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The use of mandatory sentencing in Western Australia

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Edith Cowan University 

1.0 Executive summary

The report analysis the use of mandatory sentencing in Western Australia. Mandatory sentencing has been explained including a brief description of the historical aspects of the law as well as what the advocates of the act aimed to achieve. The report aims at looking at the introduction of the law in Western Australia as well as what the law entails. The report further goes ahead to look at the views of the advocates and opposes of the law owing to the fact that the law has received so much condemnation as well as support in equal, measure. The point of contention of the law is the fact the judges and the prosecutors have been given the discretion to choose the punishment that the offenders deserve. In the comparison of the advantages and the disadvantages of the law, the report has been able to put into consideration the effects of the mandatory sentencing especially in the United States of America to strengthen the arguments.

In conclusion the report ascertains that with so many arguments in favor and against the law, there has been no consensus on whether the law is beneficial or not. It is therefore expected that as the debate rages on, we expected to see more changes in the days to come.

Table of Contents

1.0 Executive summary ii

Table of Contents iii

2.0 The Introduction of Mandatory Sentencing in Western Australia 1

3.0 Mandatory Sentencing Legislation in Western Australia 3

4.0 Benefits of Mandatory Sentencing 4

5.0 Criticisms of Mandatory Sentencing 5

6.0 Conclusion 6

References 7

1.0 Introduction

The use of mandatory sentencing has been dominating the debates in most parts of Australia. In other parts of the world, there have been amendments to the existing laws. Of late, a new law has been introduced in New South Wales on mandatory sentencing as a response to alcoholism and drug related violence (Bernick & Larkin, 2014). There are various arguments that have been advanced either in favor or against the mandatory sentencing. Those who oppose the policy do so on the basis that the sentencing imposes undesirable negative influence on the independence and the discretion of the judicial system in the country (Bessant, 2000). The concept of mandatory sentencing was arrived into as a compromise after the abolition of the death penalty in Australia. It is therefore a law that had good intents, However, the good intents do not usually create a good policy. It has, however not gone down well with a number of groups and individuals who believe that the law goes against the principles of the Australian law (Bessant, 2000).

This paper is going to give a description of how mandatory sentencing came into belong, the policy arguments in favor and against the mandatory sentencing in Australia. It will also look at the various types of offences where the policy of mandatory sentencing will be applied as well as the benefits and the criticism of mandatory sentencing which include the option of reducing the degree of discretion that the judges use into some specific circumstances and offence.

2.0 The Introduction of Mandatory Sentencing in Western Australia

Mandatory sentencing has a long history dating back to the 18
th and the 17th centuries where it was used in the sentencing of the offenders of diverse offences (Bessant, 2001). This changed however in the 18th century when the penalty was abandoned in favor of the judges being given the opportunity to determine the sentences that they would give to the individual offenders. Some offences, however continue to attract mandatory penalties in a strict sense as the courts of law retained discretion over the imposing of penalties (Law Council of Australia, 2014).

In Western Australia, the 1996 amendment act of the criminal code, juvenile or adult offenders who are repeat offenders and who have been convicted for the third or more times for house burglary have to be given a minimum sentence of twelve months (Crowley, 2010). The amendment of the criminal penal code is being referred to as the “Three Strikes and You Are Out” sentencing laws. The main advocates of the amendment were of the opinion that the law will provide some form of consistency in sentencing as well as preventing of crime. The law was amended in 2009 in the Criminal Code Amendment Act 2009 (WA) to include a 6-12months minimum sentence for individuals who assault a law enforcement agency and three months detention for minors under the age of 16 years of age. The criminal organization control act 2012 was enacted to convict adult offenders who committed on behalf or in the company or to benefit a declared criminal organization (Western Australia Legislative Assembly,

The mandatory sentencing laws in Western Australia have been claimed to have reduced the levels of crime by a great percentage. The introduction of the mandatory sentencing law was followed by a drastic reduction in car thefts and juvenile delinquency according to the state government (Crowley, 2010). The legislation led to increase conviction rates for indigenous women by 223 percent in its first year of operations. The incarceration for men rose by 57 percent and 67 percent for the indigenous men. This caused a public outcry as some people and organizations looked at the law as being discriminative against some members of the Australian society (Bessant, 2001).

