Report on Mandatory Sentences - Law Reform Commission

(f)
Australia
5.65 Certain Australian jurisdictions prescribe mandatory or presumptive sentences for specified
repeat offences. The Commission observes, however, that these jurisdictions tend to differ in terms of
the offences to which these sentencing regimes are applied.
(i)
(I)
Commonwealth
People Smuggling
5.66 At federal level, section 236B of the Migration Act 1958 prescribes a mandatory minimum
sentence for a repeat offence of aggravated people smuggling, and a repeat offence involving the
aggravated use of false documents or misleading information in relation to non-citizens. For the purposes
of this regime, a conviction qualifies as a “repeat offence” if, in proceedings after the commencement of
section 236B (whether in the same proceedings relating to the offence or in previous proceedings), a
court: (i) has convicted the person of another of the foregoing offences, or (ii) has found, without
recording a conviction, that the person has committed another such offence. Section 236B specifies that
an offender to whom this regime applies must receive a minimum sentence of 8 years. The court must
also set a non-parole period of five years. This regime will not apply, however, where it is established on
the balance of probabilities that the offender was under the age of 18 years when the offence was
committed.
(ii)
New South Wales
5.67 New South Wales does not impose a mandatory sentencing regime in respect of repeat
offenders. The state does, however, grant sentencing courts the discretion to declare an offender to be a
“habitual criminal”, in which case a minimum penalty will apply.
5.68 Section 4(1) of the Habitual Criminals Act 1957 provides that a sentencing judge may
pronounce any person, aged at least 25 years, to be an “habitual criminal” where he or she is convicted
on indictment, 118 having, on at least two prior occasions, served separate terms of imprisonment as a
consequence of convictions for indictable offences. 119 In these circumstances, a further sentence may
then be imposed on the offender in addition to that applicable for the current offence. This additional term
of imprisonment must be for a period of at least five years and may not exceed 14 years. The judge may
pronounce an offender to be a “habitual criminal” if satisfied that it is expedient with a view to his or her
reformation, or to the prevention of crime, that he or she be detained in prison for a substantial period.
5.69 The Judicial Commission of New South Wales notes that sentencing courts very rarely
pronounce offenders to be “habitual criminals” under the 1957 Act. 120
118
119
120
Section 4(2) clarifies that this regime may also apply in respect of an offender convicted summarily of an
indictable offence punishable summarily only with his or her consent (provided that the other necessary
criteria are fulfilled). Where such an offender is convicted summarily before a Magistrate, the Magistrate may
- in addition to passing sentence for the instant crime - direct that an application be made by a registrar of the
District Court to a judge to have the offender pronounced to be an habitual offender.
Section 4(3) of the Habitual Criminals Act 1957 clarifies that this sentencing regime may apply regardless of
whether the previous convictions or terms of imprisonment took place in New South Wales and regardless of
whether they occurred before or after the commencement of the Act. The regime may also apply irrespective
of whether any previous term of imprisonment was served as a consequence of a conviction for an indictable
offence committed before or after any previous pronouncement of the individual as a habitual offender under
this Act, or the Habitual Criminals Act 1905–1952. For the purposes of this regime, “indictable offences” will
not, however, include indictable offences that were dealt with summarily without the consent of the offender.
Judicial Commission of New South Wales Sentencing Bench Book at paragraph 2-250. Available at:
www.judcom.nsw.gov.au/publications/benchbks/sentencing/purposes_of_sentencing.html#content [Last
accessed: 22 May 2013].
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