Report on Mandatory Sentences - Law Reform Commission

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(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 391 392 393 394 395 396 397 398 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. 168
custodial sentence in circumstances where the victim suffers physical harm as a result of the offence. 399 Any offender convicted of a “Level 2” 400 offence must also receive a custodial sentence, irrespective of whether he or she has previously been convicted of a violent offence. 401 A sentencing court may not suspend a term of imprisonment imposed in accordance with these provisions. 402 4.167 The obligation to impose a minimum penalty of a specified period will not apply where the court is satisfied that the circumstances of the case are exceptional. 403 In determining whether the circumstances are exceptional, the court may have regard, in particular, to any victim impact statement or victim report presented to the court, and any other matters which it considers relevant. 404 The following circumstances may not be regarded as exceptional circumstances: (a) that the offender was voluntarily intoxicated at the time of committing the offence, or (b) that another person was involved in committing the offence, or coerced the offender to commit the offence. 405 Equally, where the offender is under the age of 18 years, the court will not be required to impose a prescribed minimum sentence of a specified period upon him or her. 406 Where exceptional circumstances are present or where the offender is under the age of 18 years, the court is nonetheless required to specify a custodial sentence and this may not be suspended. 407 4.168 In May 2013, the proviso was introduced that a sentencing court may not suspend a minimum term prescribed under this regime. 408 According to the Northern Territory Government, this reform was intended to facilitate the protection of vulnerable victims of violent crime. 409 The Government has argued, in particular, that the chief benefit of this amendment was that it would signal to serious and repeat violent offenders, as well as victims of crime, that those who perpetrate violent offences will serve actual prison time. It would appear that this amendment was therefore intended to further the particular sentencing aims of deterrence and retribution. 399 400 401 402 403 404 405 406 407 408 409 Section 78DC of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. A “Level 2” offence is defined as an offence against section 186 of the Criminal Code [causing harm] if: (a) the victim suffers physical harm as a result of the offence; and (b) the offence is not a “Level 5” offence. Section 78DE of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. See: section 78DG(c) and section 78DH(c) of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. Section 78DI of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. Ibid. Ibid. See: section 78DH(2) of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. See: section 78DI(2)(b) and section 78DH(2)(b) of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. Section 78DH of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. Legislative Assembly of the Northern Territory, Sentencing Amendment (Mandatory Minimum Sentences) Bill 2012, Second Reading, 29 November 2012, Mr Elferink. See: http://notes.nt.gov.au/lant/hansard/hansard12.nsf/WebbySubject/4F84E713E3F06F1F69257B2700054889op endocument [Last accessed: 22 May 2013]. 169
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REPORT MANDATORY SENTENCES (LRC 108
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
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TABLE OF CONTENTS TABLE OF LEGISLAT
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CHAPTER 5 (1) Presumptive Minimum S
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Pg N o . Criminal Code Act 1899 (Ql
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Pg N o . Misuse of Drugs Act 1971 c
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TABLE OF CASES Pg N o . Attorney Ge
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Pg N o . The People (DPP) v Barry T
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Pg N o . The People (DPP) v Kelly C
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INTRODUCTION A Background: Request
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sentences for offences committed wh
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1 CHAPTER 1 CONCEPTUAL FRAMEWORK FO
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from loss of liberty is clearly evi
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3. Criminal conduct will, in genera
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1.19 In the context of preventing f
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and vocational programmes. 39 Suppo
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standards, recognising that these m
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he lost his post, pension and pay-r
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(i) Identifying the range of applic
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1.58 In general, however, the court
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Thus, depending on the presence of
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matters. She lost interest in study
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of the person who must pay it. In t
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(9) Whether the offence was committ
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e put through the additional suffer
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(1) The Problem of a Lack of Struct
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conviction that restricted employme
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and to hold public seminars on matt
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A mechanism based on measures being
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since 1996; and (iii) information i
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which captured adverse public atten
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compromise which failed to achieve
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2.16 It may be recalled that the ma
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y law and applicable in all cases w
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ody under Article 5(4). As the Secr
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irrespective of whether the sentenc
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2.45 In Attorney General for Northe
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five years. This was made permanent
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penalty or suspending it for an exp
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protection from those with murderou
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an application for release under Ar
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2.87 The Supreme Court upheld the d
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independent judicial body which wou
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whether the life prisoner poses a c
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offences became extremely unpopular
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who rarely had large quantities of
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2.124 The Crime (Sentences) Act 199
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and suppliers. 300 It was proposed
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Bill which would, among other matte
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(2) Mandatory Sentences for Firearm
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(b) England and Wales 2.154 In 2002
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filtered into the public domain. Th
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now applied to a range of drug and
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D Historical Evolution of Mandatory
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supervision should be liable to one
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“These are unduly weak provisions
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offender is being sentenced for any
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2.208 Section 24 of the 2007 Bill p
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proportionality and judicial discre
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2.220 The Commission notes that an
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the Prison Rules 2007. 5 This mecha
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the case of a prisoner serving a ma
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e released. These recommendations w
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considers that the seriousness of t
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then adjusted to reflect the aggrav
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3.37 In three jurisdictions (the No
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(8) Summary 3.43 From this survey,
Page 142 and 143: (b) The Principle of Proportionalit
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Page 146 and 147: cannot reflect these variations in
Page 148 and 149: process. In particular, considerati
Page 151 and 152: 4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
Page 153 and 154: (b) Importation 4.08 The first elem
Page 155 and 156: creates a risk of arbitrary and unj
Page 157 and 158: This permits the court to presume,
Page 159 and 160: should apply. Thus, it has been not
Page 161 and 162: injury. 66 An admission voluntarily
Page 163 and 164: 4.44 Section 27(3D)(c)(i) provides
Page 165 and 166: (4) Drug Mules 4.52 The Commission
Page 167 and 168: used, and (b) a vehicle the means o
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Page 179 and 180: 4.117 Minimum sentences are also pr
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Page 185 and 186: in Schedule I or Schedule II to the
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Page 189 and 190: of age. 355 Second, the following o
Page 191: ecent years, it would appear that t
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Page 197 and 198: 4.183 Section 297 of the Criminal C
Page 199 and 200: offences. aims. It is arguable, how
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Page 203 and 204: 4.210 Third, the Commission observe
Page 205 and 206: 4.224 In Chapter 1, the Commission
Page 207: eneficial” response to other form
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Page 214 and 215: institution. For the purposes of th
Page 216 and 217: 5.37 Subject to certain conditions,
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Page 220 and 221: the perpetrator has a previous conv
Page 222 and 223: (iv) Federal Government 5.58 At fed
Page 224 and 225: (f) Australia 5.65 Certain Australi
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Page 228 and 229: 5.79 Division 2A of the Criminal La
Page 230 and 231: would be manifestly unjust. If the
Page 232 and 233: deterrent effect of mandatory sente
Page 234 and 235: treat dissimilar cases differently.
Page 236 and 237: and have therefore been discussed,
Page 239 and 240: 6 CHAPTER 6 SUMMARY OF RECOMMENDATI
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