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Marshall Wallace is an Aboriginal man from a remote outstation in the Northern Territory, who recently moved to Mount Isa with his wife, so he could undergo chemotherapy. Two weeks ago, he was pulled over by police and found to be driving without a licence.
After a record check, police found that Mr Wallace had a number of outstanding warrants for driving offences – none of which had caused injury to anyone.
On April 28, Mount Isa Magistrates Court sentenced the 48-year-old to 15 months imprisonment, with a non-parole period of 5 months.
This was despite his wife, Maxine, having obtained a letter from doctors at the Mount Isa Base Hospital oncology unit stating that he was unfit for custody, as he has liver cancer and only six to nine months to live. They outlined his high risk of contracting life-threatening infections behind bars, which could shorten his life even further.
On the day of his arrest, Mr Wallace was on his was to enquire about public housing. His wife told him not to drive but he insisted, as he was “too weak to walk.” Mr Wallace had failed to obtain a licence in the past, and had previously been imprisoned for driving offences.
After sentencing, Wallace was due to be sent to Townsville prison. But soon after, he developed a fever in the police watch house and was taken to Mount Isa Base Hospital, where police watched over him. He will now be incarcerated in the prison ward of the Princess Alexandra Hospital in Brisbane.
The Queensland Aboriginal and Torres Strait Islander Legal Service (ATSILS) represented Mr Wallace in court. They plan to make an application for him to be released on parole due to exceptional circumstances.
Australian Indigenous affairs minister Nigel Scullion has written a letter to Queensland premier Annastacia Palaszczuk in support of the parole application.
Mrs Wallace said she fears that her husband will be the nation’s next Aboriginal death in custody.
There’s a massive overrepresentation of Aboriginal and Torres Strait Islander people in the Australian prison system, with incarceration rates that are 14 times higher than non-Indigenous people.
As of June last year, there were 10,596 Indigenous Australians behind bars. First Nations peoples now make up 27 percent of the nation’s adult prison population, while only accounting for 2 percent of the country’s overall population.
Incarceration rates generally are at an all-time high in Australia, with 208 inmates per 100,000 adults. The US is the greatest incarcerator in the world, with a rate of 700 prisoners per 100,000 people.
However, the Indigenous incarceration rate in Australia can be described as obscene. It’s at 2,346 prisoners per 100,000 of the Aboriginal and Torres Strait Islander population. And many of these inmates find themselves behind for non violent offences, including driving offences which are not inherently dangerous, such as continuing to drive after being found guilty of unlicensed driving.
ATSILS chief executive Shane Duffy has pointed out that Mr Wallace’s case is typical of many ill Indigenous people who are sent to prison.
In July 2013, Aboriginal man Stanley Lord died in custody of a long standing heart condition. He had served seven months of an 18 month sentence for two charges of driving whilst suspended.
A 2013 NSW auditor-general report found that less than half the state’s eligible Indigenous people held a licence, and this was partly due to systemic barriers in obtaining one. The report found that “12 percent of Aboriginal people found guilty of a ‘driver licence’ offence were imprisoned, compared to five per cent for non-Aboriginal people.”
In another recent tragedy, Ms Dhu died in custody at South Hedland police station in August 2014, due to an injury which was coupled with the inhumane treatment she suffered at the hands of police. The 22-year-old Yamaji woman was being detained for unpaid fines totalling $3,500.
The percentage of the Australian prison population made up of Indigenous people has almost double from the 14 percent it was in 1991. That was the same year the Royal Commission into Aboriginal deaths in custody delivered its findings.
The commissioners spent four years investigating the deaths of 99 Indigenous people who died in detention between the years 1980 and 1989. The commission made 339 recommendations, most of which have never been implemented.
The commission’s eighty seventh recommendation states, “arrest people only when no other way exists for dealing with a problem,” while the ninety second reads, “imprisonment should be utilised only as a sanction of last resort.”
However, First Nations peoples continue to die in prisons and police lockups. From 1991 to 2016, there have been 343 Indigenous deaths in custody.
Director of the Evidence-Based Sentencing and Criminal Justice Project at Swinburne University, professor Mirko Bagaric, explains that many Indigenous people are being incarcerated due to an accumulation of minor offences.
The professor believes prior offences should not be taken into consideration during the sentencing process, as it’s leading to a situation where repeat offenders are being sent to prison for relatively minor offences.
“Prior convictions should not be activating penalties,” professor Bagaric recently told Sydney Criminal Lawyers®. “That would mean lower level criminal offenders wouldn’t go to gaol, in particular Indigenous Australians.”
According to Bagaric, the social disadvantage faced by Aboriginal and Torres Strait Islander people should be a mitigating factor when they’re being sentenced. He argues that Indigenous offenders should be given an automatic 25 percent reduction on their sentences – a discount which could result in an alternative to imprisonment being imposed.
As for Mr Wallace, it looks like he could be facing a very lonely death within a hospital’s prison unit. His wife says that while he’s being detained in Brisbane, his family will not be around, because they cannot afford to stay in the state’s capital.
There’s currently an online petition calling for the Queensland government to release Mr Wallace on parole. With the support of the community and major politicians, there’s still hope that authorities will see reason and release him to die with dignity.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.