The Case to End Mandatory Sentencing

Today, Prime Minister Malcolm Turnbull will table the annual Close the Gap report in Parliament, which charts the progress of the 10-year long campaign to match the health and life expectancy of Aboriginal and Torres Strait Islander peoples with non-Indigenous Australians.

The report looks at a key areas like life expectancy, education and health. But then there's the incarceration gap—the fact that Aboriginal and Torres Strait Islander peoples are massively overrepresented in our jails. It was an issue VICE dove into last year with our Incarceration Issue: Indigenous Australians make up around three percent of the general Australian population, but 26 percent of our prison population.

Since 2014, there have been calls for the Close the Gap campaign to set "justice targets", aimed at tackling the incarceration gap. In December, Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda advocated for these targets, calling "the shameful rates of imprisonment of Aboriginal and Torres Strait Islander peoples a major barrier to closing the health and life expectancy gap in this generation." As the ABC have it, Opposition Leader Bill Shorten will today join Gooda in asking the government to redouble their efforts to reduce Indigenous imprisonment rates.

If there's one wedge holding open the incarceration gap, it's mandatory sentencing. This refers to minimum penalties and imprisonment sentences which must be applied to certain crimes, irrespective of the severity of the offence. The scheme limits judicial discretion by prohibiting the court from considering impeding circumstances, such as mental illness, impoverishment or addiction.In 2014, the Northern Territory and Western Australia ignored calls from the United Nations to abolish the policies. Last year Amnesty International called on the federal government to override the laws. So far, no changes have been made.

The last time Australia had a serious discussion about mandatory sentencing was over fifteen years ago. On 9 February 2000, a 15-year-old Aboriginal boy named Johnno Wurramarrba was found hanging in his room at Don Dale Juvenile Centre with a bedsheet wrapped around his neck. He had committed suicide after being sentenced to 28 days imprisonment for stealing some felt tip pens, pencils, liquid paper, oil and paint worth less than $90. This petty theft was classed as a property offence, a crime serious enough to fall under mandatory sentencing laws.

Johnno was raised in Groote Eylandt, an island just off the Northern Territory mainland, known for its prosperous mines and stark socioeconomic inequality. His mother died when he was two, followed by his father when he was 11. Those who knew Johnno described him as a "lonely, neglected boy" that cycled through the local Indigenous community with no long-term home or carer. Just before his trial, Johnno's aunt—who he called "mother"—also passed away.

Johnno told staff at Don Dale that he didn't want to return to Groote Eylandt.

"I want to be with my grandmother," he said. She was living in Darwin, receiving kidney dialysis treatment. This was clearly a young man grappling with mental health issues—he complained of hearing voices, powerful headaches, and even made suicidal threats. Staff also knew he was going through withdrawals from serious marijuana and petrol sniffing habits. In spite of all of this, Johnno was declared healthy, and advised to take Panadol.

Johnno did not understand why he was being detained. He asked why he wasn't receiving a bond or community service order, to which his lawyer responded, "There's nothing we can do about it."

This case is just one of hundreds: Another 15-year-old Aboriginal boy attempted suicide during incarceration in 2001 after being jailed for breaking a window; an 18-year-old Aboriginal man jailed for 14 days for stealing a $2.50 cigarette lighter; an 18-year-old Aboriginal man jailed 90 days for stealing 90 cents; and a homeless man was sentenced 12 months for stealing a towel from a clothes line.

Western Australia, currently treating juveniles as young as 10 without exception from the scheme, has had similar results. In 2005, a 15-year-old orphaned Indigenous boy was caught stealing an ice cream worth $2. Even though he confessed when approached by staff, and returned the ice cream uneaten, police spent $10,000 transporting him more than 1,500 kilometers from his community to Perth. He spent 12 days in detainment before being placed on a 12 month conditional release order under the "three strike" burglary minimums.

Why don't we hear about the 13-year-old boy sentenced 12 months in juvenile detention for sneaking into unlocked hotel rooms and stealing confectionary? Or the intellectually disabled and homeless 18-year-old girl being given a $12,000 fine or equivalent jail time for breaching a move on notice?

Since Johnno's death in 2001, public debate surrounding the mandatory sentencing regime has disappeared almost completely. The laws were repealed that year, only to be implemented for violent offences in 2008 after public demand for harsher penalties. In 2013, the minimums were expanded by the Liberal Country Party to "correct the failed attempt by the former Labor Government."

The changes were part of a "Crackdown on Crime" campaign, which ran as alternatives to jail, such as the Drug and Alcohol Court and SMART court, had their funding cut. All other Australian jurisdictions have also strengthened their mandatory laws in recent years. These changes came after reports showing the prior failure in the Northern Territory, contributing to Indigenous over-representation and lack of measurable impact on deterrence.

State governments are continuing to expand mandatory sentencing laws in the hope of gaining the populist vote. Most worrying is that decisions are based on community concerns that often evolve out of misinformed or biased media hypes. While there is a prominent public view that judges are too lenient, a 2011 parliamentary paper argues that mass media is the primary source of information regarding the justice system and when fully informed, 90 percent agree with the judge's decisions. This misperception enables the law to become a politicised tool that violates the very notion of justice.

"Western Australia is imprisoning Aboriginal males at the world's highest rate," says Gerry Georgatos, a leading academic in custodial reform and a community consultant on Indigenous suicide. "One in 13 of the state's Aboriginal adult males are in prison. It's racialised imprisonment, an abomination - moral, political and otherwise."

Georgatos argues that mandatory sentencing doesn't rehabilitate perpetrators or reduce recidivism. "Mandatory sentencing viciously reduces individuals to as if they are near worthless. If they feel like this then it will be played out with dangerous behaviour," he says. "[The law] has no intention to assist the offender but to damage them, beat and break them."

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