Mandatory minimum sentences present judges with a horrible dilemma. They are sworn to uphold the law and to do justice. But with mandatory minimum sentences judges cannot do both.
In the Northern Territory, the judges have attacked against mandatory sentencing, and in doing so have revealed their anguish. Not all Northern Territorians are red necks. Indeed, the fact that these laws are in force there has brought out the territory’s civil liberties proponents.
Justice Dean Mildren of the Northern Territory Supreme Court has spoken eloquently against mandatory sentences since they began in March 1997.
In a case last year he said, “”Prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences. If a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case.”
Justice David Angel said, “”Mandatory sentences by their very nature are unjust in the sense that they require courts to sentence on a basis regardless of nature of the crime and the particular circumstances of the offender. . . . Parliament, it appears, intended that courts impose the blunt instrument of imprisonment in lieu of other sentencing dispositions which might more truly reflect the circumstances of the offence and of the offender, in the hope or expectation of lessening property offences, and, perhaps, of making victims feel better about something.”
Chief Justice Brian Martin referred to the law as “”discriminatory legislation boldly entitled “Compulsory Imprisonment”.”
But what happened? The judges just could not avoid the mandatory sentences.
The law provides a 14 days’ minimum jail term for a first property offence, 90 days for a second offence and a year for a third offence. A juvenile over 15 gets a minimum 28 days for a second offence.
After a flurry of plainly ridiculous cases the Government relented with some amendments allowing someone to escape the minimum in very restricted circumstances where the offence is trivial. But the severity and injustice remain.
In applying the law, though, the judges have been forced to follow what Lord Macnaughten said in 1913, “Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.”
To do otherwise corrodes the rule of law, but not to do otherwise holds the law up to an accusation of causing injustice.
Also it invites judges to strain the language to allow any escape possible. That is what Justice Mildren did in a later case when he ruled that convictions before March 1997 were not convictions for the purposes of mandatory sentencing.
The evil of these laws is not only in the unjust punishment, but in the corrosion of the judicial system. Judges are forced to torture language, forced to have their oath to uphold the law severely tested and forced to have their ability to dispense justice removed.
Further, when prosecutors or juries see the prospect of an unjust sentence, they make their own correction. That has been the American experience. Defendants plead to lesser offences or juries just acquit. There is no justice in that.
There is a rift between law and justice, created becaue the extremes of democracy cause a majority of the legislature to enact a law that inevitably results in injustice.
The conclusion has to be that there are some universal principles of justice that are worth enshrining constitutionally to apply throughout Australia so legislatures (pandering to the worst elements of red neckery that our democracy can throw up) cannot usurp the judicial function.
Democracy should not be a tyranny of numbers. It also requires a separation of powers. When the legislature purports to demand a particular result to apply no matter what the circumstances, it moves into the judicial sphere. It is hogging power and that is dangerous.
Because we do not have a Bills of Rights, the Northern Territory has been able to overturn Magna Carter which says, “”A man shall not be amerced for a small offence, but only according to the degree of the offence; and for a great delinquency, according to the magnitude of his delinquency.”
You don’t get a year’s jail for stealing some biscuits or transportation which results in death for stealing some crayons.
It should not be a question of the Commonwealth overriding territory law, rather the Commonwealth should apply universal principles across Australia, including Western Australia. If it does not have the constitutional power to do that, it is another reason for a Bill of Rights.