Mandatory Sentencing (WA)

Courts that are sentencing offenders generally have a wide discretion to impose the penalty that is appropriate. The judge or magistrate decides on the sentence with reference to the maximum penalty for the offence, the circumstances of the offence and the circumstances of the offender. However, in Western Australia there are some offences for which legislation prescribes a mandatory minimum sentence. This page deals with mandatory sentencing in Western Australia.

Rationale for mandatory sentencing

Many Australian jurisdictions have introduced mandatory sentencing regimes for certain offences. These regimes are designed to ensure that serious offences are met with adequate sentences that meet community expectations around courts being ‘tough on crime’.

However, mandatory sentencing laws are often criticised for being inflexible and fettering the discretion of the courts. The Law Council of Australia opposes mandatory sentencing, saying it undermines fundamental principles around the rule of law, and restricts judicial freedom unnecessarily. The Law Society of Western Australia also opposes mandatory sentencing.

Legislation

In Western Australia, the Criminal Code Act Consolidation Act 1913 sets out the different mandatory minimum sentences to be imposed for offences when they are committed by an adult and when they are committed by a juvenile.

Mandatory sentencing for adults

Some of the mandatory minimum sentences that apply to adults in WA are set out below.

Murder

A mandatory life sentence applies when an adult is found guilty of murder in WA unless:

• That sentence would clearly be unjust in the circumstances; and
• The person is unlikely to be a threat to the safety of the community when released.

Offences involving burglary

Under section 401 of the Criminal Code Act Consolidation Act 1913, when an adult is found guilty of a home burglary and is a repeat offender, the court must impose a sentence of at least two years imprisonment.

If an adult commits a serious offence in the course of a home burglary, they must be sentenced to at least 75% of the maximum penalty. This means that the offender must receive a term of at least 15 years imprisonment. This applies to offenders who have, during the course of a home burglary,  committed manslaughter, unlawful assault causing death, a sexual offence or have attempted to kill a person.

Serious assaults on public officers

If an adult commits a serious assault on a public officer, they must be sentenced to:

• At least nine months imprisonment if the offence is committed with another person or involves a weapon; or
• At least six months imprisonment in other cases.

Mandatory sentencing for young people

Some of the mandatory minimum sentences that apply to young people in WA are set out below.

Murder

When a young person is found guilty of murder, they must be sentenced to either:

• Life imprisonment; or
• Detention until released by order of the governor

If a murder is committed by a young person in the court of an aggravated home burglary, the offender must be sentenced to at least three years of imprisonment or detention.

Burglary offences

When a young person is found guilty of a home burglary and is a repeat offender, the court must impose a sentence of at least 12 months imprisonment or detention.

When a young person is found guilty of a serious offence such as manslaughter, unlawful assault causing death, or attempting to kill a person in the course of an aggravated home burglary, they must be sentenced to at least three years of detention or imprisonment.

Serious assaults on public officers

If a young person who is aged between 16 and 18 commits a serious assault on a public officer, they must be sentenced to at least three months imprisonment or detention.

Mandatory minimum sentence must not be suspended

The mandatory minimum sentences outlined above refer to terms of actual imprisonment and detention. The offender must be ordered to serve at least the minimum custodial sentence in prison or detention and no part of that term may be suspended.  

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