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Mandatory Sentencing

Mandatory Sentencing. Charlotte Baker HSC Legal Studies. DEFINITION. Mandatory sentencing refers to the practice of parliament setting a fixed penalty for the commission of a particular criminal offence ( The Australian Institute for Criminology ). HISTORY.

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Mandatory Sentencing

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  1. Mandatory Sentencing Charlotte Baker HSC Legal Studies

  2. DEFINITION • Mandatory sentencing refers to the • practice of parliament setting a fixed • penalty for the commission of a • particular criminal offence • (The Australian Institute for Criminology)

  3. HISTORY • Began in Australian in the Northern Territory in 1995, with mandatory sentencing for property offences • First introduced in the United States of America in 1952, for various drug offences under the Boggs Act • Britain in 1965, introduced mandatory life imprisonment for murder after the abolishment of the death penalty.

  4. WESTERN AUSTRALIA • Criminal Code Amendment (No. 2) Act 1996 (WA) • 14 days for the first offence, 28 days for the second offence and one year for the third offence • Property offences include: burglary, breaking and entering and robbery

  5. WESTERN AUSTRALIA II • Criminal Code Amendment Act 2009 (WA) • Mandatory gaol term: • 6 months- bodily harm public officers • 1 year- grievous bodily harm to public officers • Public officer: police officers, paramedics, prison guards and public transport guards

  6. NEW SOUTH WALES • Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW) • Mandatory life imprisonment for the trafficking of a commercial amount of heroin or cocaine • Only imposed if: • act involved a high degree of planning and organisation • a number of people under the offender’s direction • The offender must be solely or principally responsible for planning, organising and financing the offence • Offender only committed the offence for financial reward • The cocaine or heroin was of a high purity

  7. NORTHERN TERRITORY • Sentencing Act 1995 (NT) • A term of imprisonment for: • Violent offences such as: assault, aggravated assault, attempted murder and aggravated robbery. • Sexual offences such as: sexual assault and aggravated sexual assault

  8. LIFE FOR MURDER • Many states have mandatory life imprisonment for the offence of murder: • Northern Territory Sentencing Act 1995 (NT) • South Australia Criminal Law (Sentencing) (Dangerous Offenders) Amendment Bill 2007 • Queensland Criminal Code 1989 section 305 • New South Wales Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW)

  9. FEDERAL • Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002 • If an adult is convicted of people smuggling asylum seekers to Australia they will receive: • mandatory minimum of 3 years imprisonment for their first offence • mandatory minimum of 5 years for their second offence

  10. BENY AND TAHIR • Two poor farmers were convicted of people smuggling receiving five year jail term, minimum to serve three years • Boat exploded off the shore of Northern Territory • Mitigating situation: bribed AUS$540, unaware of consequences resulting in the two men becoming victims themselves

  11. REFORMS • Tasmania is discussing the introduction of public officer assault laws, similar to those in Western Australia. • (Mandatory sentencing for assaults against police and emergency service workers)

  12. CRITICISMS • Mandatory sentencing has received criticism from many highly recognised legal bodies: • Australian Lawyers Alliance • Australian Institute for Criminology • Australian Human Rights Commission • Lawyers and judges from all of the country and the world • Prime Minister Kevin Rudd

  13. EFFECTIVENESS OF THE JUSTICE SYSTEM-NEGATIVE • Reduces an individual’s access to the legal system: • Cases spend longer being heard • Less guilty pleas • Does not allow for mitigating circumstance to be considered within sentencing

  14. EFFECTIVENESS OF THE JUSTICE SYSTEM-NEGATIVE II • Removes judicial discretion within the sentencing process • ‘Retention of judicial discretion in the sentencing of offenders was a cardinal principle of any democratic society’ • Chair of the Australian Lawyers Alliance • More expensive, increases numbers in jails • Higher demand and pressure within jails

  15. EFFECTIVENESS OF THE JUSTICE SYSTEM-NEGATIVE III • International Covenant on Civil and Political Rights (ICCPR) • Provides that sentences must be reviewable by a higher tribunal • This is broken under mandatory sentencing legislation in Western Australia

  16. EFFECTIVENESS OF THE JUSTICE SYSTEM- POSITIVE • Individuals have an increased feeling of protection • Harsher punishments deter some individuals from committing crimes • Western Australian “three strikes and you’re out” laws deter previous offenders from reoffending

  17. EFFECTIVENESS OF THE JUSTICE SYSTEM- POSITIVE II • Consistency within sentencing, as the penalties for a written law is the same for each individual- equality of outcome • Creates inequality as circumstances are not always the same, and therefore the penalty should not always be the same

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