Report on Mandatory Sentences - Law Reform Commission

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4.169 The Commission notes that this presumptive sentencing regime has been criticised by certain commentators who maintain that these provisions are liable to impact disproportionately on Aboriginal offenders. 410 (II) Drug Offences 4.170 Section 37 of the Misuse of Drugs Act provides that a 28-day presumptive minimum sentence must be imposed for a number of drug offences. The court is not required to impose the sentence if, having regard to the particular circumstances of the offence or the offender, the court is of the opinion that the penalty should not be imposed. (III) Sexual Offences 4.171 Under the Sentencing Act, a sentencing court is required to impose a custodial term upon an offender convicted of a specified sexual offence. 411 The sentence imposed may be suspended in part, but not as a whole. 412 (iv) Queensland 4.172 In Queensland, certain firearms offences attract a mandatory minimum sentence of imprisonment. (I) Firearms Offences 4.173 The Weapons Act 1990, as amended, 413 provides that where specific aggravating factors are present, certain firearms offences will attract a mandatory minimum sentence. 4.174 First, the offence of unlawfully possessing a firearm will attract a minimum sentence of either 9 months 414 or 18 months 415 (depending on the weapons involved) where an adult offender uses the firearm 410 411 412 413 414 415 Thompson “Mandatory sentencing regime draws more flak” ABC News 15 February 2013. Available at: www.abc.net.au/news/2013-02-15/mandatory-sentencing-law-reaction/4521380 [Last accessed: 22 May 2013]; “NT’s new sentencing laws attacked” Nine News 15 February 2013. Available at: www.news.ninemsn.com.au/national/2013/02/15/18/01/nt-s-new-sentencing-laws-attacked [Last accessed: 22 May 2013]; and “Prescribed minimum mandatory sentences are the very antithesis of just sentences” Criminal Lawyers Association of the Northern Territory Press Release. Available at: www.clant.org.au/index.php/news [Last accessed: 22 May 2013]. Section 78BB of the Sentencing Act. This sentencing regime will be triggered by the following sexual offences, specified under Schedule 3 to the Act: (i) an offence against section 125B [possession of child abuse material] or 125C [publishing indecent articles] of the Criminal Code, where the offender is an individual; (ii) an offence against section 127 [sexual intercourse or gross indecency involving child under 16 years], 128 [sexual intercourse of gross indecency with child over 16 years under special care], 130 [sexual intercourse or gross indecency by provider of services to mentally ill or handicapped person], 131 [attempts to procure child under 16 years], 131A [sexual relationship with child], 132 [indecent dealing with child under 16 years], 134 [incest] or 138 [bestiality] of the Criminal Code; (iii) an offence against section 188 [common assault] of the Criminal Code, where the circumstance of aggravation specified in section 188(2)(k) exists [indecent assault]; and (iv) an offence against section 192 [sexual intercourse and gross indecency without consent] or section 192B [coerced sexual self-manipulation] of the Criminal Code. Section 78BB(b) of the Sentencing Act. Weapons and Other Legislation Amendment Act 2012. A minimum sentence of 9 months will apply where an offender unlawfully possesses a category A, B or M weapon and uses the firearm to commit an indictable offence. Weapons are categorised under the Weapons Categories Regulation 1997. A minimum sentence of 18 months will apply where an offender: (i) unlawfully possesses 10 or more weapons at least five of which are category D, E, H or R; (ii) unlawfully possesses 10 or more weapons; or (iii) unlawfully possesses a category C or E weapon, and uses the firearm to commit an indictable offence. Weapons are categorised under the Weapons Categories Regulation 1997. 170
to commit an indictable offence. 416 This offence will attract a minimum sentence of either six months 417 or one year 418 where an adult offender unlawfully possesses the firearm for the purpose of committing or facilitating the commission of an indictable offence. 419 A minimum sentence of one year is also prescribed for the unlawful possession of a short firearm in a public place, without a reasonable excuse. 420 Second, the offence of unlawfully supplying weapons will attract a minimum sentence of either two and a half years 421 or three years 422 where at least one of the weapons is a short firearm and the person does not have a reasonable excuse for unlawfully supplying the firearm. 