Ms MARTIN - 1999-04-20
On Friday, the Chief Minister told Territorians that he wanted mandatory sentencing laws rewritten to: (1) give magistrates discretion; (2) exempt multiple offenders; (3) exempt first offenders in exceptional circumstances; (4) exempt first offenders who have shown remorse. When will the Chief Minister legislate these changes?
ANSWER
Thank you, Mr Speaker. I will take the opportunity from the Labor Leader’s question with regards to the changes that government has decided to make to mandatory sentencing.
I will precede my remarks with this point: Be very sure that government is under no pressure from the community to make these changes. Now, I make this very important point, because if you are under any misapprehension that there is strong support in this community ...
Mr Bailey interjecting.
Mr SPEAKER: Order!
Mr BURKE: ... for drastic changes to mandatory sentencing then I assure you that we take the opposite view and we are strongly of the belief...
Members interjecting.
Mr BURKE: I’m sure Territorians, Mr Speaker, are very interested in this answer and I would ask the opposition to be silent while I give the new direction with mandatory sentencing from government.
What we have is legislation that has been in operation now for 2 years. We have had debates in this House as to whether mandatory sentencing is successful or unsuccessful. Let us agree on one point: It takes a longer period than 2 years to decide whether it’s successful or unsuccessful - some might say 5 years.
The issue with mandatory sentencing and the changes are this. Firstly, government does not believe that mandatory sentencing encapsulates those crimes that aggrieve the community that require a period of detention solely with housebreaking and stealing. We made an undertaking when we brought in mandatory sentencing that housebreakers and thieves would go to jail. They have gone to jail and will continue to go to jail.
In addition, we intend to widen or broaden the base of mandatory sentencing so that people who are convicted of sexual offences go to jail. There will be a requirement for a period of imprisonment to be part of any sentence for a sexual offence on the first offence. That is the first change.
The second change is for those who involve themselves in grievous assault, criminal assault. I am not talking about summary charges. I am talking about criminal assault. The logic for this is that under the present regime you can smash a television set with a baseball bat and go into jail. You can smash a person with a baseball bat and possibly avoid imprisonment. Another change is this. Anyone convicted on a second occasion for grievous assault will be required to serve a period of imprisonment for their sentence, and that will be mandatory upon the judges. I have said on many occasions that the issue of cumulative arrangements with mandatory sentencing has been a cause of misinterpretation by the judges and magistrates in reading the legislation. It was never the intent of this government that mandatory sentencing would proceed to the 5th, 6th 7th, 8th, 9th, 10th etc offences and continue to …
Mr Bailey: Rubbish.
Mr SPEAKER: Order!
Mr BURKE: ... and continue to incur cumulative sentences. I was the Attorney-General at the time and I know the intent of government. There is a point where mandatory sentencing starts and there is a point where mandatory sentencing stops. Mandatory sentencing will stop on the 3rd sentence of a judge or magistrate because, clearly, when we’re dealing with people who are habitual criminals, it is past that point.
Mr Bailey: All the research shows that rehabilitation ...
Mr SPEAKER: Order!
Mr BURKE: There are a whole number of issues that then come into play. Clearly, mandatory sentencing needs to be seen to have been not appropriate in that circumstance, and in any case, I am sure judges and magistrates would include an imprisonment term when they’re dealing with those sorts of offences.
Third change. In terms of dealing with ...
Mr Bailey interjecting.
Mr SPEAKER: Order! The member for Wanguri is treading close to the wind at present.
Mr BURKE: The third change is in terms of dealing with juveniles, and this has been a subject of misinterpretation, I believe, in many sections of the community.
Mr Bailey interjecting.
Mr Stirling interjecting.
Mr BURKE: It is. The Labor Leader opposite was at the churches meeting last night and a number of questions ...
Mr Bailey interjecting.
Mr SPEAKER: Order! Order!
Mr BURKE: I had representation at that meeting. I was otherwise engaged, as Chief Ministers often are. I happened to be busy on other things.
When the odd member of the community got a chance to speak last night and raise a question, there were 1 or 2 questions only, and they were in regard to what exactly is the regime for juveniles, which is often misunderstood. Juveniles do not incur a mandatory sentence until their second conviction in a court, and then, on that second conviction they go into detention for 28 days and that will remain.
Members interjecting.
Mr STIRLING: A point of order, Mr Speaker! I appreciate the Chief Minister’s lesson in explaining this to us as something that we quite well know. But the question specifically asked, when would he legislate for these changes he is outlining. I direct your attention to that and ask him to give some thought to answering that specific question.
Mr SPEAKER: The Chief Minister has some prerogative at this stage to outline his intent and, no doubt, he will get to the point of the question in due course.
