By Felicity Gerry* QC, Julia Kretzenbacher, Julian R Murphy and Rebecca Tisdale
Last week we filed a mercy petition for Zak Grieve, a young Indigenous man sentenced to life imprisonment under the Northern Territory’s mandatory sentencing laws for a murder that he did not physically commit.[i]
Since the NT became self-governing in 1978, only one person[ii] has received the benefit of the royal prerogative of mercy, an ancient power vested in the Crown to pardon a person or reduce their sentence.
We think Zak’s case is so extraordinary that he should be the second beneficiary of this rarely used legal mechanism. Yet, as unusual as Zak’s case is, it also shares features with many of those that come before NT courts every day.
The facts of Zak’s case thus provide a useful entry, and a fresh perspective, on the legal and empirical[iii] critiques of mandatory sentencing. Most importantly, Zak’s case illustrates how these costly, ineffective and inhuman laws result in the imprisonment of young Indigenous people caught up on the periphery of criminal activity.
The facts of Zak’s case have been extensively reported elsewhere,[iv] and need not be rehearsed in detail here. It is sufficient to say that Zak, a 19-year-old Indigenous man with no prior criminal record, became mixed up in a plan to kill a man who was physically abusing the mother of one of Zak’s friends.
Zak, however, had second thoughts and pulled out of the plan. When the murder was committed Zak was at home asleep. Yet, due to the law’s much maligned “joint criminal enterprise” doctrine, Zak was found guilty because he had not done everything in his power to prevent the commission of the crime.
At the sentencing stage the judge acknowledged that Zak’s level of criminality was “much less” than the two men who had physically committed the murder. The judge also found that Zak was “a youthful first offender”, “a person of good character”, “remorseful” and “unlikely to reoffend”. Yet, because of the illogicality of NT mandatory sentencing laws, Zak received a harsher sentence than one of his co-offenders who had struck the fatal blows.
Zak was sentenced to life imprisonment, with a minimum non-parole period of 20 years.
The judge was clearly troubled by the sentence he had to impose on Zak. He described the mandatory sentencing laws as “unprincipled and morally insensible” and took the extraordinary step of recommending that Zak be afforded the prerogative of mercy (a recommendation that is, unfortunately, without any legal effect).
Short history of mandatory sentencing
Mandatory sentencing is not native to Australia. Like many elements of our modern prison system, we imported it from the United States. Mandatory sentencing was popularised during the US “war on drugs” when, in the 1980s many states, and the federal government, implemented “three strikes” mandatory sentencing laws for drug possession. It is now widely accepted that these laws were disastrous, having a discriminatory impact on people of colour and contributing to the US crisis of mass incarceration.
The NT and Western Australia followed the American lead in the 1990s. During that decade both Labor and Liberal State and Territory governments experimented with “three strikes” laws in the American mould.[v] One senior politician involved in the implementation of these laws has subsequently acknowledged that they were wrong and “dictated by political exigency”.[vi] Since then, the NT’s mandatory sentencing regime has crept inexorably outwards and now encompasses a whole array of serious and non-serious offences.[vii]
Commenting on the NT’s mandatory sentencing laws in 1999, two lawyers warned:
“For those of us living in the Northern Territory, mandatory sentencing is something which diminishes us all. For those ‘down South’, take note: the mandatory sentencing bandwagon is a roadtrain which is heading your way.”[viii]
The prescience of this remark has been borne out by the introduction of mandatory sentencing laws, in one form or another, in New South Wales, Queensland and Victoria. The federal parliament has also legislated for mandatory sentencing for “people smugglers”.[ix]
Mandatory sentencing does not work
Across the developed world there is now a near consensus among researchers and experts that mandatory sentencing does not deter crime.[x]
In the US, where there is the richest body of empirical data, studies have found little evidence that such laws succeed in protecting the community.[xi] In fact, a review of two decades of crime data from 188 large cities suggested that cities enacting “three strikes” laws saw increases in certain crimes as compared to cities that did not introduce the laws.[xii]
In Australia, empirical research on WA’s 1992 mandatory sentencing laws found that the laws coincided with an increase in the categories of crime and arrest to which the laws were directed.[xiii] Similar results were found with respect to WA’s 1996 “three strikes” mandatory sentencing laws.[xiv]
The NT’s own “three strikes” laws were introduced in 1997 and repealed in 2001; they were similarly ineffective. A review of the laws by the government’s own Office of Crime Prevention revealed that there was no data to suggest that the laws reduced recidivism or deterred potential offenders.[xv] Later, when the NT’s mandatory sentencing regime was extended to violent offences,[xvi] an internal review found that decreases in violent crime could not be attributed to the mandatory sentencing legislation.[xvii]
The take-home from all of the above empirical studies, and many more that we have not mentioned, is simple: mandatory sentencing does not make the community safer.
Zak’s case confirms this assessment, it is completely implausible to think that Zak or his co-offenders were aware of the NT’s mandatory sentencing laws at the time of the offence. Nor does the severity of these laws appear to have played any role in what the sentencing judge described as Zak’s “courageous” decision to withdraw from the plan.
