Published by Geoff Harrison | 27 October 2023
Both the Commonwealth and NSW Parliaments over the years have fettered the Court's discretion in relation to a number of offences by imposing mandatory or mandatory minimum sentences. Offences that are caught by mandatory sentences include:
Murder - Life Imprisonment, where the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence: s61 Crimes (Sentencing Procedure) Act 1999.
Large Commercial Supply of Heroin or Cocaine - Life Imprisonment: s61(2) Crimes (Sentencing Procedure) Act 1999.
Assault causing death - Mandatory minimum of 8 years imprisonment where the offender was intoxicated: s25B(1) Crimes Act 1900.
Commonwealth Prescribed Offences against Children: See link to s16AAA Crimes Act 1914 (Cth) below.
People Smuggling Offences - Mandatory minimum of 8 years for aggravated people smuggling or for repeat offenders: s236B Migration Act 1958 (Cth).
For Commonwealth offences that prescribe a statutory minimum sentence, the court is to treat the statutory minimum sentence as the starting point of the sentence or the baseline: See R v Delzotto and Bahar v The Queen; as opposed to a two-stage approach where the minimum sentence only applies if the ultimate sentence would have fallen below the statutory minimum.
The author is strongly against mandatory minimum sentence for offences other than murder - the author has been briefed in matters where the objective seriousness of the offence did not warrant the mandatory minimum sentence eg. the offence was committed by talking over the phone.
Other Sources:
Second Reading Speech re the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth)
Second Reading Speech: Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 (NSW)
NSW Parliament eBrief: Mandatory Sentencing Laws: by Lenny Roth
Public Defenders Conference 2013: People Smuggling in NSW by Phillip Boulten SC & Angela Cook
Cases:
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Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 61
Mandatory life sentences for certain offences
(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
(2) A court is to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and the court is also satisfied that--
(a) the offence involved--
(i) a high degree of planning and organisation, and
(ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and
(b) the person was solely or principally responsible for planning, organising and financing the offence, and
(c) the heroin or cocaine was of a high degree of purity, and
(d) the person committed the offence solely for financial reward.
(3) Nothing in subsection (1) affects section 21 (1).
(4) Division 1 of Part 3 of this Act and section 33A (2) of the Drug Misuse and Trafficking Act 1985 do not apply if the court is satisfied that the circumstances referred to in subsection (2) exist.
(5) Nothing in subsection (2) limits or derogates from the discretion of a court to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence.
(6) This section does not apply to a person who was less than 18 years of age at the date of commission of the offence.
(7) In this section--
"heroin" has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.
"serious heroin or cocaine trafficking offence" means an offence under section 25 (2) or (2A) of the Drug Misuse and Trafficking Act 1985 involving heroin or cocaine, and being an offence to which section 33 (subsection (2) excepted) of that Act applies.
CRIMES ACT 1900 - SECT 25A
Assault causing death
(1) A person is guilty of an offence under this subsection if--
(a) the person assaults another person by intentionally hitting the other person with any part of the person's body or with an object held by the person, and
(b) the assault is not authorised or excused by law, and
(c) the assault causes the death of the other person.
Maximum penalty--Imprisonment for 20 years.
(2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated.
Maximum penalty--Imprisonment for 25 years.
(3) For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.
(4) In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable.
(5) It is a defence in proceedings for an offence under subsection (2)--
(a) if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or
(b) if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment).
(6) In proceedings for an offence under subsection (2)--
(a) evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused's breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and
(b) the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division that there was present in the accused's breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.
(7) If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly.
(8) If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly.
(9) Section 18 does not apply to an offence under subsection (1) or (2).
(10) In this section,
"cognitive impairment" includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury.
CRIMES ACT 1900 - SECT 25B
Assault causing death when intoxicated--mandatory minimum sentence
(1) A court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under section 25A (2). Any non-parole period for the sentence is also required to be not less than 8 years.
(2) If this section requires a person to be sentenced to a minimum period of imprisonment, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period).
(3) Nothing in this section (apart from subsection (2)) affects the provisions of the Crimes (Sentencing Procedure) Act 1999 or any other Act or law relating to the sentencing of offenders.
(4) Nothing in this section affects the prerogative of mercy.
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CRIMES ACT 1914 - SECT 16AAC
Exclusions and reductions--minimum penalties
People aged under 18
(1) Section 16AAA and subsection 16AAB(2) do not apply to a person who was aged under 18 years when the offence that the relevant provision specifies a minimum penalty for was committed.
Reduction of minimum penalty
(2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;
(b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
(3) If a court may reduce a sentence, the court may reduce the sentence as follows:
(a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty--by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence--by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(c) if the court is taking into account both of the matters in paragraphs (a) and (b)--by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.
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MIGRATION ACT 1958 - SECT 236B
Mandatory minimum penalties for certain offences
(1) This section applies if a person is convicted of an offence against section 233B, 233C or 234A.
(2) This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
(3) The court must impose a sentence of imprisonment of at least:
(a) if the conviction is for an offence against section 233B-- 8 years; or
(b) if the conviction is for a repeat offence--8 years; or
(c) in any other case--5 years.
(4) The court must also set a non-parole period of at least:
(a) if the conviction is for an offence to which paragraph (3)(a) or (b) applies--5 years;
(b) in any other case--3 years.
(5) A person's conviction for an offence is for a repeat offence if:
(a) in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:
(i) has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or
(ii) has found, without recording a conviction, that the person has committed another such offence; or
(b) in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:
(i) has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or
(ii) has found, without recording a conviction, that the person has committed another such offence.
(6) In this section:
"non-parole period" has the same meaning as it has in Part IB of the Crimes Act 1914.
MIGRATION ACT 1958 - SECT 233B
Aggravated offence of people smuggling (danger of death or serious harm etc.)
(1) A person (the first person ) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence ) in relation to another person (the victim ) and either or both of the following apply:
(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment (within the ordinary meaning of that expression);
(c) in committing the underlying offence:
(i) the first person's conduct gives rise to a danger of death or serious harm to the victim; and
(ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
(2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.
(3) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.
(4) In this section:
"serious harm has the same meaning as in the Criminal Code".
MIGRATION ACT 1958 - SECT 233C
Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person ) commits an offence if:
(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons ); and
(b) at least 5 of the other persons are non-citizens; and
(c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
(2) Absolute liability applies to paragraph (1)(b).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3) If, on a trial for an offence against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;
the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
MIGRATION ACT 1958 - SECT 234A
Aggravated offence of false documents and false or misleading information etc. relating to non-citizens (at least 5 people)
(1) A person must not, in connection with:
(a) the entry or proposed entry into Australia, or the immigration clearance, of a group of 5 or more non-citizens (which may include that person), or of any member of such a group; or
(b) an application for a visa or a further visa permitting a group of 5 or more non-citizens (which may include that person), or any member of such a group, to remain in Australia;
do any of the following:
(c) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document that the person knows is forged or false;
(d) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular;
(e) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise give, or cause to be given, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
(2) A person must not transfer or part with possession of a document or documents:
(a) with the intention that the document or documents be used to help a group of 5 or more people, none of whom are entitled to use the document or documents, or any member of such a group, to gain entry into or remain in Australia, or to be immigration cleared; or
(b) if the person has reason to suspect that the document or documents may be so used.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
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