Mr BURKE: Thank you, Mr Speaker. It is very important I foreshadow our intent, because the opposition has just foreshadowed a motion for the next general business day which addresses all of these issues that I’m addressing now.
With regards to juveniles, on second conviction, presently, 28 days detention. A juvenile can now avoid the first conviction if they voluntarily submit themselves to a diversionary program, and a diversionary program will be the sorts of programs that have been discussed, for example, in the forum last evening, such as restorative justice programs and diversionary programs such as, confronting the victim where the juvenile would be present, under supervision with family and friends, with police present and victim present.
Essentially, the objective is to shame the offender and compensate the victim in such a way that the citizenship of the offender can be restored and, if successful, reported to a magistrate. If the magistrate accepts that that program has been successful, he can agree not to record a conviction for that first offence, or that first front into court. That is a very important change with regard to juveniles because it allows, firstly, a policy of diversionary programs to be introduced formally throughout the Northern Territory. That will now be a policy of this government and it goes a long way to clarifying the concerns of some groups as to how juveniles are dealt with in the mandatory sentencing regime.
The fourth change to mandatory sentencing is this. I have said this on many occasions, but, no matter how finely one writes the legislation, there will always be certain exceptions for certain individuals in certain cases, and the exceptional circumstances will be essentially this: If it is a first offence for an otherwise good citizen who cooperates with police, who offers restitution and that restitution is accepted, then they can make a plea to the magistrate that, on a trivial offence, and providing those circumstances are met, that those special circumstances can avoid the mandatory sentencing regime.
Mr Bailey: If it’s a trivial offence and they don’t do that they still go to jail.
Mr BURKE: Yes.
Mr Bailey interjecting.
Mr SPEAKER: Order! Order!
Mr BURKE: Yes. Absolutely, yes, because we are providing an escape clause for genuine first offenders, and if you are not genuine, in you go, which is the same as before. It deals with the issues that, as I have said on many occasions, simply can’t be dealt with in the way the legislation is written.
The issue of mandatory sentencing was to deal with housebreakers and thieves. We are now including deviates and thugs. They are going in. We are dealing with the issue of diversion programs for juveniles. We are assisting the otherwise good citizen first offender on a trivial charge. We are maintaining the absolute focus and determination of government in mandatory sentencing. What essentially has happened is that we have brought in the legislation. It has been on the road for 2 years. We have the bonnet up, we’re giving it a service, we’ve done the service, these are the changes. It is back on the street, and I’m sure the Territorian community in total will support these changes.
ANSWER
Thank you, Mr Speaker. I will take the opportunity from the Labor Leader’s question with regards to the changes that government has decided to make to mandatory sentencing.
I will precede my remarks with this point: Be very sure that government is under no pressure from the community to make these changes. Now, I make this very important point, because if you are under any misapprehension that there is strong support in this community ...
Mr Bailey interjecting.
Mr SPEAKER: Order!
Mr BURKE: ... for drastic changes to mandatory sentencing then I assure you that we take the opposite view and we are strongly of the belief...
Members interjecting.
Mr BURKE: I’m sure Territorians, Mr Speaker, are very interested in this answer and I would ask the opposition to be silent while I give the new direction with mandatory sentencing from government.
What we have is legislation that has been in operation now for 2 years. We have had debates in this House as to whether mandatory sentencing is successful or unsuccessful. Let us agree on one point: It takes a longer period than 2 years to decide whether it’s successful or unsuccessful - some might say 5 years.
The issue with mandatory sentencing and the changes are this. Firstly, government does not believe that mandatory sentencing encapsulates those crimes that aggrieve the community that require a period of detention solely with housebreaking and stealing. We made an undertaking when we brought in mandatory sentencing that housebreakers and thieves would go to jail. They have gone to jail and will continue to go to jail.
In addition, we intend to widen or broaden the base of mandatory sentencing so that people who are convicted of sexual offences go to jail. There will be a requirement for a period of imprisonment to be part of any sentence for a sexual offence on the first offence. That is the first change.
The second change is for those who involve themselves in grievous assault, criminal assault. I am not talking about summary charges. I am talking about criminal assault. The logic for this is that under the present regime you can smash a television set with a baseball bat and go into jail. You can smash a person with a baseball bat and possibly avoid imprisonment. Another change is this. Anyone convicted on a second occasion for grievous assault will be required to serve a period of imprisonment for their sentence, and that will be mandatory upon the judges. I have said on many occasions that the issue of cumulative arrangements with mandatory sentencing has been a cause of misinterpretation by the judges and magistrates in reading the legislation. It was never the intent of this government that mandatory sentencing would proceed to the 5th, 6th 7th, 8th, 9th, 10th etc offences and continue to …
Mr Bailey: Rubbish.
