It’s about heavier not fairer punishments and it does not deter offenders, they say.
By KIERAN FINNANE
Mandatory sentencing is strongly associated with the dying phase of the last Country Liberal Government. In many ways Terry Mills leads a different CLP into this election campaign, but it seems the leopard can’t lose this particular spot – a ‘lock ’em up reflex.
Earlier this month, responding to concern over attacks on taxi drivers Mr Mills announced what looks to be a one strike mandatory sentencing policy for assaults on anyone serving the public, not only taxi drivers but including “bus drivers, public servants, bank tellers, retail and hospitality workers”.
An assault on this broad category of victim – including, for example, bouncers at night clubs – will be defined as “aggravated” and attract a minimum sentence of three months.
This beefs up the party’s existing two strike policy statement (see their website) for assault: as a second offence, any assault will attract a minimum of one month; an aggravated assault, a minimum of three months; and causing serious harm, a minimum of one year.
The core problem with this approach – whether to property crime as in the old CLP regime or violent offending – lies with its failure to take account of an almost infinite variety of circumstances and human responses to them.
Russell Goldflam is President of the Criminal Lawyers Association of the NT, which represents both defence and prosecution lawyers. As he explains, assaults coming before the court can be very minor.
“Assault covers a very, very broad range of activities. You can have an assault which is no more than grabbing somebody by the arm, that in some circumstances can be judged as unlawful.
“Of course the definition doesn’t include force used ‘for the common intercourse of life’, for example a bit of pushing trying to get on a bus, but for an assault to be deemed to have occurred, a person doesn’t even need to have been touched, it can simply be a threat to do so.”
Serious assaults get serious time
Of course, serious assaults deserve a serious response and get it without mandatory sentencing, says Mr Goldflam.
On the very day that Mr Mills made his announcement, a young man who had assaulted and robbbed a taxi driver, was sentenced by the Chief Justice Trevor Riley to two years and three months imprisonment, with a non-parole period of one year and three months.
“I haven’t heard any suggestions that that sentence was too soft,” says Mr Goldflam. “And if that person feels it was too harsh, he can appeal. If the Crown thinks it was too soft, they can appeal. There’s a procedeure to correct sentences imposed. You can’t correct the injustices of mandatory sentencing.”
That injustices will occur is inevitable, for as anyone who has sat in a court knows, one size does not fit all.
Take, for example, an altercation in a shop, leading to some kind of forceful touching or threat of it.
“We had a case like this,” says Mr Goldflam, who is a senior NT Legal Aid lawyer.
“A shopkeeper was racially abusive to one of our clients. In that case I think the person damaged some property, but let’s say he had pushed the shopkeeper, that would have been an assault, even if the shopkeeper hadn’t suffered any injury whatsoever. Under Mr Mills’ proposed policy, the person would go to gaol for three months.”
Under the law as it stands, assault mandatorily attracts a term of imprisonment – a CLP measure from the 1990s that has not been repealed by Labor. However, the length of the term is not specified, allowing judges the discretion to impose a nominal term where warranted. For example, a person convicted of assault deemed to be very minor or technical in nature could be ‘imprisoned’ until the rising of the court for lunch (“still bad”, says Mr Goldflam, as the imprisonment term goes on to a person’s record).
No mitigating circumstances
In the example of the abusive shopkeeper mentioned, under existing law provocation would not be a defence but it could be taken into account by the judge when sentencing.
Says Mr Goldflam: “Many assaults are committed after being provoked and the courts will always have regard to provocation as a mitigating circumstance when it’s a feature of the case.
“But if you’ve got mandatory sentencing, then the court can’t mitigate.”
A person before the court might also have never been in trouble before, but again with mandatory sentencing this would count for nothing.
Sooner or later the injustice of this would become apparent to the public, just as it did with the old regime of mandatory sentencing for property crime, and government would come under pressure to fix it.
Mr Goldflam recalls the notorious case of a client of his who was a trainee preschool teacher without any criminal record – “a totally ordinary young woman from suburban Darwin”.
“She was buying a hot dog at 2am in a 24 hour store. The hot dog was revolting and she threw water at the rude salesperson. Some of the water fell on the cash register and damaged it, and she was found guilty of property crime and went to gaol for 14 days.
