Mandatory sentencing - impact on imprisonment rates of women in the NT
prepared by Jenny Hardy, 1 Nov. 1999

Introduction
What does the legislation provide?
What impact has mandatory sentencing had on imprisonment rates of women in the NT?
Attributing increases in imprisonment rates to mandatory sentencing
Aboriginal Women
How does the offending rate of women in property offences compare to that of men?
Effect on crime rates
Conclusion

In November 1997, research was conducted which raised concerns about the likely impact of the Northern Territory’s mandatory sentencing legislation on imprisonment rates of women. Unfortunately, this concern has proved to be well-founded.

In the first year of mandatory sentencing legislation there was an increase of 216% in the incarceration rates of women and indigenous women, as a distinct group, experienced an increase in their incarceration rates of 232%. This increase has been far greater than the increase experienced in the incarceration rates of men which rose by 57% in the first year of the legislation (67% for indigenous men). This is not surprising given that women commit property offences as a higher proportion of their overall offending than men.

Mandatory sentencing legislation was introduced in the Northern Territory in March 1997. The legislation essentially provides that where adults are convicted of property offences, the court must impose a sentence of imprisonment of a minimum of 14 days. For a second offence, the minimum penalty is 3 months and for a third offence, the minimum penalty is 12 months. Where a juvenile, aged between 15 and 17 is convicted of a second property offence, the court must impose a sentence of detention of a minimum of 28 days. Property offences include stealing (but not shoplifting), criminal damage, receiving, unlawful use of a motor vehicle and unlawful entry.

There are no available figures on the total number of people who have been sentenced to periods of imprisonment as a direct result of mandatory sentencing. However, Northern Territory Correctional Services annual reports publish overall figures of sentenced prisoners received over the reported year. These figures show a dramatic increase in the number of people sentenced to prison since the commencement of mandatory sentencing, however, the increase in imprisonment rates of women has been disproportionate to the increase in imprisonment rates for men.

The impact of mandatory sentencing on the imprisonment rates on indigenous women have been astounding, with an increase of 232% in the first year of the operation of the legislation. Since mandatory sentencing commenced the number of women sentenced to periods of imprisonment has increased from 50 women in 1995/96 to 225 women in 1997/98. (It is understood that this figure has increased in 1998/99 to 276). The number of indigenous women imprisoned rose from 43 in 1995/96 to 196 in 1997/98.(It is understood that this figure has increased in 1998/99 to 252). At the same time the number of men sentenced to periods of imprisonment has increased from 724 in 1995/96 to 1422 in 1998/99. The number of indigenous men sentenced to periods of imprisonment increased from 566 in 1995/96 to 1148 in 1997/98.

Traditionally, and it is almost an accepted sentencing principle, women have received more lenient sentences than man. There are often many reasons for this, for example, women defendants often have more mitigating circumstances, e.g., economic hardship, responsibility for children. Courts have also suggested that it has been due to less

recidivism rates for women, and less prevalence of offences committed by women, therefore there "is less need to impose sentences which have a deterrent aspect (see Fox and Freiberg, Sentencing: State and Federal Law in Victoria, p. 466). Mandatory sentencing flies in the face of these sentencing principles.

Other than the advent of mandatory sentencing there have been no other developments in the Northern Territory criminal justice system which could explain the increase in sentenced prisoners. It is therefore reasonable to assume that mandatory sentencing is directly responsible for the increases in imprisonment rates of women.

However, it is also possible to confirm this assumption by considering the conviction rates of property offences committed by women and the imprisonment rates of women prior to mandatory sentencing. In 1994/95, instead of 59 women being imprisoned, as was reported by Correctional Services, there would have been at least 186 women imprisoned for the same period if mandatory sentencing applied. This is calculated by estimating the percentage of women who were imprisoned for property offences during the year, comparing this to the number of women who were convicted of property offences and then calculating the number of women who would have been sentenced to periods of imprisonment had mandatory sentencing been in force. A detailed breakdown of these calculations is below.