Mr SPEAKER: Order!
Mr BURKE: ... and continue to incur cumulative sentences. I was the Attorney-General at the time and I know the intent of government. There is a point where mandatory sentencing starts and there is a point where mandatory sentencing stops. Mandatory sentencing will stop on the 3rd sentence of a judge or magistrate because, clearly, when we’re dealing with people who are habitual criminals, it is past that point.
Mr Bailey: All the research shows that rehabilitation ...
Mr SPEAKER: Order!
Mr BURKE: There are a whole number of issues that then come into play. Clearly, mandatory sentencing needs to be seen to have been not appropriate in that circumstance, and in any case, I am sure judges and magistrates would include an imprisonment term when they’re dealing with those sorts of offences.
Third change. In terms of dealing with ...
Mr Bailey interjecting.
Mr SPEAKER: Order! The member for Wanguri is treading close to the wind at present.
Mr BURKE: The third change is in terms of dealing with juveniles, and this has been a subject of misinterpretation, I believe, in many sections of the community.
Mr Bailey interjecting.
Mr Stirling interjecting.
Mr BURKE: It is. The Labor Leader opposite was at the churches meeting last night and a number of questions ...
Mr Bailey interjecting.
Mr SPEAKER: Order! Order!
Mr BURKE: I had representation at that meeting. I was otherwise engaged, as Chief Ministers often are. I happened to be busy on other things.
When the odd member of the community got a chance to speak last night and raise a question, there were 1 or 2 questions only, and they were in regard to what exactly is the regime for juveniles, which is often misunderstood. Juveniles do not incur a mandatory sentence until their second conviction in a court, and then, on that second conviction they go into detention for 28 days and that will remain.
Members interjecting.
Mr STIRLING: A point of order, Mr Speaker! I appreciate the Chief Minister’s lesson in explaining this to us as something that we quite well know. But the question specifically asked, when would he legislate for these changes he is outlining. I direct your attention to that and ask him to give some thought to answering that specific question.
Mr SPEAKER: The Chief Minister has some prerogative at this stage to outline his intent and, no doubt, he will get to the point of the question in due course.
Mr BURKE: Thank you, Mr Speaker. It is very important I foreshadow our intent, because the opposition has just foreshadowed a motion for the next general business day which addresses all of these issues that I’m addressing now.
With regards to juveniles, on second conviction, presently, 28 days detention. A juvenile can now avoid the first conviction if they voluntarily submit themselves to a diversionary program, and a diversionary program will be the sorts of programs that have been discussed, for example, in the forum last evening, such as restorative justice programs and diversionary programs such as, confronting the victim where the juvenile would be present, under supervision with family and friends, with police present and victim present.
Essentially, the objective is to shame the offender and compensate the victim in such a way that the citizenship of the offender can be restored and, if successful, reported to a magistrate. If the magistrate accepts that that program has been successful, he can agree not to record a conviction for that first offence, or that first front into court. That is a very important change with regard to juveniles because it allows, firstly, a policy of diversionary programs to be introduced formally throughout the Northern Territory. That will now be a policy of this government and it goes a long way to clarifying the concerns of some groups as to how juveniles are dealt with in the mandatory sentencing regime.
The fourth change to mandatory sentencing is this. I have said this on many occasions, but, no matter how finely one writes the legislation, there will always be certain exceptions for certain individuals in certain cases, and the exceptional circumstances will be essentially this: If it is a first offence for an otherwise good citizen who cooperates with police, who offers restitution and that restitution is accepted, then they can make a plea to the magistrate that, on a trivial offence, and providing those circumstances are met, that those special circumstances can avoid the mandatory sentencing regime.
Mr Bailey: If it’s a trivial offence and they don’t do that they still go to jail.
Mr BURKE: Yes.
Mr Bailey interjecting.
Mr SPEAKER: Order! Order!
Mr BURKE: Yes. Absolutely, yes, because we are providing an escape clause for genuine first offenders, and if you are not genuine, in you go, which is the same as before. It deals with the issues that, as I have said on many occasions, simply can’t be dealt with in the way the legislation is written.
The issue of mandatory sentencing was to deal with housebreakers and thieves. We are now including deviates and thugs. They are going in. We are dealing with the issue of diversion programs for juveniles. We are assisting the otherwise good citizen first offender on a trivial charge. We are maintaining the absolute focus and determination of government in mandatory sentencing. What essentially has happened is that we have brought in the legislation. It has been on the road for 2 years. We have the bonnet up, we’re giving it a service, we’ve done the service, these are the changes. It is back on the street, and I’m sure the Territorian community in total will support these changes.
Last updated: 09 Aug 2016