Mandatory Sentencing in Victoria
The mandatory sentencing scheme, introduced by parliament in 2017, is based on the principle of retributivism, the notion that offenders deserve to be punished in proportion to the gravity of offending and the harm resulting from offending conduct. The principles and purposes of sentencing in Victoria are set out in the Sentencing Act 1991 (Vic). As stated in sections 5(4)-(4C), custodial sentences cannot be imposed unless the court considers that another sentence cannot meet sentencing purposes.
However, the mandatory sentencing scheme limits the capacity of judicial officers to impose non-custodial sentences designed to address underlying social issues to reduce reoffending. Considering empirical studies on the effectiveness of imprisonment as a specific deterrent, the Victorian Sentencing Advisory Council has stated:
“Imprisonment has either no effect upon reoffending or a criminogenic effect. There are a number of reasons for the failure of the experience of imprisonment to deter offenders from reoffending, including that imprisonment may create a criminal learning environment, imprisonment may label and stigmatise offenders and imprisonment may be an inappropriate way to address the underlying causes of crime.”
Possible explanations offered by the Sentencing Advisory Council for these findings include that prison severs social ties that encourage lawful behaviour, and imprisonment fails to address many underlying causes of criminality (such as drug, alcohol and mental health issues). Of further concern is that mandatory sentencing may disproportionately impact particular groups of prisoners at greater risk of reoffending, such as younger and indigenous offenders (Holland, Ointon and Ross, 2007; Zhang and Webster (2010)).
What are the mandatory sentencing laws?
The Sentencing Act 1991 (Vic) requires a court to impose a mandatory sentence (or custodial order) for offenders aged 18 or older convicted of certain criminal offences, known as Category 1 and Category 2 offences unless a ‘special reason’ applies.
Some offences also attract a statutory minimum sentence or non-parole period for offences committed by an offender aged 18 years or over unless a ‘special reason’ exists (under the Sentencing Act 1991 s 10A).
‘Special reasons’ exceptions to the application of mandatory sentences for Category 1 offences against protected officials exist under section 5(2GA), and exceptions for Category 2 offences exist under sections 5(2H) and 5(2I). If the offence has a statutory minimum non-parole period, the relevant exceptions exist under section 10A.
If an offender satisfies a ‘special reasons’ exception, they cannot necessarily avoid imprisonment, but they have reached the threshold to avoid the application of the mandatory sentence or minimum non-parole period for the offence. The type of special reason that is satisfied then determines the type of sentence the court can impose as an alternative.
Category 1 offences
In Victoria, Category 1 offences encompass the most serious crimes committed by people 18 years and older, including murder, rape and sexual offences against children, causing serious injury intentionally or recklessly in circumstances of gross violence and violence offences against protected officials.
For a person convicted of a Category 1 offence, a court must make a custodial order and not attach a Community Correction Order during sentencing (Sentencing Act 1991 s 5(2G)). A custodial order in this context includes:
- imprisonment
- drug treatment orders
- youth justice centre orders.
While combined orders, such as a term of imprisonment and a community corrections order, are normally considered custodial orders under the Sentencing Act 1991, courts are prohibited from imposing a combined order for a Category 1 offence. However, in relation to category 1 offences against protected officials, an exemption applies such that the court may impose a sentence other than a custodial order if ‘special reasons‘ exist (s 5(2GA)).
Category 2 offences
For a Category 2 offence, a court must make a custodial order and cannot make a combined order (i.e. imprisonment and community corrections order) unless special reasons exist under section 5(2H) of the Sentencing Act 1991. Therefore, a person convicted of a Category 2 offence, unlike Category 1, can avoid imprisonment if any of the below special reasons are met:
- Assisting authorities: The offender assisted or undertakes to assist law enforcement in the investigation or prosecution of an offence (s 5(2H)(a)). Notably, per Farmer v The Queen, an admission is not sufficient to constitute assistance to authorities for the purposes of this exception;
- Impaired mental functioning: The offender proves on the balance of probabilities that—
- The offender had impaired mental functioning at the time of the offending conduct causally linked to the commission of the offence, which substantially and materially reduces their culpability (5(2H)(c)(i)); or
- Impaired mental functioning would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment (s 5(2H)(c)(ii)).
- Secure treatment orders: The court proposes to make a Court Secure Treatment Order or a Residential Treatment Order (s 5(2H)(d)); or
- Substantial and compelling circumstances: There are ‘substantial and compelling circumstances that are exceptional and rare, and that justify’ not imposing a sentence of imprisonment (s 5(2H)(e)).
In determining whether ‘substantial and compelling’ circumstances exist under section 5(2H)(e), the court must:
- Regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1);
- Give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence;
- Not have regard to: the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or an early guilty plea; or prospects of rehabilitation; or parity with other sentences; and
- Have regard to parliament’s intention that a sentence of imprisonment should ordinarily be imposed and whether the cumulative impact of the circumstances justify a departure from such a sentence (s 5(2HC).
These exceptions closely mirror the ‘special reasons‘ test for not imposing a mandatory minimum sentence under section 10A (see below).
Violence offences against protected officials
Since October 2018, Victorian laws have made specific offences against protected officials (such as emergency workers) a category 1 offence under the Sentencing Act 1991. As such, the court is required to impose a custodial order as well as a statutory minimum non-parole period (for certain offences). However, the court may impose a sentence other than a custodial order if ‘special reasons’ exist in relation to a designated protected official offence under s 5(2GA).
