Mandatory sentencing and others

Public officer

• Police officers

• Youth custodial officers

• Public transport security officers

• (as defined under s 1 of the Criminal Code)

Mandatory sentencing (assault of public officer)

Adult

• assault bodily harm- minimum 12 months imprisonment

• serious assault with aggravating circumstances- minimum 9 months imprisonment

• serious but without aggravating factors- minimum 6 months imprisonment

  between 16 and 18 years old, any of the above offences carry a mandatory sentence of 3 months youth detention.

• no judicial discretion to reduce sentence

aggravating circumstances

• Being armed with a weapon

• Committing the assault in company (i.e. with others)

Purpose of mandatory sentencing for assault

These laws aim to provide greater protection for public officers and send a strong message about the seriousness of such offences.

Burglary

entering another’s property without consent.

Three strike home burglaries mandatory sentencing

• Mandatory sentences introduced in 1996.

• Criminal Law Amendment Act 2015 increased mandatory sentences (s.401 Criminal Code).

• Adult with 2+ prior relevant convictions must get at least 2 years imprisonment for home burglary.

• Offender under 18 gets at least 12 months youth detention.

• No judicial discretion to reduce the sentence.

Serious offences during home burglary

• If an adult commits a serious offence during a home burglary, court must impose at least 75% of the maximum sentence for that offence. e.g. max penalty is 20 years, have to get at least 15 years

• Serious offences include:

  • Assault causing death (s.281)

  • Grievous bodily harm (s.297)

  • Various sexual offences

Arguments for mandatory sentencing

• Reflects democratic will via Parliament, responds to public perception that courts are too lenient.

• Provides a powerful deterrent against offending.

• Keeps offenders in jail, protecting the community.

• Limits judicial discretion by setting minimum mandatory penalties.

Criticisms of mandatory sentencing

• limit on judicial discretion; removes flexibility, proportionality; ignores individual circumstances.

• Disproportionately affects low socioeconomic and disadvantaged groups: targets crimes of poverty (burglaries) + petty crimes linked to social dysfunction; causing high incarceration rates

• unintentional racial bias.

• Prioritizes retribution and deterrence over rehabilitation.

• WA is only jurisdiction imposing mandatory sentences on under-18 offenders, youth incarceration undermines rehabilitation; normalizes prison life.

• Example: 12-year-old Aboriginal boy received 12 months youth detention for minor third strike burglary involving a $4 item.

• Shows need for proportionate and individualized sentencing.

Appeals

• Appeals allow convicted persons to challenge conviction or sentence.

• Summary conviction appeals (Magistrates Court) reviewed by single Supreme Court judge.

• District/Supreme Court appeals go to the Court of Appeal (usually 3 judges, sometimes 5).

• Appeals are key to natural justice and rule of law.

Appeals are key to natural justice and rule of law

• Natural justice requires that people have the right to a fair hearing and an impartial decision-maker. Appeals allow a higher court to review whether those principles were followed.

• Rule of law - laws must be known, clear and consistent. Appeals ensure that courts apply the law correctly and uniformly across cases.

Criminal appeals amendment act 2022

• allows convicted persons of indictable offences to bring a second or subsequent appeal if they can present fresh and compelling evidence.

• Previously, once a first appeal was lost, the only option was to seek the Royal Prerogative of Mercy through the Attorney General, a rare and political process.

• Reform was prompted by high-profile wrongful convictions, and its significance lies in strengthening natural justice (by giving wrongfully convicted people another pathway to a fair hearing), upholding the rule of law (by ensuring courts, not politics, correct miscarriages of justice), and increasing public confidence in the justice system

Austic v state of western australia (2020)

• In 2004, Stacy Thorn was stabbed 21 times and died while pregnant.

• Evidence included a knife found in a field and a bloody cigarette packet with victim’s DNA.

• Austic maintained innocence; convicted in 2009, sentenced to life with 25-year non-parole period.

Austic Appeal

• Court of Appeal rejected his appeal in 2010.

• In 2018, a Royal Prerogative of Mercy was sought; Attorney General referred the case back to Court of Appeal.

• In 2020, new, fresh and compelling evidence showed:

  • Knife found was too short to cause some wounds.

  • Bloody cigarette packet was found after initial police photos (possible evidence planting).

• Court of Appeal ruled a miscarriage of justice, overturned conviction, ordered retrial.

• bail, acquitted, received $1.6 million plus legal costs

Age of criminal responsibility

• Until 2023, the age was 10 years old across all Australian jurisdictions.

• Children under 10 cannot be found guilty of a criminal offence.

Common law principle of criminal responsibility

• Doli Incapax

• Applies to children aged 10 to 14.

• Presumes children lack capacity for criminal responsibility.

• Prosecution must rebut this presumption by proving the child knew their conduct was morally wrong (not just naughty).

• Codified in WA under section 29 of the Criminal Code.

Criticisms of doli incapax

• Children can be arrested and remanded in custody before mental capacity is tested.

• Exposure to the criminal justice system can have negative lifelong impacts even if acquitted later.

international and local criticisms (legal responsibility)

• Australia is a signatory to the UN Convention on the Rights of the Child (CRC).

• Article 37 CRC: Arrest, detention, or imprisonment of a child must be a last resort.

• 2017 criticized the detention of young Indigenous children in Australia as particularly distressing.

• 2019 urged Australia to raise the age to 14 but noted the recommendation was not implemented.

• Legal Aid, Law Society WA advocate for raising age.