Report on Mandatory Sentences - Law Reform Commission

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the perpetrator has a previous conviction for one of the most serious offences in the criminal calendar, such as murder, attempted murder, rape, child molestation or a felony involving the use of a firearm. 85 5.48 Under the Californian ‘three-strikes’ regime, probation may not be granted for the current offence, nor may execution or imposition of the sentence be suspended for any prior offence. 86 Diversion may not be granted to an offender sentenced under this regime nor will he or she be eligible for commitment to the California Rehabilitation Centre. 87 5.49 Section 667(f)(2) provides that a prosecuting attorney may move to dismiss an allegation of a prior conviction for a strike offence in the furtherance of justice or if there is insufficient evidence to prove the prior conviction. If the court is satisfied that there is insufficient evidence to prove the prior conviction, it may dismiss or strike the allegation. Section 667(g) aims to limit the discretion of system officials by prohibiting the use of prior felony convictions in plea bargaining. 5.50 While the Californian ‘three-strikes’ regime has been eased to some extent by the approval of Proposition 36, the greatly enhanced penalties imposed on second-strike and third-strike offenders continue to render this law severe. The California State Auditor has estimated that those imprisoned under this regime serve sentences which, on average, are nine years longer due to the requirements of the law. 88 Accordingly, certain commentators identify this sentencing scheme as a key contributor to the well-documented problem of overcrowding in Californian prisons. 89 It is notable that, as of April 2009, prisoners serving sentences under this regime comprised approximately 25% of the total inmate population in Californian penal institutions. 90 5.51 In addition to these ‘three-strikes’ provisions, section 667.7 of the Penal Code imposes a mandatory sentencing regime on “habitual offenders”. Under this regime, a “habitual offender” is defined as any person convicted of a felony in which he or she inflicted great bodily injury on another person, or personally used force which was likely to inflict great bodily injury, and who has previously served two or more prison terms for a specified offence. 91 A habitual offender who has served two prior prison terms will receive a life sentence for the current offence and, at a minimum, will not be eligible for parole until 20 years have been served. A habitual offender who has served three or more prior prison terms will receive a sentence of life imprisonment without parole. 5.52 Section 667.71 of the Penal Code establishes a mandatory sentencing regime for habitual sexual offenders. A habitual sexual offender is defined as a person who has previously been convicted of 85 86 87 88 89 90 91 Section 667(e)(C) of the Penal Code. Section 667(c) of the Penal Code. Section 667(c) of the Penal Code. California Department of Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law and a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs (California State Auditor, 2010) at 27. See, for example: Grosskreutz “Strike Three: Even Though California’s Three Strikes Law Strikes out Andrade, There are no Winners in this Game” (2003-2004) 43 Washburn Law Journal 429 at 454-455; and California Department of Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law and a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs (California State Auditor, 2010) at 30. California Department of Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law and a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs (California State Auditor, 2010) at 21. Section 667.7(a) lists at least 20 offences which may trigger this regime. These include: various homicide offences (including murder and manslaughter); sexual offences (including various forms of rape); assault offences (including assault with intent to commit murder and assault with a deadly weapon); and violent property offences (including robbery involving the use of force or a deadly weapon and carjacking involving the use of a deadly weapon). 196
one or more specified sexual offences 92 and who is convicted in the current proceedings of another such offence. Under this regime, a habitual sexual offender must be punished by imprisonment in the state prison for a term of 25 years to life. 5.53 It has been observed that in the majority of cases, the sentencing regime applicable to habitual offenders has been supplanted by the state’s “three-strikes” law. 93 (iii) Georgia 5.54 Section 17-10-7(a) of the Penal Code prescribes a mandatory sentence for an offender convicted of a felony offence, who has previously been convicted of a felony offence in the state or an offence in another American state, which, if committed in Georgia, would be a felony. Under this regime, such an offender must be sentenced to the maximum term prescribed for the current offence provided that, unless otherwise provided by law, the trial judge may in his or her discretion probate or suspend the maximum sentence prescribed for the offence. 5.55 Section 17-10-7(c) prescribes a mandatory sentence in respect of an offender who is convicted of a fourth or subsequent felony, having previously been convicted in Georgia of three felonies, or having been convicted under the laws of another American state of three offences which would be felonies if committed in Georgia. This sentencing regime provides that such an offender must be sentenced to the maximum term provided for the current offence, and will not be eligible for parole until this maximum sentence has been served. 5.56 Distinct from this general class of felonies are 7 offences which have been designated “serious violent felonies” by the Georgia legislature. The offences of murder; armed robbery; kidnapping; rape; aggravated child molestation; aggravated sodomy; and aggravated sexual battery attract a “two-strike” sentencing arrangement. Under section 17-10-7(b)(2) of the Penal Code, an offender convicted of a serious violent felony (for which he or she is not sentenced to death) who has previously been convicted of a serious violent felony in the state, or who has been convicted in another American state of an offence which would be a serious violent felony if committed in Georgia, must receive a sentence of life imprisonment without parole. This sentence may not be suspended, stayed, probated, deferred, or withheld. Such an offender will not be eligible for any form of pardon, parole or early release administered by the State Board of Pardons and Paroles, or any sentence-reducing measure under a program administered by the Department of Corrections, except as may be authorized by any existing or future constitutional provisions. 5.57 Heyer observes that in terms of the number of offences required to trigger a life sentence without parole, “Georgia’s two strikes law is the harshest version of a three strikes law to emerge out of the 1990s... .” 94 The same commentator emphasises, however, that because this regime covers a narrow range of offences, and because these serious, violent offences would attract a lengthy sentence irrespective of the two-strikes law, this regime has not significantly impacted on Georgia’s overall prison population. 95 92 93 94 95 The following offences are listed under section 667.71: “(a) rape… ; (b) spousal rape… ; (c) rape, spousal rape, or sexual penetration, in concert, in violation of section 264.1; (4) Lewd or lascivious act… ; (5) sexual penetration, in violation of subdivision (a) or (j) of Section 289; (6) continuous sexual abuse of a child… (7) sodomy… (8) oral copulation, in violation of subdivision (c) or (d) of Section 288a; (9) kidnapping, in violation of subdivision (b) of section 207; (10) kidnapping… to commit specified sex offenses… ; (11) kidnapping… with the intent to commit a specified sexual offense ; (12) aggravated sexual assault of a child… ; and (13) an offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision.” See: Bill Lockyer, Attorney General, Opinion No. 99-322 (22 December 1999) at 2-3. Heyer “Comparing the Strike Zones of “Three Strikes and You’re Out” Laws for California and Georgia, the Nation’s Two Heaviest Hitters” (2012) 45 Suffolk University Law Review 1217 at 1237. Ibid at 1238. 197
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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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equirements of Article 5(1) were sa
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cannot reflect these variations in
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process. In particular, considerati
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4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
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(b) Importation 4.08 The first elem
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creates a risk of arbitrary and unj
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This permits the court to presume,
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should apply. Thus, it has been not
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injury. 66 An admission voluntarily
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4.44 Section 27(3D)(c)(i) provides
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(4) Drug Mules 4.52 The Commission
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used, and (b) a vehicle the means o
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Page 199 and 200: offences. aims. It is arguable, how
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Page 207: eneficial” response to other form
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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
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