8.3 Mandatory sentencing laws require that judicial officers deliver a minimum or fixed penalty (for the purposes of this Report, a term of imprisonment) upon conviction of certain offences on an offender. While, mandatory sentencing laws are found in most Australian jurisdictions in various forms, they are a departure from the standard approach to legislating the sentence for criminal offences in Australia. The standard approach is to provide a maximum penalty that may be imposed upon conviction, based on the parliament’s assessment of the relative severity of the offence. This approach leaves sentencing courts to assess and determine the appropriate sentence in each individual case up to, and including, the maximum.
8.4 The removal of the usual discretion of the court to consider mitigating factors or to utilise alternative sentencing options to deal with an offender are defining features of such provisions. Mandatory sentencing laws may apply to certain offences, or to particular types of offenders—for example, repeat offenders.
8.5 Presumptive minimum sentences can have a similar effect to mandatory minimum sentence, so much so, that stakeholders to this Inquiry generally grouped issues relating to mandatory and presumptive sentencing together. While mandatory sentencing provisions tend to entirely limit judicial discretion in relation to sentencing, offences with presumptive penalties allow for judicial discretion in sentencing, but only if ‘there is a demonstrable reason—which may be broadly or narrowly defined’. Aboriginal Legal Service of WA (ALSWA) raised the presumptive penalty in relation to s 61A of the Restraining Orders Act 1997 (WA), which related to repeated breach of violence restraining orders (VROs).
8.6 ALSWA noted that:
The sentencing court can deviate from the presumptive penalty if imprisonment or detention would be ‘clearly unjust’ given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of a person protected by the order or the community generally.
8.7 Parliaments have tended to regard fixed or minimum penalty provisions as a means of addressing community concerns that sentences handed down by the courts are too lenient when sentencing offenders. The arguments put in favour of mandatory or presumptive sentencing provisions include that they:
- promote consistency in sentencing;
- deter individuals from offending;
- denounce the proscribed conduct;
- ensure appropriate punishment of the offender; and
- protect the community through incapacitation of the offender.
8.8 There is evidence that mandatory sentencing increases the incarceration rate. For example, the Senate Legal and Constitutional Affairs Reference Committee noted that:
The Chief Magistrate of the Northern Territory provided the committee with evidence of incarceration rates as a result of the imposition of mandatory sentencing in the Northern Territory during the period 1997 to 2001. The Chief Magistrate noted that the imprisonment rate was 50 per cent higher during this period than following repeal of the laws. Non-custodial orders such as home-detention and community work were almost unused for property offences during the mandatory sentencing era.
8.9 Stakeholders also noted that mandatory or presumptive penalty provisions:
- are ineffective—there is little evidence that mandatory sentences act as deterrents;
- constrain the exercise of judicial discretion;
- heighten the impact of charging decisions that are within the discretion of police and prosecutors;
- contradict the principles of proportionality and ‘imprisonment as a last resort’; and
- reduce incentives to enter a plea of guilty, resulting in increased workloads for the courts.
8.10 The North Australian Aboriginal Justice Agency (NAAJA) submitted that, mandatory sentencing law focus ‘on punitive and retributive aspects of sentencing and the fallacy of crime prevention through deterrence.’ The National Association of Community Legal Centres (NACLC) submitted that mandatory sentencing laws ‘are arbitrary and undermine basic rule of law principles by preventing courts from exercising discretion and imposing penalties tailored appropriately to the circumstances of the case and the offender.’
8.11 Similarly, Kingsford Legal Centre noted that:
Mandatory sentencing undermines the fundamentals of the Australian legal system such as the Rule of Law and is inconsistent with the separation of powers, by allowing the executive branch of government to direct the exercise of judicial power and to limit judicial discretion. Mandatory sentences also contradict a number of sentencing principles, such as that Courts must have regard to the gravity of the offence, the impact on the victim, and the circumstances of the offending and the accused when imposing a sentence. In particular, mandatory sentences which impose a sentence of imprisonment go against the presumption that imprisonment should be a measure of last resort and only where no other sentencing option is sufficient.
8.12 The Criminal Lawyers Association of NT (CLANT) and NT Legal Aid, referred to Mildren J’s description of prescribed mandatory minimum sentences as the ‘very antithesis of just sentences’ in the NT Supreme Court matter of Trennery v Bradley. Mildren J went on to say that
if a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case. 
8.13 While increasing incarceration, there is no evidence that mandatory sentencing acts as a deterrent and reduces crime. In fact, Victorian Aboriginal Legal Service (VALS) suggested that:
As opposed to providing a deterrent, the impact of mandatory minimum sentences and terms of incarceration for youth means a rise criminogenic behaviour learned within the prison system.
8.14 The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted that such regimes can result in ‘serious miscarriages of justice’:
Mandatory sentencing regimes are not effective as a deterrent and instead contribute to higher rates of reoffending. In particular, [they] fail to deter persons with mental impairment, alcohol or drug dependency or persons who are economically or socially disadvantaged. They also have no rehabilitative value, disrupt employment and family connections … and diminish the prospects of people re-establishing social and employment links post release. Significantly, mandatory sentencing prevents the court from taking into account the individual circumstance of the person, leading to unjust outcomes. This is an arbitrary contravention of the principles of proportionality and necessity, and mandatory detention of this kind violate a number of provisions of the International Convention on Civil and Political Rights.
