands — opposition which the government could easily quarantine as ‘bleeding heart’ and partisan. Behind the scenes, the judiciary and representatives of the legal profession did their best to put their concerns to the government, but as they were viewed as part of the problem rather than the solution, their objections were dismissed.
The truth was that the conclusion had been reached at the outset, as an election promise made without any research or consultation. Legal principle, logic, human rights, fairness — all these were dismissed as the expression of ‘southern’ liberal sympathies. Slowly the opposition tired and resigned itself to the inevitable.
The Bills passed in November 1996. The Territory Labor Party — stranded between its Aboriginal constituency and a desire not to alienate the voters of Darwin and Alice Springs — wavered between support and opposition for the Bills, before finally opposing them. Not that that meant much in a single house where the CLP had a clear majority. The proposal became law and came into operation in March 1997.
My own experience as a lawyer for 15 years, both representing people in courts and working in government on criminal justice proposals, tells me that this law is misguided and likely to achieve the opposite effect to what was intended.
From a sentencing perspective, it is nearly impossible to generalise about the causes of crime. Offenders come from different backgrounds and commit their crimes for different reasons. Some are hard cases with pages of prior convictions, who need to be kept off the streets. Others are just kids from shockingly unstable backgrounds, reacting against the problems in their lives. Some crimes have their origin in systematic greed, others in need or youthful rebellion.
Some offenders will respond to rehabilitation, while others are amenable only to deterrence. For some a gaol sentence is the best thing for the protection of society, while for others it can be the first step in a long career in crime.
In short, the reality of each case is different and this is precisely the reason that judicial discretion is so important. If justice is to be done, if crimes are to be punished in proportion to the culpability of the offender, if punishments are to be used effectively to keep offending to a minimum, then each case must be judged individually on its merits.
Certainly mistakes will be made. Occasionally offenders will be punished more leniently than they should be. Occasionally police are going to sit in courtrooms grinding their teeth, as the punk they have arrested is painted as a fallen angel by a defence lawyer. Occasionally, the constant processing of criminal offences will desensitise judges and magistrates as to how seriously the general public might view certain acts.
Lenient sentences can however be appealed. Is locking up an Aboriginal youth for a year for stealing a packet of biscuits really an acceptable alternative? The central principal of any sentencing system is proportionality — that the punishment reflect the relative seriousness of the crime. Lock up too many minor offenders, particularly when at the same time many violent offenders are not being gaoled, and perceptions develop that the law is unfair.
It is precisely because of the complexity and variety of criminal offenders and acts, that s.5 of the Northern Territory Sentencing Act incorporates traditional sentencing practice by requiring the court to consider a number of factors in imposing a sentence: the need for punishment, the prospect of rehabilitation, the need for deterrence, the need to protect the community and to make it clear that the conduct engaged in is not approved by the community.
Mandatory sentencing ignores an important component of the sentencing equation — the prospect of rehabilitation. It embodies the mentality of the stern conservative parent, that the only solution to social waywardness is the application of discipline. This may have worked for members of the Northern Territory Cabinet growing up with the benefit of a stable family environment, but it fails to recognise that many people who end up before the courts do so because they have dramatically different backgrounds and personalities which may render deterrence largely ineffective. It fails to recognise that some offenders come from such horrendous backgrounds that the prospect of imprisonment presents no deterrence at all.
On its surface, it is easy to see why the notion of a strict mandatory sentencing regime has public appeal. There is a certain logic to assuming that the tougher the prospective sentences, the less likely offences are to be committed — that is, until the issue is looked at more closely.
Reports and studies on sentencing over the years have echoed two familiar themes:
• that the true deterrent to the commission of crime is often not the possible level of sentence but the fear of being caught, particularly for lesser offences — offenders are usually not far-sighted enough to be calculating their likely sentence at the time of committing an offence (which is not a far-sighted act in itself); and
• where an offender is inexperienced, a period of incarceration with more hardened offenders is more likely to produce further offending. Automatically incarcerating inexperienced offenders is akin to setting up a graduate school in crime and the real consequences will be felt in the Territory in years to come. Does the Territory government seriously expect offenders who are released from prison after a year to suddenly turn away from the path of offending when the prospect of the year long sentence (not to mention the previous 28 day or 90 day sentences already served under the regime) didn’t have that effect?
A government should always heed the views and concerns of its electorate, but in doing so it has a responsibility to research and analyse the policies it implements to ensure that they achieve the desired result. Far from preventing crime, mandatory sentencing may well have the opposite effect and lead to an increase in the level of property offences in the Northern Territory.
For those who are sceptical about this, the Territory already has a lesser-known example where mandatory sentencing has had the opposite effect from that intended.
Since 1983, s.164 of the Northern Territory Criminal Code has required life imprisonment without parole in the case of a conviction for murder. As the Territory politicians are fond of saying, ‘life means life in the Territory’.
One might think that this measure might have deterred people from committing murder. Not at all. The homicide rate in the Northern Territory remains six times the national average.
If not reducing the rate of homicide, then at least it might be logical to think that this measure might lead to the effective punishment of those convicted of murder.
Again, no. It is common knowledge amongst prosecutors that mandatory life imprisonment for murder has made it considerably harder to get a conviction for murder in the Northern Territory.
This is because in practice it seems that the very same Territorians who happily support mandatory life imprisonment for murder around their backyard barbecues, find it considerably more difficult to impose in practice when serving on juries in homicide cases. When confronted with a pub brawl gone wrong, they suddenly conclude that it’s not fair to lock the offender up for life, and do their best to make a finding of manslaughter or of the existence of a defence that would never occur in other Australian jurisdictions.
The end result of mandatory life imprisonment for murder has been a low conviction rate for murder and people who should have been convicted of murder being freed or sentenced to considerably lesser periods after a finding of manslaughter. It is a potent illustration of the dangers of converting complex criminal issues into political slogans.
Last year the Sentencing Act was amended to extend mandatory imprisonment to sexual offences and second-time violent offenders, although no minimum period was defined, meaning that property offenders are still treated more harshly. The Act was also amended to allow limited judicial discretion in the case of first-time offending adults who pleaded guilty to a trivial charge and paid restitution.
Most recently, the Territory government reached agreement with John Howard that the federal government would provide $5 million to set up diversion schemes for young property offenders, enabling police to exercise discretion whether to prosecute in a particular case. The only actual amendment to legislation is that a child under the Juvenile Justice Act will now be under 18 rather than under 17. There are at least two significant consequences of this agreement:
• it gives the police what is effectively a judicial discretion as to whether the person is to be punished (possibly preventing the application of needed rehabilitative measures by a court); and
• it distorts the judicial process by dealing with an offender in such a way that their previous history will effectively not be before the court should they subsequently reoffend.
But these amendments look like political attempts to allay criticism of the scheme. I suspect that the Northern Territory government finds itself backed into a corner with a policy that it already knows isn’t working and is costing a fortune, and doesn’t know how to get out of that corner without great political damage. I hope they find the courage to do so, because mandatory sentencing is a flawed policy, a failure to recognise the complexity of the criminal justice system, which will end up doing the Territory more harm than good in the years to come.
[*] David Gibson has been a policy lawyer in both Victoria and the Northern Territory.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/41.html