• Specific Year
    Any

Morgan, Neil --- "Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories" [1999] UNSWLawJl 52; (1999) 22(1) UNSW Law Journal 267

[*] Crime Research Centre, University of Western Australia.

[1] This term was used by Tonry in an overview of mandatory sentences: M Tonry, "Mandatory Penalties" in M Tonry (ed), Crime and Justice: A Review of Research, University of Chicago Press (volume 16, 1992) 243 at 244.

[2] For example, the judge may well be able to set the minimum period for which the person must be detained under the life sentence; see I Morgan, "Sentences for Wilful Murder and Murder" [1996] UWALawRw 8; (1996) 26 UWAL Rev 207.

[3] Or, as in the Northern Territory, for 'first strike' property offenders.

[4] For example, under s 63 of the Road Traffic Act 1974 (WA), a first offence of driving under the influence (DUB carries a fine of "not less than $500 or more than $1,200" and mandatory disqualification for a minimum of six months; for a second DUI offence it is $1,000 to $1,800 and a minimum two years disqualification. For a third or subsequent DUI offence, $1,200 to $2,500 and permanent disqualification.

[5] In Victoria see R v Williscroft, Weston, Woodley and Robinson [1975] VicRp 27; [1975] VR 292 and Young, Dickenson and West [1990] VicRp 84; (1990) 45 A Crim R 147. In Western Australia see Punch (unreported, WA CCA, Pidgeon, Murray and Anderson JJ, 31 May 1994) 18 Crim LJ 53 and Verschuren (1996) 91 A Crim R 1.

[6] The Sentencing Legislation Amendment and Repeal Bill 1998 (WA) was tabled in late October 1998. It raises a whole host of issues but a detailed review is beyond the scope of this paper.

[7] Sentence Administration Act 1995 (WA) s 70.

[8] The current provisions are contained in s 42 of the Sentence Administration Act 1995 (WA). The proposed amendments are in the Sentence Administration Bill 1998 (WA).

[9] See, for example, D Parent, Structuring Criminal Sentences: The Evolution of Minnesota's Sentencing Guidelines, Butterworths (1988) chapters 2 and 3.

[10] For a discussion of 'populist punitiveness' see A Bottoms, "The Philosophy and Politics of Punishment and Sentencing" in C Clarkson and R Morgan (eds), The Politics of Sentencing Reform, Clarendon Press (1995) 17.

[11] Tonry, note 1 supra.

[12] Senior Labor Party figures from the time have conceded as much. One acknowledged to the writer that the Act was "dictated by political exigency". Another has conceded publicly that the law was wrong.

[13] Those involved in law reform ignore the political dimension at their peril. Recently, the Model Criminal Code Officers Committee recommended the abolition of the provocation excuse (Discussion Paper, Fatal Offences Against the Person, June 1998). They proposed, instead, that provocation should be a matter which is taken into account by a sentencing judge. Given the conceptual problems with the provocation excuse, there is much to be said in principle for such a change but it seems politically inconceivable that the mandatory penalty for murder will be abolished in those jurisdictions which retain it. Equally, in those jurisdictions which currently give the sentencing judge a discretion, it is quite conceivable that a mandatory penalty will be reintroduced. The consequence of abolition may be that there is less for the defence to 'hang its hat on' in order to argue for a manslaughter verdict and that the mandatory life sentence will be imposed in more undeserving cases.

[14] On the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA), see R Broadhurst and N Loh, "Selective Incapacitation and the Phantom of Deterrence" in R Harding (ed), Repeat Juvenile Offenders: The Failure of Selective Incapacitation in Western Australia, Crime Research Centre, University of Western Australia (2nd ed, 1995) 55. Broadhurst and Loh point out that the Government of the day proudly proclaimed that it had identified about 100 'hard core offenders'. In fact, the "number of offenders likely to be caught by its inconsistent logic was reckoned to be between 38 and 400, depending on which data source or authority one relied": Broadhurst and Loh at 59.

[15] This is because one of the circumstances of aggravation is doing bodily harm.

[16] Taken from the title of Broadhurst and Loh's article, note 14 supra.

[17] Tonry, note 1 supra.

