Mandatory Sentencing (Vic)

Mandatory sentencing exists when legislation states a mandatory minimum sentence that applies to an offence. There are examples of mandatory sentencing in all states and territories in Australia. This page deals with mandatory sentencing provisions in Victoria.

What is mandatory sentencing?

Mandatory sentencing is a way for parliament to ensure that particular offences always attract specific types of sentences. This is achieved by stipulating in the legislation that a person found guilty of an offence must not receive a sentence of less than a particular term, or a particular disposition. The provision may set out exceptions.

When a mandatory sentencing provision exists, the discretion of the judiciary is fettered. A judge or magistrate does not have the freedom to impose a lesser sentence if they consider that there are compelling mitigating circumstances. However, they can still impose a sentence that is greater than the mandatory minimum.

Many agencies and individuals within the legal profession are opposed to mandatory sentencing. For example, the Australian Law Reform Commission and the Law Council of Australia have both consistently criticised the practice.

Arguments against mandatory sentencing include that it results in sentences that are disproportionate to the offence, contributes to higher incarceration rates, undermines the fundamental principles of the justice system and interferes with the separation of powers. Arguments in favour of the practice include that it deters offending, promotes consistency in sentencing and ensures offending is punished adequately.

Introduction of mandatory sentencing in Victoria

A series of amendments to the Sentencing Act 1991 in recent years have transformed sentencing practices in Victoria. This has included the creation of two categories of offences, for which courts must impose a mandatory sentence of detention or make a sentence of detention the presumptive sentence.

Category 1 offences

Category 1 offences are very serious offences such as murder, rape, trafficking in a commercial quantity of a drug of dependence, sexual penetration of a child under 12 and persistent sexual abuse of a child under 16.

When an adult is found guilty of a category 1 offence, the court must impose a sentence of imprisonment.

Category 2 offences

Category 2 offences include manslaughter, child homicide, kidnapping, arson causing death, homicide by firearm and culpable driving causing death.

When an adult is found guilty of a category 2 offence, the court must impose a sentence of imprisonment unless the person has impaired mental functioning or has assisted the authorities.

Category A and B serious youth offences

Serious youth offences are stipulated offences committed by a person aged under 21.

Category A serious youth offences

Category A serious youth offences include murder, attempted murder, arson causing death, child homicide and aggravated home invasion.

Some category A youth offences – such as murder – must be heard in a higher court. Other category A offences should be heard in a higher court if the accused is over 16 unless there is a compelling reason.

When a young offender is sentenced to a custodial term for a serious youth offence, the court must sentence the young person to adult prison and not to a youth justice centre or youth residential centre (unless exceptional circumstances exist).

Category B serious youth offences

Category B serious youth offences include rape, home invasion and carjacking. If a person over 16 is charged with a serious youth offence, the court must consider whether the matter should be heard in a higher court.

If the court imposes a custodial term for a category B offence, it may impose it in the form of a youth justice centre order or a youth residential centre order. However, if the young person has previously committed a category A or category B serious youth offence, the custodial term must be imposed in the form of adult prison.

Mandatory minimum terms of imprisonment

There are a number of serious offences that attract either a mandatory term of imprisonment or a mandatory non-parole period in Victoria.

Contravening a supervision order carries a minimum sentence of 12 months imprisonment. Causing injury to an emergency or custodial worker intentionally or recklessly carries a minimum sentence of six months imprisonment.

Offences that carry minimum non-parole periods include manslaughter by a single punch, which carries a minimum non-parole period of 10 years, and aggravated carjacking and aggravated home invasion, which both carry a minimum non-parole period of three years.

Serious offenders

Under section 6E of the Sentencing Act 1991, when a court sentences a person who is classified as a ‘serious offender’ to imprisonment for more than one offence, these terms must be served cumulatively unless the court directs otherwise.

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