Mandatory Sentencing (NSW)

All Australian jurisdictions have some form of mandatory sentencing. Mandatory sentencing exists where parliament has legislated for a particular offence to be dealt with by a particular sentencing order, or a minimum term of imprisonment. The use of mandatory sentencing has grown markedly in the last decade in Australia due to pressure on governments to be ‘tough on crime’. This page outlines the mandatory sentencing regime that exists under the criminal laws of New South Wales.

What is mandatory sentencing?

In general, courts have a wide discretion when deciding on the penalty to impose for a criminal offence. Factors that they take into account when considering the appropriate sentence include the nature and severity of the offence, the accused’s personal circumstances including any prior criminal history and any mitigating or aggravating circumstances.

Mandatory sentencing provisions limit the discretion of courts. They prescribe a mandatory minimum term or a mandatory sentencing disposition for an offence. This penalty must be imposed regardless of the court’s assessment of the severity of the offence and regardless of any mitigating circumstances. A court may impose a greater penalty than the mandatory sentence, but it does not have the discretion to impose a lesser penalty.

Mandatory sentencing is a controversial practice. Supporters of mandatory sentencing argue that it deters offenders from committing offences, ensures that offending is adequately punished and promotes consistency. Critics argue that it results in penalties that are disproportionate to the offence, contributes to a higher incarceration rate, and is contrary to the principle of separation of powers between parliament and the judiciary.

Mandatory life sentences

Under section 61 of the Crimes (Sentencing Procedures) Act 1999, there is a mandatory sentence of life imprisonment for a person who is convicted of murder or a serious heroin or cocaine trafficking offence under certain circumstances.

Murder

The mandatory life sentence for murder applies if the court is satisfied that the level of culpability is so extreme that the community interest in retribution, punishment, community protection, and deterrence can only be set through that sentence.

Serious trafficking offence

The mandatory life sentence for a serious heroin or cocaine trafficking offence applies if:

• the court is satisfied that the level of culpability is so extreme that the community interest in retribution, punishment, community protection, and deterrence can only be set through that sentence; and
• the offence involves a high degree of planning and organization and the use of other people acting at the direction of the offender; and
• the person was solely or principally responsible for planning, organizing and financing the offence; and
• the heroin or cocaine was of a high degree of purity; and
• the offence was committed solely for financial reward.

Murder of a police officer

Under section 19B of the Crimes Act 1900, there is a mandatory life sentence for the murder of a police officer if the murder is committed while the police officer was on duty or as a consequence of actions undertaken in the course of their duties and:

• the offender knew or ought to have known that the victim was a police officer; and
• intended to kill the police officer or was engaged in a criminal activity that risked serious harm to police officers.

A person sentenced under this provision must be imprisoned for the term of their natural life.

This provision does not apply to a person who was under 18 at the time of the offence or who was significantly cognitively impaired.

Mandatory minimum sentence

Under section 25B of the Crimes Act 1900, a person found guilty of an assault causing death while intoxicated must be sentenced to imprisonment for at least eight years. This provision also states that a non-parole period must not be set for less than eight years.

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