Mandatory sentencing

What is 'mandatory sentencing'?

Mandatory sentencing establishes an exact penalty for each category of offence individually. Normal sentencing sets a range of penalties, allowing judges and magistrates to interpret the sentence according to the circumstances of the offence and the offender. Mandatory sentencing removes this discretion.

43: Times an Aboriginal juvenile in Western Australia is more likely to be detained than non-Aboriginal juveniles [6].

58%: Percentage of juveniles detained in Australia who are Indigenous [7].

UN calls Australia's mandatory sentencing 'racist'

In 2000 the UN's Committee Against Torture called the mandatory sentencing laws in Australia racist.

According to journalist John Pilger, mandatory sentencing laws have given Aboriginal people "an imprisonment rate at least as high as that of apartheid South Africa, and have been a primary cause of one of the highest suicide rates in the world, among young Aborigines." [1]

In 2008, the committee recommended the abolition of mandatory sentencing due to its "disproportionate and discriminatory impact on the Indigenous population" [5].

The most comprehensive mandatory sentencing laws existed in Western Australia (introduced in 1996) and the Northern Territory (1997). They resisted movements to change this legislation until 2001 when the following incident happened.

When we fail to see someone struggling to break the cycle of offending we should assist, not punish further. When families are fighting they need support to resolve the major issues—not charges. —Brian Steels, Restorative Justice Research Unit, Murdoch University [3]

Suicide after mandatory sentencing

Mandatory jail time for stealing goods worth $23

Just a week after the boy's death, a 22-year-old Aboriginal man from the same community became the third young person to be imprisoned for stealing biscuits and cordial worth $23 from a Gemco storeroom on Christmas Day 1998.

Jamie Wurramara and his friends did not hurt anyone-they simply walked into an open shed and ate biscuits because they were hungry.

Wurramara was sentenced to 12 months' jail because it was his third "property offence". Another youth was jailed for 12 months and another, a second offender, for 90 days.

Mandatory sentencing past and present. The text reads: "1800 a.d.—Stole a loaf of bread... transported to Sydney. 2000 a.d.—Stole biscuits & Cordial... gaoled for a year in Darwin. – Mandatory Sentencing... 200 years on..." [4] The cartoon compares how the British were sent to Australia for petty crimes in the 1800s just as Aboriginal youth is sent to prison for petty crimes today.

The community paper that published the cartoon noted: "To remove the right of the judiciary to use their discretion when faced with the case of a repeat offender is to reduce the courts to being vehicles of automatic sentencing... This latest act in a Territory court involving a young offender points to the inanity of mandatory sentencing. Can a crime so minor, even if it is the third such minor crime, be worth a year of incarceration?" [4]

Youth hangs himself—stole goods worth $90

According to the authorities, 15-year-old orphaned Aboriginal boy "Johnno" Warramarrba was found in his cell on February 9, 2001, hanged by a bed sheet. He had been taken from his remote community in the Northern Territory and imprisoned 800 kilometres away in Darwin for stealing property worth less than $90.

By the official account, he killed himself just five days before he was due to be released from the Don Dale Correctional Centre. An officer had sent him to his room for refusing to wash up, and he was found unconscious five minutes later. Attempts to revive him failed and he died nine hours later at Darwin Hospital.

There are many more cases where under-20-year-olds have been jailed for petty crimes and "damages" of less than 5 Australian dollars. In the case of Johnno Warrambarrba a public outcry followed, putting mandatory sentencing practices into the national spotlight and pressure on the government to respond. The focus of these laws seemed to be to protect property rather than people.

Jail for petty crimes still an issue

You might think that today Aboriginal people are no longer jailed for petty crimes. But think again. The following image shows that in 2009 young Aboriginal children were still facing court—and possibly a sentence—for stealing a chocolate bar. Its value: 70 cents.

Extract of newspaper article: Boy in court over stolen chocolate.

In court for receiving a stolen chocolate bar worth 70 cents. What would have happened if the boy was white? Source: SMH