Report on Mandatory Sentences - Law Reform Commission

ecent years, it would appear that the use of mandatory and presumptive sentencing is again becoming
increasingly commonplace. The Commission notes, as a preliminary observation, that a persistent
criticism of these sentencing regimes is that indigenous adults are much more likely to be affected than
non-indigenous adults. 385
(i)
(I)
Commonwealth
People Smuggling
4.161 At federal level, only one Act, the Migration Act 1958, provides for mandatory minimum
sentences. Under section 236B, the court is required to impose a sentence of at least five years’
imprisonment for: (i) the offence of “aggravated people smuggling” (where the offence is committed in
relation to at least five people), and (ii) the “aggravated offence of false documents and false or
misleading information etc. relating to non-citizens” (where the offence is committed in relation to at least
five people). A mandatory minimum sentence of 8 years applies for an aggravated offence of people
smuggling which involves exploitation or the danger of death or serious harm to those smuggled, or
where (as discussed at paragraph 5.66) one of the foregoing offences is committed on a second or
subsequent occasion. Under this sentencing regime, the court is required to fix a minimum non-parole
period of three years, or five years if the conviction is for a repeat offence. 386 The prescribed minimum
penalties will not apply, however, where it is established on the balance of probabilities that the offender
was under 18 years of age when the offence was committed.
4.162 The Commission observes that significant controversy surrounds the operation of section 236B of
the Migration Act 1958. Many commentators, 387 including several members of the Australian judiciary, 388
have criticised this mandatory sentencing regime on the basis that it has led to the imposition of
disproportionate sentences on low-level offenders.
(ii)
New South Wales
4.163 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. 389 This legislation does not appear to prescribe mandatory minimum sentences for any offence. 390
However, section 54A to section 54D of the Crimes (Sentencing Procedure) Amendment (Standard
Minimum Sentencing) Act 2002 does create standard non-parole periods for a number of offences,
including armed robbery but not drug offences. When sentencing an offender for one of these offences,
the court must, if it decides that imprisonment is appropriate, be guided by the minimum non-parole
period. This arrangement restricts judicial discretion with respect to the duration of custody, while leaving
a court free to impose a non-custodial sanction.
385
386
387
388
389
390
Ibid at 1-2.
Same Crime, Same Time <strong>Report</strong> 103 (Australian Law Reform Commission, 2006) at 539.
See for example: Bagaric & Pathinayake “Mandatory Harsh Penalties for People Smugglers in Australia: Time
for Reform” (2012) 76(6) Journal of Criminal Law 493; Williams “Minimum sentence, maximum injustice”
Sydney Morning Herald 6 December 2011; “Bid to end Australian mandatory sentencing for people
smugglers” Radio Australia 20 January 2012. Available at:
www.radioaustralia.net.au/international/radio/onairhighlights/bid-to-end-australian-mandatory-sentencing-forpeople-smugglers
[Last accessed: 22 May 2013]; and “Lawyers Speak out against mandatory sentencing”
The New Lawyer 20 August 2012. Available at: www.thenewlawyer.com.au/comment---debate/lawyersspeak-out-against-mandatory-sentencing
[Last accessed: 22 May 2013].
See: Marcus “People smuggler given minimum sentence” ABC News 16 August 2012. Available at:
www.abc.net.au/news/2012-08-16/people-smuggler-given-minimum-sentence/4202688 [Last accessed: 22
May 2013]; Flatley “Judge slams mandatory sentence for people smugglers” Sydney Morning Herald 11
January 2012; and Dodd “People smuggling laws in the dock” The Australian 23 March 2012.
Mandatory Sentences of Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at 29.
As noted at paragraph 3.35, however, New South Wales has recently introduced an entirely mandatory life
sentence for the murder of a police officer in certain circumstances.
167