423 Third, the offence of unlawfully trafficking in weapons will attract a minimum sentence of either three and a half years 424 or five years 425 where at least one of the weapons is a firearm and the offender does not have a reasonable excuse for unlawfully carrying on the business. 426 4.175 Section 185B of the Corrective Services Act 2006 427 stipulates that an offender who receives a minimum sentence under the Weapons Act 1990 will not be eligible for parole until the prescribed minimum term has been served. 4.176 The introduction of this minimum sentencing regime was proposed in the aftermath of a series of shootings in South East Queensland. 428 It would appear that most of these high-profile incidents were related to ongoing feuding between rival motorcycle gangs. 429 416 417 418 419 420 421 422 423 424 425 426 427 Section 50(1) of the Weapon Act 1990, as amended by section 15 of the Weapons and Other Legislation Amendment Act 2012. A minimum sentence of six months will apply where the offender unlawfully possesses a category A, B or M weapon for the purpose of committing or facilitating an indictable offence. A minimum sentence of one year will apply where the offender (i) unlawfully possesses 10 or more weapons at least five of which are category D, E, H or R; (ii) unlawfully possesses 10 or more weapons; or (iii) unlawfully possesses a category C or E weapon, for the purpose of committing or facilitating an indictable offence. Weapons are categorised under the Weapons Categories Regulation 1997. Section 50(1) of the Weapon Act 1990, as amended by section 15 of the Weapons and Other Legislation Amendment Act 2012. Ibid. A minimum sentence of two and a half years will apply if the offender: (i) unlawfully supplies a category D, H or R weapon; (ii) the weapon is a short firearm; and (iii) the person does not have a reasonable excuse for unlawfully supplying the weapons. Weapons are categorised under the Weapons Categories Regulation 1997. A minimum sentence of three years will apply if the offender: (i) unlawfully supplies five or more weapons at least one of which is a category D, E, H or R weapon; (ii) at least one of the weapons is a short firearm; and (iii) the person does not have a reasonable excuse for unlawfully supplying the weapons. Weapons are categorised under the Weapons Categories Regulation 1997. Section 50B(1) of the Weapons Act 1990, as amended by section 16 of the Weapons and Other Legislation Amendment Act 2012. A minimum sentence of three and a half years will apply if the offender: (i) unlawfully trafficks a category A, B, C, D or E weapon, a category M crossbow or explosives; (ii) at least one of the weapons is a firearm; and (iii) the offender does not have a reasonable excuse for carrying on the business. Weapons are categorised under the Weapons Categories Regulation 1997. A minimum sentence of five years will apply if the offender: (i) unlawfully trafficks a category H or R weapon; (ii) at least one of the weapons is a firearm; and (iii) the offender does not have a reasonable excuse for carrying on the business. Weapons are categorised under the Weapons Categories Regulation 1997. Section 65(1) of the Weapons Act 1990, as amended by section 17 of the Weapons and Other Legislation Amendment Act 2012. Inserted by Part 2 of the Weapons and Other Legislation Amendment Act 2012. 171
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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,
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(b) The Principle of Proportionalit
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Page 153 and 154: (b) Importation 4.08 The first elem
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Page 161 and 162: injury. 66 An admission voluntarily
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Page 179 and 180: 4.117 Minimum sentences are also pr
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Page 191 and 192: ecent years, it would appear that t
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Page 199 and 200: offences. aims. It is arguable, how
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Page 205 and 206: 4.224 In Chapter 1, the Commission
Page 207: eneficial” response to other form
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Page 216 and 217: 5.37 Subject to certain conditions,
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Page 222 and 223: (iv) Federal Government 5.58 At fed
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Page 228 and 229: 5.79 Division 2A of the Criminal La
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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,
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