Mandatory Sentencing (NSW)

Mandatory sentencing provisions of some sort exist in all Australian states and territories. A mandatory sentencing provision is a provision where parliament has stated that a person found guilty of a particular offence must be sentenced to a particular order, or must not be sentenced to less than a minimum penalty. This page outlines the mandatory sentencing regime that exists in New South Wales.

What is mandatory sentencing?

Criminal courts generally have a wide discretion when deciding on the appropriate penalty to impose for an offence. At sentencing, courts take into account the nature and objective seriousness of the offence, its impact on victims and the broader community, the offender’s circumstances including any aggravating and mitigating factors, any criminal history, and their living situation including employment and other community involvement.

When a mandatory sentencing provision exists in relation to an offence, this means that the court’s discretion is limited. The court may impose a greater penalty than what is prescribed by the provision, but it does not have the discretion to impose a penalty that is lesser than the mandatory minimum sentence.

Mandatory life sentences

In New South Wales, a person who is found guilty of murder drug trafficking offence will receive a mandatory life sentence in some circumstances. This rule is contained in section 61 of the Crimes (Sentencing Procedure) Act 1999.

Murder

A person found guilty of murder faces a mandatory life sentence if the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be served through a life sentence.

Serious drug trafficking

A person found guilty of a serious offence of trafficking in heroin or cocaine faces a mandatory life sentence if:

• the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be served through a life sentence; and
• the offence involves a high degree of planning and organisation and other people acting at the offender’s direction; and
• the offender was the role person responsible for planning, organising and directing the offending; and
• the heroin or cocaine was of a high degree of purity; and
• the offence was committed solely for financial reward.

Murder of police officer

A person found guilty of murder where the victim was a police officer also faces a mandatory life sentence in some circumstances. Under section 19B of the Crimes Act 1900,  a mandatory life sentence applies if the offence was committed:

• while the police officer was on duty; or
• as a consequence of, or in retaliation for, actions undertaken in the course of duty; and
• the offender knew that the victim was a police office; and
• intended to kill the victim or was engaged in activity that risked serious harm to police.

Young offenders

New South Wales’s mandatory sentencing laws do not apply to offenders who are under the age of 18 when the offence is committed. Young people who commit serious offences may receive lengthy penalties, but courts are not obliged to impose a mandatory minimum penalty on a juvenile offender.

Criticisms

The practice is controversial.

Critics of mandatory sentencing provisions argue that these regimes fetter the discretion of the judicial system, which needs to be able to apply its expertise and experience to deciding on the appropriate penalty in a given situation and that this decision should not be interfered with by parliament. They claim that mandatory minimum sentencing results in penalties that are not appropriate and that are disproportionate to the offending. Opponents of the practice also point out that it leads to higher rates of incarceration and more punitive sentencing outcomes that do not support offenders to address the root causes of their offending.  

Another common criticism is that mandatory sentencing is contrary to the democratic principle of separation of powers, under which parliament, the judiciary, and the legislature are designed to each have a separate function. This aims to prevent any one arm of government from having too much power.

Supporters of mandatory sentencing argue that it ensures that people who commit serious offences are adequately punished and that these minimum sentences act as a deterrent against offending.  

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers