ALS exposes postcode justice
18 Jan 2013
Postcode justice has long been a country crime
BY: STEPHEN LAWRENCE
From: The Australian January 18, 2013
IN western NSW last year, an Aboriginal child was arrested for stealing a bicycle and taken to court. It was his first offence and he was no threat to society. A plea of guilty was entered.
The magistrate adjourned for several weeks for a report to be prepared and denied bail.
The inevitable Supreme Court bail application was lodged in Sydney and three weeks later granted. A frustrated colleague in Sydney later emailed me: "If this matter came before Parramatta or Bidura Childrens Court our client would have been sentenced on the spot (and may have received a caution). Alternatively, the court is likely to have considered dispensing with bail for the matter."
A graphic demonstration that where you live effects the justice you receive. An example of "postcode justice".
Academics started talking about postcode justice years ago, but policymakers are yet to respond. In 2006, a NSW parliamentary committee concluded that "offenders sentenced in country locations are more likely to receive a custodial sentence compared with offenders in the metropolitan area".
In 2011, Deakin University identified reports that country people appearing in the Victorian Local Court were subjected to harsher sentences, and an upcoming study confirms the reality of postcode justice and its impact on Aboriginal children.
Allan Borowski of La Trobe University told The Australian: "The issue of disparity in sentencing is geographic; we refer to it as postcode justice."
The trend of harsher sentences in the bush is clear. Equality before the law is being called into question. At the coalface, this is no surprise. In country NSW, many magistrates have distinct reputations for severity.
It was reported in 2010 that a District Court judge was in tears after being informed in regional NSW that an appeal could not proceed due to the bashing death of a man in custody.
A magistrate had jailed the man for driving while disqualified, along with more than 10 others the District Court judge later set free in two weeks of tempering summary justice.
Outlier magistrates have a lasting impact, as sentences are "ratcheted" up, with no court wanting to be more lenient than the last. Not all are to blame, but country magistrates too often inflict the harshest punishment. Offences that might be dealt with by a bond in Sydney can lead to lengthy custodial sentences in the west.
Marked regional trends go unscrutinised as the machinery of summary justice grinds on, compromising the moral legitimacy of our courts. Recent Aboriginal Legal Service cases publicised in The Australian sparked debate about postcode justice.
Three brave young black men from the bush waived anonymity to become the voice of the voiceless. It emerged juvenile jail terms are far more common in rural areas.
Last year, The Australian reported Aboriginal people in the west of NSW regularly being jailed for 12 to 18 months for driving while disqualified. A city magistrate, however, recently visited a far-western town and stunned lawyers by announcing in court that he wouldn't jail for drive disqualified, viewing that disposition as "draconian".
Magistrate Roger Clisdell recently confirmed the reality of postcode justice, blaming lack of sentencing options, as well as social disadvantage and a lack of support services.
More complex and challenging explanations point to judicial attitudes to punishment in towns with highly visible crime problems and large Aboriginal minorities. Magistrates live and preside in these communities and judicial.
A city magistrate releases an offender on a bond into a community of millions; in the country they might well know the offender's next victim. A magistrate in rural NSW recently faced a street demonstration decrying his supposedly "soft" sentencing. Others have faced sustained local media campaigns. There are no specialist Children's Court magistrates.
There are no simple explanations or solutions. The ALS is calling for an urgent study into regional inequities in sentencing statewide.
One thing is certain, there will be no end to appalling Aboriginal over-representation until postcode justice is a thing of the past.
Stephen Lawrence is a former justice adviser to ACT Attorney-General Simon Corbell and a principal legal officer with the Aboriginal Legal Service NSW/ACT based in Dubbo, NSW
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