Mandatory Sentencing (WA)

When courts impose sentences for criminal offences, they generally have a wide discretion as to the penalty they impose. The judge or magistrate decides on the sentencing orders with reference to the maximum penalty for the offence, the circumstances of the offence and the circumstances of the offender. However, in Western Australia some offences carry a mandatory minimum sentence. This means that the courts do not have a discretion to impose less than the statutory minimum sentence. This page deals with mandatory sentencing in Western Australia.

Rationale for mandatory sentencing

Many Australian states and territories have mandatory sentencing regimes for certain offences. These regimes are designed to ensure that serious offences attract adequate sentences that meet community expectations that offenders be punished and that courts be ‘tough on crime’.

However, critics of mandatory sentencing laws argue these laws are inflexible and fetter the discretion of the courts unnecessarily. The Law Council of Australia opposes mandatory sentencing, saying that it undermines fundamental principles around the rule of law. The Law Society of Western Australia has also expressed its opposition to mandatory sentencing.

Legislation

In Western Australia, the Criminal Code Act Consolidation Act 1913 sets out the mandatory minimum sentences that courts must impose when dealing with certain offences. The Act specified a minimum sentence when the offence is committed by an adult and a minimum sentence when it is committed by a juvenile.

Mandatory sentencing for adults

Some of the mandatory minimum sentences that apply to adult offenders in Western Australia are set out below.

Murder offences

A mandatory life sentence applies when a court finds an adult guilty of murder in WA unless:

• A life sentence would clearly be unjust in the circumstances; and
• The offender is unlikely to be a threat to community safety when released.

Burglary offences

Under section 401 of the Criminal Code Act Consolidation Act 1913, when a court finds an adult guilty of a home burglary and they are a repeat offender, it must impose a sentence of no less than two years imprisonment.

If an adult commits another serious offence during a home burglary, they must be sentenced to at least 75% of the maximum penalty that applies to the burglary offence. This means that the offender must be sentenced to at least 15 years imprisonment.

This mandatory sentencing rule applies to adult offenders who have, during the course of a home burglary,  committed manslaughter, unlawful assault causing death, a sexual offence or have attempted to kill a person.

Serious assaults on public officers

If an adult commits a serious assault on a public officer, there is a mandatory sentence of:

• At least nine months imprisonment if the offence is committed with another person or involves a weapon; or
• At least six months imprisonment in other cases.

Mandatory sentencing for young people

Some of the mandatory minimum sentences that apply to juvenile offenders in Western Australia are set out below.

Murder

When a court finds a juvenile offender guilty of murder, it must sentence them to either:

• Life imprisonment; or
• Detention until released by order of the governor

If the murder was committed in the court of an aggravated home burglary, a young offender must be sentenced to at least three years of imprisonment or detention.

Burglary offences

When a court finds a young person guilty of a home burglary and the young person a repeat offender, the court must impose a sentence of at least 12 months imprisonment or detention.

When a court finds a young person guilty of a serious offence like unlawful assault causing death, manslaughter, or attempting to kill a person and the offence was committed in the course of carrying out an aggravated home burglary, the young person must be sentenced to at least three years of detention or imprisonment.

Serious assaults on public officers

If a young person who is aged between 16 and 18 is found guilty of a serious assault on a public officer, the court must sentence them to at least three months imprisonment or detention.

Mandatory sentence must be served

The mandatory minimum sentences outlined above refer to terms of actual imprisonment and detention. An offender who is sentenced to the mandatory minimum term for an offence must serve that term in prison or detention. No part of that mandatory minimum term may be suspended.

If a court imposes a term of imprisonment or detention that is longer than the mandatory minimum sentence, it may suspend the part of the sentence that extends beyond the minimum sentence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.