Mandatory Sentencing

Please be aware that this page is scheduled for an Update in July 2019 – some information below may be out of date.

In early 2014, NSW introduced a criminal offence “assault causing death” which carries a minimum mandatory sentence of 8 years imprisonment if the offender is intoxicated. Other states are also currently considering implementing more mandatory sentences. See our booklet on Mandatory Sentencing in NSW for a detailed explanation of assault causing death, and the importance of understanding how sentencing works.

 Nicholas Cowdery AM QC, former Director of Public Prosecutions in NSW, presented a paper at Sydney University on the issue and deals with some of the broader rule of law issues with various kinds of mandatory sentences.

What is a mandatory sentence?

A mandatory sentence is a sentence which provides a mandatory or minimum sentence when is found guilty of a crime. This limits a judge’s discretion, in particular the influence of mitigating and aggravating circumstances, in sentencing. Some mandatory sentences are for “life imprisonment” and specify non parole periods, these generally relate to the crime of murder. However, more numerous are sentences where legislation dictates a minimum sentence that must be issued, though the judge may also choose to impose a heavier sentence if the case warrants it.

There is disagreement in the community and among legal academics about mandatory sentencing. The links below reflect some of the debate in each jurisdiction:

Academic views on  mandatory sentencing as remedysentencing of life imprisonment and the constitutionality of mandatory sentencing provide a deeper analysis of the legal complexities.

Nicholas Cowdery AM QC on Principles of Sentencing

A paper about Mandatory Sentencing and sentencing principles delivered at the University of Sydney Law School in 2014.

Independence of the Judiciary and Mandatory Sentencing

The Institute’s resource on the independence of the judiciary discusses the NSW offence Assault Causing Death.

New South Wales

Recent ‘one punch’ alcohol fuelled assaults and community concern about an escalation in violence in the CBD/Kings Cross area of Sydney have led to the NSW Government proposing a number of changes to sentencing.

Queensland

The Queensland Government introduced mandatory sentences for ‘vicious lawless associates’ in 2013 in response to organised crime. These laws have been vigorously debated and are purported to be the subject of a High Court challenge later in 2014. See RoLIA’s coverage of this issue here. QLD has also introduced a wide ranging strategy to address alcohol fueled violence which involves a mandatory sentence for “unlawful striking causing death”.

Northern Territory

There has been significant debate in the Northern Territory about a suite of laws designed to introduce both a staged mandatory sentencing scheme and mandatory residential alcohol treatment for people placed in protective custody more than three times in one month. This policy has been criticised for targeting Indigenous Australians.

Victoria

The Victorian Government introduced minimum mandatory sentences for ‘gross violence’ offences in 2013 in response to community concerns about penalties for serious violence. ‘Gross violence’ is defined (in part) as being premeditated, in-company, or continuing the act of violence once a person is incapacitated.

Western Australia

There has been a spirited debate in Western Australia about the imposition of mandatory minimum sentences and fixed non-parole periods for a range of offences including assault of a police officer or public official.

Commonwealth

A High Court decision Magaming v The Queen [2013] highlighted the minimum mandatory sentence provisions for people smuggling in the Migration Act.