Mandatory Sentencing and Young People (WA)
In Western Australia, mandatory sentencing provisions govern the penalties that are imposed for a range of offences. In some circumstances, young offenders (under 18) in Western Australia may be subject to mandatory sentencing laws. This page deals with mandatory sentencing and young people in WA.
What is mandatory sentencing?
Mandatory sentencing occurs when parliament stipulates a mandatory penalty, or a mandatory minimum penalty, that must be imposed when a person is found guilty of a particular offence.
When an offence carries a mandatory sentence, there is a limit placed on the court’s discretion at sentencing. The court may impose a penalty that is greater than the mandatory sentence, but it may not impose a penalty that is less than the mandatory sentence.
This means that the judge or magistrate may be in a position of having to impose a sentence that is greater than the penalty that they consider to be appropriate in the circumstances. For this reason, mandatory sentencing is a controversial practice, with many people within the legal profession, community sector, and general community feeling that it compromises the integrity of the justice system.
However, mandatory sentencing also receives strong support from elements in the community that believe it is necessary to ensure that serious offending is met with adequate punishment.
Mandatory sentencing and young people
Mandatory sentencing provisions that apply to people under 18 are particularly controversial.
These sentencing regimes have received criticism from legal scholars and civil libertarians on the basis that they are contrary to well established principles of international human rights law, such as the right not to be subjected to arbitrary imprisonment.
However, several Australian jurisdictions currently have mandatory sentencing laws that apply to juvenile offenders.
In Western Australia, mandatory sentencing laws apply to young people who are found guilty of murder and of certain aggravated home burglary offences. They also apply to young people who are found guilty of home burglary offences repeatedly.
Murder
Under section 279 of the Criminal Code Act Compilation Act, a person found guilty of murder in western Australia is subject to mandatory sentencing laws.
If a young person is found guilty of murder, they must be sentenced to either:
- life imprisonment; or
- detention until their release is ordered by the Governor.
Aggravated home burglary
In Western Australia, there are a number of offences that carry mandatory minimum sentences for a young person when the offence is committed in the context of an aggravated home burglary.
A home burglary is aggravated if:
- the offender is armed
- the offender is in company with one or more other people
- the offender intends to commit a serious offence
- the offence occurs at night
- the offence results in bodily harm.
Unlawful assault causing death
Under section 281 of the Criminal Code Act Compilation Act, a young person who is found guilty of an unlawful assault causing death committed in the course of an aggravated burglary must be sentenced to at least three years of imprisonment or detention.
This sentence must not be suspended, and a conviction must be imposed.
Attempt to kill
Under section 238 of the Criminal Code Compilation Act, a young person who is found guilty of an attempt to kill committed in the course of an aggravated burglary must be sentenced to at least three years of imprisonment or detention.
This sentence must not be suspended, and a conviction must be imposed.
Repeat offenders
A young person who is found guilty of a home invasion offence, and has at least three convictions for home invasion offences, must be sentenced to at least 12 months of imprisonment or detention.
However, under section 189 of the Young Offenders Act 1994, where a young person has been convicted of an offence and more than two years have passed since they finished serving the sentence for that offence, that conviction may not be taken into account unless exceptional circumstances exist.
Detention as last resort
One of the main criticisms of mandatory sentencing laws for young people is that they conflict with the principle that detention should only be imposed on a young person as a last resort.
Section 7 of the Young Offenders Act 1994 states that detaining a young person in custody, whether before or after they have been found guilty of an offence, should be done only as a last resort and for as short a time as is necessary.
Mandatory sentencing provisions are acknowledged as contravening the principles of the Young Offenders Act 1994.
While some elements of the community argue that these laws are harmful and discriminatory, others maintain that they are necessary to ensure that serious offending is met with an adequate penalty.
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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.