3.0 Mandatory Sentencing Legislation in Western Australia

3.1 The criminal code amendment act (no 2) 1996 (WA)

The criminal code amendment act (no 2) 1996 (WA) stipulated that offenders who repeat offenses and have been convicted for the third or more times for house robbery have to be given a minimum sentence of twelve months (Freiberg, 2010). For the adult offenders, their sentencing is a minimum of 12 months and a sentence of juvenile detention or youth supervision order for young offenders (Government of Western Australia, 1996).

3.2 The criminal code amendment act 2009 (WA)

The criminal code amendment act 2009 (WA) was enacted to extend to the youth custodial officers. In 2013, we had the (Criminal Code Amendment Act (No. 2) 2013 (WA) which placed a minimum sentence of twelve months for grown ups whose offenses include the assaulting of police officers, the prison warders as well as the transport security officer. The act placed a minimum of three months or juvenile detention for the young offenders of 16 years and above (Law Council of Australia, 2014).

3.3 The criminal organizations control act 2012 was enacted in 2012

The criminal organizations control act 2012 was enacted in 2012. The objective of the act was to punish offenders who associate with organizations that have been declared criminal and illegal. The act stipulated a minimum of 2 years for the offense, at least two years for indictable offense on indictment if the offense does not comprise imprisonment for the offender. It also include a minimum imprisonment of not less than 75 percent of the maximum term limit for a relevant indictable offence if the period of imprisonment other than the life imprisonment and a minimum sentence of fifteen years for the appropriate indictable offences that dealt with an indictment if the penalty has life imprisonment (Law Council of Australia, 2014).

4.0 Benefits of Mandatory Sentencing

The advocates of the mandatory sentencing have argued that the sentencing reflect the judgment of the society that certain offences require a stipulated mandatory sentencing to make sure that those who commit those offences receive a deserved punishment (Vij, 2013).

Mandatory was seen in the 20th century as the best way to remove the deceit that considered the handing of sentences during the period. The congress gave the district courts the discretion to choose the appropriate sentences for offenders and at the same time giving the parole officers the power to choose whether and at what time to discharge an offender from custody even before they complete their sentences (Piper & Durnian, 2015). This perception could be a reason why the advocates of the sentence formulated the amendment act in Western Australia

Mandatory sentencing was enacted to address the issues of disparity and unfairly lenient sentencing, two of the most acknowledged problems bedeviling judicial systems. The introduction of the mandatory sentencing ensured uniformity in handing of sentences throughout the system and ensure that offenders are given punishments that are commensurate their offences (Bernick & Larkin, 2014).

The enactment of the mandatory sentencing also prevents criminals from committing offences because the thought of a harsh penalty will have a restrictive result. Locking up of the offenders saves the offenders the trouble of living amongst the troublesome elements in the same time conserving the scarce enforces resources without losing the benefit (Bagaric & Pathinayake, 2013).

Finally, evidence has greatly supported the conclusions. The supports of the mandatory sentencing draw their arguments from the United States where, the crime rate dropped significantly in the 1990s in all offences and it is thought the drop has been contributed by mandatory sentencing. This evidence in mind, the mandatory sentencing in 1996 was also expected to reduce the crime rate significantly (Flynn, 2000).

5.0 Criticisms of Mandatory Sentencing

Those opposed to mandatory sentencing have argued that the act did not eliminate the disparities in sentencing since they have not eliminated the sentencing through the discretion of the judges. This according to the law council of Australia has just shifted the discretion to the prosecutors from the judges (Bates, 2011). Due to lack of training to sentence, it is very likely that the Prosecutors may not exercise the discretion in a transparent way. Critics assertion that those prosecutors who aim to achieve something from fruitful convictions do not have the motivation to act on the discretion in a responsible manner (Bernick & Larkin, 2014).

The other critics of the law in Western Australia are that the sentencing does not reduce the rate of crime (Greenwood, et al., 1994). The amount of evidence obviously illustrates that the use of mandatory sentences have neither shown the effects in the short run, nor is it clear that the mandatory sentencing has reduced criminality via prostration. In many drug related offences for instance, if an offender is incapacitated, another one will take their place through what is called the replacement effect (Bernick & Larkin, 2014)..

