And you know why: compulsory jailing and racism

Abstract

Much has been made over the last few months over the mandatory sentencing regime in the Northern Territory and Western Australia. However, the words ‘mandatory sentencing’ obscure what has been perpetrated by the governments of those two jurisdictions. ‘Mandatory sentencing’ is meaningless really: all judges and magistrates sentence those who are found guilty even if, in their judgement, circumstances are such that a conviction might not be recorded. It is a judgement and a discretionary decision on sentence nevertheless. What we are really talking about is not ‘mandatory sentencing’ but ‘compulsory jailing’. We are talking about a legal regime under which, across a large range of property crimes, judges and magistrates have absolutely no choice. They have been left with no discretion; they have been left without powers to take into account any single aspect of the circumstances surrounding the crime such as the mental state of the defendant, or the triviality of the offence. For juveniles, which in the Northern Territory is defined as 15—17 year olds, means compulsory jailing on a second offence of 28 days. Subsequent offences also attract a 28 day compulsory jailing. There is an empty legislative attempt at diversionary schemes. For adults, this means compulsory jailing on a first offence of 14 days; on a second offence of 3 months and a year in jail on a third offence. No second chances. No diversionary schemes.