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Legislative Assembly for the ACT: 2000 Week 2 Hansard (1 March) . . Page.. 426 ..
MR STANHOPE (continuing):
people, yet still in parts of Australia we are finding new ways of putting Aboriginals in gaol. Mandatory sentencing is the latest and most devastating of these. As we all know, two weeks ago a 15-year-old orphaned Aboriginal child took his life in prison. The boy was serving a 28-day mandatory sentence for stealing pencils and stationery. He died far from home, in Darwin. His sentence was imposed under a mandatory sentencing regime that applies in the Northern Territory. Western Australia has a similar regime.
Mandatory sentencing does not have a lot of support outside these jurisdictions. For most, the pressing question today is: Should the Commonwealth intervene to overturn these provisions? Mr Speaker, I oppose mandatory sentencing on two main grounds - on the effect it has on the justice system and on the unfairness of its application. Victims of crime and their families often feel that sentences are too lenient. Society wants to be protected from persistent offenders. These are certainly legitimate concerns. On top of these concerns and feeding on them are the law and order merchants, the people who see issues in simple terms and have solutions ready to take off the shelf for every problem. Mandatory sentencing is one of these simple off-the-shelf so-called solutions.
Courts have an obligation to sentence each offender on the justice of the case. Mandatory sentencing prevents the court from applying justice to cases before them. In determining sentence, a court should consider the circumstances both of the offence and of the offender. The court has to address the issue of deterrence, rehabilitation, punishment and restoring the offender to the community. These considerations draw the court in different directions and can be addressed only in the circumstances of a particular case.
Removing discretion from the courts means that in almost all cases it will be exercised elsewhere. If it is not exercised by the judge in court, it will be exercised in the main by the police and by prosecutors. It will be exercised in private and in a haphazard way. It will be immune from appeal. Many cases will go to court and the convicted offender will automatically go to gaol. Offenders will clog the court system as they respond to mandatory sentencing with not guilty pleas. Prisoners will clog our prisons, imposing a huge cost on the community and a huge cost on the individual - the offender sent to prison for a minor offence but subjected to many of the dangers of prison.
I take the opportunity, Mr Speaker, to quote from the ATSIC submission to the current Senate inquiry into mandatory sentencing in relation to juvenile sentencing principles. I think it is a good summary of the situation around Australia. ATSIC, in their submission, comment:
Mandatory sentencing is completely out of kilter with the sentencing principles which have been developed by the superior courts in Australia. Mandatory sentencing overturns the principle that special considerations are relevant to sentencing juveniles. As the case law shows very clearly -
and ATSIC give very detailed explanations of the case law -
rehabilitation is seen as an important consideration when sentencing young people.
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