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Zdenkowski, George --- "Mandatory Imprisonment of Property Offenders in the Northern Territory" [1999] IndigLawB 6; (1999) 4(17) Indigenous Law Bulletin 15


Mandatory Imprisonment of Property Offenders in the Northern Territory

by George Zdenkowski

Associate Professor Zdenkowski of the Faculty of Law, University of New South Wales, was recently awarded an Australian Research Council Grant for a project to examine the legal and social impact of the Northern Territory’s mandatory sentencing legislation. He examines some of the possible implications of the legislation and seeks comment from interested parties.

Background

On 8 March 1997, amendments to the Sentencing Act 1995 (NT) introduced a requirement for mandatory minimum prison sentences for adults convicted of designated property offences.[1] The regime provided for a minimum term of 14 days for first time offenders and escalating minimum terms for repeat offenders; 90 days for second offenders and one year for third offenders. Mandatory minimum imprisonment of 28 days was introduced at the same time for repeat juvenile property offenders (aged 15 or 16).[2] A further series of amendments which effectively tightened the operation of these laws (including provisions which precluded concurrent terms for multiple convictions) came into effect on 29 April 1998.[3]

Controversy

The laws have proved controversial since they were first proposed. In essence, the government’s position was that compulsory minimum prison terms for property offenders were both necessary and desirable. At the time of the introduction of this reform, Attorney-General Burke commented:

The government believes that the proposal for compulsory imprisonment will: send a clear and strong message to offenders that these offences will not be treated lightly; force sentencing courts to adopt a tougher policy on sentencing property offenders; deal with present community concerns that penalties imposed are too light; and encourage law enforcement agencies that their efforts in apprehending villains will not be wasted.[4]

Criticism has included: scepticism about the perceived need for such reform; concerns about the removal of judicial discretion and the potential for draconian or capricious operation of the law; increased costs to the community via escalating imprisonment and court delays; dismay at the violation of international treaties to which Australia is a party;[5] emphasis on the potential discriminatory implications of the law on the indigenous community, especially juveniles; and doubt about the capacity of the reform to deliver its claimed deterrent effect.[6]

Public debate and media commentary have involved rhetorical claim and counterclaim. The research project will seek to examine the reform dispassionately.

The Project

The aim of this project is to evaluate the legislation and its impact, having regard to criteria of efficacy, justice and cost.

This will involve an understanding of the genesis of the reform; critical analysis of the legislation and associated legal challenges; and the evaluation of its impact on prosecutorial discretion, the sentencing process and the imprisonment of property offenders.

It is hoped to develop a coherent picture of the use of the legislation against adults and juveniles. Unfortunately, the lack of comprehensive official statistics in relation to mandatory imprisonment of property offenders makes this a difficult task.

The specific impact of the reform on the indigenous community will also be explored. Anecdotal evidence suggests that there has been a significant increase in the imprisonment of Aboriginal juveniles.

The research report will provide a basis for future policy debate in this area. This is important not only for the Northern Territory (where it has been suggested that compulsory imprisonment be extended to other offences) but also for other jurisdictions which may seek to emulate the experiment.[7] Moreover, such legislation potentially raises constitutional issues.[8] Mandatory sentencing may also have implications for Australia’s international human rights obligations.

Feedback

Preliminary research was carried out in Darwin in 1998. Interviews were conducted with judicial officers, the Director of Public Prosecutions, the Northern Territory Legal Aid Commission, the Northern Australian Aboriginal Legal Aid Service, the Darwin Community Legal Centre and the Office of Court Administration, amongst others. It is proposed to visit Darwin again in 1999 to continue this research with correctional authorities and other agencies and individuals. It is also planned to visit regional centres which at this stage include Port Keats, Katherine and Alice Springs. Feedback is sought regarding: the issues outlined above; other issues which ought to receive consideration, or any other information or comment about the reform. Any feedback will of course receive appropriate acknowledgment in the final report, the comprehensiveness of which will be enhanced by such contributions.

George Zdenkowski is an Associate professor in the Faculty of Law at the University of New South Wales

The author may be contacted at the Faculty of Law, University of NSW, Sydney 2052 or on (02) 93852262 or fax (02) 93851175 or email georgez@usnw.edu.au


[1]See s 78A and s 78/B Sentencing Act 1995 (NT) and Trenerry v Bradley (1997) 6 NTLR175

[2] See s 53AE Juvenile Justice Act 1996 (NT)

[3]See Sentencing Amendment Act 1997 and Juvenile Justice Amendment Act (no. 2) 1997)

[4]Second Reading Speech, Seventh Assembly, First Session 15/10/96 Parliamentary Report No. 26 p9688. See also S Stone QC, Attorney-General, Ministerial Statement ‘Effects of Mandatory Sentencing’ Eighth Assembly First Session 21/4/1998 Parliamentary Report No. 5; and S Stone QC, Attorney-General, Second Reading Speech, Juvenile Justice Amendment Bill (No. 2) 1997, Sentencing Amendment Bill 1997, Eighth Assembly, First Session 1/12/97 Parliamentary Record No. 2.

[5]For example, the UN Convention on the Rights of the Child

[6]See for example L. Schetzer, ‘A Year of Bad Policy: Mandatory Sentencing in the Northern Territory’, (1998) 23:3 AltLJ 117; M. Antrum, ‘NT mandatory Sentencing - Policy and Prejudice’, Rights Now, Newsletter of the National Children’s and Youth Law Centre: M. Flynn ‘One strike and you’re out! Mandatory imprisonment and chain gangs coming to a jurisdiction near you’ (1997) 22 ALtLJ 72

[7]Similar legislation exists in Western Australia: Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA).

[8] One constitutional challenge to the Northern Territory law has been unsuccessful: Wynbyne v Marshall (High Court of Australia D174/1997, 21 May 1998, Unreported). In this case, special leave to appeal was refused.


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