Submission 42 IIIII 2 AUG 2002 __ __ BY:4A~~. AUSTRALIA 1 August 2002 Ms Gillian Gold Committee Secretary House of Representatives Standing Committee on Legal and Constitutional Affairs Parliament House CANBERRA ACT 2600 Dear Ms Gold INQUIRY INTO CRIME IN THE COMMUNITY; VICTIMS, OFFENDERS, AND FEAR OF CRIME Unfortunately the Law Council is not able to make a formal written submission addressing each of the Terms of Reference relevant to this current inquiry. The Law Council notes however Item (g) of the Terms of Reference under which the Committee proposes to examine the effectiveness of sentencing in its Inquiry and Report. The Law Council submits that the issue of mandatory sentencing is an important part of that broader debate. You will be aware from our previous submissions to your Committee and our public statements that the Law Council is opposed to mandatory sentencing on the basis that: • Mandatory sentencing laws exclude the exercise of judicial discretion; • Such laws are ill-conceived as a means of addressing the crime rate; • Such laws tend to target Indigenous persons; • Such laws have resulted in unjust sentences; and • Such laws contravene Australia’s international obligations under at least two treaties. A broader discussion of the issues and the Law Council’s position is set out in the Position Paper prepared by the Law Council in September 2001 entitled “The Mandatory Sentencing Debate”. A copy of that Paper is enclosed for your attention. Also enclosed are copies of the following documents: THE NATIONAL COUNCIL OF LAWYERS 19 TORRENS STREET BRADDON ACT 2612 GPO Box 1989 CANBERRA ACT 2691 TELEPHONE: (02) 6247 3788 INTERNAT: +612 6247 3788 FACSIMILE: (02) 6248 0639 DX5719 CANBERRA EMAIL: [email protected]WEB SITE: http://ww’w.Iawcouncil.asn.au LAW COUNCIL OF
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Submission 42
IIIII 2 AUG 2002
__ __ BY:4A~~.
AUSTRALIA
1 August 2002
Ms Gillian GoldCommittee SecretaryHouse of Representatives Standing Committee onLegal and Constitutional AffairsParliament HouseCANBERRA ACT 2600
Dear Ms Gold
INQUIRY INTO CRIME IN THE COMMUNITY; VICTIMS, OFFENDERS, AND FEAR OFCRIME
Unfortunately the Law Council is not able to make a formal written submissionaddressing each of the Terms of Reference relevant to this current inquiry.
The Law Council notes however Item (g) of the Terms of Reference under which theCommittee proposes to examine the effectiveness of sentencing in its Inquiry andReport. The Law Council submits that the issue of mandatory sentencing is animportant part of that broader debate.
You will be aware from our previous submissions to your Committee and our publicstatements that the Law Council is opposed to mandatory sentencing on the basisthat:
• Mandatory sentencing laws exclude the exercise of judicial discretion;
• Such laws are ill-conceived as a means of addressing the crime rate;
• Such laws tend to target Indigenous persons;
• Such laws have resulted in unjust sentences; and
• Such laws contravene Australia’s international obligations under at least twotreaties.
A broader discussion of the issues and the Law Council’s position is set out in thePosition Paper prepared by the Law Council in September 2001 entitled “TheMandatory Sentencing Debate”. A copy of that Paper is enclosed for your attention.
Also enclosed are copies of the following documents:
• Letter from the Law Society of Western Australia to Ms Pauline Moore, Legaland Constitutional Reference Committee, Australian Senate dated 24 January2000.
• The original submission prepared by the Law Society of Western Australia onthe Mandatory Sentencing Provisions of Section 401 of the Criminal Code ofWestern Australia.
• Letter from The Law Society of Western Australia to Ms Pauline Moore, Legaland Constitutional Committee, Australian Senate dated 8 August 2001.
I also draw your attention to the oral submissions provided by The Law Society ofWestern Australia which are documented in the Official Committee Hansard for theSenate Legal and Constitutional References Committee dated Friday 25 January2002, Perth.
The Law Council endorses the comments of The Law Society of Western Australiaon mandatory sentencing which are recorded on the public record and set out in theenclosed documents.
I would be grateful if, in the context of your current inquiry into the effectiveness ofsentencing, your Committee can take the Law Council’s views into account.
