Indigenous Law Bulletin
By Campbell Thomson
At the age of 17, Damian Wurrkidj lived with a group of neglected boys in a cave outside Gunbalanya (Oenpelli), Arnhem Land. He sniffed petrol. He and his friends broke into the local service station and other places for petrol and food. The total value of goods obtained was $273.70. Wurrkidj had no prior convictions. On 15 October 1998, Magistrate Gillies in the Darwin Magistrates Court held that the only sentence that he could impose on all offences was seven months and 120 days.
Wurrkidj was in custody for 58 days before his appeal was upheld. On 4 December 1998, Justice Priestley found that the Magistrate had misinterpreted the mandatory sentencing provisions of the Sentencing Act 1995 (NT) (‘the Act’). He sentenced Wurrkidj to three months and 14 days with a mandatory minimum sentence of 42 days. He suspended the balance of the sentence and ordered Wurrkidj to continue his Substance Misuse program. Prior to mandatory sentencing, given all of these circumstances, Wurrkidj would not have been imprisoned at all.
Some of the anomalies that perplexed the courts in this and other appeals in the Northern Territory have been removed by amendments to the Act. Other amendments have created ‘exceptional circumstances’ provisions so first offenders may not face automatic incarceration for property offences. Meanwhile, the Country Liberal Party Government has extended mandatory sentencing to cover other types of sex crimes and violent offences. The national media furore created by the ‘Marlene Towel’ incident in April 1999 has not lessened the Government’s resolve. On 12 June 1999, Chief Magistrate Bradley sentenced Kevin Cook, an Aboriginal ‘long-grasser,’  to 12 months jail for stealing a towel. He said to the prisoner:
Firstly stand up Mr Cook. Mr Cook, you have been to court many times before. It may be that it is a person such as you the mandatory sentencing law was enacted (sic). I notice from your record that there’s 15 previous dishonesty charges relating to receiving or stealing goods. And it probably would have been you would have received a severe sentence in any event (sic). This constant disregard for the property of others which has resulted in the Government taking the action it has with regard to mandatory imprisonment (sic). In this case the minimum which I am entitled or obliged by law to impose is 12 months imprisonment. Looking at the situation, the facts and the circumstances surrounding it, I would think that no greater sentence is appropriate in the circumstances. So you’re sentenced to 12 months imprisonment.
Jon Tippett QC, President of the Criminal Lawyers Association NT, observed in relation to His Worship’s comment that‘...it is a person such as you the mandatory sentencing law was enacted:
Many would agree. It was enacted to put poor, homeless, drunken Aboriginal people who commit petty offences against property in prison for inordinate and quite unjustified periods of time.
Competition to be toughest on crime peaks during elections. Prominent examples are the 1995 election in New South Wales, and the 1992 and 1997 elections in Western Australia. This article seeks to demonstrate to Attorneys General that mandatory sentencing creates punishments that do not fit the crime because it:
Attorney-General Dennis Burke introduced mandatory sentencing in the Northern Territory in order to punish, deter and incapacitate criminals. Now Chief Minister, Burke has revised his opinion. Today, denunciation is the aim: ‘[I]t was not designed to reduce crime, but to send out a message that property crime won’t be tolerated.’
Perhaps he is aware of statistics from Western Australia. They demonstrate that mandatory sentencing has not had a demonstrable deterrent effect. In that State, the Labor Government enacted the Crimes (Serious and Repeat Offenders) Sentencing Act 1992 (WA) (‘the Repeat Offenders Act’) when facing electoral defeat. The Government was defeated but the next Liberal Government introduced ‘three strikes’ burglary laws just before its re-election in 1997. There was no data to support the ostensible reasons for the introduction of these laws.
The Repeat Offenders Act was designed to reduce the number of high-speed pursuits involving stolen motor vehicles. Figures show that the number of vehicles stolen in the following year increased by about 50%.
One analyst of the WA data concludes:
Mandatory penalties do not operate as a general deterrent. They do not work as a tool for selective incapacitation. They do not promote ‘just deserts’. They do work to undermine justice, to discriminate against minority groups and to encourage the subversion of open and accountable legal processes.
There is no data for assessing the effects of Mandatory Sentencing in the Northern Territory. Aboriginal Legal Aid Services have monitored cases since the legislation's inception, and are preparing a statistical analysis prior to taking the issue to the United Nations Human Rights Committee. This is the last avenue for legal redress open to them, since the High Court refused special leave to appeal from the decision of the Northern Territory Supreme Court in Wynbyne. Senator Bob Brown’s private member’s Federal Bill to override the legislation, has little bipartisan support. However, the current Senate Inquiry dealing with the issue may change this.
Aboriginal representatives will argue before the Human Rights Committee that mandatory sentencing (in WA, NT or both?) breaches Article 37(6) of the United Nations Convention on the Rights of the Child. Article 37(a) states:
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be...used only as a measure of last resort and for the shortest appropriate period of time.
In Western Australia, 50 children between the ages of 11 and 17 have served or are serving 12 month mandatory sentences. Most are released on supervision after six months. Up to half of those released have breached supervision and returned to serve the balance in detention. It is arguable that these sentences breach the Convention.
Lawyers from the North Australian Aboriginal Legal Aid Service say that mandatory sentencing is incarcerating a large percentage of the late teenage male populations of remote communities. Joy-riding is common among bored young males. There are few job opportunities apart from Community Development Employment Programmes (work for the dole). A third conviction means 12 months' jail in Darwin or Alice Springs, a long way from community and family. This contradicts recommendations 62 and 92 of the Aboriginal Deaths in Custody Royal Commission Report that call for strategies to reduce family separation and divert offenders from custodial sanction.
