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‘Three Strike’ Legislation and Mandatory Minimum Sentencing

Executive Summary

The premise of this report was to establish advantages and disadvantages associated with ‘three strike’ legislation and mandatory minimum sentencing in Western Australia. Mandatory sentencing in Western Australia arose as result of the inconsistency and leniency that public deemed total judicial discretion yet crime rates were up surging. In 1992 the state government initiated crime (serious and repeat offender) sentencing Act 1992 this was followed by Criminal Code Act Compilation Act 1913 as amended in 1997 and Young Offenders Act 1994. The report found out that the associated advantages include consistency in sentencing, reduced costs, plausibility of deterrence and non-discriminatory sentencing that treats all equal before by not examining circumstances. On the other hand, the report found out that the disadvantages includes inability to take in various considerations owing to limited judicial discretion; inability to address persistence & recidivism as it focus on containment & punishment and finally the approach is presented as reactive approach as opposed to proactive mechanism. In regard to such realisation, the report recommends abolishment of mandatory minimum sentencing by adoption of structured sentencing informed by sentencing grid.

Table of Contents

iExecutive Summary

iiTable of Contents

11.0 Introduction

12.0 Mandatory Minimum Sentencing Concept

22.1 Three strike’ Legislation and Minimum Mandatory Sentencing in Western Australia

33.0 Merits and Demerits of ‘Three Strike’ Legislation and Minimum Mandatory Sentencing

33.1 Merits

33.1.1 Deterring Criminals

43.1.2 Non-discrimination

43.1.3 Consistency in Sentencing

53.1.4 Economic Saving to Community

53.2 Demerits

53.2.1 Unfairness & Harshness

53.2.2 A Reactive Approach, Deterrence & Recidivism Issues

63.2.3 Rigidity, Restricted Judicial Discretion & Sentencing Variables

64.0 Conclusion

75.0 Recommendations


1.0 Introduction

‘Three strike’ legislation and mandatory sentencing in Western Australia came into effect in 1992 as a result of the upward surge in criminal activities by juveniles. This forced the labour led government to respond appropriately so as to diffuse the social tension that most citizens viewed courts as being lenient and inconsistent in delivering sentences. The whole process is anchored on presumptive sentencing that limits the judge’s discretion in delivering sentences for juveniles found guilty for the third time in relation to criminal activity such as burglary as enshrined in section 401 of Criminal Code Act Compilation Act 1913 as amended in 1997 and section 124 (1) (a-d) of Young Offenders Act 1994. However, adoption of such approach has elicited issues such as human rights and victimisation. The ultimate focus of this report is to outline the merits and demerits associated with mandatory minimum sentencing for juveniles. Anchored on the two realisations, the reports offer a recommendation on whether the approach should be amended, abolished or be retained in the current status.

2.0 Mandatory Minimum Sentencing Concept

Sentencing of individuals found culpable of committing crime by the court of law can be delivered in different formats. Within the possible array of sentencing, a Court of Law can adopt fixed penalty, mandatory minimum, structured discretion and broad discretion (Gelb & Hoel, 2008, p.7). Two domains emerge under fixed mandatory and presumptive sentencing. These are mandatory penalties and presumptive penalties. However, Bagaric (2000, p.2-3) notes that the most common variant of the two is the mandatory minimum penalties. Mandatory minimum sentencing as a concept entails limiting judicial discretion through legislative pieces that stipulates mandatory minimum sentence or lower limit threshold that a court cannot surpass for a given criminal activity irrespective of other circumstances.

The whole concept emerged as a reaction to the inconsistencies experienced as a result of judicial discretion 1990s. This caused a moral panic that Courts were being lenient to criminals (Warner, 2007, p.321). Minimum mandatory sentencing can be deemed as the exact opposite of mandatory maximum since in mandatory maximum the legislation stipulates the maximum penalty that cannot be exceeded by the court while on the other hand mandatory minimum stipulates the lowest expectation with court given some leverage to extend beyond the minimum provision (Bagaric 2000, p.3). In Australia states such as Northern Territory, Western Australia and Tasmania have embraced this approach to sentencing for both juveniles and adult offenders under the banner of ‘three strike’ legislation (Warner, 2007, p.321).