While mandatory sentencing does not appear to deter crime, it does cost an extraordinary amount of money.
Apart from the costs of imprisonment (more than $300 per prisoner per day), defendants facing mandatory sentencing are less likely to promptly plead guilty to finalise their matters. The result is that valuable public resources are expended on drawn out plea-bargaining and contested trials.
In other areas of government policy we demand evidence-based, value-for-money government policies. We ought to be demand the same in criminal justice, which means that mandatory sentencing laws should be repealed and replaced with smart sentencing laws focused on rehabilitation and long-term community safety.
Mandatory sentencing and human rights
Not only is mandatory sentencing ineffective, it also endangers fundamental human rights that Australia has committed to protecting under international law. Three rights in particular are threatened by mandatory sentencing laws, these are:
- The right to equal treatment before the law;
- The right to be free from cruel, inhuman or degrading treatment; and
- The right not to be detained arbitrarily.
Australia, particularly the NT, cannot plead ignorance in respect of the human rights case against mandatory sentencing – we have been here before. The United Nations Human Rights Committee’s review of Australia in 2000 made adverse comment on the NT’s mandatory sentencing laws, suggesting that they were incompatible with Australia’s obligations under international law.[xviii] The Australian Law Reform Commission has raised similar concerns.[xix] Finally, a specially constituted Senate committee concluded that the WA and NT laws breached provisions of the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.[xx]
It is not clear whether we have forgotten these lessons of 18 years ago or whether our governments are choosing deliberately to ignore them. What is clear is that by our continued commitment to mandatory sentencing laws we are violating the human rights of vulnerable Australians. Furthermore, our flagrant disregard for our international obligations has the effect of damaging the credibility of international human rights norms at a time when these norms are in dire need of our support.
Mandatory sentencing and Indigenous Australians
Finally, mandatory sentencing almost invariably exacerbates Indigenous incarceration rates. There is no mystery to how this occurs. Certain Indigenous communities experience tragically high crime rates, largely as a result of unique contemporary and historic forces of social and economic disadvantage.
Rather than permit sentencing judges to take account of these unique circumstances, mandatory sentencing regimes force judges to mindlessly imprison Indigenous people for longer and longer periods.
The practical effect of these laws is that Indigenous people are taken out of their communities and away from their families. Mandatory sentencing also increases the risk of institutionalisation and hampers rehabilitation. Mandatory sentencing in no way addresses the underlying factors that can lead to offending. Instead, it creates a vicious cycle in which crime and community deterioration leads to mass imprisonment and, in the long term, to more crime and more community deterioration.
For example, the NT’s previous “three strikes” mandatory sentencing laws for property offences were applied to Indigenous people 73% of the time (despite the NT’s population being only about 30% Indigenous).[xxi] Put another way, Indigenous people were 8.6 times more likely to be subjected to the mandatory sentencing laws.
This disparate impact was even starker when one looked at the highest sentences in that mandatory sentencing scheme. These were applied to Indigenous people 95% of the time.
The WA experience with mandatory sentencing produced similarly discriminatory results. Those laws resulted in increasing numbers of Indigenous people being imprisoned, especially Indigenous young people.[xxii] Commenting on the WA laws, the Aboriginal and Torres Strait Islander Social Justice Commissioner said that they “targeted Indigenous people and had been costly and ineffective in deterring crime”.[xxiii]
Unsurprisingly, the UN Committee on the Elimination of Racial Discrimination expressed concern that the NT and WA laws amounted to racial discrimination.[xxiv]
It is true that mandatory sentencing need not necessarily discriminate against Indigenous Australians. For example, if we introduced mandatory sentencing for insider trading – or other crimes committed predominantly by affluent, white Australians – this would be unlikely to have a discriminatory impact. Yet if we continue to apply mandatory sentencing regimes to offences disproportionately committed by Indigenous people then we can expect a continued increase in the already tragic rates of Indigenous incarceration.
Need to abolish the mandatory provisions
Tennant Creek has been in the news a lot lately, and for all the wrong reasons. Zak Grieve spent the first 14 years of his life in Tennant Creek, where he witnessed a lot of violence but also met a lot of strong Indigenous leaders.
He is a proud Warlpiri man who identifies with his Indigenous heritage and speaks his traditional language, but he missed his initiation ceremony as a result of being incarcerated. He has a lot to give to his community and his country, he has written a novel in prison and is tutoring his fellow inmates in a wide range of vocational courses.
If we want people like Zak to receive sentences that advance their rehabilitation and allow them to leave prison as productive members of their community then we need to abolish mandatory sentencing. The judge sentencing Zak to life imprisonment called the mandatory sentencing laws “unprincipled and morally insensible” but he could do nothing to change the result.
Our governments can do something, they can repeal and replace these ineffective and discriminatory laws with evidence-based sentencing legislation.
