ALHR has spoken out following a decision of the Supreme Court of Western Australia last week which upheld an Aboriginal boy’s appeal against a 12-month sentence imposed under the state's mandatory three-strikes burglary laws. The boy, who has serious neurodevelopmental impairment, was aged only 11 or 12 at the time of the offences and was in the company of older children, ALHR noted.

“Mandatory sentencing laws undermine fundamental human rights and rule of law principles and create an unreasonable risk of sentences that are disproportionately harsh and unfair,” ALHR president Kerry Weste said.

“Their use against young people , particularly vulnerable children, is dangerous, inappropriate and ineffectual.”

Noting that Western Australia is the only Australian state that imposes mandatory sentencing laws on children, Ms Weste said: “Where children are concerned, under international law, detention must be used as a measure of last resort. However, mandatory sentencing by its very nature prevents judges from considering the full and individual circumstances of the offence and the offender”.

“In Western Australia this prevents the court from responding in a way that prioritises the best interests of children and prevents the court from genuinely supporting the rehabilitation of young people. That is archaic and unacceptable,” she said.

“Populist mandatory sentencing regimes are all too often touted as an effective method of deterring or decreasing crime rates, but there is no evidence to show that they either deter individual offenders or even decrease crime rates.

“The laws under which this child was sentenced are inconsistent with the right against arbitrary detention and are discriminatory in that they are likely to disproportionately affect Aboriginal and Torres Strait Islander Peoples. Aboriginal children in Western Australia constitute just seven per cent of the general population but more than 70 per cent of the youth in detention. This is one of the highest imprisonment rates in the developed world.

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“Issues surrounding the incarceration of Aboriginal people are inextricably linked to issues of discrimination, poverty and disadvantage and go beyond offending behaviour. Western Australia’s mandatory ‘three-strikes’ burglary laws do nothing to address the underlying causes of indigenous overrepresentation in the prison population. In fact, they increase the number of Indigenous prisoners, the length of their sentences and perpetuate cycles of disadvantage.”