The Phantom of Deterrence: The Crime (Serious and Repeat Offenders) Sentencing Act

DOI10.1177/000486589302600306
AuthorNini Loh,Roderic Broadhurst
Publication Date01 Dec 1993
AUST
&
NZ
JOURNAL
OF
CRIMINOLOGY
(December
1993) 26 (251-271) 251
THE PHANTOM
OF
DETERRENCE:
THE
CRIME (SERIOUS AND
REPEAT OFFENDERS) SENTENCING ACT
Roderic
Broadhurst"
and
Nini Loht
Throughout 1991 a car theft "crime wave"
and
a series
of
deaths arisingfrom high-speed police
pursuits had engendered an atmosphere
of
crisis in "law and order" in Western Australia.
Prompted by these events, controversial legislation (the Crime (Serious and Repeat Offenders)
Sentencing
Act
1992) aimed at "higli risk" juvenile offenders and increasingpenalties was rushed
through the Parliament
of
WesternAustralia in early 1992. A critique
of
the legislation illustrates
that it both breached
human
rights and failed to address the difficulties
of
implementing selective
incapacitation policies. Following the introduction
of
the new law the government claimed that
downward trends in car theft, police high-speed pursuits and other offences were due to the
deterrenteffects
of
the increased penalties provided. The data, however, indicate that the decline in
official records
of
car theft and juvenile convictions
had
begun prior to the introduction
of
the
legislation. Significant correlations between reports
of
stolen vehicles and arrests for car theft
(especiallyAboriginal juvenile arrests) werefound but not for police high-speed pursuits or arrests
of
persistent offenders
and
reports
of
stolen vehicles. This suggests that targeting "hard core"
juvenile offenders had, at best, modest and temporary effects on vehicle theft. While a sharp decline
in the relevant statistics was observed around the time
of
the passage
of
the law, this proved
short-lived
and
other factors, such as changes in policing (the introduction
of
cautioning, the
formation
of
a special motor vehicle task force, and stricter guidelines on pursuits) are more
compelling explanations than the deterrent aims
of
the legislation.
Background
Over
an 18
month
period
from
around
April 1990, 16 people died in police car
chases in
Western
Australia. Five of
them
were offenders and
their
passengers, all
of
whom were children.
The
remainder
were
other
motorists and
their
passengers, in
one
case a cyclist. Injuries were inflicted on
other
people
in
the
same circumstances
and
also on
people
who
attempted
to
prevent
their
vehiclesfrom being stolen.
The
media
had
a field day; the victims
or
their
families
attained
a high profile. A
public rally was organised which
attracted
some 20,000 people to
protest
outside
Parliament
House
in August 1991 against
the
juvenilejustice system.
The
system was
seen
as
not
taking offending by young
people
seriously
and
the
State
Labor
government was accused
of
being soft on crime.
The
file
tape
of
that
rally
(not
always
identified as such) was played on
TV
news every time
the
subject of juvenile
offending was
touched
upon, however remotely, over the next several months.
(For
a
fuller summary
of
the
background, see
White
1992.)
In response to community concern,
the
government had already (in 1990)
established a high level advisory committee on Young Offenders. This committee
was developing amulti-disciplinary
approach
with a strong philosophical
commitment to
the
notion
of
"disarming
the
criminal justice system". Among a
number
of measures, apolice cautioning system for juvenile offenders
and
efforts
aimed at increasing
the
role of mediation and victim reconciliation schemes were
introduced.
The
thrust
of
the
committee's work was to integrate community
responses to juvenile offending by co-ordinating activity between agencies. In this
Senior
Research
Fellow.
t
Research
Officer
Crime
Research
Centre,
Law School, University of
Western
Australia, Nedlands, 6009.
252 R
BROADHURST
and N
LOH
(1993) 26
ANZJ
Crim
way the police response could be tailored to less punitive and interventionist
strategies and prevention given priority. However, these measured responses were
overtaken by events and set aside by
the
political imperatives of responding to
"public concern".
For
on Christmas night 1991, a young pregnant mother and
her
baby son were
killed when the car in which they were travelling was involved in a collision with a
stolen vehicle driven by a fourteen year old Aboriginal youth in the course of a
police chase (West Australian, 27 December 1991, p 1; 28 December 1991, p I). In
the absence of the Premier, the Cabinet acted. While the police policy on
"hot
pursuit" ordinarily might be considered the immediate focus of attention (see
Home11990, McGrath 1991 and Zdenkowski 1992), in fact the political solution was
to legislate to increase penalties and target offenders deemed to be the dangerous
"hard
core". In
other
words, deterrence and incapacitation were to be given the
primary role in prevention of these offences.
On 6 January, the Acting Premier, Mr Taylor, announced that "Western
Australia's hard core juvenile criminals will be subject to the toughest laws in
Australia under measures approved by State Cabinet today".
The
media statement
continued:
"Repeat
juvenile offenders will be jailed at the Governor's pleasure in
addition to any
other
penalty. Where an offence involves violence, no consideration
of release will be possible before a minimum of 18 months."
According to the Acting Premier, the government was able to identify about 100
"hard
core offenders". He stated that,
"The
government has decided there is now no
option but to excise them from society
...
". He concluded: "These tough new
measures and the cost of implementing them will draw criticism from some quarters
but
it is now clear these hard core repeat offenders will not change their attitude and
the
protection of the community is paramount."
The Crime (Serious
and
Repeat Offenders) Sentencing Act 1992
The
Act,' which was passed amid considerable controversy (eg Zdenkowski
12 February 1992,p 15; Time, 24 February 1992, pp 30-31;WestAustralian, 7January
1992, p 3; 6 March 1992, p 4; 3 August 1992, editorial) on 6 February 1992 by a
specially convened Parliament, in fact deals with both juvenile and adult offenders in
essentially the same way. Targeted offenders are in three categories:
1. A "serious repeat offender" (defined in Schedule 2) is one appearing for sentence
on his/her seventh "conviction appearance" (inadequately defined) for a listed
serious offence in an 18 month period.
The
"serious" offences are listed in
Part
1.0f
Schedule 1 of the Act and include burglary, arson and stealing a motor vehicle
aggravated by reckless or dangerous driving (a new offence introduced by
amendments to the Criminal Code: section 378).
2. A "motor vehicle offender" is one committing a range
of
violent offences in the
course of stealing amotorvehicle (covered on each appearance for sentence and not
necessarily a repeat offender).
3. A "repeat violent offender" is one appearing for sentence on his/her fourth
"conviction appearance" in 18 months for a listed violent offence or the seventh for a
listed serious offence with the last being for one of the listed violent offences
(including resisting or preventing arrest, various assault offences, wounding,
robbery, sex offences and homicide: see Schedule 1, Part 2).
Sentencing
Guidelines
In deciding whether to impose a custodial penalty and, if so, for how long, the
sentencing court must apply sentencing guidelines scheduled to the Act," These

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