The National Prison Census taken on the night of 30 June 1995 showed that in the NT, 7 sentenced female prisoners were in custody: 2 or 28.6% of female sentenced prisoners wore convicted of assault, 1 or 14.3% for break and enter, 2 or 28.6% for theft, 1 or 14.3% for justice procedures and 1 or 14.3% for drug offences.

In 1994/95 Correctional Services reported that 59 women were sentenced to periods of imprisonment. There is no specific breakdown of offences for which imprisonment was imposed available. However, if the percentages of the National Prison Census are applied to the offences for which women were convicted during the year, we can roughly estimate how many women were imprisoned during 1994/95 for property offences. 17 women, ie., 28.6% of 59 prisoners, would have been imprisoned for theft offences, and 8 women, ie., 14.3% of 59 prisoners, would have been imprisoned for break and enter offences. Therefore, a total of 25 women were likely to have been imprisoned for property offences during 1994/95.

During the same period of time, the Police, Fire and Emergency Services Annual Report for 1994/95 reported that 158 women were convicted of stealing. 28 women were convicted of break and enter offences and 20 women were convicted of unlawful use of a motor vehicle. There are no available figures on the number of women charged with receiving or criminal damage during the same period.,

During 1994/1995, 28 women were convicted of break and enter offences but only 8 were imprisoned, 158 women were convicted of stealing but only 17 were imprisoned. If these offending patterns had occurred with mandatory sentencing in force, instead of 25 women being imprisoned during the year for property offences, 186 women would have been imprisoned. This is consistent with the increase in imprisonment rates which are now being seen.

The impact of mandatory sentencing on indigenous women has been enormous. Prior to mandatory sentencing, indigenous women were 10 times more likely to be imprisoned

than non-indigenous women despite representing only 25% of the NT female population. Of the 225 women imprisoned in 1997/98, 196 were indigenous women (87%) and 29 were non-indigenous women (13%). Of the 59 women sentenced to periods of imprisonment in 1994/95, 50 were indigenous women (85%) and 9 were non-indigenous (15%). On the unofficial figures for 1998/99, the disproportionate rate of imprisonment for indigenous women has increased further from 252 indigenous women (91%) to 24 non-indigenous women (9%).

As a percentage of the total number of offences committed by women and men, women commit property offences at a higher rate than men. The ratio of the commission of violent offences versus property offences by men is almost half and half, whereas the ratio for women is 1/3 to 2/3 ie., of offences committed by adult men in 1994/95, property offences represented 53% of offences while violent offences represented 47%. Of offences committed by adult women, property offences represented 67% of offences while violent offences represented 33%.

This is not to say that women commit more property offences than men. In 1994/95, woman represented less than 12% of offenders in all criminal charges, however, in property offences, women represented about 14% of all persons charged as opposed to non-property offences where they represented 9% of all persons charged.

To take specific examples - in assault charges for 1994 / 95, women represented 10% of all people charged while men represented 90% - in stealing charges, women represented 23% of all people charged while men represented 77%.

The stated government policy behind mandatory sentencing is to deter people from committing property offences. However, before people can be deterred, they need to know what the law is. It is becoming clear that many people in the NT are unaware of what mandatory sentencing means and the offences to which it applies. Other than some advertisements in the newspaper just prior to the start of the legislation, there have been no community legal education programs conducted by the NT government. All of the advertisements have been conducted in English and none have been targeted specifically at NESB people or indigenous people. It is unlikely that the legislation will have any deterrent affect while people don't know about it.

Crime rate statistics are not available in the NT, however, unlawful entry statistics are available in the Neighbourhood Watch News. These have not shown any major decrease in the number of unlawful entries since mandatory sentencing commenced.

The dramatic and disproportionate increase in the rate of imprisonment of women, particularly indigenous women, raises questions as to whether the effect of the Northern Territory’s mandatory sentencing legislation is discriminatory on the basis of both gender and race and therefore placing Australia in breach of its international obligations under the Convention on the Elimination of all forms of Racial Discrimination (CERD) and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).

Jenny Hardy

1 November 1999