There is doubt about whether ‘warehousing’ these young people will reduce community crime rates. A 1996 Rand Corporation cost-benefit analysis has modeled the effects of California’s three strike laws. It estimates a 28% crime decrease, mostly in assaults and burglaries, with an increase in the criminal justice budget of $5.5 billion per annum. In three years the corrections budget is forecast to double from 9 to 18% of the State budget. It is estimated that expenditure on education, health and welfare will have to fall by 40% at the same time, given no tax increase. Russell Hogg cites this research and concludes:
There remains substantial doubt that the criminal justice system can apprehend, identify and gaol for long periods of time sufficient numbers of high rate offenders at the right time in their criminal careers so as to substantially reduce the crime rate...many who are caught within the incapacitative net are likely to be ‘false positives’: offenders for whom their past criminal record is a poor guide to their future pattern of offending.
Mandatory sentencing operates to shift the exercise of discretion from the open scrutiny of the court to the closed offices of police and prosecutors. Decisions about whether to charge and what charges to lay directly affect resulting sentences. In the Territory, criminal damage and theft of a motor vehicle are property offences for the purposes of mandatory sentencing while offensive behaviour and interfere with a motor vehicle are not. This puts pressure on defendants to plead guilty to a non-mandatory offence in order to avoid automatic incarceration for the alternative mandatory offence. This practice is common in other jurisdictions with mandatory sentencing regimes. For instance, in Arizona in 1990, 24% of felony cases involved inchoate offences such as conspiracy and attempt. The explanation for this statistic is that mandatory sentencing applied only to completed offences. The system was manipulated by bargaining, resulting in pleas to inchoate offences to avoid automatic imprisonment. As Morgan comments, in this situation, ‘...the negotiating skills of the defence lawyer count more than the objective circumstances of the case.’
The author has been involved in cases in the Tiwi Islands and Port Keats in the Northern Territory where police have withdrawn criminal damage charges against alleged offenders if the property owner is reimbursed for alleged damage and community leaders agree that the alleged offender deserves another chance. As a matter of public policy, the decision not to incarcerate should be made in open court by a Magistrate. It should not rely on the good will of police officers or prosecutors who may or may not be sympathetic to community needs.
America ‘warehouses’ an increasing proportion of its underprivileged. The rate of crime still increases. The response is even tougher sentencing regimes. There is little questioning by the public of the effectiveness of this policy direction. Australia seems to lag a decade behind the United States in social policy change but rates of imprisonment are also increasing in Australia. Two jurisdictions have opted for the mandatory sentencing model. There is pressure for more punitive measures by the courts. As one criminologist puts it, a justice system can be converted to a crime control system as long as its actions do not hurt the majority. The ineffectiveness, lack of utility, and resulting injustices of mandatory sentencing should prevent other Attorneys General from advocating similar policies.
Meanwhile, in Groote Eylandt, a small island community off the coast of East Arnhem Land, warrants have been issued for 14 Aboriginal people on charges which could see them face 3 or 12 month mandatory prison sentences. That’s a lot of people to lock up from a small place.
Campbell Thomson is a Melbourne Barrister who works in the areas of Criminal, Planning, Native Title and Administrative Law. He worked with the North Australian Aboriginal Legal Aid Service in 1997-98.
 ‘Warehousing’ is a criminological term describing how jails can do little more than remove people from society.
 Wurrkidj v Bentham & Trenerry (Unreported, Northern Territory Justices Appeal, Priestly J, 4 December 1998).
 For a summary of legal developments see G Zdenkowski, ‘Mandatory Imprisonment of Property Offenders in the Northern Territory’  UNSWLawJl 57; (1999) 22 UNSWLJ 302.
 See eg Editorial, NT News, 12 May 1999; Bob Watt ‘Man Jailed for pinching bath towel’, NT News, 13 May 1999; Rebecca Whitfield ‘NT Lawyers join the fight to scrap “must-jail” laws’, NT News, 4 June 1999.
 ie fringedweller.
 Law Society NT, (1999) Balance 11.
 Northern Territory, Hansard, Legislative Assembly, 17 October 1996, 9686.
 Radio 8DDD 7 June 1999.
 Broadhurst and Loh, ‘Selective Incapacitation and the Phantom of Deterrence’, in R Harding (ed) Repeat Juvenile Offenders: The Failure of Selective Incapacitation in Western Australia (2nd ed, 1995) 55.
 Neil Morgan, Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories (1999) 22 UNSWLJ.
 Wynbyne v Marshall, (1998) (Unreported, Gaudron and Hayne JJ, 21 May 1998).
 The Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999.
 Senate Legal and Constitutional Committee, see this issue on page 2.
 Opened for signature 20 November 1989, xxx UNTS sss, (entered into force 26 January 1990).
 Helen Bayes, ‘Punishment is Blind: Mandatory Sentencing of Children in Western Australia and in the Northern Territory’ (1999) 22 UNSWLJ 14.
 Russell Hogg, ‘Mandatory Sentencing Laws and the Symbolic Politics of Law and Order’ (1999) 22 UNSWLJ 3.
 Jonathon Hunyor and Russell Goldflam, ‘Mandatory Sentencing and the Concentration of Power’ (1999) 5(24) AltLJ 211.
 Morgan, above n 10, 11.
 Nils Christie, Crime Control as Industry: Towards Gulags Western Style? (2nd ed, 1995) 175.