Please be aware that this page is scheduled for an Update in July 2019 – some information below may be out of date.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:
Nicholas Cowdery AM QC on Principles of SentencingA paper about Mandatory Sentencing and sentencing principles delivered at the University of Sydney Law School in 2014.
Independence of the Judiciary and Mandatory SentencingThe Institute’s resource on the independence of the judiciary discusses the NSW offence Assault Causing Death.
New South WalesRecent ‘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.
- NSW Attorney General Greg Smith on Mandatory Sentencing: November 2013
- Proposed ‘One Punch’ laws and additional mandatory sentences for some violence offences: January 2014
- Proposed expansion of Mandatory Sentencing in NSW for Gun Crime: November 2013
QueenslandThe 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”.
- Life imprisonment for “one punch” attacks with 80% mandatory minimum: March 2014
- Explanation of how the new Mandatory Sentencing Laws in Queensland Work: December 2013
- War on Bikies and the Vicious Lawless Associate Disestablishment Act: December 2013
- Mandatory Sentencing in the Weapons Act: September 2013
Northern TerritoryThere 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.
- Mandatory Sentences for Violence Offences: February 2013
- NT Government Fact Sheet on Mandatory Minimum Sentencing Levels: March 2013
- Mandatory Residential Rehabilitation Treatment for ‘Problem Drinkers’: April 2013
VictoriaThe 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.
- Baseline sentencing for various offences: April 2014
- Mandatory Sentences for Gross Violence Offences: May 2013
- Smart Justice Victoria: Effect of Mandatory Sentencing: February 2013
- Sentencing Advisory Council Victoria Research Paper : August 2008
Western AustraliaThere 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.
- Does Mandatory Sentencing Work? ABC WA: June 2013
- Mandatory Sentencing and Indigenous Australians in WA: August 2013
- Sentencing Loophole to be closed to make sure Mandatory Sentencing Regime “Sticks”: December 2013
- WA Passes mandatory sentence for violent sexual assault burglaries, September 2015
CommonwealthA High Court decision Magaming v The Queen  highlighted the minimum mandatory sentence provisions for people smuggling in the Migration Act.
- High Court on Mandatory Sentencing: October 2013
- Judgement Summary of Magaming v The Queen  HCA 40: October 2013
- National Overview of Mandatory Sentencing Provisions: January 2014