Sunday, June 12, 2011

Mandatory Sentencing: Back to the Future in the Northern Territory

With mandatory sentencing back on the agenda in NSW and Victoria, it is worthwhile to reflect on an Australian jurisdiction with recent experience of the practice, namely the Northern Territory.

RG practiced in the NT between 2006 and 2008, during which time the Labor government went to an election promising mandatory prison sentences for first offenders convicted of assault causing 'harm'. Labor won, that legislation passed and continues to be law today.

In 2007-8, I appeared for young men in their late teens who faced mandatory jail for the first offence of having consensual sex with girlfriends under the age of 16.

Thankfully, by that time, the infamous mandatory prison laws for property offending had been repealed, although mandatory jail for certain serious violence offences (including assault causing serious harm) and for a second or subsequent offence of breaching a domestic violence order survived.

Following the introduction of the new provision for a first offence of assault causing 'harm', Charles Darwin University lecturer and veteran Aboriginal Legal Service lawyer, Steve Barlow, analysed the scene, including the history of the notorious period 1997 - 2001:

(2009) 33 Crim LJ 231 

Contemporary legislation comment

Mandatory imprisonment for first offenders has returned to the Northern Territory. Any adult, even a
first offender, who is sentenced in the Northern Territory for an assault causing “harm” now faces a
term of mandatory imprisonment. The major impact of the new law is to expand mandatory
imprisonment for violent offences to first offenders. The previous law mandated prison for “second
strike” assaults. The new law has been introduced despite the legal and political failure of the
1997-2001 mandatory sentencing regime for property crime.1

The amended s 78BA of the Sentencing Act (NT) came into force on 10 December 2008.
Section 78BA provides:

78BA Mandatory imprisonment for certain violent offences
(1) This section applies to:
(a) any of the following violent offences:
(i) an offence against section 181 or 186 of the Criminal Code;
(ii) an offence against section 188 or 189A of the Criminal Code that results in harm to the
victim; and
(b) any other violent offence committed after the offender has (before or after the commencement
of this section) been found guilty of:
(i) a violent offence; or
(ii) an offence substantially corresponding to a violent offence committed against a law that
was later repealed or the law of some other jurisdiction (including a jurisdiction outside

(2) If a court finds an offender guilty of an offence to which this section applies, the court must record
a conviction and must order that the offender serve:
(a) a term of actual imprisonment; or
(b) a term of imprisonment that is partly, but not wholly, suspended.

The four offences covered by s 78BA(1)(a) are serious harm, harm, assault causing harm, and
assaults on police resulting in harm. Actual imprisonment is mandatory for any adult found guilty of
any these four offences, even if he or she is a first offender. The definition of “harm” in s 78BA is
different to its definition under the Criminal Code. Under s 78BA, “harm” involves an interference
with health. Pain on its own does not amount to harm.

Actual imprisonment is also mandatory for s 78BA(1)(b) “violent offences”, but only if the
offender has a prior conviction for a “violent offence”. Examples of s 78BA(1)(b) “violent offences”
include common assault, terrorism, attempt to murder and manslaughter.2 The prior conviction can
pre-date the commencement of the legislation, making its operation somewhat retrospective. The prior
conviction can also be from another jurisdiction, even outside Australia, if the prior offence
“substantially corresponds” to a Northern Territory “violent offence”.

The interaction of the first offence and second offence mandatory imprisonment provisions are
somewhat illogical. A first offender who commits assault causing harm must be sentenced to actual
imprisonment, but not a first offender who commits terrorism, manslaughter or attempted murder. The
retrospective effect of the law is also harsh. Actual imprisonment is mandatory for common assaults
(no harm) if a person has a prior finding of guilt for common assault, even if the prior offence resulted
in a “non-conviction” sentence order, was many decades ago and in a foreign jurisdiction.
Under that regime, offenders for were imprisoned for a minimum of 14 days for a “first strike” property offence, 90 days for
a “second strike”, and 12 months for a “third strike”.
See Sch 2 of the Sentencing Act (NT) for a complete list of “violent offences”.

The inherent injustice of mandatory sentencing is well accepted by the courts.3 Section 78BA involves
a prison sentence being predetermined by the legislature before the facts of the offence or the
circumstances of the offender are known. It follows that the punishment may not fit the crime. Absurd
and unjust results will be inevitable. I am not aware of any other common law jurisdiction in the world
that has mandatory prison sentences for assaults causing harm by first offenders – the Northern
Territory stands alone. Historically, Australian courts have declined to establish any general sentencing
tariff or guideline for assaults, on the basis that such offences vary so greatly in circumstances.4 The
new s 78BA abandons the evolved wisdom of the common law.