Yours sincerely,
cc. Alison GainesLevel 6 33 Barrack StreetGPO Box Z5345St Georges TerracePERTH WA 6000
cc. Mr John PriorLaw Society of Western Australia Criminal Law Committeeci- GPO Box Y3482,East St George’s TerracePERTH WA 6832
cc. Maria CeresaGPO Box 2388Suite 2111 Northern Territory House22 Mitchell StreetDARWIN NT 0800
bILE No. 265 29.07.’02 14:30 ID:LAW SOCIETY •~~~•+6I9 3227899 PAGE 4
The Law Societyof Western AustraliaLaw So~ie~yUou;~e33 Barrack StreetPerthWA6000 -
Ms Pauline MooreSecretaryLegal and Constitutional Reference CommitteeAustralian SenateParliament HouseCANBERRA ACT 2600
Dear Ms Moore
inquiry Into Mandatory Sentencing Legislation
Please find attached, the Society’s submission on the inquiry Into mandatorysentencing, which has now been endorsed by Council. Council has resolved that:
• While the Law Society of Western Australia opposes and will continue to opposethe use by the Commonwealth of the external affairs power to give powers to theCommonwealth In areas that are traditionally the province of the States andTerritories, the Society supports the Human Rights (Mandatory Sentencing ofJuvenileOn~ndei~s)Bill 1999(Commonwealth).
I understand that public hearings may be held in regard to this matter. Could youplease advise it one is Intended for Western Australia? The Society would also bepleased to know Ifsubmissions on mandatory sentencing have been made by anyother Western Australian interest groups.
Yours sincerely
á~tfi?~Q~ALIS4I~/GAINES~*e~&t&e Dlrecthr
cc: MrJon Prior
PI~.c~i:idd~~~ifi rrt~pwid~~c~~ Th~~L~iw~ockIy Dt Wt~cIirnAi,~nruIfu.P0 8~Z534$. Si Geur~cNrcrmc~,i’c~th.WA 6~31
Legal and ConstItutional Committee 2 8 AUgUSt 2001
Among the whole population’s juveniles who were 8entenced~ seventeen werechildren aged between 11 and 13 years.
it Is quite often.asserted (particularly in the political arena) that this Stat&$ mandatorysentencing has only had marginal impact upon sentencing outcomes — becausethose who fall within its terms would most likely have received custodial sentences inany event, In the light of the statistics mentioned In the preceding paragraph, and inp~rticuIarthe high number of very young offenders to whom the legislation hasapplied, this is not a proposition this Society would accept without significant greaterirjdspendent analysis.
~4/ewould encourage the inquiry to seek its own particulars from the Department ofJ~jsticeabout the implementation of the three strikes Jaws for juveniles and adults,
(4stly, we notE) that the amending legislation requires that the three strikes provisionbp reviewed after four years of operation. It Is timely that the Senate make furtherlr~quiriesthat may encourage a prudent review of the amendment to Section 401 and,h~pefuliy,its ultimate abolition.
Thank you for 9iving us the opportunity to comment, The Society is willing also torr~akeverbal submissions to the Inquiry, if and when it visits Perth.
V~ursfaithfully
K~enMartin QC
P~esIdent
Cp: The Hon J A MoGinty MLA, Attorney General for Western AustraliaJohn Tippet, President NorthernTerritory Law SocietyAnne Trimmer, President LaWCouncil of AustraliaChair, LCA Advisory Committee on indigenous Legal issuesClara Thompson, Women Lawyers of WA(mc)John Prior, Criminal Lawyers AssocIation
MandatorySentencingProvisionsfor ~urgIarySection401 of theCriminal Code of Western Australiaand the affect on JuvenileOffenders
S
juvenile offendersare significantly fetteredwhen sucha mandatoryminimum term
applies.
There are examples in existence in Western Australia where the Children’s Court
President has articulated in sentencing remarks that a non-custodial disposition
would have occurred had not the provisions of Section 401(4) of the Criminal
Code fettered such sent.encingoption:
JohnPriorOn behalf of the Criminal Law CommitteeLaw Society of Western Australia
In addition to extendingthe legislation to include the Privacy Commission andthe statutory review of Commonwealth forensic prcoedi~res.I have written to
1
MANDATORY SENTENCINGPROVISIONSFOR BURGLARY -.
