Trudy Bray
Thu, 23 Aug 2001 16:43:54 -0700
The Sydney Morning Herald Expectations and extenuations in the Territory Date: 24/08/2001 Will a new government in the Top End bring any real change on mandatory sentencing, asks Richard Ackland? Few will mourn the departure of one of the meanest little cliques in Australia - the 27-year-old Country Liberal Party regime in the Northern Territory. In particular, it is a joy to see the back of Denis Burke, the thin-lipped hard man of the Top End. The CLP had been in power so long it was a bit akin to Mexico's PRI, the wonderfully incongruous Party of Institutionalised Revolution. Burke was among those inflexible guardians of public virtue persuaded by the merits of custodial sentences for the slightest infractions against the law. In bygone times one could have seen his type on the capital punishment rostrum or extolling the virtues of a good flogging. The architect of much of the recent history of political nastiness in the north is Shane Stone, the Federal president of the Liberal Party and a former chief minister of the Territory. He was the one who pioneered mandatory sentencing and the appointment of a chief magistrate on a special two-year contract to enforce the sentencing regime. It was fitting that in the dying moments of the Burke regime, Stone was standing in the witness box in Darwin having the stuffing knocked out of him by Bret Walker, SC. Walker was appearing for the Aboriginal Legal Aid Service, which is challenging the validity of the short-term appointment of the Chief Magistrate on special terms. Stone was trying to evade responsibility for this unusual arrangement, hiding behind a rusty memory. But Walker had him squirming and stumbling for hours. Anyway, the correct term for mandatory sentencing should be "compulsory jailing". For property offences in the Territory, thanks to Stone and Burke, that's what it is. Judges and magistrates under the Northern Territory Sentencing Act have no option but to send offenders to jail. It is not three strikes before you're in jail, either. First strike, you go to jail for 14 days, minimum. Second offence, jail for 28 days, minimum. Third property offence, jail for 12 months, minimum. Compulsory jailing applies to all property offences with the exception of shoplifting. Presumably, the former government, in its wisdom, thought half the Territory would be in jail if compulsory jailing applied to that offence. For the first offence defendants can plead an exceptional circumstance provision. You have to be Mother Teresa to qualify for the exemption, having met a list of criteria that includes "assisting police". Very few qualify. In the case of juveniles committing property offences the jurisdiction was effectively run by the police, not by the courts. The system is structured to induce young people to confess to property crimes and thereby be "diverted" into programs run by the police or by organisations in association with the police. Anyway, Burke has been terribly confused about what mandatory sentencing really means. In 1996, when the mandatory sentencing bills were debated in Parliament, he said: "It is the Government's hope that the legislation will lead in time to a reduction in the crime rate of property offences and a reduction in the crime rate generally." By April 1999, when an amendment was before the Parliament. Burke said: "No, it wasn't to reduce crime. That was not the primary focus of mandatory sentencing. The primary focus of mandatory sentencing was to punish the offender." Now along comes the Labor Government of Clare Martin. Will things be different? Labor has come up with a "six-point plan" to fix the problem. Like a lot of plans, much of it is gobbledegook. Point No 1 gives Labor a foot in both camps under the fetching heading of "serious crime means serious time". Martin is tough on crime and says there should be jail terms for property offenders, but it won't be called mandatory sentencing. Mandatory sentencing, as such, will be abolished under the Martin law-and-order policy. She will introduce amendments to the Sentencing Act that will spell out "community expectations" on sentencing in an "objects and purpose" clause. "This will mean that judges and magistrates must take note of the community's serious concern and disgust with people who break into homes, business and cars. For these criminals who commit such offences, they will go to prison under Labor." The policy says property offenders will go to jail "unless extenuating circumstances exist", would you believe. That sounds horribly familiar. We don't quite know what will constitute an "extenuating circumstance" under the new government, but presumably that is what the judicial discretion will amount to - a small window of extenuation. As to mandatory life sentences for murder, a policy that has given rise to some horrific injustices, you couldn't get a cigarette paper between the policies of Martin and old thin-lips Burke on that one. Both believe mandatory life means life. Welcome to a brave new world for the Northern Territory. 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