Law expert slams West Australian Labor for backing new mandatory sentencing

A leading expert in Aboriginal criminal justice has accused the Labor party in Western Australia of political “cowardice” for not opposing additional mandatory sentencing laws, which government figures show will put about 260 more people in jail over four years.

Professor Harry Blagg, associate dean of research at the University of Western Australia’s law school, said the proposal to double the mandatory sentence under the state’s “three strikes” laws was “appalling” and Labor’s response was “hypocritical”.

“I think it’s cowardice on behalf of the Labor party,” Blagg said. “They know the facts but they don’t want to be blindsided by the Liberals on law and order in WA. So they are having it both ways – they are criticising the policy but at the same time they are going to support it.”

The criminal law amendment (home burglary and other offences) bill 2014 seeks to increase the third strike mandatory minimum sentence for aggravated burglary to two years in jail and change the strike system. Previously multiple offences that resulted in a single court appearance were treated as one strike. Under the new laws only offences that occurred on the same day would count as one strike. That means someone could receive an automatic two-year jail term after their first appearance in court.

The amendment also imposes new mandatory minimum penalties on other serious crimes conducted during an aggravated burglary. Crimes such as murder that carry a life sentence will have a mandatory minimum penalty of 15 years, and other crimes, like aggravated indecent assault, will have a mandatory minimum sentence set at 75% of the maximum possible sentence.

Youths aged between 16 and 18 will face a three-year mandatory detention period for serious offences committed during an aggravated burglary, or a 12-month sentence under the three strike law.

“I find it utterly distressing that this is what we have come to,” Blagg said. “A lot of these kids are on the foetal alcohol syndrome spectrum, their ability to make judgments is significantly impaired.

“The idea that they are black-mask wearing criminals who are going to be deterred by some black and white definition of justice is absurd, it’s just a fallacy that exists in the minds of some members of the Liberal party.”

The Aboriginal Legal Service of WA, Law Society of WA and Amnesty International all oppose the law, telling Guardian Australia that it will disproportionately affect Indigenous people. In December the UN’s committee against torture called for WA’s existing mandatory sentencing laws to be abolished.

The state opposition leader, Mark McGowan, gave his support to this legislation at the leaders debate two weeks before the 2013 election. The government has a majority in both houses, but Labor also supports the changes, despite the trepidation shown by some of its members.

The shadow attorney general, John Quigley, who criticised the proposed law as “a political exercise” with no evidential basis, told Guardian Australia that opposing the legislation was “not going to advance the debate toward rational sentencing one iota.”

Quigley foreshadowed an amendment to exclude those who are mentally impaired from mandatory penalties, including people with foetal alcohol spectrum disorders.

But the police minister, Liza Harvey, said the government would not accept the change because it, “will basically give a get-out-of-jail-free card to anybody under the influence of methamphetamine” and make the legislation “unworkable”.

That response prompted another round of criticism from the Mental Health Association of WA, who told the West Australian it was “misleading and stigmatising”.

Quigley told parliament on Tuesday the legislation was “political populism”.

Nevertheless, he said, Labor would not oppose the legislation. “Call it for what it is.” he said. “That is why we are not opposing it.”

He accused the premier, Colin Barnett, of defaming the West Australian judiciary and said the government was putting votes ahead of victims of sexual assault, because mandatory sentences removed the incentive to plead guilty.

“The next time a victim of burglary and sexual assault has to go to the supreme court and to be examined and cross-examined on the worst experience of her life ... we will remind them that the secondary victimisation is theirs as a gift from the Barnett government,” he said.

“We will not oppose the government if that is its sort of thinking ... The government got a mandate and we respect that mandate.”

The bill is still before parliament.