Report on Mandatory Sentences - Law Reform Commission

coerced the offender to commit the offence. 131 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 in respect of
him or her. 132 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. 133
(II)
Repeat Violations of Domestic Violence Order
5.73 Section 121 of the Domestic and Family Violence Act 2007 prescribes a presumptive minimum
sentence of 7 days’ imprisonment for a second or subsequent violation of a domestic violence order by an
adult. This minimum penalty does not apply, however, if no harm was caused and if the court is satisfied
that it is not appropriate to record a conviction and to sentence the person in the circumstances of the
offence. 134 Section 122 applies the same presumptive minimum penalty to an offender aged between 15
and 18 years who breaches a domestic violence order, having previously been convicted of this offence.
Once again, the presumptive minimum sentence does not apply if no harm was caused and if the court is
satisfied that it is not appropriate to record a conviction and to sentence the person in the circumstances
of the offence, including, as a result of the age of the offender.
(iv)
(I)
Queensland
Serious Child Sex Offences
5.74 Part 9B of the Penalties and Sentences Act 1992 135 prescribes a mandatory sentence for an
offender convicted of a repeat serious child sex offence. A “serious child sex offence” is an offence listed
in Schedule 1A to the Act, 136 committed against a child under the age of 16 years, and in circumstances
in which an offender convicted of the offence would be liable to life imprisonment. Counselling or
procuring the commission of such an offence also qualifies as a serious child sex offence. 137
5.75 This sentencing regime applies where an offender with a prior conviction for a serious child sex
offence is convicted of a subsequent serious child sex offence. 138 The offender must have committed
both the prior and subsequent offences when he or she was an adult. 139 Such an offender, despite any
other penalty imposed by the Criminal Code, is liable to a life sentence which cannot be mitigated or
varied under any law, or is liable to an indefinite sentence which shall continue until a court orders, upon
131
132
133
134
135
136
137
138
139
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 121(3) of the Domestic and Family Violence Act 2007. This provision came into force on 1 July 2008.
Under previous legislation there was no proviso regarding the non-application of the presumptive minimum
sentence.
Inserted by Part 3 of the Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012.
The offences listed in Schedule 1A are: (i) unlawful sodomy; (ii) owner etc. permitting abuse of children on
premises; (iii) carnal knowledge with or of children under 16; (iv) taking child for immoral purposes; (v) incest;
(vi) maintaining a sexual relationship with a child; (vii) rape; (viii) sexual assaults; (ix) unlawful anal
intercourse; (x) incest by man; and (xi) carnal knowledge of girls under 16.
Section 161D of the Penalties and Sentences Act 1992, inserted by Part 9B of the Criminal Law (Two Strike
Child Sex Offenders) Amendment Act 2012.
Section 161E of the Penalties and Sentences Act 1992, inserted by Part 9B of the Criminal Law (Two Strike
Child Sex Offenders) Amendment Act 2012.
Section 161E(1)(a) of the Penalties and Sentence Act 1992, inserted by Part 9B of the Criminal Law (Two
Strike Child Sex Offenders) Amendment Act 2012.
202