2.1 Three strike’ Legislation and Minimum Mandatory Sentencing in Western Australia

The introduction of minimum mandatory sentencing under the ‘three strike’ legislation in Western Australia was a politically driven process as opposed to judicially driven process (Roberts et al. 2003). Roberts et al. (2003, p.54) observes that the introduction of ‘three strike’ legislation was a political bait advanced by labour government who in their bid to recapture their seat in the state employed populism approach so as not be seen as lenient on crime and criminal activity which was accosting the state in an upward spiral manner especially motor car theft. Therefore, Anthony (2010, p.1) indicates that in 1992, the Labour Government promulgated the crime (serious and repeat offender) sentencing Act 1992. However, this was retired in 8 March, 1994 as per section 12 of the Act.

Minimum Mandatory sentencing in Western Australia is encapsulated in two Acts of Parliament. However, earlier there was the crime (serious and repeat offender) sentencing Act 1992 which was retired in 1994 as per section 12 of the Act. This specifically targeted juveniles who engage in violent criminal activities in relation to stolen motor vehicles (Anthony, 2010, p.1). Presently, the first Act according to Anthony (2010) is the Western Australia Criminal Code Act Compilation Act 1913 as amended in 1997 by the Western Australia Parliament. This mostly addresses issues related to repeat adult offenders and juveniles engaged in property burglary. The second one is the legislative piece that is mostly directed to the juvenile offenders which is referred to us as Young Offenders Act 1994. This mostly addresses juvenile repeat offenders engaged in property burglary (Anthony, 2010).

The Western Australia Criminal Code Act Compilation Act 1913 as amended in 1997. Section 401 subsection 4(a) obliges the court to subject individuals found culpable for property burglary after two previous convictions to serve a minimum of 12 months. In regard to juveniles section 401 subsections 4(b) dictates that a juvenile convicted for the third time must be subjected to 12 month imprisonment or 12 month detention. This is to be done in accordance to Young Offenders Act 1994. On the other hand, section 124 (1-3) of Young Offenders Act 1994 stipulates how to deal with young repeat offenders. Specifically, section 124 (1) (a-d) and subsection (2) of the same section stipulates how the rule for three strike mandatory minimum sentencing.

3.0 Merits and Demerits of ‘Three Strike’ Legislation and Minimum Mandatory Sentencing

3.1 Merits

3.1.1 Deterring Criminals

One of the advantages of ‘three strike’ legislation and minimum mandatory sentencing lies on the ability to deter criminal activity through punitive measures and containment approach. To contextualise the plausibility of this argument, social learning theory posits that one is likely to undertake activity based on reward and punishment mechanism. Bandura (1978, p.13) observes that all human behaviour such as crime/ violence are learnt as a result of the happenings that an individual experiences in their immediate environment. If a given encounter is rewarded, one is likely to engage in the said encounter. On the other hand, if an encounter is severely punished one is likely to refrain from it since the utility derived out of it is minimal as compared to the punishment (Bandura, 1978, p.13).

Additionally, it can be argued that most people even juveniles who engage in criminal activities are rational and thus cannot argue that they are not aware of the negative consequences or argue that criminals have uncontrollable psychological and emotional drives. Moreover, there are those who are utilitarian in nature and if they feel that their present utility will be addressed they will go a long way in engaging in whatever means perhaps those that contravene written rules and societal expectations (Hall, 2007, p.7). The question that one begs to be answered is whether one who is aware of the repercussions should be handed a lenient sentence since it cannot be argued that criminals do not have means in terms of money and education to achieve their desired goals and thus, revert to illegitimate approaches as this is a whole societal problem. This is why it can be argued that mandatory minimum sentencing is response to the same.

