Report on Mandatory Sentences - Law Reform Commission

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5.79 Division 2A of the Criminal Law (Sentencing) Act 1988 permits sentencing courts to declare an offender to be a “serious repeat offender” 146 where he or she (whether as an adult or as a youth) has been convicted of a “serious offence” 147 on at least three separate occasions. The offender must have received a sentence of imprisonment (other than a suspended sentence) for those offences or, if a penalty has yet to be imposed, a sentence of imprisonment (other than a suspended sentence) must be the appropriate penalty. Alternatively, this declaration may be made in respect of an offender who (whether as an adult or as a youth) has committed and been convicted on at least two separate occasions of a “serious sexual offence” 148 against a person under the age of 14 years. An offence will not be regarded as a “serious offence” or a “serious sexual offence” unless the maximum penalty prescribed is, or includes, a term of imprisonment of at least five years. 5.80 If a person is convicted of a serious offence or a serious sexual offence and he or she is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a “serious repeat offender”, the court: (a) must consider whether to make that declaration, and (b) if of the opinion that his or her history of offending warrants a particularly severe sentence in order to protect the community, should make that declaration. Where the declaration is made or where the offender has previously been declared a “serious repeat offender”: (a) the court is not bound to ensure that the sentence it imposes is proportionate to the current offence, and (b) any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence. (iv) Tasmania 5.81 Tasmania does not appear to prescribe a mandatory sentence for any repeat offence. (v) Victoria 5.82 Victoria does not appear to prescribe a mandatory or presumptive sentencing regime for any second or subsequent offence. Part 2A of the Sentencing Act 1991 does, however, permit a sentencing court to impose a sentence on an offender who has previously been convicted of two or more sexual offences (for which he or she received a sentence of imprisonment or detention in a youth justice centre) which is not proportionate to the immediate offence. The Act specifies that when sentencing such an offender, the court must regard the protection of the community as the principal purpose for which the sentence is imposed. 149 146 147 148 149 Division 2A also establishes a parallel sentencing regime whereby a youth may be declared to be a “recidivist young offender.” Section 20A of the Criminal Law (Sentencing) Act 1988 defines a “serious offence” as: (a) a serious drugs offence; (ab) an offence against a law of the Commonwealth dealing with the unlawful importation of drugs into Australia; (b) one of the following offences: (i) an offence under Part 3 of the Criminal Law Consolidation Act 1935; (ii) robbery or aggravated robbery; (iii) home invasion; (iv) damage to property by fire or explosives; (v) causing a bushfire; (vi) an offence against a corresponding previous enactment substantially similar to any of the foregoing offences; (v) a conspiracy or attempt to commit any of the foregoing offences; (c) an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence; or (d) an offence against the law of another State or a Territory that would, if committed in this State, be a serious offence. Section 20A of the Criminal Law (Sentencing) Act 1988 defines a “serious sexual offence” as any of the following serious offences: (i) an offence against section 48, 48A, 49, 50, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935; (ia) an offence against a corresponding previous enactment substantially similar to any of the aforementioned offences; (ii) an attempt to commit or an assault with intent to commit any of those offences; or (b) an offence against the law of another State or a Territory corresponding to any of the aforementioned offences. Section 6D of the Sentencing Act 1991. 204
(vii) (I) Western Australia Domestic Burglary 5.83 Section 401(4) of the Criminal Code provides that an adult convicted for the third or subsequent time of a home burglary must receive a minimum 12-month sentence of imprisonment. A juvenile convicted of this offence for the third or subsequent time must receive a minimum 12-month term of imprisonment or detention. The Aboriginal Justice Council has noted that this mandatory sentence has had no impact on burglary rates but has had a disproportionate impact on Aboriginal offenders appearing before the courts. 150 (g) New Zealand 5.84 In New Zealand, a three-stage mandatory sentencing regime applies in respect of repeat serious violent offenders. 151 (i) Serious Violent Offences 5.85 Under section 86B of the Sentencing Act 2002, a first warning is issued to an offender who is convicted of a “serious violent offence”, 152 where he or she was at least 18 years of age when the offence was committed, and where he or she did not have any previous warnings under the Act. This first warning must alert the offender to the enhanced consequences (detailed below) which he or she will face if subsequently convicted of another serious violent offence, committed after that warning. 5.86 Section 86C applies to an offender who has received a first warning, but not a final warning, and who is convicted of a subsequent serious violent offence, other than murder. Such an offender must receive a warning detailing the enhanced consequences which will follow if he or she is subsequently convicted of a further serious violent offence, committed after that warning. Additionally, if the sentence imposed on the offender for the current offence is a determinate sentence of imprisonment, the court must order that he or she serve the full term of the sentence. Where the relevant offence is murder, section 86E requires the court to sentence the offender to life imprisonment and order that this sentence be served without parole, unless it is satisfied that, given the circumstances of the offence and the offender, this would be manifestly unjust. If the court does decline to make this order, it must explain its reasons in writing and instead impose a sentence in accordance with section 103 of the Sentencing Act 2002. Section 103 stipulates that the minimum term ordered may not be less than 10 years, and must be the minimum term that the court considers necessary to satisfy all or any of the following purposes: (a) holding the offender accountable for the harm done to the victim and community; (b) denouncing the conduct of the offender; (c) deterring the offender or other persons from committing the same or a similar offence; or (d) protecting the community from the offender. 5.87 Under section 86D, an offender who has received a final warning must, where committed for trial for a subsequent serious violent offence, be committed to the High Court for that trial. If convicted, only the High Court (or the Court of Appeal or Supreme Court on an appeal) may sentence him or her for the offence. The sentence which must be imposed for the current offence, other than where the offence in question is murder, must be the maximum term prescribed for that offence. The court must order that the offender serve the entirety of this sentence without parole, unless it considers that it would be manifestly unjust to make that order, in which case, it must give its reasons in writing. 5.88 If the relevant offence is manslaughter, the court must order that the offender serve a minimum term of 20 years, unless it considers that given the circumstances of the offence and the offender, this 150 151 Morgan, Blagg and Williams Mandatory Sentencing in Western Australia and the Impact on Aboriginal Youth (Aboriginal Justice Council, December 2001). Section 86A to section 86I of the Sentencing Act 2002, inserted by section 6 of the Sentencing and Parole Reform Act 2010. 152 Under section 86A, a “serious violent offence” is defined as including 40 separate offences. Among those listed are various serious sexual offences (including forms of sexual violation and indecent assault); homicide offences (including murder and manslaughter); assault offences (including wounding with intent to injure and aggravated injury); and property offences (including aggravated burglary and robbery). 205
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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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endanger life or cause serious dama
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“appropriate custodial term”, w
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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 207: eneficial” response to other form
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Page 214 and 215: institution. For the purposes of th
Page 216 and 217: 5.37 Subject to certain conditions,
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Page 220 and 221: the perpetrator has a previous conv
Page 222 and 223: (iv) Federal Government 5.58 At fed
Page 224 and 225: (f) Australia 5.65 Certain Australi
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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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