Report on Mandatory Sentences - Law Reform Commission

4.157 Fourth, the offence of “living on the avails” of the prostitution of a person under 18 years of age
attracts a minimum sentence of two years. 371 Fifth, the following offences attract a minimum sentence of
five years: (i) incest with a child under 16 years of age; 372 (ii) aggravated offence of living on the avails of
the prostitution of a person under 18 years of age; 373 and (iii) trafficking of a person under 18 years of
age. 374 Sixth, where the offender kidnaps, commits an aggravated assault or aggravated sexual assault
against, or causes death to, the victim during the commission of the offence, the offence of trafficking a
person under 18 years of age attracts a minimum sentence of six years’ imprisonment 375
4.158 The Canadian Ministry of Justice contends that these provisions ensure that the need to strongly
deter and denounce the sexual exploitation of children is consistently reflected in sentencing. 376 The
Ministry argues that this is achieved by virtue of the fact that “the starting point for any sentence
calculation must be a sentence of imprisonment... .” 377 By contrast, however, critics of this sentencing
regime assert that there is little evidence to suggest that mandatory sentencing effectively deters child
sexual abuse. 378 The constraints placed on judicial discretion, and the corresponding risk of
disproportionate punishment, are also emphasised by these commentators. 379
(iv)
Fraud
4.159 Section 380 of the Canadian Criminal Code 380 prescribes a minimum sentence of two years’
imprisonment for any offender who by deceit, falsehood or other fraudulent means, defrauds the public or
any person (whether ascertained or not) of any property, money, valuable security or service, where the
total value of the subject-matter exceeds one million dollars. It has been observed that the introduction of
this provision reflected a move by the Canadian government to treat white collar crime more seriously. 381
(f)
Australia
4.160 In Australia, mandatory sentencing has a long history. 382 During the 18th and 19th centuries,
mandatory sentencing was used for a wide variety of offences. 383 However, during the 19th century, this
approach was largely abandoned in favour of parliament setting the maximum penalty, with the
sentencing judge responsible for determining the appropriate sentence for the individual offender. 384 In
371
372
373
374
375
376
377
378
379
380
381
382
383
384
Section 212(2) of the Criminal Code.
Section 155(1) and Section 155(2) of the Criminal Code.
Section 212(2.1) of the Criminal Code.
Section 279.011(1) of the Criminal Code.
Section 279.011(1) of the Criminal Code.
Hansard, House of Commons, Bill C-22, An Act respecting the mandatory reporting of Internet child
pornography by persons who provide an Internet service, 3 December 2010, col 1034.
Ibid.
See, for example: Canadian Criminal Justice Association “Brief to the Standing Committee on Justice and
Human Rights ... An Act to Amend the Criminal Code (Sexual Offences Against Children)” (January 2011).
Available at: www.ccja-acjp.ca/en/c54en.html [Last accessed: 22 May 2013].
Ibid.
Inserted by section 2 of the Standing up for Victims of White Collar Crime Act.
Wong, Aagaard and Shapiro “Minimum Mandatory Jail Sentence for Fraud over C€1 Million” (5 July 2011).
Available at: www.blakes.com/English/Resources/Bulletins/Pages/Details.aspxBulletinID=1355 [Last
accessed: 22 May 2013].
Roche “Mandatory Sentencing” No 138 Trends & Issues in Crime and Criminal Justice, (Australian Institute of
Criminology, 1999) at 1.
Ibid.
Ibid.
166