This is indeed what the mandatory minimum sentencing is geared towards achieving since it presents a severe punitive response to possible repeat offenders who might persist in criminal activity as enshrined in concepts of proportionality and consequentialism perspectives. For instance, Roche (1999, p.2), notes that with the implementation of the crime (serious and repeat offender) sentencing Act 1992 motor vehicle theft dropped significantly. Moreover, Gabor & Crutcher (2001, p.8) notes that prospective juvenile offenders who might despise social embarrassment associated with jail terms are likely to avoid criminal activities having being aware that if they commit the same they will be convicted to longer minimum sentences irrespective of the circumstances. Additionally, Roche (1999, p.2 & 4) equally opines that the role of mandatory minimum sentencing lies on its ability to contain the criminal and thus at the time of confinement those individuals are not able to engage in criminal activity.

3.1.2 Non-discrimination

One argument that has been fronted while castigating mandatory minimum sentencing falls on the fact that circumstance surrounding ones criminal activity or the impetus for engaging in criminal activity is a function of external socio-economic factors (Gelb, K. & Hoel, 2008, p.4) for instance, criminality of juveniles is likely to differ (Steffensmeier & Allan, 1996, p.459). However, the realisation is that does difference in criminality solved by having considerations to circumstances. Having consideration to circumstance especially related to gender, race and economic background can be equally deemed as discriminative and not an affirmative action. A court should be objective as far as possible by reducing contextual interference (Bagaric, 2000, p.3).

This is why in this sector the report argues that minimum mandatory sentencing presents a non-discriminatory approach as it offers ‘one size fit it all’ that does not discriminate irrespective of circumstance such as social and economic background as all criminal activity constitutes deviant behaviours that should not be condoned. The reason for such argument is corroborated by Barry & McIvor (2008, p.6) who note that there is no difference in criminality between gender and race as all individuals have similar ‘criminogenic needs’. As such all should be sentenced equally so long as the criminal activities are the same. In a nutshell, mandatory minimum sentencing delivers fair practice.

3.1.3 Consistency in Sentencing

Under the extreme continuum of sentencing judicial discretion allows presiding judges to deliver judgements based on various prevailing circumstances? This discretion presented disparities. The priming factor that acted as the impetus for mandatory sentencing in Western Australia was the inconsistence that demarcated the whole process of sentencing first time and repeat offender. This sent a wrong signal to the public that the government and Judiciary were condoning criminal activity as they were delivering judgments that were not in sync with societal expectation (Warner, 2007, p.321). Moreover, courts were seen to be delivering lenient sentences to repeat offenders and thus, local community deemed these lenient sentences as not deterrent enough for repeat offenders (Gelb & Hoel, 2008, p.5). However, with the two Acts (Criminal Code Act Compilation Act 1913 and Young Offenders Act 1994), one is sure that consistence sentencing is to be delivered since everyone knows that a juvenile convicted for the third time for home burglary will be subjected to a mandatory minimum 12 months.

3.1.4 Economic Saving to Community

Under approaches such as total discretion, the presiding judge has an obligation to consider various circumstances surrounding the offence and the offender so as to inform or contextualise sentencing. For instance, Mackenzie (2005, p.50) observes that in judicial discretion the president judge has the opportunity to assess the leading events that drove a juvenile to committing crime. However, Bagaric (2000, p.2) notes that this is where the weakness emanates since the cost of conducting such assessments is transferred directly to local communities through avenues such as taxation. On the other hand, Bagaric (2000, p.2) posits that with minimum mandatory sentencing, once one has been proved guilty and established that that is the third offence, the procedure is simple and direct, 12 month jail or detention. As such, this saves the public coffers from unnecessary expenses.

