Report on Mandatory Sentences - Law Reform Commission

there is an automatic 25-year period of parole ineligibility. 66 In the case of second degree murder, the
minimum period of parole ineligibility is 10 years while the maximum is 25 years. 67 The period of
ineligibility is determined by the trial judge 68 who may take into account any jury recommendations on the
appropriate length. 69 An offender sentenced to life imprisonment may apply to have the minimum term
reduced after serving 15 years. 70 Once the prisoner serves the period of parole ineligibility, he or she
may apply to the Parole Board for parole. The Parole Board will consider whether there are any risks to
the public in releasing the prisoner. If released, the prisoner is subject to parole conditions and parole
may be revoked if he or she violates those conditions or commits a new offence.
(5) Australia
3.35 In Australia, the penalty for murder varies from jurisdiction to jurisdiction. 71 In five jurisdictions
(the Commonwealth of Australia; 72 the Australian Capital Territory; 73 New South Wales; 74 Tasmania, 75
and Victoria 76 ) the life sentence is a discretionary maximum rather than a mandatory penalty. New South
Wales recognises a limited exception in this regard, prescribing a mandatory life sentence for the murder
of a police officer, committed while the officer is acting in the course of his or her duty or as a
consequence of, or in retaliation for, the execution of that duty. 77
3.36 In Western Australia, the life sentence is a presumptive penalty for murder. Under this regime, a
life sentence need not be applied by the court where: (a) it would be clearly unjust given the
circumstances of the offence and the offender; and (b) the offender is unlikely to be a threat to the safety
of the community when released from prison. 78 Where these criteria are fulfilled, the offender will instead
be liable to 20 years’ imprisonment. 79 A sentencing court which declines to impose a life sentence for
murder must provide written reasons for this decision. 80
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Section 745(a) of the Criminal Code.
Section 745(b), section 745(b.1) and section 745(c) of the Criminal Code.
Section 745.4 of the Criminal Code.
Section 745.2 of the Criminal Code.
Section 745.6 of the Criminal Code.
Leader-Elliott “Fault Elements in Murder - A Summary of Australian Law” in The Law of Murder: Overseas
Comparative Studies (Law Commission, 2005) at 7-8.
Division 71.2 of the Criminal Code Act 1995 (CW). The life sentence appears to be mandatory for offences
under divisions 115.1, 268.8 and 268.70 of the Criminal Code Act 1995 (CW).
Section 12(2) of the Crimes Act 1900 (ACT).
Section 18(1) of the Crimes Act 1900 (NSW).
Section 158 of the Criminal Code Act 1924 (Tas).
Section 3 of the Crimes Act 1958 (Vic).
Section 19B of the Crimes Act 1900, as amended by section 3 of the Crimes Amendment (Murder of Police
Officers) Act 2011. Section 19B stipulates that in order for the mandatory life sentence to apply: (a) the
offender must have known, or ought reasonably to have known, that the victim was a police officer, and (b) the
offender must have intended to kill the police officer or have been engaged in a criminal activity that risked
serious harm to police officers.
Section 279(4) of the Criminal Code 1913, as replaced by section 10 of the Criminal Law Amendment
(Homicide) Act 2008.
Ibid.
Section 279(6) of the Criminal Code 1913, as replaced by section 10 of the Criminal Law Amendment
(Homicide) Act 2008.
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