Shane Stone and the NT’s mandatory sentencing regime

Bob Gosford | The Drum | 7 January 2011

Earlier this week former Northern Territory chief minister Shane Stone was interviewed by the ABC’s Andrew Dodd for the return series of Premiers Past, in which ex-state and territory leaders get a soft but well-informed grilling on their time in power.

To his credit, Stone was refreshingly frank in his discussion of some of the major events of his tenure as chief minister of the Northern Territory’s Country Liberal Party (CLP) governments between May 1995 and February 1999, particularly in his admissions of failure to effectively prosecute the case for NT Statehood in 1998, the parlous relationships between successive CLP governments and Aboriginal Territorians and the fallout from the prosecution of Lindy Chamberlain in relation to the death of her daughter Azaria.

I’ve never voted for the CLP and most likely never will. But I respect Stone because he is in a select group of NT politicians that could be classed as true leaders.

I’m not alone in my vigorous disagreement with many of the CLP’s policies over time but Stone deserves his due because he prosecuted his policies with a courage, commitment and enthusiasm not seen since from either side of politics.

But perhaps not always with the best of judgement. On his own admission Stone “…ran a very high-level law and order government.” The high point of Stone’s implementation of that philosophy was the NT’s mandatory sentencing regime that ran from 1997 to 2001.

One comment that caught my ear was Stone’s response to a question from Dodd about his policy of mandatory minimum sentences for minor property offences – in part because of my own very small involvement and also because Stone reckons that he should have expanded its operation to include a wider suite of offences.

“Andrew Dodd: One of the most controversial things during your period of chief ministership of the Northern Territory was the introduction of mandatory sentencing. When you look back on that now do you suppose you went over the top on that a bit?

“Shane Stone: Didn’t go far enough. Only applied it to property offences. I mean you have to remember I came out of a background of practicing criminal law, both at the Victorian Bar and in the Northern Territory. So I knew precisely what I was doing and I clearly, I had a clear understanding, about the way that the judicial system operated. The Northern Territory people had had a literal gutful of people breaking into their homes and stealing their property and committing a whole range of other offences and when you map out the effects of mandatory sentencing we had a dramatic decrease in crime. The same people committing the offences, over and over again. I didn’t go over the top. I didn’t go far enough. I have a regret that I did not apply it to violent assaults."

I’ll leave aside Stone’s relationship with the judicial system for now and return to Stone’s comments in a while but I first want to relate my personal perspective on the mandatory sentencing regime in the NT from my experience as a solicitor with a small general practice in Darwin in the late nineties.

One day a client turned up who had been caught doing a very stupid thing.

He had been standing at a set of traffic lights waiting to cross. A car pulled up at the lights with a purse sitting on the roof. My client, in a moment of folly he most likely regrets to this day, thought better of whatever cautionary angels may have been whispering in his ear and reached over and grabbed it. Being well overweight my client wasn’t built for a quick getaway - he moved with all the grace and speed of a dugong on valium. Needless to say that he was soon caught by the angry driver and others a few hundred metres away. The purse was returned to the driver intact.

Normally this matter would never have reached the Courts – maybe at worst my client might have copped a bit of a slapping and a few sharp toed kicks to the shins and be sent on his way. But someone called the cops. And they laid charges.

My client was well prepared when we turned up at Court – he’d packed a toothbrush and small bag of his medication because I’d already told him that absent some miraculous withdrawal of the charges that he would be going to Darwin’s Berrimah Prison for 14 days.

I like to think I did my best for him that day. I embellished the agreed facts (he’d given himself up at the cop-shop so he entered a guilty plea), set out his miserable personal circumstances and made my submissions in mitigation - including the sheer triviality of the offence. I made my submissions for what in normal times would have been an appropriate disposition of the matter. But these were far from normal times and all in the court knew that my efforts would be for nought.

Before mandatory sentencing my client would have walked out of court a free man after a verbal boot up the clacker from the magistrate.

But not on that day. From memory the magistrate told my client something like:

“I have heard submissions made on your behalf and note all of your personal circumstances and agree that this is a matter where normally I would exercise my discretion in the manner your counsel has suggested. You did a stupid thing, and it was wrong. And you realise that and are contrite. You will never do such a stupid thing again. No-one was injured and your victim’s property was returned to her in a matter of minutes. You cooperated with police and entered a guilty plea. All of this counts in your favour. But my hands are tied and I am obliged by the legislature to sentence you to 14 days imprisonment.”

My client went down into the cells and off to Berrimah prison. I walked out of Court and sat on a bench in the shade of the court and shed a few tears.

