Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models

Acknowledgements

The author would like to gratefully acknowledge the input of Suzanne Wallace-Capretta, Nicole Crutcher and David Daubney from the Department of Justice Canada; Tom Finlay from the Library of the Centre of Criminology at the University of Toronto and Sherri Matta from the University of Ottawa. In addition, I thank the following individuals for information on their specific jurisdictions: Stephan Terreblanche; Estella Baker; Tappio Lappi-Seppala; Arie Freiberg; Lirette Louw; Mike Hough; Cyrus Tata; Arie Freiberg; Neil Hutton.

Julian V. Roberts
Centre for Criminology
University of Oxford
July 1, 2005

Highlights

  • This report summarizes findings from a review of sentencing arrangements in a number of common law jurisdictions around the world.
  • In 1995, the Canadian Parliament created a number of mandatory sentences of imprisonment. These apply to a number of serious offences when the crime was committed using a firearm. Courts do not have the discretion to impose a sentence below the mandatory minimum four-year term of custody. In contrast, most other jurisdictions that have created mandatory sentences of imprisonment permit some judicial discretion. This is accomplished by means of a "judicial discretion"; clause that permits judges to impose a lesser sentence where exceptional circumstances exist.
  • A common feature of the mandatory sentence legislation in common law countries is the emphasis on repeat offenders. Thus, a mandatory sentence must be imposed if the offender has previously been convicted of a related offence.
  • Where mandatory sentences do exist, they have been the object of considerable (and growing) opposition from a variety of parties, including advocacy groups, judges, academics and criminal justice professionals. This opposition has led to a number of Bills to amend or repeal the mandatory sentences legislation. While a number of countries have passed mandatory sentencing legislation within the last decade, there is evidence that jurisdictions with the most severe mandatory sentencing laws are beginning to repeal, or consider repealing, the most punitive sentences of imprisonment.
  • When surveys pose a general question about mandatory sentences of imprisonment, polls reveal strong public support for the concept. However, when asked about specific cases, there is far less support among members of the public for restricting judicial discretion at sentencing. The most recent polls conducted in Australia and the United States demonstrate that public support for mandatory sentencing has declined in recent years.

Executive Summary

This report summarizes findings from a review of sentencing arrangements in a number of western nations. The purpose was to identify and discuss current trends regarding the use of mandatory sentences of imprisonment. Since most jurisdictions employ a mandatory sentence for the offence of murder, this offence will not be discussed at length in this report.

The document summarizes recent trends from the following jurisdictions: Canada; England and Wales; Scotland; Ireland; Australia (including Western Australia; Victoria; Northern Territories; Queensland; New South Wales), New Zealand and South Africa. Particular attention is paid to Australia in light of the diversity of approaches to sentencing reform that has been adopted in that jurisdiction.

The aim of the research was to provide the reader with a sense of current developments in a representative collection of common law nations, in order to reflect the diversity of mandatory sentencing regimes.

Very few countries have created mandatory sentences of imprisonment such as the minimum four-year term of custody created in 1995 in Canada . This penalty applies to offenders convicted of any one of ten offences when the offence was committed with a firearm. Courts in Canada have no discretion to impose a lesser sentence following conviction for one of the enumerated offences; the Canadian model of a mandatory sentence does not permit any judicial discretion.

Almost all mandatory sentencing legislation in other jurisdictions allows for judicial discretion in that the courts are permitted to depart from the legislated mandatory sentence where exceptional circumstances exist . Moreover, in most jurisdictions ( South Africa for example), judges often depart from the mandatory sentence by invoking a "judicial discretion"; clause that permits courts, where exceptional circumstances exist, to impose a lesser sentence than the prescribed mandatory sentence. In some jurisdictions, judges are required to provide written reasons when using their discretion to go below the mandatory minimum sentence.

Categories of Mandatory Sentence

Generally speaking the mandatory sentences of imprisonment in western nations can be classified into three categories:

  • mandatory sentences of imprisonment that allow no discretion below or above a specific sentence. These are usually reserved for murder;
  • mandatory minimum sentences of imprisonment that require courts to impose a sentence of at least "x"; years. Courts may impose a harsher sentence up to the statutory maximum but are not allowed to impose a sentence below the minimum prescribed (the Canadian firearms mandatory sentences as well as a few other offences, fall into this category);
  • mandatory sentences of custody that permit the court to impose a lesser, or even non-custodial sentence in the event that exceptional circumstances exist (the mandatory sentences in England , Wales and South Africa are examples of this kind of mandatory sentence).

In several countries, mandatory sentences have been the object of considerable (and growing) opposition from a variety of parties, including advocacy groups, judges, academics and criminal justice professionals. This opposition has led to the introduction of a number of Bills to amend or repeal the mandatory sentences. The most pointed example of the impact of the opposition to mandatory sentencing occurred in the Australian Northern Territories. Opposition to the mandatory sentences of imprisonment in that jurisdiction led to the subsequent repeal of critical elements of the mandatory sentencing regime. Evidence indicates that jurisdictions with the most severe mandatory sentencing laws are beginning to repeal, or consider repealing, the most punitive sentences of imprisonment.

Although mandatory sentences of imprisonment have been introduced in a number of western nations, few jurisdictions have evaluated the impact of these laws on prison populations or crime rates. The studies that have examined the impact of these laws reported variable effects on prison populations, and no discernible effect on crime rates.

Public Attitudes to Mandatory Sentencing

Proponents of mandatory sentencing have long argued that such penalties are consistent with public attitudes toward sentencing. In reality, the public supports mandatory sentencing only when asked to consider the most serious crimes of violence, and when the poll question prevents respondents from considering the potential deficiencies associated with mandatory sentences of imprisonment (such as a loss of proportionality in sentencing). Recent polls conducted in Australia and in the United States demonstrate that public support for mandatory sentencing has declined in recent years. This, in turn, explains in part the decline in support for mandatory sentencing among politicians.

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