[18] See, for example, F Zimring and G Hawkins, Deterrence: The Legal Threat in Crime Control, University of Chicago Press (1973); A Blumstein, J Cohen and D Nagin (eds), Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates, National Academy of Sciences, Washington DC (1978).

[19] Note 14 supra.

[20] Ibid at 67.

[21] M Tonry, Malign Neglect: Race, Crime and Punishment in America, Oxford University Press (1995) pp 81-123.

[22] Tonry, note 1 supra at 244.

[23] R Baxter and C Nuttall, "Severe sentences: no deterrent to crime?" 31(369) New Society 11, (2 January 1975).

[24] Other statistics suggest that in fact the rate of reported home burglaries increased immediately following the introduction of the three strikes laws: Judge MA Yeats, "'Three Strikes' and Restorative Justice: Dealing with Young Repeat Burglars in Western Australia" (1997) 8 Criminal Law Forum 369.

[25] Figures taken from AM Ferrante, NSN Loh and J Fernandez, Crime and Justice Statistics for Western Australia: 1997, Crime Research Centre, University of Western Australia (1998).

[26] This particularly unpleasant phrase was used by the Acting Premier of Western Australia in defence of the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA).

[27] See N Morgan, "The Courts Respond to the Carnage on Our Roads", in Harding (ed), note 14 supra, especially at 14-21.

[28] The leading cases in Western Australia on the 'tariff for burglary are Cheshire v The Queen (unreported, WA CCA, Malcolm CJ, Brinsden and Pidgeon JJ, 7 November 1989) and Pezzino (1997) 92 A Crim R 135.

[29] Los Angeles Times, 18 September 1994.

[30] The Minnesota Grid, for example, places a great deal of weight on prior record; a matter with which Von Hirsch and others have taken issue: A Von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals, Rutgers University Press (1986) pp 77-91.

[31] Yeats, note 24 supra.

[32] Tonry, now 21 supra, pp 188-90.

[33] C Stokes, Three Strikes and You're In: Mandatory Minimum Sentences for Repeat Home Burglars in Western Australia, unpublished Honours thesis, University of Western Australia, 1998.

[34] Classic discussions of such practices are to be found in D Hay, "Property, Authority and the Criminal Law" in D Hay, P Linebaugh, JG Rule, EP Thompson and C Winslow, Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Pantheon (1975) 17; and EP Thompson, Whigs and Hunters: the Origin of the Black Act, Allen Lane (1975).

[35] For example, under the Crimes (Serious and Repeat Offenders) Sentencing Act 1992 (WA), courts would get into lengthy debates about whether a person had been 'convicted' on the previous occasions or had been dealt with without a formal conviction: see N Morgan, "The Sentencing Act 1992: Subverting Criminal Justice" in Harding (ed), note 14 supra 39. Under the three strikes burglary laws, courts faced a problem in that offenders' criminal records did not categorise burglaries into residential and non-residential. Naturally, the courts insisted on strict proof of the previous strikes.

[36] For example, the Young Offenders Act 1994 (WA) permits the court to make an 'intensive youth supervision order', with or without making an order for detention. The Children's Court has held that it is possible, under s 101, to impose an intensive supervision order with detention but to order immediate release under a 'conditional release order'. See also G (A Child) (1997) 94 A Crim R 586 (on the meaning of a 'conviction') and P (A Child) (1997) 94 A Crim R 593 (on 'stale' convictions).

[37] For example, in 1993, I floated some constitutional arguments relating to 'separation of powers' and the 'independence of the judiciary' in a chapter entitled "Conditional Release From Indeterminate Sentences: Executive and Judicial Roles and Practices" in Harding (ed), note 14 supra 96. These arguments were developed without success before the Supreme Court of Western Australia in S (A Child) v The Queen (1995) 12 WAR 392 but not dissimilar arguments did succeed in Kahle v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51.

[38] K Knapp, "Arizona: Unprincipled Sentencing, Mandatory Minima and Prison Overcrowding" 2 Overcrowded Times 10, quoted in Tonry, note 1 supra.

[39] For example, neither the Labor Party in Western Australia in 1992 nor the Conservative Party in the UK in 1997 were re-elected.