Finally, critics of the act have maintained that the law is not cost effective since the conviction of the offender has a bigger consequences than the harshness of penalty. If for instance, the effect of one year sentence is the same as that of five years, then according to the critics, the offender will suffer unnecessary pain for four years. It therefore ends up wasting scarce resources (Bessant, 2000)

6.0 Conclusion

Mandatory sentencing has been in operation in many jurisdictions for a very long time. In Western Australia, however, the law was introduced in 1996, especially to deal with cases of repeat offenders. There has been a lot of debate on whether the law has had a positive impact of reducing the level of crimes. The debate is ongoing with those who advocate for the mandatory sentencing as well as those opposing having strong arguments. There are those also who question the exercising of discretion by the judges and the prosecutors. As we move forward, it will be interesting to see whether the mandatory sentencing will be done away with the same way death penalties were abolished or they will be strengthened further as proposed in the 2013 amendment.


Bagaric, M., & Pathinayake, A. (2013). The paradox of parity in sentencing in Australia: The pursuit of equal justice that highlights the futility of consistency in sentencing. The Journal of Criminal Law, 77(5): 399–416. doi:10.1350/jcla.2013.77.5.866

Bates, C. N. (2011). An examination of sentencing levels and mandatory minimums. Nova Science Pub.

Bernick, E. & Larkin, P. (2014). Reconsidering mandatory minimum sentences: The arguments for and against potential reforms. Retrieved 2nd May 2016 from http://www.heritage.org/research/reports/2014/02/reconsidering-mandatory-minimum-sentences-the-arguments-for-and-against-potential-reforms

Bessant, J. (2000). Mandatory sentencing: Justice for young indigenous people. Children Australia, 25(01): 10–13. doi:10.1017/s103507720000955x

Bessant, J. (2001). Australia’s Mandatory Sentencing Laws: Ethnicity and Human Rights. International Journal on Minority and Group Rights, 8(4): pp. 369–384. DOI: 10.1163/15718110120908475

Brett, L. (2005). Western Australia’s Mandatory Sentencing Laws and Australia’s International Legal Obligations. Dialogue, 3(2): 1-15.

Crowley, M. G. (2010). Tough on terrorists: Challenging traditional sentencing principles in Australia? Federal Sentencing Reporter, 22(4): 279–287. doi:10.1525/fsr.2010.22.4.279

Flynn, M. (2000). International Law, Australian Criminal Law and Mandatory Sentencing: the Claims, the Reality and the Possibilities. Criminal Law Journal, 24: 184.

Freiberg, A. (2010). Australia: Exercising discretion in sentencing policy and practice. Federal Sentencing Reporter, 22(4): 204–212. doi:10.1525/fsr.2010.22.4.204

Government of Western Australia. (1996). Criminal code amendment act (no. 2) 1996. Retrieved 2nd May 2016 from https://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_3037_homepage.html

Greenwood, P. W., Rydell, P. C., Caulkins, J. P., & Chiesa, J. (1994). Three strikes and you’re out: Estimated benefits and costs of California’s new mandatory-sentencing law. Santa Monica, CA: Rand.

Law Council of Australia. (2014). The mandatory sentencing debate. Retrieved 2nd May 2016 from http://www.lawcouncil.asn.au/lawcouncil/index.php/law-council-media/news/352-mandatory-sentencing-debate

Piper, A., & Durnian, L. (2015). Theft on trial: Prosecution, conviction and sentencing patterns in colonial Victoria and western Australia. Australian & New Zealand Journal of Criminology. Dec. 8 2015. doi:10.1177/0004865815620684

Vij, K. (2013). Criminal law amendment act 2013. Journal of Research in Medical Education & Ethics, 3(2): 107-108. doi:10.5958/j.2231-6728.3.2.036

Western Australia Legislative Assembly. (2003). Criminal code amendment bill (no. 2) 2003. Retrieved 2nd May 2016 from http://www.parliament.wa.gov.au/parliament/bills.nsf/BC42FB75C88A7AE048256D9E002CBD42/$File/Bill231-2.pdf