The law should prevent evil – not create it. The law should provide justice for victims – not victimise the foolish and the disadvantaged.

Mandatory sentencing didn’t do much to provide justice for the victims of minor property crime but it did victimise the foolish and disadvantaged.

Figures prepared by the NT Government’s Office of Crime Prevention* in 2003 show that between 1997 and 2001 1,715 individuals were subject to a term of imprisonment under the mandatory sentencing regime. Almost three-quarters of those were Aboriginal, they were 8.6 times more likely to be caught by it than non-Aboriginal territorians. Mandatory sentencing particularly affected Aboriginal men under the age of 25 and a grossly disproportionate number of juveniles, Aboriginal women and people suffering under a disability.

In a paper delivered by Labor MLA John Ah-Kit** in late 2000 he noted just a few of the many manifestly unjust and anomalous effects of the mandatory sentencing regime:

Margaret Nalyirri Wyndbyne, 24, receiving one can of beer value $2.50: 14 days jail.

Jamie Wurramara, 22, stealing box of biscuits and orange cordial on Christmas day value $23: 1 year jail.

Samual Eupene, 23, goods in custody of seven pearls found on beach, value unknown: 14 days jail.

Joanne Coughlan, 27, criminal damage of an electronic till by pouring water on it. Damage bill paid by defendant: 14 days jail.

Chris of Gunbalanya, 18, receiving petrol value $2: 28 days jail.

Robert of Nhulunbuy, stealing two cartons of eggs value $8: 14 days.

Kevin Cook, 29, stealing a beach towel from a clothes line value $15: 1 year.

Liam Edwards, 16, stealing $20 he claimed he found: 28 days jail.

Brett Willoughby, 19 stealing one bottle of Stoli value $2.04: 14 days jail; and

Johnno Johnson Wurramarrba 15, stealing textas, paints and liquid paper value about $50: 28 days. Died in custody.

Johnno Johnson Wurramarrba’s case may be the most tragic of all. Wurramarrba was just 15 years old when on October 19, 1999 he was sentenced at Alyangula court on Groote Eylandt to 28 days detention. After his release, he committed a string of further minor offences and on 18 January 2000 was sentenced to another 28 days. But the courts got it wrong – on both occasions.

As NT Coroner Dick Wallace noted in his Findings following an inquest into Wuuramarrba’s death in custody at Darwin’s Don Dale detention centre during his second term of detention:

“We all know that courts make errors, and those who have participated in bush courts would probably agree that errors are more likely there than in town because of, for one thing, the quantity of cases dealt with and, for another, the lack of an informed audience of idle lawyers each waiting for his or her case to come on and capable of alerting those at the bar table that something may be going wrong. All the same it almost beggars belief that any defendant, let alone a legally represented defendant, should have been subjected to three errors in two appearances.”

But back to Shane Stone and his defence of what is surely our most shameful example of harsh law and order policies gone wrong. Maybe he is right to have regrets about the limited scope – relatively minor property offences – of the offences caught by the NT’s mandatory sentencing regime. Maybe it would have been more politically and electorally acceptable if he had applied it to serious physical and sexual assaults. This is all moot. But thankfully mandatory sentencing – at least in the extreme form implemented by his government has gone – hopefully never to return.

Finally I have to pull Shane Stone up on one small comment he made on Sunday's show. He told Dodd that “…when you map out the effects of mandatory sentencing we had a dramatic decrease in crime.”

On the best available statistics that is incorrect.

As the NT Office of Crime Prevention and the NT Law Society have noted there are a number of reasons why it is difficult to draw any useful statistical conclusion about the impact of mandatory sentencing, including that the (then) NT government failed to make crime statistics publicly available and that there was no Freedom of Information legislation at that time.

The Office of Crime Prevention notes that:

“Available data suggest that sentencing policy does not measurably influence levels of recorded property crime.”

Meaningful analysis of imprisonment rates during the mandatory sentencing era is similarly problematic but the NT – then as now – had the highest imprisonment rate in Australia and by far the highest rate of imprisonment of Aboriginal people. By late 1997 the NT prison population had increased by 42 per cent since the start of mandatory sentencing.

The NT’s mandatory sentencing regime was a flawed and cynical exercise in political opportunism of the cruelest kind. No amount of through-a-rosy-lens revisionism, from Shane Stone or anyone else, can correct that.

Mandatory sentencing is, and should remain “dead, buried, cremated.”

* Mandatory Sentencing for Adult Property Offenders – The Northern Territory Experience. Office of Crime Prevention. 2003

**You Know Why: Compulsory Jailing and Racism. John Ah Kit. The 1999 H. C. (Nugget) Coombs North Australia Lecture. NARU.