Mandatory Sentencing (SA)

In Australia, mandatory sentencing provisions of some sort exist in all states and territories. Mandatory sentencing exists where legislation states that a particular penalty must be imposed for an offence, or that the sentence imposed must not be less than a stated minimum. This page outlines the mandatory sentencing provisions that exist in South Australia.

Legislation

Mandatory sentencing provisions in South Australia are found in the Criminal Law Consolidation Act 1935, the Sentencing Act 2017, and the Young Offenders Act 1993.  

Rationale for mandatory sentencing

Mandatory sentencing exists to ensure that particular types of offending are dealt with in particular ways. It is common for public pressure to build for governments to be ‘tough on crime’ or to be tough on a particular type of crime that is prevalent in a community.

There is a perception that crime occurs because penalties are too low. Mandatory sentencing provisions are often introduced to address this. However, it is a controversial practice.  

Controversy around mandatory sentencing

Ordinarily, courts have a wide discretion to decide on the appropriate penalty for an offence taking into account all the circumstances including the objective seriousness of the crime, the offender’s criminal history (or absence thereof) and the effect on the victim.

When a mandatory sentencing provision exists, the court does not have the freedom to make its own assessment as to what penalty is suitable. It may impose a greater penalty than the mandatory penalty, but not a lesser one.

Critics argue that the practice unduly fetters the discretion of a sentencing court and represents an interference in the separation of powers which is a fundamental principle of our system of government. Opponents of mandatory sentencing have also said that it represents a failure to appreciate the complexity of the sentencing process, and that it leads to disproportionate penalties.

On the other hand, supporters argue that it promotes consistency in sentencing and ensure that serious offences are punished adequately.

Murder

In SA, there is a mandatory sentence that applies for murder. Any person found guilty of murder receives a mandatory sentence of life imprisonment, with a minimum non-parole period of 20 years. This minimum sentence is stipulated in section 11 of the Criminal Law Consolidation Act 1935, and in section 47 of the Sentencing Act 2017.

This mandatory minimum sentence applies to juveniles as well as to adults. Section 29 of the Young Offenders Act 1993 states that a youth who is found guilty of murder must be sentenced to life imprisonment and dealt with as an adult.

Serious firearms offences

In South Australia, there is a mandatory sentence of actual imprisonment for a person who is sentenced as a serious firearm offender for a serious firearm offence that carries a term of imprisonment. In this situation, a term of imprisonment must be imposed, and the term may not be suspended.

Serious offences against the person

When a person is sentenced for a serious offence against the person, the court must sentence them to imprisonment, and it must set a non-parole period that is not less than four-fifths of the term of imprisonment.

A serious offence against the person is a major indictable offence that results in the victim’s death or total incapacity, or an offence of conspiring to commit such an offence or aiding and abetting such an offence.

Total incapacity means the permanent inability to function independently, either physically or mentally.   

Young offenders

Mandatory sentencing provisions in South Australia, with the exception of the mandatory minimum for murder, do not automatically apply to young people.

However, when a person who is under 18 is being sentenced by the Supreme Court or District Court, that court may choose to deal with the young person as an adult. This power is contained in section 29 of the Young Offenders Act 1993.

If a young person is dealt with as an adult, the mandatory sentencing provisions apply.  

Mandatory minimum penalties

There is also a range of summary offences in South Australia which attract mandatory minimum penalties. These offences include driving offences such as drink driving and unlicensed driving, for which minimum financial penalties exist.

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