Report on Mandatory Sentences - Law Reform Commission

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(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]. 200
(iii) Northern Territory 5.70 The Northern Territory provides a presumptive sentencing regime in respect of certain repeat violent offences, as well as repeat violations of a domestic violence order. (I) Second or Subsequent Violent Offences 5.71 Under the Sentencing Act, enhanced presumptive sentences apply in respect of second or subsequent violent offences. First, where an offender who has previously been convicted of a violent offence 121 is subsequently convicted of a crime classified as a “Level 5” 122 offence, he or she must receive a minimum one-year term of imprisonment. 123 Second, an offender convicted of a “Level 3” 124 offence, who has previously been convicted of a violent offence, must receive a minimum three-month sentence. 125 An offender convicted of a “Level 1” 126 offence, who has previously been convicted of a violent offence, must receive a custodial sentence. 127 A sentencing court may not suspend a term of imprisonment imposed in accordance with these provisions. 128 5.72 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. 129 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. 130 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 121 122 123 124 125 126 127 128 129 130 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 78DA 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. Section 78DD of the Sentencing Act, inserted by section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. A “Level 1” offence is defined as “any other violent offence” which does not fall within the scope of the definitions provided for “Level 5”, “Level 4”, “Level 3” and “Level 2” offences. Section 78DF 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. 201
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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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(i) Have 4.74 The meaning of the te
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Misuse of Drugs Act 1977, material
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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 232 and 233: deterrent effect of mandatory sente
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Page 236 and 237: and have therefore been discussed,
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