3.2 Demerits

3.2.1 Unfairness & Harshness

The hallmark of any judicial process should be embedded in delivering justice and fairness to all parties involved. However, Bagaric (2000, p.6) notes that with the adoption of mandatory minimum sentencing perverse verdict has have become a common occurrence. In this regard technical defence is encouraged leading to the belief that under the approach most people are sentenced at the trial stage. Such experiences often elicit the reaction that mandatory minimum sentencing is harsh and punitive. For instance, by limiting judicial discretion, the approach curtail possibility of fact finding on the circumstances superseding the crime, yet it is known idea that criminal activity can be contextual especially for juveniles (Gelb & Hoel, 2008).

3.2.2 A Reactive Approach, Deterrence & Recidivism Issues

Mandatory minimum sentencing presents itself as a reactive programme that is geared towards containing convicted criminal for a given period of time, but not effective in addressing issues of recidivism/ persistence and re-offending. This is a huge shortcoming as it does not endear to the whole rationale of sentencing that should include reformation of the convict and protection of community (Gelb & Hoel, 2008, p.4). Gelb & Hoel (2008) observes that committing an individual to extended jail term does not aid in rehabilitation of the individual. According to Halsey (2007b, p.1212), committing offenders to extended jail terms has not been a prudent option in rehabilitating offenders not to persist in crime of re-offend. For instance, Halsey (2007a, p.341) indicates that most juveniles convicted and detained are likely to graduate into serious crime and thus, proceed to adult detention centres. Specifically, he notes that 91 % of juveniles who had been subjected to care and protection and supervised justice had progressed to adult correctional system.

Indeed, the research by Gabor & Crutcher (2001, p.8) opines a bleak future by indicating that mandatory sentencing has modest impact in deterring criminals from engaging in criminal activities since the ultimate premising of the approach is punishment and not rehabilitation. The reactionary nature equally presents financial burden to the economy as the whole process focus on containing criminal (Warner, 2007, p.326). Cunneen & Luke (2008, p.205-208) postulates that instead of over focusing in detention or containment of juveniles, the focus should be re-directed towards holistic rehabilitation through post release support programmes that equip previous offenders. For instance, in a pro-active system that appreciates that criminal activity is more than conviction should engage in support programmes that reduces individual’s vulnerability.

3.2.3 Rigidity, Restricted Judicial Discretion & Sentencing Variables

Owing to social and economic dynamic, disparities and differentiation the vulnerability and propensity to crime might differ across the state (McAlister, 2008, p.15). However, Anthony (2010, p.3) opines that this rigidity presented by mandatory minimum sentencing is one of its undoing since in reality, there are those individuals who are more prone to committing crime as compared to others owing to the social and economic dynamics they are exposed to. For instance, indigenous individuals in Western Australia are more prone to criminal activity as compared to others because of the economic deprivation they experience as compared to the rest of the population. The inability to allow for judicial discretion and sentencing presents an opportunity for hasher and unfair sentencing since it does not allow courts to take cognisance of prevailing circumstances that might have led to criminal activity (McAlister, 2008).

4.0 Conclusion

The aim of the report was to assess the advantages and disadvantages of ‘three strike’ legislation and mandatory minimum sentencing. The report first reviewed the trajectory that followed promulgation of the legislation and established that it was associated with the upward spiral in criminal rates and inconsistency associated with total judicial discretion. The report found out those advantages associated with ‘three strike’ legislation and mandatory minimum sentencings are consistency, deterrence of criminals, non-discrimination and reduced expenses that would have been incurred by public. On the other hand, the report established associated disadvantages as Rigidity, Restricted Judicial Discretion & Sentencing Variables; inability to counter recidivism and the unfairness & harshness that it prescribes to the guilty ones.

5.0 Recommendations

Mandatory minimum sentencing should be abolished in Western Australia and instead sentencing approaches that allow judicial discretion such as structured discretion adopted. This will empower presiding judge to elicit positive reputation in public while equally delivering fair judgements. In situations where consistency as an issue emerges, implementation of sentencing grid guidelines should be enforced. Furthermore, a strong post release support programme should be put in place so as to address issues of persistence/ recidivism.


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