Report on Mandatory Sentences - Law Reform Commission

(iii)
Northern Territory
4.164 In the Northern Territory, presumptive minimum sentences are prescribed for certain first-time
violent offences and drug offences. Imprisonment is also the mandatory penalty for certain sexual
offences. As discussed in Chapter 5, the Northern Territory provides enhanced presumptive penalties for
second or subsequent violent offences, while repeat transgressions of a domestic violence order also
attract a presumptive minimum sentence.
4.165 The Commission observes that mandatory sentencing regimes have been a source of particular
controversy in the Northern Territory. Most notably, the Sentencing Act 1995, as amended in 1997, had
prescribed mandatory sentences in respect of a broad range of property offences. The Act provided for a
minimum sentence of 14 days’ imprisonment for a first offence; 90 days for a second offence and one
year for a third offence. 391 The same amendments also imposed mandatory minimum 28-day terms of
imprisonment on juvenile repeat property offenders (aged 15 or 16 years) with escalating penalties for
subsequent offences. When this sentencing regime was associated with a number of deaths in prison, a
grass roots campaign led to its amendment and eventual repeal in 2001. 392
(I)
Violent Offences
4.166 Under the Sentencing Act, the Northern Territory prescribes a presumptive sentencing regime in
respect of certain violent offences. First, where an offender who has not previously been convicted of a
violent offence 393 is convicted of a crime classified as a “Level 5” 394 offence, he or she must receive a
minimum three-month term of imprisonment. 395 Second, where an offender is convicted of a crime
classified as a “Level 4” 396 offence, he or she must receive a minimum three-month sentence, irrespective
of whether he or she has previously been convicted of a violent offence. 397 Third, an offender convicted
of a “Level 3” 398 offence, who has not previously been convicted of a violent offence, must receive a
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Roche “Mandatory Sentencing” No 138 Trends & Issues in Crime and Criminal Justice (Australian Institute of
Criminology, 1999) at 1-2.
Mandatory Sentences of Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at 25.
A “violent offence” is defined by subdivision 1 of Division 6A of the Sentencing Act (as replaced by section 6 of
the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013) as: (a) an offence against a provision
of the Criminal Code listed in Schedule 2; or (b) an offence which substantially corresponds to such an offence
under (i) a law that has been repealed; or (ii) a law of another jurisdiction (including a jurisdiction outside
Australia). The offences listed in Schedule 2 include terrorism, manslaughter, attempted murder, common
assault, unlawful stalking and robbery.
A “Level 5” offence is defined as including the following offences under the Criminal Code: (a) causing serious
harm under section 181; or (b) causing harm under section 186; common assault under section 188 (if the
offence is committed in circumstances mentioned in section 188(2), other than paragraph (k)), assault on a
worker under 188A; assault on police officer under section 189A; assault on administrator or judge or
magistrate under section 190; assault on member of aircraft crew under section 191; assault with intent to
commit an offence under section 193; or assault with intent to steal under section 212, if (i) commission of the
offence involves the actual or threatened use of an offensive weapon; and (ii) the victim suffers physical harm
as a result of the offence.
Section 78D of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
A “Level 4” offence is defined as: an offence against section 188A [assault on a worker] or section 189A
[assault on administrator or judge or magistrate] of the Criminal Code if: (a) the victim suffers physical harm as
a result of the offence; and (b) the offence is not a “Level 5” offence.
Section 78DB of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory
Minimum Sentences) Act 2013.
A “Level 3” offence is defined as an offence against section 188 of the Criminal Code [common assault] if the
offence: (a) is committed in circumstances mentioned in section 188(2), other than paragraph (k); and (b) the
offence is not a “Level 5” offence.
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