Mandatory Sentencing (Vic)

All states and territories of Australia have mandatory sentencing in some form. Mandatory sentencing means that parliament has legislated a mandatory minimum sentence, or mandatory type of sentence, that courts must impose for a particular offence. This page deals with mandatory sentencing in Victoria.

What is mandatory sentencing?

Mandatory sentencing is a controversial practice. It is used by government to ensure that certain types of offending attract particular sentences. This is achieved by writing into legislation the penalty that must be imposed if a person is found guilty of an offence. The provision may include exceptions, and may apply only to adults, or to juveniles as well.

When parliament imposes a mandatory sentencing provision, courts no longer have discretion at sentencing. This means they cannot impose the penalty that the judge or magistrate considers to be appropriate, taking into account the circumstances of the offence, the offender’s personal circumstances, and legal precedent. The court may impose a longer sentence than what is required under the mandatory sentencing provision, but it may not impose a lesser one.

Controversy over mandatory sentencing

A lot of people in the legal sector oppose mandatory sentencing. It is commonly seen as leading to disproportionately high sentences and higher levels of incarceration. It is also often criticised as representing an interference with the separation of powers, which is a fundamental principle of government.

Supporters of mandatory sentencing argue that it ensures that serious crime is punished adequately and promotes consistency.

Two categories of offending

In Victoria, there are two categories of offending that attract mandatory sentencing.

Category 1

Category 1 offences are offences for which a custodial order must be made. Custodial orders include terms of imprisonment, drug treatment orders and youth justice centre orders.

Category 1 offences include murder, rape, sexual penetration of a child under 12 and trafficking in a commercial quantity of a drug of dependence.

Category 2

Category 2 offences are offence for which a custodial order must be made unless special reasons exist.

Special reasons include:

• that the offender has assisted or given an undertaking to assist law enforcement in the investigation or prosecution of an offence;
• that they had impaired mental functioning at the time of the offence, or have impaired mental functioning that would make imprisonment more burdensome;
• the court proposes to make a secure treatment order or residential treatment order;
• there are substantial and compelling circumstances that are exceptional and rare that justify not making a custodial order.

Serious youth offences

Certain offences are designated ‘serious youth offences’ when committed by a person under 21.

Category A

When a young offender is sentenced to a custodial order for a Category A serious youth offence, they must be sentenced to adult prison and not to a youth justice centre or youth residential centre, unless there are exceptional circumstances.

Category A offences include murder, arson causing death, aggravated home invasion and child homicide.

Category B

When a young offender is sentenced to a custodial order for a Category B serious youth offence, they must be sentenced to adult prison and not to a youth justice centre or youth residential centre, if they have previously been found guilty of a Category A or Category B serious youth offence.

Category B offences include rape, car jacking and home invasion.

Mandatory minimum terms

There are also offences in Victoria that attract a mandatory term of imprisonment or a mandatory minimum non-parole period. For example, offences involving intentionally causing serious injury attracts mandatory imprisonment, or a mandatory non-parole period depending on the circumstances of the offence.  ‘One punch manslaughter’ carries a minimum non-parole period of 10 years.

Cumulative terms for serious offenders

When a person who has been classified as a ‘serious offender’ is sentenced to imprisonment for more than one offence, the terms are to be served cumulatively.  

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