“There was a huge hoo-hah about it and in response the CLP government passed a law to establish exceptions for mandatory sentencing, whereby basically if you were a person like her, a suburban trainee preschool teacher and the offence was trivial, a judge could use their discretion about penalty. It didn’t help her, she’d already done her time, but it was tailored for people like her.
“Then another case came along, where the person didn’t quite fit the exceptional circumstances, so they were subject to a gross injustice and so on.
“That’s what would happen with this new law that’s proposed. Inevitably there would be a gross injustice followed by public outcry and they’d pass a law to bring in exceptional circumstances. This would all be extremely expensive and time-consuming, apart from the justice issues involved.”
And once again, the NT – a tiny and young jurisdiction – would be a a complete outlier in the Australian justice context.
“I’m unaware of any other jurisdictions where there’s mandatory sentencing for assault of someone who serves the publc. There may be mandatory sentencing for assault police, but there’s nothing anywhere near the scope of this proposed law.
“The whole basis of our criminal justice system, is that the disposition must be individualised, you have to tailor the sentence to fit the circumstances of the case, and the circumstances of the offender.”
The Sentencing Act lays out in great detail what courts must have regard to in considering sentences. Mandatory sentencing essentially makes a mockery of this Act, passed by a previous CLP government in 1995.
“The Act makes it very clear, the whole sentencing process must be an individualised one. Mandatory sentencing is completely at odds with the framework for sentencing established by their own legislation.
” In his 1997 judgment in the case of Trennery v Bradley, which dealt with the former mandatory sentencing laws for property offences, Justice Dean Mildren put it like this: ‘Prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences. If a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case.'”
The separation of powers
A further objection that the Criminal Lawyers Association has is that mandatory sentencing is inconsistent with the constitutional arrangements we have to separate the arms of government – the legislature, the executive (in the NT, the Chief Minister and Cabinet) and the judiciary.
Says Mr Goldflam: “There’s a role for legislators to say to judges, this is the maxium penalty you can impose for a particular offence. The Sentencing Act requires judges to take into account the maximum penalty. Where the maximum for one crime is life as opposed to two years for another, then the judges know that they have to consider that first crime to be far more serious than the second one. But it doesn’t mean they have to impose the maximum. The maximum is reserved for the most serious category of the offence.”
The argument that mandatory sentencing infringes upon the separation of powers does not mean that such laws are invalid. They have been challenged before in the High Court, which has upheld the right of governments to pass them, despite what the judiciary may think of them.
“I’m not saying they can’t pass such a law,” says Mr Goldflam, “I’m saying they shouldn’t.”
And the argument that such scruples are overcome by the laws acting as a deterrent to offending doesn’t hold water, he says.
“The very strict and harsh mandatory sentencing laws applied to propery offences in the 1990s for some years were supposed to act as a deterrent but during that period property offending went up. There is no evidence that mandatory sentencing has the desired deterrent value.”
The association is also concerned about the Country Liberals’ proposals to toughen the Bail Act.
Bail Act already too tough
“As I understand it, the NT already has the toughest Bail Act in the country,” says Mr Goldflam. “As a result, many people who are intending to defend charges, including a proportion of people who will successfuly defend the charges and end up being found not guilty, spend very significant periods on remand. It’s not all that unsual for people to have to wait for over a year to go to trial. I recently had a case where the fellow had been in custody for a year and half and then the Crown decided not to proceed and withdrew it.
“In another case, a bloke did almost two years on remand, went to trial, was found not guilty and went home.
“I’m not saying either should have necessarily have got bail, they’re just examples. The decision to grant bail needs to be exercised judicially but it’s being affected by laws which have created all these presumptions against gettign bail for a very broad range of offenders. That’s bad.
“We advocate that the most recent raft of reforms Labor introduced a few years ago should be wound back. They mean that a whole lot of peope are on remand who may well be innocent and will end up serving many months of gaol for no good reason. The County Liberals want to extend that, even to include fraud cases.
“And this when the gaols are chronically over-crowded, absolutely strained to capacity, with people on remand often having to stay in their cells for 17 hours a day or longer.
“The over-crowding is only getting worse to the point where, as was highly publicised earlier this year, people serving short sentences were serving them in the Alice Springs police watchouse. There was not enough room in the gaol to take any more prisoners at all.”
Pictured from top: The Alice Springs Courthouse. • Criminal lawyers Jon Tippet QC and Russell Goldflam leaving the courthouse last year. From the Alice News archive.
It’s about heavier not fairer punishments and it does not deter offenders, they say.