Mandatory Sentencing

Charlotte BakerHSC Legal Studies

DEFINITION

Mandatory sentencing refers to the

practice of parliament setting a fixed

penalty for the commission of a

particular criminal offence

(The Australian Institute for Criminology)

HISTORY

• Began in Australian in the Northern Territory in 1995, with mandatory sentencing for property offences

• First introduced in the United States of America in 1952, for various drug offences under the Boggs Act

• Britain in 1965, introduced mandatory life imprisonment for murder after the abolishment of the death penalty.

WESTERN AUSTRALIA

Criminal Code Amendment (No. 2) Act 1996 (WA)

14 days for the first offence, 28 days for the second offence and one year for the third offence

Property offences include: burglary, breaking and entering and robbery

 

WESTERN AUSTRALIA II

Criminal Code Amendment Act 2009 (WA)

Mandatory gaol term: • 6 months- bodily harm public officers • 1 year- grievous bodily harm to public officers

Public officer: police officers, paramedics, prison guards and public transport guards

NEW SOUTH WALES

Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW)

Mandatory life imprisonment for the trafficking of a commercial amount of heroin or cocaine

Only imposed if: • act involved a high degree of planning and organisation• a number of people under the offender’s direction• The offender must be solely or principally responsible for

planning, organising and financing the offence• Offender only committed the offence for financial reward• The cocaine or heroin was of a high purity

NORTHERN TERRITORY

Sentencing Act 1995 (NT)

A term of imprisonment for: • Violent offences such as: assault, aggravated assault,

attempted murder and aggravated robbery.• Sexual offences such as: sexual assault and

aggravated sexual assault

LIFE FOR MURDER

Many states have mandatory life imprisonment for the offence of murder:• Northern Territory Sentencing Act 1995 (NT)• South Australia Criminal Law (Sentencing)

(Dangerous Offenders) Amendment Bill 2007• Queensland Criminal Code 1989 section 305• New South Wales Crimes Amendment (Mandatory

Life Sentences) Act 1996 (NSW)

FEDERAL

Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other

Measures) Bill 2002If an adult is convicted of people smuggling asylum

seekers to Australia they will receive:• mandatory minimum of 3 years imprisonment for their first

offence • mandatory minimum of 5 years for their second offence

BENY AND TAHIR

Two poor farmers were convicted of people smuggling receiving five year jail term, minimum to serve three years

Boat exploded off the shore of Northern Territory

Mitigating situation: bribed AUS$540, unaware of consequences resulting in the two men becoming victims themselves

REFORMS

Tasmania is discussing the introduction of public officer assault laws, similar to those in

Western Australia.

(Mandatory sentencing for assaults against police and emergency service

workers)

CRITICISMS

Mandatory sentencing has received criticism from many highly recognised legal bodies:• Australian Lawyers Alliance• Australian Institute for Criminology• Australian Human Rights Commission• Lawyers and judges from all of the country and the

world• Prime Minister Kevin Rudd

EFFECTIVENESS OF THE JUSTICE SYSTEM-NEGATIVE

Reduces an individual’s access to the legal system:• Cases spend longer being heard • Less guilty pleas

Does not allow for mitigating circumstance to be considered within sentencing

EFFECTIVENESS OF THE JUSTICE SYSTEM-NEGATIVE II

Removes judicial discretion within the sentencing process

‘Retention of judicial discretion in the sentencing of offenders was a cardinal principle of any democratic society’

- Chair of the Australian Lawyers Alliance

More expensive, increases numbers in jails

Higher demand and pressure within jails

EFFECTIVENESS OF THE JUSTICE SYSTEM-NEGATIVE III

International Covenant on Civil and Political Rights (ICCPR)

Provides that sentences must be reviewable by a higher tribunal

This is broken under mandatory sentencing legislation in Western Australia

EFFECTIVENESS OF THE JUSTICE SYSTEM- POSITIVE

Individuals have an increased feeling of protection

Harsher punishments deter some individuals from committing crimes

Western Australian “three strikes and you’re out” laws deter previous offenders from reoffending

 

EFFECTIVENESS OF THE JUSTICE SYSTEM- POSITIVE II

Consistency within sentencing, as the penalties for a written law is the same for each individual- equality of outcome

Creates inequality as circumstances are not always the same, and therefore the penalty should not always be the same