Pros and Cons: What is Mandatory Minimum Sentencing in Australia
What is mandatory minimum sentencing in Australia?
Criminal laws at the federal, state, and territory levels typically establish what is mandatory minimum sentencing in Australia, thereby affording courts – namely, judges or magistrates – the discretion to determine proper sentences.
Legislation that prescribes what is mandatory minimum sentencing in Australia typically establishes a predetermined or fixed punishment for a criminal act.
Specific legal statutes may grant judges the authority to exercise discretion in deviating from the prescribed mandatory sentence, whereas others may impose harsher limitations on such choice.
Over the past few years, there has been a growing trend in Australian parliaments to involve themselves in the sentencing process, resulting in a rise in the implementation of mandatory sentences that are pre-determined by law.
The growing number of mandatory sentencing laws indicates a prevailing inclination towards harsher penalties and discontentment with the conventional sentencing framework that affords judges significant discretion in dealing with offenders.
What is Mandatory Minimum Sentencing in Australia, and How Does it Work?
What is mandatory minimum sentencing in Australia, and how does it work?
Mandatory sentencing in Australia works by imposing a predetermined minimum sentence for certain crimes, thus removing or restricting judicial discretion to give a sentence below that threshold.
This approach is intended to ensure a standard, severe penalty for certain crimes to act as a deterrent and express societal condemnation.
However, it’s essential to understand that mandatory sentencing is not uniformly applied across Australia, and each state or territory has specific laws and regulations.
In Western Australia, there’s mandatory sentencing for offenders who commit home burglaries three times.
They receive a minimum sentence of 75% of the maximum penalty or two years imprisonment, whichever is longer.
Northern Territory has mandatory sentencing laws for violent offences, including assaults on police, riots and domestic violence.
Offenders receive at least one month for a first violent offence, three months for a second, and 12 months for a third or subsequent offence.
New South Wales has standard non-parole periods (a form of mandatory minimum sentencing) for serious offences, including murder, sexual assault, and drug trafficking.
Critics of mandatory sentencing often argue that it potentially leads to unfair outcomes, as it does not allow judges to consider a case’s individual circumstances.
However, proponents argue it ensures consistency and serves as a strong deterrent.
What Are the Implications of Mandatory Sentencing in Domestic Violence in Australia?
What is mandatory minimum sentencing in Australia, and how does it affect domestic violence cases?
Mandatory sentencing in cases of domestic violence in Australia has potential benefits and criticisms.
Deterrence: Mandatory sentencing can serve as a strong deterrent. Knowing that a specific crime carries a fixed minimum sentence may discourage potential offenders.
Consistency: This policy ensures consistency across all cases by implementing a fixed sentence for specific offences. It eliminates the potential for lighter sentences based on a judge’s discretion.
Public Confidence: Mandatory sentencing can help maintain public confidence in the judicial system by demonstrating a strong and consistent stance against domestic violence.
Criticism and Potential Impacts:
Lack of Flexibility: Mandatory sentencing takes away the flexibility of the court to consider the unique circumstances and context of each case.
This can result in overly harsh sentences for some offenders, and it fails to consider the complex nature of domestic violence cases.
Potential Increase in Plea Bargains: Offenders may be more likely to plead not guilty to avoid a mandatory sentence, increasing the number of trial cases.
Alternatively, they may plead guilty to a lesser charge, undermining the mandatory sentence’s original intent.
Impacts on Indigenous Australians: Mandatory sentencing can disproportionately impact marginalised communities, including Indigenous Australians.
Indigenous Australians are overrepresented in the criminal justice system and, thus, more likely to face the consequences of mandatory sentencing.
Victim Deterrence: In some instances, knowledge of mandatory sentencing may discourage victims from reporting domestic violence, especially if they fear severe punitive consequences for their partners.
While mandatory sentencing shows a commitment to addressing the severity of domestic violence, it raises significant concerns about fairness, justice, and potential unintended negative consequences.
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Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.