From: Hailes, Sonia (SEN) on behalf of Legal and Constitutional, Committee (SEN) Sent: Wednesday, 1 August 2001 9:03 AM To: Wilson, Christine (SEN) Subject: FW: DCLS Submission -----Original Message----- From: Cassandra Goldie [mailto:Cassandra_Goldie@fcl.fl.asn.au] Sent: Tuesday, July 31, 2001 5:35 PM To: legcon.sen@aph.gov.au Subject: DCLS Submission The Secretary Senate Legal and Constitutional Committee Parliament House Canberra ACT 2600 Dear Senators SENATE INQUIRY INTO MANDATORY SENTENCING Darwin Community Legal Service welcomes this new national investigation into mandatory sentencing laws. DCLS has previously made a submission to the earlier inquiry into mandatory sentencing. We refer Senators to our earlier submissions. DCLS has long been concerned about the impact of mandatory sentencing generally in the Northern Territory and has taken a particular role in raising concerns about its impact on people with disabilities. For the past two years, the Aged and Disability Rights Team at DCLS has facilitated a group called Disability Groups Against Mandatory Sentencing (DGAMS). This group is made up of parents of children with disabilities, people with disabilities, disability workers, the Anti Discrimination Commissioner and private solicitors. This group formed after a parent approached us with concerns about how mandatory sentencing might impact on her son who had an intellectual disability and was approaching adulthood. DGAMS has identified that the greatest risk of mandatory sentencing is posed to people with an intellectual disability, especially if it is a mild disability that may not be easily recognisable or people with a mental illness. DCLS wishes in this submission to highlight the impact of mandatory sentencing on people with disabilities in the Northern Territory, and to then make some broader comments, particularly regarding the Federal Government's deal with the Northern Territory. (1) Mandatory Sentencing and the impact on people with disabilities Prior to the introduction of mandatory sentencing, magistrates had the ability to take into account the individual circumstances of the person coming before them for sentencing. If the person had a relevant disability, this could be taken into account for sentencing purposes. The introduction of mandatory sentencing has removed this discretion from magistrates. A magistrate is no longer able to take into account the role that a person's disability may have played in the crime committed. For many people with an intellectual disability, understanding what is right or wrong or learning from mistakes, may take much longer than it would for a person without a disability. Any punishment that a person receives as a consequence of committing a crime should also be proportional to the offence. A period in detention may often be a far harsher punishment for a person with a disability as they may be far more vulnerable to abuse within the prison system. The experience may have a long lasting detrimental effect on the person's emotional wellbeing. If the person has a disability and does not fully understand the reason for their imprisonment, incarceration is likely to have little or no rehabilitative outcome. It is unlikely that it will be a deterent to committing the crime again if the person has not understood what they are being punished for. There are no special programs in place to support incarcerated people with disabilities. (a) What is happening now for people with disabilities Recently, Darwin Community Legal Service in conjunction with the National Disability Discrimination Network, The Victorian Disability Discrimination Service and The National Association of Community Legal Centres supported a worker to undertake research into the issue of mandatory sentencing and disability. A report from this research will be available in the next few months. The information gathered from this research has highlighted the fact that mandatory sentencing is currently having a significant impact on people with disabilities. People with disabilities, especially those with acquired brain injuries or mental health issues, are over represented in indigenous communities. Often however these disabilities are not recognised until the person enters the criminal justice system. In the past, the court process has sometimes been a positive process for the person - a time when the disability was recognised and appropriate support services put in place without facing incarceration. This can no longer occur. Parents are using other means within their control to try to protect their adult child with a disability from the court system. One private solicitor told of parents seeking adult guardianship orders over their child so that the court would then view them as unable to understand right from wrong. For more information on what is currently happening for people with disability who have committed an offence that is covered by mandatory sentencing, please refer to the submission submitted by the Victorian Disability Discrimination Legal Service. Darwin Community Legal Service is of the view that the current mandatory sentencing laws that exist in the Northern Territory are inconsistant with the Disability Discrimination Act . We refer Senators to our previous submissions in this regard. (b) Solutions Judicial discretion needs to be returned to the courts so that, when a person with a disability appears before a magistrate, their disability can be taken into account. Any punishment that is handed down needs to be appropriate to that individual . The laws need to reflect the reality that people with disabilities may have little understanding of the offence they have committed. Often, by the nature of a person's disability, they are more likely to commit the kinds of offences that are subject to mandatory sentencing, in effect, through no "fault" of their own. The laws also must reflect that the community expects that appropriate penalties are handed down and that imprisonment may often not be an appropriate place for a person with a disability. (2) Effect of the Recent Deal between the Northern Territory and the Commonwealth DCLS also wishes to make submissions regarding the above. There have been some positive practical impacts of the deal at this time, in that it would appear that, in relation to juveniles, fewer juveniles are being detained. However, DCLS