‘Actual’ Imprisonment (NT)
In the Northern Territory, mandatory sentencing has existed in one form or another since the 1990s. In its current form, it involves specifying minimum periods of ‘actual’ imprisonment when a person is found guilty of certain offences. This article outlines what mandatory sentencing is, how it has been used in the NT, and what actual imprisonment involves.
What is mandatory sentencing?
Mandatory sentencing occurs when parliament stipulates a sentence, or minimum sentence, that must be imposed in a particular situation. Mandatory sentencing may involve a minimum term of imprisonment, a minimum fine, or some other mandatory minimum penalty.
When a mandatory sentencing regime exists in respect of an offence, the sentencing court does not have full discretion as to the penalty it imposes. It must impose a sentence of no less than the minimum penalty stated in the legislation. However, it may impose a sentence that is more than the minimum penalty.
History of mandatory sentencing in the NT
In the late 1990s, the Country Liberal NT government introduced mandatory sentencing for property offences. The regime involved a three-strike system where a person would be mandatorily sentenced to 14 days imprisonment for their first property offence, 90 days imprisonment for their second offence, and 12 months of imprisonment for their third offence.
This three-strike regime was appealed when the Labor Party came to power in 2001. However mandatory sentencing has continued to be part of NT criminal law, with different regimes being introduced over the years affecting minimum penalties for property offences, drug offences, breaching a DVO, and serious assaults.
Currently, under NT law, assaults against police and emergency workers are subject to mandatory sentencing, as are assaults where the victim suffers harm, and some offences of breaching a DVO. Many of the mandatory sentencing provisions that exist under the Sentencing Act 1995 in its current form, involve a requirement that the court impose ‘actual imprisonment’. For example, assaulting a police officer or emergency service worker is punishable by a minimum sentence of three months actual imprisonment.
What is ‘actual’ imprisonment?
Actual imprisonment means that the penalty imposed is a term of imprisonment that is served in custody (ie. in a prison or detention centre, or in the cells at court or at a police station).
A term of actual imprisonment is a prison sentence that is not suspended. However, a court may impose a term of imprisonment that is partly suspended, as long as the minimum period is served as actual imprisonment.
For example, if an offence carries a mandatory minimum sentence of three months actual imprisonment, a person who is convicted may be sentenced to a term of imprisonment of five months imprisonment that is suspended after three months.
Offences with mandatory ‘actual’ imprisonment
The following offences carry mandatory sentences of actual imprisonment in the NT:
- An assault on an emergency worker or police officer where a weapon was used or use of a weapon was threatened, where the victim suffered physical harm, or where the offender has previously been found guilty of a violent offence (12 months actual imprisonment)
- An assault on an emergency worker where a weapon was used or use of a weapon was threatened, where the victim suffered physical harm, or where the offender has not previously been found guilty of a violent offence (three months actual imprisonment)
- An assault on a police officer or an emergency worker where the victim suffered physical harm (three months actual imprisonment)
- An assault on a worker where the victim suffered physical harm, or whether the offender had previously been found guilty of a violent offence (actual imprisonment, with no minimum term specified).
- A breach of a DVO where the offender has been found guilty of at least two other breaches of a DVO in the previous 28 days or where the offence involves harm or the threatened inflection of harm (actual imprisonment, with no minimum term specified).
There are also mandatory sentencing provisions in the NT that impose much longer mandatory minimum sentences. For example, a person found guilty of murder must be sentenced to life imprisonment with a mandatory minimum non-parole period of 20 years.
Where no minimum period is stated
When a person is sentenced for an offence that carries mandatory actual imprisonment but no minimum term is specified, the court has a discretion as to how much time the person will spend in custody.
In a case that is at the lower end of the scale where the court does not consider that actual imprisonment is warranted, the magistrate may order a term of imprisonment that is suspended after a very short period (for example, one day, or until a particular time). When this occurs, the person will generally not be transferred to a prison. Instead, they will remain in police custody until they are released.
Conviction must be recorded
When a person is sentenced for an offence that carries mandatory actual imprisonment, the court must record a conviction.
Mandatory sentencing and young people
It is important to note that the NT mandatory sentencing provisions involving actual imprisonment do not apply to offenders who are under 18. A separate mandatory sentencing regime exists for young offenders and this regime does not involve mandatory actual imprisonment.
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Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.