Report on Mandatory Sentences - Law Reform Commission

(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