The dramatic erosion of fundamental principle is illustrated by cases involving provocation. Until
20 December 2006, in the Northern Territory, provocation was a complete defence to assault.5 Cases
involving provocation now result in mandatory imprisonment, with the potential injustices being easy
to imagine. An overreaction to racial or sexual abuse, or bullying, will result in prison, as will a little
too much force in self defence.

The circumstances of the offender are also irrelevant, meaning that female offenders in the
Northern Territory will be treated particularly harshly. Many women who commit assault have
suffered violence for much of their lives, only to respond to their tormentors in the heat of the
moment. These victims of violence, often Indigenous women, will now face the full wrath of
mandatory sentencing. A battered wife who kills her husband can avoid prison for manslaughter. But
the battered wife who gives her husband a shiner must be locked up.

The brunt of the new law will be felt by the usual list of the vulnerable and the disadvantaged, in
particular those with mental illness. Local public opinion turned against the 1997-2001 mandatory
sentencing regime when so-called “middle class” first offenders were having to serve prison sentences
for minor crimes. The effect of the new law on this category of offender will be similarly harsh.

A government study of the notorious Northern Territory mandatory minimum sentencing regime from
1997-2001 showed that property crime increased during mandatory sentencing, and decreased after its
repeal.6 The rate of assault crime also increased after the introduction in 2001 of mandatory
imprisonment for “second” assaults. Western Australian studies have produced similar results.7 The
available evidence shows that mandatory sentencing does not reduce crime.

There is no evidence that the Northern Territory sentencing regime for assault causing harm has
been lenient in the recent years. In the last decade, there has been only one Crown appeal against the
inadequacy of a sentence for a first offender for assault causing harm.8 That appeal was dismissed.
Nevertheless, there is popular sentiment amongst the Northern Territory community that courts are
“soft on crime”. Being a small jurisdiction, the major newspaper is disproportionately saturated with
stories on criminal cases. There are regular letters to the editor of the NTNews, often with “Name and
Address Withheld”, complaining about lenient sentences. The local media fuels the public opinion
which underlies public policy. This is not new. In a paper presented to the 19th Australian Legal
Convention in 1977, Professor Norval Morris described the relevance of the media to this type of
Trenerry v Bradley (1997) 6 NTLR 175; 93 A Crim R 433; Palling v Corfield (1970) 123 CLR 52 at 58; Cobiac v Liddy (1969)
119 CLR 257 at 269.
Yardley v Betts [1979] 22 SASR 108; 1 A Crim R 329.
Section 34 of the Criminal Code Act (NT) was repealed on that date.
Office of Crime Prevention, Mandatory Sentencing for Adult Property Offenders – The Northern Territory Experience (2003)
p 10.
See Broadhurst R and Loh N, “Selective Incapacitation and the Phantom of Deterrence” in Harding R (ed), Repeat Juvenile
Offenders: The Failure of Selective Incapacitation in Western Australia (2nd ed, 1995) p 55; Morgan N, “Capturing Crims or
Capturing Votes? The Aims and Effects of Mandatories” (1999) 22 UNSWLJ 267.
Rowbottom v Baker [2002] NTSC 58.

sentencing scheme then found in some parts of the United States:

Legislation of this kind is unprincipled and morally insensible; it cannot encompass the factual and
moral distinctions between crimes essential to a just and rational sentencing policy. It is based on an
absurd belief in the sentimental leniency of the judiciary, a belief fostered by some elements of the

Of just as much concern as the fact that mandatory sentencing does not work is the lack of information
provided to the general public about the changes to the law. This author would be surprised if many
people outside the legal community were actually aware of the new law and its ramifications. There is
some unfairness when a government imposing a regime of mandatory imprisonment fails to properly
warn the general public of that law.

Sentencing statistics illustrate the extent to which mandatory imprisonment is excessive in New South
Wales for first offenders for assault causing harm. Between October 2006 and September 2008, the
New South Wales local courts sentenced 8,093 offenders for assault occasioning actual bodily harm.10
Only 15% of all offenders received a sentence of actual imprisonment.

When the statistics are confined to offenders with no prior criminal history, only 2% of first
offenders received a sentence of actual imprisonment.11 One per cent received weekend detention, 4%
received a suspended sentence, 5% received community service, 47% received a bond, 15% received
a fine, and 25% received no conviction. For those with some criminal history, but no history of
violence, only 8% received a sentence of actual imprisonment.12

In the Northern Territory, 100% of offenders will be sentenced to actual imprisonment.

It remains to be seen whether courts will readily embrace the option of a “rising of the court”
disposition. This involves avoiding the prohibited “wholly suspended sentence” by partially
suspending a sentence of actual imprisonment upon the “rising of the court”. Northern Territory courts
have used this approach in rare cases under the previous s 78BA provisions for “second strike”
assaults.13 This option has now been tacitly recognised and approved by the legislature.14 However,
even a “rising of the court” disposition carries with it the stigma of prison and the drastic curtailment
of employment and travel prospects.