The NT government is currently engaged in a review of its mandatory sentencing laws. It can only be hoped that cases like Zak’s convince the government of the folly of continued adherence to a sentencing policy that is ineffective, expensive and inhuman.
* Felicity Gerry QC is an internationally-renowned barrister who practises in the UK and Australia. She is a member of Civil Liberties Australia.
[i] Steven Schubert, “How Zak Grieve backed out of a murder plot but got life anyway” ABC Online (25 August 2017).
[ii] Amos Aikman, “Zak Grieve reprieve would be a Northern Territory first” The Australian (online) (18 September 2017).
[iii] Hilde Tubex, “Mandatory sentencing leads to unjust, unfair outcomes – it doesn’t make us safe” The Conversation (5 January 2016) <https://theconversation.com/mandatory-sentencing-leads-to-unjust-unfair-outcomes-it-doesnt-make-us-safe-52086>.
[iv] Steven Schubert, “How Zak Greive backed out of a murder plot but got life anyway” ABC Online (25 August 2017).
[v] Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA); Criminal Code Amendment Act (No 2) 1996 (WA); Sentencing Act 1996 (NT); Juvenile Justice Amendment Act (No 2) 1996 (NT).
[vi] Neil Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories” (1999) University of New South Wales Law Journal 267, 69 n.12.
[vii] Criminal Lawyers Association of the Northern Territory, “Submission to Australian Law Reform Commission inquiry into incarceration rates of Aboriginal and Torres Strait Islander peoples” <https://www.alrc.gov.au/sites/default/files/subs/75._criminal_lawyers_association_of_the_northern_territory_clant.pdf>.
[viii] Russell Goldflam and Jonathon Hunyor, “Mandatory Sentencing and the Concentration of Powers” (1999) 24 Alternative Law Journal 211, 215.
[ix] See Andrew Trotter & Matt Garozza, “Mandatory Sentencing for People Smuggling: Issues of Law and Policy” (2012) 36 Melbourne U. L. Rev. 553.
[x] See, e.g., Michael Tonry “Functions of Sentencing and Sentencing Reform” (2005) 58 Stanford Law Review 37, 52-53 (“Imaginable increases in severity of punishments do not yield significant (if any) marginal deterrent effects. Three National Academy of Sciences panels, all appointed by Republic presidents, reached that conclusion, as has every major survey of the evidence.” citations omitted).
[xi] See, e.g., Lisa Stolzenberg, Stewart J D’Alessio, “‘Three Strikes and You’re Out’: The Impact of California’s New Mandatory Sentencing Laws on Serious Crime Rates” (1997) 43 Crime & Delinquency 457.
[xii] Tomislav V Kovandzic, John J Sloan III, Lynne M Vieraitis, “Unintended Consequences of Politically Popular Sentencing Policy: The Homicide Promoting Effect of ‘Three Strikes’ in U.S. Cities (1980-1999)” (2002) Criminology & Public Policy 399.
[xiii] Roderic Broadhurst and Nini Loh, “The Phantom of Deterrence: The Crime (Serious and Repeat Offenders) Sentencing Act” (1993) 26(3) Australian & New Zealand Journal of Criminology 251.
[xiv] Mary Ann Yeats, “‘Three Strikes’ and Restorative Justice: Dealing with Young Repeat Burglars in Western Australia” (1997) 8 Criminal Law Forum 369, 377; Neil Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories” (1999) University of New South Wales Law Journal 267, 273-274.
[xv] Northern Territory Office of Crime Prevention, “Mandatory Sentencing for Adult Property Offenders: The Northern Territory Experience” (August, 2003) 5, 10.
[xvi] Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 (NT).
[xvii] Carolyn White, Joe Yick, Dee-Ann Vahlberg and Leonique Swart, “Review of the Northern Territory Sentencing Amendment (Mandatory Minimum Sentences) Act 2013” (2015, Department of Attorney-General and Justice, Darwin) 15-16.
[xviii] United Nations, Concluding Observations of the Human Rights Committee: Australia, 28/07/2000, CCPR/CO/69/Australia, 17.
[xix] Australian Law Reform Commission, Report No 84, Seen and Heard: Priority for Children in the Legal Process, 1997, [19.63].
[xx] Parliament of Australia, Senate Legal and Constitutional References Committee, Inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 (March 2000) [5.91].
[xxi] Northern Territory Office of Crime Prevention, “Mandatory Sentencing for Adult Property Offenders: The Northern Territory Experience” (August 2003) 13.
[xxii] The Law Society of Western Australia, Briefing Paper: Mandatory Sentencing (December 2016); The Law Society of Western Australia, “State Government and Opposition respond to Law Society’s Policy Positions” Brief (March 2017) 26; Harry Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, 2016, Federation Press, Sydney) 53-54; Neil Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories” (1999) University of New South Wales Law Journal 267, 277.
[xxiii] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001 (Human Rights and Equal Opportunity Commission, Sydney).
[xxiv] Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia. 24/03/2000. CERD/C/56/Misc.42/rev.3, para 16; See Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia. 10/03/2005. CERD/C/AUS/CO/14, para 20.