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Solicitor liable to mandatory 14 days jail for broken pencil

By Russell Goldflam - posted Wednesday, 19 April 2000

When I gave evidence to the Senate Committee investigating mandatory sentencing I demonstrated the triviality of offences caught by the Northern Territory legislation in this way. I held up a pencil. It was a pencil that I had stolen that morning from a Northern Territory government agency. In doing so, I committed a property offence. I do have some hope that if I am arrested by the police for committing this offence, I will be able to plead the exceptional circumstances available under the amendments to the mandatory sentencing laws.

If it is a trivial offence – obviously stealing a pencil is trivial; I cooperate with police – I am a fairly cooperative sort of bloke; I make restitution – I can certainly afford to pay the cost of this pencil; I can demonstrate that I am a person of good character – I believe that I could with references and so on; and it was a single offence; I can avoid the 14 days.

Then I broke the pencil in two – an act of criminal damage and a second property offence. If I am charged by police for committing two property offences, there is no way I can avoid going to jail for 14 days once I have been found guilty. The exceptional circumstances safety valve is not available where there is more than one offence involved.


It does not matter that the offences are trivial or made under the immunity perhaps conferred by the Senate in the course of an inquiry. It does not matter that I make restitution, or that I am sorry for what I have done – which I am not; that I have good character; that I have cooperated with the police; that I have never before been convicted of anything in the Northern Territory. All of those things are irrelevant because if I have two offences it is 14 days. There is nothing that a court of summary jurisdiction or the Supreme Court or the Court of Criminal Appeal or the High Court can do about it, because all of those courts have been asked to find these laws invalid or inoperative or ineffective, and all of those courts have declined to do so because of the power of Parliament. That is why I am outraged.

There are other reasons why it is a bad law. First there is the myth of deterrence. In recent years Territory politicians and the local press have continually beaten up the issue of property crime, with a particular emphasis on juvenile break-ins in suburban Darwin and Alice Springs, scaremongering amongst voters and readers, and scapegoating the least powerful and articulate members of the community.

The principal justification given by the Northern Territory Government for mandatory sentencing when introducing it in 1996 was that it would reduce property crime by deterring would be offenders. Since then the Government has resolutely refused to publish crime statistics. Such data cannot be obtained by way of Freedom of Information applications, because the Northern Territory, alone among Australian jurisdictions, has no Freedom of Information laws. The only publicly available information about the incidence of property offences was in the Neighbourhood Watch Newsletters put out by the NT police. Analysis of these figures in the months following the introduction of mandatory sentencing showed that, if anything, Darwin suburban break-ins appeared to be on the increase. Shortly after this analysis was publicised, the figures ceased appearing in Darwin Neighbourhood Watch newsletters.

Recently, however, the Government has backed away from its claims that the purpose of mandatory sentencing was to reduce crime. In an ABC Radio interview on 7th June 1999 Chief Minister Dennis Burke stated "It’s designed to show the community’s displeasure. It’s not designed to lower the crime rate."

Put bluntly, the fact is that when about to throw a rock through a window or break into a store, the prospect of detention is simply not on the mind of a young person, particularly when the mind is substantially affected by alcohol or other substances, as is overwhelmingly typical of property offences committed in the Territory.

On the 3rd of June 1999, amendments which purported to make the legislation more just were rushed through Parliament. While they did mitigate some of the harshest and most anomalous aspects of the regime they did not go far enough and created their own fresh set of inconsistencies. My particular criticisms are:

  • They leave the principle of mandatory sentencing intact;
  • They extend mandatory sentencing to offences against the person, thus normalising this radical approach to sentencing;
  • They provide for select offenders to avoid prison under exceptional circumstances which by their nature will be almost exclusively applicable to people with a conventional suburban lifestyle, thus making the laws more punitively discriminatory (particularly on the basis of race, disability and social disadvantage) than ever;
  • They have ironed out some of the ‘wrinkles’ in the scheme, but created others, leading to a number of appeals; and
  • They may have the effect of making mandatory sentencing seem more palatable to the general community.

An area of particular concern with the amendments is the plight of people with an intellectual or related disability. "Frank" is an 18 year old with a moderate intellectual disability and a genetically acquired obsessive-compulsive disorder, although he does not have a mental illness as defined in the Criminal Code or the Mental Health Act. On several occasions he has been unable to resist an impulse to ring 000 and falsely report a fire. He has strong support from his family and mental health services who have designed and implemented a carefully constructed program of behaviour management for Frank. Nevertheless he has been before the courts on a number of occasions, and has served 14 days in prison for damaging property. His lawyer advised his family to consider re-locating to another jurisdiction to avoid exposing Frank to further and lengthier terms of imprisonment.

"Maxie" is a 35 year old man with an intellectual disability who lived alone. His odd appearance and manner attracted the attention of local children, who would continually taunt him, provoking him to lose his temper and damage property. He avoided prison only because a family member in another State offered to care for him, and he moved out of the jurisdiction. Police then agreed to drop the charges against him.

My last concern with mandatory sentencing is the situation it may create in Aboriginal communities in 10 years time. Despite claims to the contrary, the Sentencing Act provides that the mandatory 12 month penalty applies not just on the third occasion, but on each and every subsequent occasion. It is apparent that the effect of mandatory sentencing is likely to be the virtually permanent forced removal from bush communities of their young men.

This will have the effect of disrupting the maintenance of traditional cultural practices and law; depriving the community of much of its workforce; distorting local demographic characteristics and threatening population growth and the sustainability of family and broader social structures; and further demoralise and alienate the community’s children, particularly boys, whose role models will largely be older kin who are absent and incarcerated.

There are problems in the Northern Territory, and this cannot be denied. But the solution lies not in punishment by incarceration, but rather in an increase in social well-being for young people at risk. There is an urgent need for crisis accomodation for homeless youth. There is an urgent need for care and treatment facilities and programs to combat substance abuse. There is an urgent need for welfare agencies to be properly resourced to enable them to support families in crisis. There is an urgent need for a radical overhaul of Aboriginal education in the Territory, as detailed in the recently released Report by former Senator Bob Collins.

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About the Author

Russell Goldflam is a lawyer with the Northern Territory Legal Aid Commission.

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