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Mandatory Sentencing Laws In Western Australia

Although the criminal law in WA prescribes minimum and maximum penalties that can be imposed for criminal offences, the courts in our state are generally afforded a wide discretion to determine the appropriate penalty at a sentencing hearing. Increasingly though, parliaments across Australia have introduced mandatory sentencing laws.

Mandatory sentencing laws mean that parliament prescribe the penalty to be imposed for particular offences and the discretion of the courts is, in these circumstances, taken away. The rationale behind mandatory minimum sentences is to ensure that penalties imposed by the courts meet public expectations. Parliament has targeted certain types of offences to be subject to mandatory sentencing in order to lift the penalties that are being imposed by the courts and to set new sentencing standards.

Types of Mandatory Sentences

Some mandatory sentences are for “life imprisonment” and specify non-parole periods. Other mandatory sentences involve situations where the legislation dictates a minimum sentence that must be imposed, although the judge may also choose to impose a tougher sentence if the case warrants it.

Convictions for serious sexual or physical assaults perpetrated during a burglary now carry a mandatory 75 per cent of the maximum penalty. Assaulting and causing bodily injury to a police officer now carries a minimum mandatory sentence of 6 months imprisonment as does driving a motor vehicle recklessly so as to escape the pursuit of police. Western Australian law also imposes a minimum term of imprisonment for repeat burglary offenders. An adult offender with two prior convictions for burglary must, upon the third conviction, be sentenced to at least two years imprisonment.

None of the offences noted above allow for the term of imprisonment to be suspended.

The Problems with Mandatory Sentencing Laws

The most recognised problem with mandatory sentencing laws is that the laws don’t take into account the different circumstances of each individual offence. The personal circumstances and antecedents of an offender are never going to be the same. Sentencing matters should turn on both the factual matrix and the personal circumstances of the offender. The “one sentence suits all” is misguided and can lead to unfairness and prejudice.

The offence of burglary, for example, covers a wide range of conduct and, given the variance in the nature and gravity of conduct involving burglary offences, the mandatory minimum sentences create difficulties. The difficulties have previously been recognised by the Australian Human Rights Commission, in an example of a young offender:

Although the legislation assumes that every offence of home burglary is equally serious, home burglary covers a wide range of circumstances. In one case, a 12-year-old Aboriginal boy from a regional area, with a history of welfare intervention, educational problems and substance abuse, was sentenced to 12 months detention for entering a house in company with others and taking a wallet containing $4.00. His previous burglaries consisted of entering a laundry room in a hotel where nothing was removed and a school canteen where a can of soft drink was taken.

Critics of the mandatory sentencing practices highlight other areas of concern and in particular that:

    • Mandatory sentencing displaces discretion in sentencing to other parts of the criminal justice system, most notably to police and prosecutors;
    • Mandatory sentencing denies the operation of the principle of ‘imprisonment as a last resort’;
    • Mandatory sentencing takes away the incentive for a person charged to plead guilty, resulting in protracted criminal proceedings and an increase in the workload of the courts and the criminal justice system;
    • Mandatory sentencing does not operate as a deterrence to offending, and may even increase the likelihood of reoffending because imprisonment serves to diminish employment prospects, positive peer association, and other protective factors that help prevent reoffending.

If you have been charged with an offence that carries a mandatory sentence, call me at the Law Office of Andrew Williams on 08 9278 2575. You may have a defence to your charge. Or you may be able to negotiate an alternate charge that does not carry a mandatory sentence. I am determined in my pursuit of the best outcome for my clients. My straight forward, no-nonsense advice and committed approach has earned me the reputation have today.

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