Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models
- 7.1 Overview
- 7.2 References and Further reading
- 7.3 Northern Territory
- 7.4 Western Australia
- 7.5 Victoria
- 7.6 Queensland
- 7.7 New South Wales
Jurisdiction for sentencing in Australia is shared among six state governments, two autonomous territories and the federal government who share responsibility for criminal law. Few changes have been introduced to federal sentencing legislation since the landmark report of the Australian Law Reform Commission (in 1988). For this reason this report concentrates on mandatory sentencing developments at the state and territorial level.
Morgan, N. (2002) Going Overboard? Debates and Developments in Mandatory Sentencing, June 2000 to June 2002. Criminal Law Journal , 26: 293-311.
The Northern Territory stands out in the Australian federation for having passed the most punitive mandatory sentencing legislation. In 1997, mandatory sentences of imprisonment were created for property crimes committed by adults and juveniles. The mandatory sentences affected a broad range of property offences including: unlawful entry with intent; unlawful use of motor vehicles; property damage; and stealing (including receiving stolen goods). Offenders found guilty of certain property offences were subject to a mandatory minimum sentence of 14 days for the first offence, 90 days for the second conviction and one year for the third offence.
When these sentences were associated with the tragic deaths of a number of offenders in custody, a widespread grassroots campaign led to their amendment. First, in 1999, courts were allowed to depart from imposing the mandatory sentence when exceptional circumstances justified such a departure.  In 2000, legislation was passed to mitigate the impact of the mandatory penalty regime, and in 2001, the mandatory minimum sentencing regime for property offenders was replaced by a new scheme that is more flexible.
There are currently three categories of offences for which a minimum term of imprisonment is mandatory: Murder, which carries a mandatory life sentence of imprisonment; "Violent offences" (such as assault) which carry a mandatory prison sentence; and, "Sex offences" (such as rape) which also carry a mandatory prison sentence (see Appendix F).
As is the case in some other jurisdictions, the mandatory sentencing legislation in the Northern Territory affected Aboriginal offenders to a disproportionate degree. As of 2001, Aboriginal offenders were represented in the population of mandatory sentencing offenders at a rate of 3,728 per 100,000 adult population compared to 432 for non-Aboriginal peoples (Northern Territories Office of Crime Prevention, 2003). This disproportionate impact on Aboriginal communities is one of the factors giving rise to the repeal of some of the provisions.
With respect to the issue of deterrence, the Northern Territories experience suggests that mandatory sentences of imprisonment do not act as an effective deterrent reference. A report on the mandatory sentencing laws published by the Office of Crime Prevention in that jurisdiction concluded that:
"The data…do not support the idea that the threat, or experience of a longer sentence reduced the likelihood of a person being reconvicted for a mandatory sentencing related offence"; (Northern Territories Office of Crime Prevention, 2003, p. 6).
Regarding the size of the prison population, this same report concluded that the mandatory sentence laws had
"undoubtedly increased the flow of individuals through the prison system"; (Northern Territory Office of Crime Prevention, 2003, p. 9). The Australian Bureau of Statistics reported that the Northern Territory prison population had increased by 42% since the inception of mandatory sentencing (Australian Bureau of Statistics, 1998). The Report was unable to draw firm conclusions about the effects of the legislation on crime rates, although the researchers concluded that:
"Available data suggests that sentencing policy does not measurably influence levels of recorded crime"; (Northern Territory Office of Crime Prevention, 2003, p. 13).
7.3.2 References and Further Reading
The statutory framework of sentencing in Western Australia is provided by the Sentencing Act 1995 (W.A.). Western Australia has mandatory minimum sentences comparable to those found in the Northern Territories . Mandatory sentences were enacted in 1996 as a result of amendments to the Western Australia Criminal Code . The amendments required the imposition of a minimum twelve-month prison term for repeat adult and juvenile offenders convicted of residential burglary. This provision follows earlier provisions which had the same purpose, and which are described by Freiberg as
"a failure on almost every criminological criterion on which they were measured"; (2001, p. 42). As with the mandatory sentences in the Northern Territory , the Western Australian provisions have been criticized by many groups such as the Aboriginal Justice Council in Western Australia .
The Aboriginal Justice Council is one of the organizations that have documented the effect of the mandatory sentencing legislation. The Council notes that the mandatory sentences have had no impact on burglary rates in the state, and have had a disproportionate impact on Aboriginal offenders appearing before the courts due to the lack of proper diversionary programs for Aboriginal youth (Aboriginal Justice Council, 2001). In light of this, it is not surprising that Aboriginal peoples regard these laws as, in the words of the Aboriginal Council,
"racist and discriminatory"; (Aboriginal Justice Council, 2001).
The state of Victoria has no mandatory minimum sentences of imprisonment for offences less serious than murder such as those that exist in Canada , England and Wales and the United States . There is no suggestion that the government has any intention of introducing such minima in the near future.
Courts in Queensland are guided by the principle of proportionality that was placed on a statutory footing in the 1990s. This principle applies to the sentencing of both adult and juvenile offenders. Sentencing in Queensland is regulated by the Penalties and Sentences Act , 1992. This statute contains the purposes of sentencing , as well as a limited number of sentencing principles. This statute contains no mandatory minimum sentences of imprisonment. However, the creation of such mandatory sentences has been advocated by a number of individuals and political parties in the state. For example, opposition leader Lawrence Springborg recently  (2004) promised to overhaul the sentencing process if elected to office. The proposals advocated a number of "get tough"; measures, including "flat time"; or "truth in sentencing"; legislation that would eliminate early release for serious violent offenders. In addition, mandatory sentences were proposed for habitual home invaders. At the time of writing, no such legislation has been passed.
Sentencing in New South Wales is regulated by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 which amended the Crimes (Sentencing Procedure) Act 1999. This Act specifies the purposes of sentencing which include punishment, deterrence, community protection, rehabilitation, offender accountability and recognition of the harm done to individual victims and the community. No mandatory minimum sentences of imprisonment have recently been introduced in New South Wales . One reason for the absence of such sentences may well be the fact that the 1999 legislation introduced the concept of "truth in sentencing"; to the state, in order to ensure that a significant proportion of a custodial sentence would be served in prison. These provisions had the effect of increasing the average time served in custody, and reducing the proportion of prisoners whose sentences included a conditional release to community supervision (Gorta, 1997).
Although there are no mandatory sentences of imprisonment, the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 did create what are referred to as standard non-parole sentences for a number of offences. When sentencing an offender for one of a number of enumerated offences, the court must, if it decides that imprisonment is appropriate, be guided by the minimum term of custody. This arrangement restricts a court's discretion with respect to the duration of custody, while leaving a court free to impose a non-custodial sanction. As such, the New South Wales reforms represent an interesting variation on structuring judicial discretion at sentencing. Thus, judges have the discretion to choose between imprisonment or a non-custodial sanction. If the court were to impose a custodial term, it must be for a statutorily specified length.
In 1999, the New South Wales Sentencing Council was established as a result of the Crimes (Sentencing Procedure) Act . It is the first council of its kind created in any Australian jurisdiction and has a number of statutory functions. These include providing advice to the Attorney General and preparing research reports on a variety of subjects in connection with sentencing (see www.lawlink.nsw.gov.au/sentencingcouncil.)
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