has two major concerns about the deal: (a) No Court Discretion It is clear that apparent reduced rates of incarceration of juveniles only comes at the discretion of individual police officers in the community. We are opposed to the discretionary powers for juvenile offenders resting soley with the police as these decisions are not reviewable, and are very difficult to monitor. We are concerned that the current trends regarding non-incarceration are as a result of existing political pressures, rather than entrenched components of the criminal justice system. It is essential that the legal framework is reformed to ensure that the courts have discretion in relation to sentencing. It is extraordinary that the Northern Territory Government is prepared to vest extensive discretion with individual police officers, but refuses to allow the courts the same discretion. In addition, ofcourse, the deal only applies to juveniles. (b) Lack of Independent Legal Advice Young people are not getting access to legal advice about participation in diversionary programs or information that they provide to the police. Any thing that a young peron tells a police officer is evidence that can later be used against them, for example, if they fail to satisfactorily complete a diversionary program. Young people are extremely vulnerable under the current system as they know that it is up to the police whether to charge them with an offence and take them before the courts, where there is no discretion. The threat of a criminal charge under mandatory sentencing can be used to manipulate a young person. It is essential that a young person is able to talk to an advocate who will be able to give advice in their interests, rather than the police being the only source of information about their options. (3) Ongoing Concerns about Mandatory Sentencing Laws DCLS also wishes to highlight its ongoing concerns about the operation and effect of mandatory sentencing generally in the Northern Territory. In addition to its special role in supporting Disability Groups against Mandatory Sentencing, DCLS is a member of Territorians for Effective Sentencing, a broad coalition of community organisations and individuals who remain opposed to mandatory sentencing. The group is now also involved in efforts to oppose the Public Order and Anti-Social Conduct Act. The group was formed prior to the deal between the Northern Territory and the Commonwealth, and remains of the view that mandatory sentencing laws continue to lead to intense human rights abuses in the Northern Territory. The following sets out the agreed position of TES which continues to apply to the situation in the Northern Territory: (a) Cost Effectivenss We believe that there are cost-effective and just ways of dealing with crime prevention that do not involve imprisonment. The social and financial cost of mandatory sentencing is considerable. It costs $9, 624.44 to keep a juvenile in detention for 28 days in the Northern Territory* and the Territory already has over three times the national rate of imprisonment. We believe that the money would be better spent on solving the social problems which contribute to the incidence of crime, as jailing people for minor offences has been shown to further involve such offenders in the cycle of antisocial behaviour. (b) Failure to Deter Crime Mandatory sentencing has been shown not to work as a deterrent to serious crime in every jurisdiction in which it has been introduced. We do not believe that it will reduce the violence occuring in our community, or adequately assist the victims of such crimes. We encourage the Government to consider effective and well-funded alternatives to mandatory sentencing such as those outlined in the recent Federal Government report "Pathways to Prevention". *[Northern Territory Correctional Services Annual Report, 1998/99, at page 27]   (c) Breach of International Human Rights Obligations We call for the repeal of the current legislation. Any form of mandatory sentencing is a breach of international human rights. The United Nations Convention on the Rights of the Child and the 1987 Royal Commission into Aboriginal Deaths in Custody recommend that imprisonment should be "a measure of last resort". The International Covenant on Civil and Political Rights is also breached as mandatory sentencing amounts to "arbitrary detention" and means that sentences cannot be reviewed by a superior Court. In 1998, 81% of under-17-year-olds detained in the Northern Territory were Aboriginal*. (d) Erosion of Separation of Powers The independence of the judiciary is one of the foundations of a democratic society. Mandatory sentencing removes the discretion of judges and magistrates to sentence offenders proportionately to the seriousness of the crime they have committed. If we wish the Northern Territory to become a State in the Australian Federation, we must ensure that we have the rights that other Australians take for granted such as a fair and just legal system. *[Juveniles in Australian Corrective Institutions 1981 - 1998, Institute of Criminology Research and Public Policy Series No 20] Conclusion DCLS calls on the Federal Government to introduce legislation overriding all forms of mandatory sentencing in Australia. It is essential to the integrity and effectivenss of the criminal justice system that Magistrates and Judges have discretion to impose a sentence which fits the crime in all its circumstances. The restoration of discretion should be coupled with investment in genuine and innovative sentencing options which are more likely to lead to reduced offending behaviour. This development should be endorsed at the national level, and supported through Federal funding so that Australians whereever they live can be dealt with fairly before the courts. Unless these reforms are supported, the Australian community will become subject to increasing international scrutiny and condemnation for its punitive approach to disadvantaged people in our society including indigenous communities, young people and people with disabilities and mental illness. DCLS requests an opportunity to present to the Inquiry further information in relation to this submission. Yours sincerely Cassandra Goldie Coordinator Wendy Morton Disability Discrimination Advocate Darwin Communtiy Legal Service In GPO Box 3180 Darwin NT 0801 email: info@dcls.org.au