Mandatory Sentencing (NT)
In the Northern Territory, there are numerous offences that carry a mandatory minimum term of imprisonment. This is intended to act as a deterrent from committing offences that are particularly serious or prevalent. While all Australian jurisdictions have some form of mandatory sentencing, the NT’s provisions are particularly extensive and are not limited to very serious categories of offence. The NT’s mandatory sentencing regime has been the subject of a lot of controversy over the years, with lawyers, judges and civil libertarians calling for an end to the practice, which leads to higher incarceration rates and more recidivism. This article outlines the mandatory sentencing provisions that exist under NT law.
The NT has a mandatory sentencing provision that applies to a person’s second offence of breaching a domestic violence order (DVO). If a person is found guilty of breaching a DVO, and they have previously been found guilty of breaching a DVO, the court must impose a term of imprisonment of at least seven days. However, there is an exception to this rule. If there was no harm caused and the court considers it is not appropriate to record a conviction, the court does not have to impose a term of imprisonment (Domestic and Family Violence Act 2007, section 121).
Aggravated property offences
Under section 78B of the Sentencing Act, when a person in the NT is found guilty of an aggravated property offence, the court must impose a term of imprisonment or a Community Work Order (CWO) unless there are exceptional circumstances. If a term of imprisonment is imposed, it must be served as actual jail time or as home detention (in other words, it cannot be a suspended sentence).
Aggravated property offences include unlawful entry, unlawful use of motor vehicle and assault with intent to steal.
‘Exceptional circumstances’ are not defined in the legislation and this exception has not been examined in case law.
The Sentencing Act contains mandatory sentencing provisions in relation to violent offences. These are divided into five categories, each of which carries a different mandatory minimum sentence. The minimum sentences that apply to each category of violent offence, depending on the offender’s record and whether there are aggravating circumstances, are set out in the table below.
|Level of violence||Type of offence||Aggravating factor||Mandatory minimum sentence|
|Level 5||First violent offence||Three months imprisonment|
|Level 5||Second or subsequent violent offence||12 months imprisonment|
|Level 4||Any||Three months imprisonment|
|Level 3||First violent offence||Victim suffers harm||Actual jail|
|Level 3||Second or subsequent violent offence||Three months imprisonment|
|Level 2||Actual jail|
|Level 1||Second or subsequent violent offence||Actual jail|
However, if the court is satisfied that exceptional circumstances exist in a matter where a mandatory minimum term of imprisonment applies, it does not have to impose the mandatory minimum term, but it must still impose a term of imprisonment that is not wholly suspended (in other words, actual jail).
Section 78CA of the Sentencing Act sets out which offences are included in each of the five levels. It provides that unlawfully causing serious harm, assault with intent to steal and assault on police and workers where a weapon is used and harm is caused are Level 5 offences. Level 4 offences include assault on workers and police. Level 3 offences include common assaults and offences involving choking or strangulation in a domestic violence context. Level 2 offences include unlawfully causing harm. Any other violent offence is a Level 1 offence.
Section 37(2) of the Misuse Of Drugs Act provides that a person must receive a sentence of imprisonment when found guilty of an offence against that act unless the court considers such a penalty should not be imposed because of the particular circumstances of the offence or of the offender.
Minimum non-parole periods
The Sentencing Act also sets out mandatory minimum non-parole periods in relation to a number of offences, which is another form of mandatory sentencing.
When sentencing a person for sex without consent (under section 192 of the Criminal Code) and for certain serious drug offences, such as supplying or manufacturing a commercial quantity of a dangerous drug, a court must set a non-parole period of not less than 70% of the term of imprisonment that is imposed.
When sentencing an adult for certain sexual offences where the victim is a child under 16, courts must set a non-parole period of not less than 70% of the term of imprisonment that is imposed.
When a person is found guilty of murder in the NT, they are sentenced to mandatory life imprisonment with a minimum non-parole period of 20 years.
Criticisms of mandatory sentencing
The NT’s mandatory sentencing regime has been amended numerous times. The provisions have been much criticised for politicising crime and justice and for contributing to the rising incarceration rate, particularly among the Indigenous population.
Mandatory sentencing has also been criticised as an interference with the separation of powers as it fetters the discretion of judges and magistrates to deal with individual matters that come before the court appropriately based on the circumstances of each case.
Supporters of mandatory sentencing say that the prospect of imprisonment acts as a deterrent and that mandatory sentencing laws protect the community and promote consistency in sentencing.
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