8.15 Stakeholders noted that many mandatory and presumptive sentencing provisions disproportionately impact upon vulnerable groups, including Aboriginal and Torres Strait Islander peoples. In 2008 and 2014, the UN Committee Against Torture, in its regular reviews of Australia’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recommended that Australia abolish mandatory sentencing due to its ‘disproportionate and discriminatory impact on the [I]ndigenous population.’ Kingsford Legal Centre explained that:
a number of the crimes in Australian jurisdictions to which a mandatory sentence is attached are ’crimes of poverty’ relating to property offences and theft. As a result, mandatory sentences have a discriminatory impact on people of a low socio-economic status and particular racial groups, including Aboriginal and Torres Strait Islander people.
8.16 The NT Anti-Discrimination Commissioner urged the ‘repeal of mandatory sentencing provisions as they do not make our communities safer and have disproportionate impact on Aboriginal and Torres Strait Islander people.’ The NACLC submitted that:
Of particular concern is the disproportionate impact on Aboriginal and Torres Strait Islander peoples in light of the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system.
This chapter does not consider strict liability offences.
See, eg, Migration Act 1958 (Cth) s 236B; Crimes Act 1900 (NSW) 1900 s 19B(4); Criminal Law Consolidation Act 1935 (SA) s 11; Misuse of Drugs Act (NT) s 37(2); Sentencing Act (NT) s 78F; Domestic and Family Violence Act (NT) s 121(2); Crimes Act 1958 (Vic) ss 15A, 15B; Road Traffic Act 1974 (WA) ss 60, 60B(3); Criminal Code Act Compilation Act 1913 (WA) ss 297, 318.
See ch 6.
Sisters Inside, Submission 119; Northern Territory Government, Submission 118; North Australian Aboriginal Justice Agency, Submission 113; Law Society of Western Australia, Submission 111; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Law Council of Australia, Submission 108; NSW Bar Association, Submission 88; Change the Record Coalition, Submission 84; Aboriginal Legal Service of Western Australia, Submission 74; Aboriginal Legal Service (NSW/ACT), Submission 63; Caxton Legal Centre, Submission 47; Victorian Aboriginal Legal Service, Submission 39; Legal Aid WA, Submission 33.
NSW Parliamentary Research Service, Mandatory Sentencing Laws (2014) 2.
Aboriginal Legal Service of Western Australia, Submission 74.
Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014, NSW Parliamentary Debates, Legislative Assembly, 30 January 2014, 26621-5 (Barry O’Farrell, Premier).
For a detailed discussion on these points, and the Law Council’s response to them, see Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (2014).
Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Value of a Justice Reinvestment Approach to Criminal Justice in Australia (2013) [2.37].
Chester v The Queen (1988) 165 CLR 611.
See for example Crimes (Sentencing) Act 2005 (ACT) s 10; Crimes Act 1914 (Cth) s 17A; Crimes (Sentencing Procedure) Act 1999 (NSW) s 5; Penalties and Sentences Act 1992 (Qld) s 9(2)(a)(i); Criminal Law (Sentencing) Act 1988 (SA) s 11; Sentencing Act 1991 (Vic) ss 5(4)-5(4C); Sentencing Act 1995 (WA) ss 6(4), 86. See ch 6.
See, eg, Victorian Aboriginal Legal Service, Submission 39; The Light Bulb Exchange, Submission 44; Caxton Legal Centre, Submission 47; International Commission of Jurists Victoria, Submission 54; Australian Lawyers for Human Rights, Submission 59; Aboriginal Legal Service (NSW/ACT), Submission 63; Human Rights Law Centre, Submission 68; Criminal Lawyers Association of the Northern Territory, Submission 75; National Association of Community Legal Centres, Submission 94.
North Australian Aboriginal Justice Agency, Submission 113.
National Association of Community Legal Centres, Submission 94.
Kingsford Legal Centre, Submission 19.
Criminal Lawyers Association of the Northern Territory, Submission 75; Northern Territory Legal Aid Commission, Submission 46; North Australian Aboriginal Justice Agency, Submission 113.
Trenerry v Bradley (1997) 6 NTLR 175.
See, eg, Michael Tonry, ‘The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings’ (2009) 38(1) Crime and Justice 65.
Victorian Aboriginal Legal Service, Submission 39.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
See, eg, Criminal Lawyers Association of the Northern Territory, Submission 75; Aboriginal Legal Service of Western Australia, Submission 74; Human Rights Law Centre, Submission 68; Northern Territory Legal Aid Commission, Submission 46; Community Legal Centres NSW and the Community Legal Centres NSW Aboriginal Advisory Group, Submission 95.
UN Committee against Torture, Concluding Observations of the Committee against Torture: Australia, UN Doc CAT/C/AUS/CO/3 (2008).
Kingsford Legal Centre, Submission 19.
Northern Territory Anti-Discrimination Commission, Submission 67.
National Association of Community Legal Centres, Submission 94.