Mandatory sentencing has once again been in the forefront of legal debate throughout Australia. There have been amendments made to existing acts across a number of jurisdictions and more recently, a new bill has been introduced in New South Wales in response to alcohol and drug-fuelled violent offences.
The Law Council is currently reviewing its policy on mandatory sentencing, noting that it has consistently opposed mandatory sentencing on the basis that such provisions impose undesirable restrictions on judicial discretion and independence, and undermine fundamental rule of law principles. Many of the Law Council’s seventeen Constituent Bodies have also opposed mandatory sentencing policies on these grounds.
A mandatory sentence of life imprisonment for murder was adopted in virtually all the Australian states and territories following the removal of the death penalty in the twentieth century. From the 1980s until 2008, most states had eased this minimum penalty, however, the provision remains in force in Queensland, South Australia and the Northern Territory.
In general, however, Australian criminal laws only set a maximum penalty, thereby, allowing judges to exercise discretion when determining appropriate sentences. Laws that specify a mandatory sentence generally set a minimum or fixed penalty for an offence. Some laws may allow judges to make exceptions from the mandatory sentence, while others are more limited in their application.
Australian Parliaments are increasingly intervening in relation to sentencing. The use of mandatory sentences, where Parliament sets a fixed or minimum penalty for committing an offence, is becoming increasingly common. This growth reflects a desire in some quarters for tougher sentences and dissatisfaction with the traditional sentencing system where courts have a broad discretion to deal with offenders.
Jurisdictions vary as to the kind of offences that attract a mandatory sentence. For instance, mandatory sentencing applies in:
- Western Australia for repeat adult and juvenile offenders convicted of residential burglary, grievous bodily harm or serious assault to a police officer;
- the Northern Territory for murder, rape and offences involving violence;
- New South Wales for murder of a police officer or where a person dies as a result of an assault and the offender was intoxicated;
- Queensland for certain child sex offences, murder, and motorcycle gang members who assault police officers or are found in possession or trafficking in firearms or drugs;
- South Australia for certain serious and organised crime offences and serious violent offences;
- Victoria for an offence of intentionally or recklessly causing serious harm to a person in circumstances of gross violence; and
- the Commonwealth for certain people smuggling offences.
The Law Council remains concerned by the unintended consequences of these provisions. They can have an arbitrary effect in individual cases and limit the ability of judges to impose a penalty based on the unique circumstances of each offence and offender. They have been seen in some instances to impact disproportionately on vulnerable groups in society and to impose a significant economic and social cost on the community through inappropriate imprisonment.
There have, for example, been a number of anomalous or unjust cases where mandatory sentencing has applied in Australia, including where:
- a 16 year old with one prior conviction received a 28 day prison sentence for stealing 1 bottle of spring water;
- a 17 year old first time offender received a 14 day prison sentence for stealing orange juice and “Minties”;
- a 15 year old Aboriginal boy received a 20 day mandatory sentence for stealing pencils and stationery worth less than $100. He died while in custody; and
- an Aboriginal woman and first time offender who received a 14 day prison sentence for stealing a can of beer.
Such cases, which are perhaps not well known amongst the general public, violate a well established sentencing principle that a sentence and retribution should be proportionate to the gravity of the offence, having regard to the particular circumstances of the case.
In the Law Council’s view, there is a lack of persuasive evidence to suggest that the justifications often given for mandatory sentences – retribution, effective deterrence, incapacitation, denunciation and consistency –achieve the intended aim. Instead, mandatory sentencing regimes can produce unjust results with significant economic and social costs without a clear and directly attributable corresponding benefit in crime reduction. Further, mandatory sentencing schemes undermine community confidence in judges to administer justice and deliver appropriate sentences. For example, there is evidence to suggest that when members of the public are fully informed about the particular circumstances of the case, they support judges’ sentences as appropriate.
Community confidence in the criminal justice system is vital in ensuring a sense of safety among Australians and victims of crime. Confidence in judicial decisions, as former High Court Chief Justice Murray Gleeson observed, is ‘essential for the peace, welfare and good government of the community’. The independence and impartiality of the judiciary are not the only factors that are relevant to the development and implementation of effective criminal justice policies. Achieving a just outcome in the particular circumstances of a case, while maintaining consistency across similar cases and with Australia’s human rights obligations, is paramount.
A primary assurance that a responsive government and parliament can give to the community is that it will be ‘tough on crime’ in a way that delivers sustainable and meaningful outcomes for individuals and the whole community, rather than implementing costly mandatory sentencing schemes without sufficient evidence to suggest a commensurate reduction in crime.
Law Council considers new position
The Law Council of Australia’s 2001 policy position on mandatory sentencing is currently being reviewed in consultation with the Law Council’s Constituent Bodies, Advisory Committees and Sections. It will take into account recent developments and provide a comprehensive review of mandatory sentencing laws with a view to informing debate on this important issue. The Law Council anticipates the new policy will be released in June 2014.
CURRENT MANDATORY SENTENCING LAWS
Provisions are contained in the Migration Act 1958 (Cth) which require courts to impose minimum sentences of between five and eight years for certain aggravated people smuggling offences. The Law Council has consistently raised its concerns about the harsh impact of sentences which are handed down under these provisions, and their limitation of the courts’ ability to exercise proper discretion in sentencing.
In this context, the Law Council notes that many of the individuals convicted of people smuggling are impoverished, young Indonesian fishermen who have not played organisational or decision-making roles in people smuggling activities.
The Law Council does not consider that people in these vulnerable circumstances should be absolved of criminal responsibility. However, the factual circumstances of many of the people smuggling related prosecutions conducted to date suggest that there is a need for courts to be able to take a range of matters into account when sentencing these individuals, including the age, health and literacy of the person convicted of the offence and the extent to which he or she was actively participating in the organisation of people smuggling activities. These concerns have also been noted by a number of the judges responsible for sentencing those convicted of these offences.
Other Australian Jurisdictions
Mandatory sentencing laws for various offences are in force in seven Australian jurisdictions these include Queensland, New South Wales, Northern Territory, South Australia, Victoria and Western Australia. Information on the mandatory sentencing laws in each jurisdiction are available online.
Constituent Body advocacy
Many Law Council Constituent Bodies have been engaged in a range of advocacy concerning mandatory sentencing. Details of this advocacy are available below.
Queensland Law Society Mandatory Sentencing Laws Policy Position – 4 April 2014
Queensland Law Society President's speech "Mandatory sentencing is not an option" – 4 April 2014
Law Institute of Victoria Media release, Baseline Sentencing a Mistake – 3 April 2014
Law Society of New South Wales letter to Premier in relation to proposed Bill – 24 January 2014
NSW Bar Association press release, “Mandatory one punch laws not the solution – 21 January 2014,
“Tasmanian Opposition reveals plan for tougher illegal forestry protest penalties,” ABC article involving interview with Law Society of Tasmania President – 9 December 2013
Queensland Law Society Media release - Legislative rush impacts the rights of all Queenslanders – 27 October 2013
Law Society of WA, “Mandatory sentencing laws not the answer” – 16 March 2009,
Queensland Bar mandatory sentencing statement (undated)
 K Warner, J Davis, M Waler, R Bradfield & R Vermey, ‘Public Judgement on Sentencing: Final results of the Tasmanian Jury Study’, Trends & Issues in Crime and Criminal Justice, Australian Institute of Criminology, Feb 2011, p. 3.