At a philosophical level, it is argued by some that mandatory prison deters offenders. Such an
approach does not recognise that the vast majority of assaults causing harm do not involve any
planning, calculation or premeditation by the offender. Even assuming that hypothetical offenders are
aware of mandatory sentencing, they rarely weigh up the possible penalty. They act too emotionally,
too quickly, too instinctively; or are simply too drunk.
The amended s 78BA rarely enters the headspace of the hypothetical offender. Moreover, it cannot
be claimed that first offenders have been through the court system and warned of the consequences of
their conduct. Deterrence in such cases is a fiction.
Morris M, Wickham JLC, Cummins PD, Hawkins GJ and Staunton JH, “Sentencing and Parole” (1977) 51 ALJ 523 at 529, as
quoted in Trenerry v Bradley (1997) 6 NTLR 175 (Mildren J).
Assault occasioning actual bodily harm is the New South Wales equivalent of assault causing harm.
Of the 2% of offenders sentenced to imprisonment, it would be expected that many (if not all) would exercise their right of
appeal to the District Court. Such appeals are heard de novo. Appeals from the Court of Summary Jurisdiction in the Northern
Territory are “error of law” appeals to the Northern Territory Supreme Court.
Statistics taken from the Judicial Information Research System, Judicial Commission of New South Wales 2009.
See White v Brown (2003) 175 FLR 325.
Section 78BA(3) “does not prevent the court from exercising powers that may be exercised consistently with this section”.

Mandatory imprisonment cannot be said to protect the community. Mandatory prison carries an
“opportunity loss”, since a first offender cannot be sent to anger management counselling or a dry-out
centre without first going to prison. If anything, a short term of imprisonment will only increase the
chance of an otherwise good citizen becoming dysfunctional, unemployed, embittered, bashed or
raped. Prisons foster violence. Mandatory imprisonment will not help to rehabilitate offenders.
In terms of case management, more matters will now be defended. This costs money and ties up

Northern Territory prisons are already full. Inmates are currently being housed in shipping
containers. In April 2009, the prison population stood at 1,130, in a system which only has 858 beds.
Around 85% of inmates are Aboriginal. In 2001, the prison population was less than 700. Sending
people to prison is also very expensive. Plans are in place for a new $300 million prison. The new
s 78BA will only add to these problems.

The politics of mandatory sentencing is ever present. In July 2008, the Northern Territory opposition
Country Liberals party released a television commercial promising that, if elected, it would ensure
offenders convicted for a second time for violent assault would be automatically imprisoned.
Embarrassingly, that was the state of the law at the time. The current Labor government came to
power in 2001 on a platform of repealing mandatory sentencing, and indeed one of its first acts was to
repeal the mandatory sentencing regime that existed at the time. It is Labor that has introduced this
new law. Eight years is a long time in politics.

A senior government adviser, in response to this author’s concerns about the new legislation, said
not to worry because the police would use common sense and downgrade the charges to avoid an
injustice. All that can be taken from such a comment is that corrupt or improper process will be relied
upon to fix the problem. These matters demonstrate the lack of principle underlying the politics behind
these laws.

Interestingly, in New South Wales, the Coalition’s shadow Justice spokesperson, Greg Smith, has
conceded that the “law and order auction” has gone too far, and that tough sentencing has failed. A
former Deputy Director of the DPP, Smith has pledged to end the auction. As a pragmatist, he claims
that rehabilitation needs to be given more consideration, so that the New South Wales recidivism rate
of 43% can be reduced.15

It will only be a matter of time before a high profile offender faces mandatory imprisonment
under the new s 78BA. In 2006, the former world motorcycle champion Mick Doohan received a
“without conviction” fine for headbutting a Darwin bouncer, causing a fat lip. The Magistrate
described Doohan as “an Australian hero, a legend, a shining example of courage and achievement”.16
Nobody would suggest that the sentence was inadequate. Today, all that heroism would count for
nothing and Doohan would be imprisoned.

Lest we forget Kevin Cook. A homeless and mentally diminished man, he was sentenced for a
“third strike” property offence in 1999. He served 12 months in Berrimah prison for stealing a towel
from a clothes line.

The lack of opposition to the new law has been disappointing. Unfettered judicial discretion for
first offenders has effectively been surrendered. Injustice has been allowed to flourish. The long-term
West A, “Truce on Hardline Sentencing”, Sydney Morning Herald (8 January 2009).
Murdoch L, “Not Doohan Time, but $2500 Fine for ‘Hero’ Mick”, The Age (9 August 2006).

integrity and reputation of the Northern Territory criminal justice system will be diminished. In the
meantime, it is the everyday women and men of the Territory who will hear the clanging of the prison

Stephen Barlow
Criminal lawyer at the North Australian Aboriginal Justice Agency; Lecturer at Charles Darwin

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