Mandatory means something that is required, by rule or law.
In the criminal sentencing process, mandatory sentencing means a sentence that must be given, no matter the circumstances.
What criminal offences carry the term of mandatory sentencing?
There are several offences which carry a term of mandatory sentencing. These include:
- Reckless driving in circumstances of aggravation to escape pursuit – where there is a police chase
- Assault of a public officer/police officer in certain circumstances (called “prescribed” circumstances)
- Being a third-striker for home burglary offences, meaning you have been found guilty of at least three different home burglary charges
- Sexual assault or grievous bodily harm committed in the course of a burglary
None of these sentences allow for the imprisonment to be suspended. All sentences are for immediate imprisonment only. This means the accused person actually goes to jail for the minimum mandatory period.
The mandatory sentencing approach
Mandatory sentencing is something conceived in parliament as a way to try and put forward a ‘tough on crime’ approach. To the general public, this may sound like positive thing but, in reality, there is no evidence to show that mandatory sentencing has reduced crime.
One of the biggest disadvantages of mandatory sentencing is that it takes away from the Courts being able to consider each case individually and consider the distinct circumstances of each, as well as being able to take into account the circumstances of the accused person (for example, serious mental health issues).
Criminal defence lawyers, including Chambers Legal, as well as members of the judiciary, strongly oppose mandatory sentencing, as it imposes significant restrictions on Magistrates and Judges, and infringes on judicial independence and discretion. Magistrates and Judges often express regret at having to sentence someone with a mandatory sentence, but their hands are tied by the law.
No ‘one size fits all’ to criminal sentencing
The sentence should be based on the facts of the offending, the level of criminality and culpability involved, the aggravating and mitigating factors, and the circumstances personal to the accused. It should not be a “one size fits all” approach. Imprisonment should rightfully remain as a sentence of last resort, and should be decided upon on a case by case basis.
There are a large number of accused that come before the court, caught out under the mandatory sentencing laws. This results in people being sent to prison when they would otherwise not reach that sentence of last resort. This also results in people pleading not guilty and proceeding to trial, in an attempt to avoid conviction and the inevitable mandatory sentence. These people may otherwise have pleaded guilty and been sentenced.
This, in turn, clogs up our already overloaded judicial system, causing trials to be listed further and further away in the future.
Seek advice from a criminal lawyer
In some circumstances, these charges can be negotiated with the police and prosecution. The negotiation can involve offering to plead guilty to a lesser charge that doesn’t carry a mandatory sentence, making a submission to remove a circumstance of aggravation that results in a mandatory sentence, or making a submission that the charge should be discontinued altogether.
The right course of action can differ from case to case.
If you are worried about mandatory sentencing and would like advice with your charge, please contact our team of Perth-based criminal lawyers through our contact form, on (08) 9500 8915 or at [email protected].