SECTION401 OF THE CRIMINAL CODE OF WESTERNAUSTRALIA
AND THE EFFECTON JUVENILE OFFENDERS
Pursuant to Section 401(4) of the Criminal Code of WesternAustralia a person
who commits an offence as definedundersub-section401(1)or (2) Ic, enters the
place of anotherpersonwithout consentwith intent to commit an offence in that
place or actually commits an offence, if the place is a place ordinarily usedfor
human habitation, if the person is a “repeat offender’t at the time the Court
sentencing the person shall sentencethe offender to at least twelve months
imprisonment.
Pursuant to Section 401(5)suchtermsof imprisonmentcannotbesuspended.
Section 400(1) sets out definitions as to the meaning of “place” and what
The Law Society 0of Western AustraliaLaw Socic~yHowie33 BarnickSi:reetPerthWA 6000Dx 173 PerthTelephone: (08)9221 3222Fax: (08) 9221 2430E-mail: info@law~oci~ywa,a~n.au
8 August 2001
BY FACSIMlLE~ (02) 6277 5794Ms Pauline MooreSecretaryLegal and Constitutional CommitteeAustralian SenateParliament HouseCANBERRA ACT 2600
Dear Ms Moore
INQUIRY INTO THE PROVISIONS OF THE HUMAN RIGHTS (MANDATORY
SENTENCING FOR PROPERTY OFFENCES) BILL 2000I refer to your letterof 26 June 2001, enclosing a copy of the above Bill.
The Society has written to you In the past and provided both written and oralevidence to the Senate Legal and Constitutional Reference Committee inquiry Intothe Human Ri9hts (MandatorySentencing of Juvenile Offenders) Bifi of 1999.
The Society’s position on mandatory sentencing is clear and emphatic. Wedo notsupport mandatory sentencing. This is be’cause it inhibits judicial independence byinhibiting the appropriate exercise of discretion by the judge as the circumstances ofeach case will require.
On 24 January 2000w the Society advised you of its position in relation toCommonwealth legislation to override State Legislation. Our resolution, whichremains unaltered, was:• While the Law Society of. Western Australia opposes and will continue to
oppose the use by the Commonwealth of the external affairs power to givepowers to the Commonwealth in areas that are traditionauy the province oftheStatesand Territories, the Societysupports the Human Rights (MandatorySentencing of Juvenile Offenders,) 811/1999 (Commonwealth,).
The Societyhas recently been provided with some statistics by the Department ofJusticein relation to juvenile sentences imposedunder the three strikes provision ofSection 401 of the Criminal Code (copy attached). We are very concerned to findthat 128 sentence events have occurred in the four years between November 1996to November 2000 and that Abori9lnal juveniles represent 83% of these sentences.
Pleaae nddi’e~sall ~ ~oTh~Law Soei~ry1F Wbs~erflAu~u’aIia.P0 Uox ZS345. S G~ ‘es ~ Perth. WA ~3L
FILE No. 266 29.07.’02 14:31 ID:LAW SOCIETY -p619 3227899 T~PAGEiF
Legal and Constitutional Committee 2 8 AU9uSt 2001
Among the whole population’s juveniles who were sentenced1 seventeen werechildren aged between 11 and 13 years.
It Is quits often asserted (particularly in the political arena) that this Stat&s mandatorysentencing has only had marginal impact upon sentencing outcomes — becausethose who fall within its terms would most likely have received custodial sentences inany event. In the light of the statistics mentioned in the preceding paragraph1 and inp~rticularthe high number of very young offenders to whom the legislation hasa~pIied. this is not a proposition this Society would accept without significant greaterirjdspendant analysis.
W°would encourage the Inquiry to seek its own particulars from the Department ofJ~isticeabout the implementation of the three strikes laws for juveniles and adults,
l4Stly, we note that the amending legislation requires that the three strikes provisionb~reviewed after four years of operation. It Is timely that the Senate make furtherir~quiriesthat may encourage a prudent review of the amendment to Section 401 and,h~psfuliy,its ultimate abolition.
Thank you for giving us the opportunity to comment. The Society is willing also torr)aJe verbal submissions to the Inquiry, if and when it visits Perth.
‘Yburs faithfully
K~enMartin QCP~esldent
Cp: The Hon J A McGinty MLA, Attorney General for Western AustraliaJohn Tippet, President Northern Territory Law SocietyAnne Trimmer, PresIdent LaW Council of Austrail~Chair, LCA Advisory Committee on Indigenous Legal IssuesClara Thompson, Women Lawyers of WA (mc)Johnprior, Criminal Lawyers Association