The following officials are protected for this purpose (defined in ss 10AA(8)-(11)):
- emergency workers on duty;
- custodial officers on duty; and
- youth justice custodial workers on duty.
A ‘special reason’ will exist for an offence against a protected official if:
- the offender proves on the balance of probabilities that, at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability (that is, the offender can only avoid prison if ‘special reason’ under section 10A(2)(c)(i) is satisfied); and
- the court is satisfied that a mandatory treatment and monitoring order, a residential treatment order or a Court Secure Treatment Order, as the case requires, is appropriate.
If a person is charged with certain violence offences against protected officials (excluding in circumstances of gross violence) and the court finds that a special reason applies, the court may impose either imprisonment (without a CCO) or one of the following orders:
- a mandatory treatment and monitoring order, whether or not a sentence of imprisonment is also imposed (s 44A);
- a residential treatment order (s 82AA(1)); or
- a court secure treatment order (s 94A).
The court may elect not to impose a sentence of imprisonment and instead impose a youth justice centre order for the minimum non-parole period if the offender was under 21 at the time of the offence in certain circumstances (see s 10AA(2)-(3)).
Minimum non-parole period offences
Sections 9B to 10AE of the Sentencing Act 1991 require specific lengths of custodial sentences or non-parole periods for the following types of offences.
- Manslaughter:
- in circumstances of gross violence (s 9B(2));
- by a single punch or strike (s 9C(2));
- Offences against protected officials (s 10AA);
- Gross violence offences (s 10); and
- Aggravated home invasion or carjacking offences (ss 10AC and 10AD).
In addition to ‘special reasons’, circumstances in which minimum non-parole periods do not apply to the above offences vary depending on the offence and circumstances of the offending, including the age of the offender.
Mandatory minimum sentences also apply to breaches of supervision orders in certain circumstances under the Serious Offenders Act 2018 (Sentencing Act 1991 s 10AB).
Minimum non-parole periods (and minimum sentences) for violence offences against protected officials
Statutory minimum sentences or non-parole periods apply to certain offences against protected officials (unless a special reason applies) if it is proved beyond reasonable doubt that the victim was a protected official and the offender knew or was reckless as to whether the victim was a protected official.
Offence | Offence category | Maximum penalty | Statutory minimum |
Intentionally causing serious injury in circumstances of gross violence (victim being an on duty emergency worker, a custodial office or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 15A; Sentencing Act 1991 (Vic) s 10AA, Sch 1) | Category 1 | 20 years | 5 years non-parole |
Recklessly causing serious injury in circumstances of gross violence (victim being an on duty emergency worker, a custodial office or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 15B; Sentencing Act 1991 (Vic) s 10AA, Sch 1) | Category 1 | 15 years | 5 years non-parole |
Causing serious injury intentionally (victim being an on duty emergency worker, a custodial office or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 16; Sentencing Act 1991 (Vic) ss 3, 10AA, Sch 1) | Category 1 | 20 years | 3 years non-parole |
Causing serious injury recklessly (victim being an on duty emergency worker, a custodial office or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 17; Sentencing Act 1991 (Vic) ss 3, 10AA, Sch 1) | Category 1 | 15 years | 2 years non-parole |
Expose emergency worker to risk while driving and emergency worker is injured (Crimes Act 1958 (Vic) ss 317AC and 317AD; Sentencing Act 1991 (Vic) ss 3, 10AE(1)) | Category 1 | 20 years | 2 years non-parole |
Intentionally or recklessly causing injury (victim being an on duty emergency worker, a custodial office or a youth justice custodial worker) (Crimes Act 1958 (Vic) s 18; Sentencing Act 1991 (Vic) ss 3, 10AA) | Category 1 | 10 and 5 years, respectively | 6 months’ imprisonment |
Importantly, the statutory minimum imprisonment or non-parole period does not apply if the offender’s involvement was only minor or the offender was less than 18 years of age at the time of the offence (Sentencing Act 1991 ss 10AA(6)(a) and (b)).
Minimum non-parole periods for manslaughter
A statutory minimum non-parole period of 10 years applies to a conviction for manslaughter committed in circumstances of gross violence and manslaughter by a single punch or strike (ss 9B(2), 9C(2)). In these cases, the prosecution is required to give notice of an intention to apply for the application of minimum non-parole provisions (s 9A).
For manslaughter in circumstances of a single punch or strike, a minimum non-parole period of 10 years applies to a conviction if (s9C(2)):
- Notice is given by the DPP; and
- The offender was aged 18 or older at the time of the commission of the offence; and
- The punch or strike is:
- a dangerous act;
- intentionally delivered to any part of the head or neck;
- unexpected by the victim;
- the offender knew the victim was not expecting, or was probably not expecting, the punch or strike; and
- The offence is not made out by way of some forms of complicity (Crimes Act ss 323(1)(a)–(b)); and
- No ‘special reason’ applies.
For manslaughter in circumstances of gross violence, a minimum non-parole period of 10 years applies if (s 9B(2)):
- Notice is given by the DPP; and
- The offender was aged 18 or older at the time of the commission of the offence; and
- There are circumstances of gross violence:
- The offender is in company with two or more persons, or in agreement, arrangement or understanding with two or more persons; and
- The offender also:
- Planned in advance to have an offensive weapon and used that weapon to cause death; or
- Planned in advance to engage in conduct that caused death and a reasonable person would have foreseen that it was likely the conduct would cause death; or
- caused two or more serious injuries to the victim during a sustained or prolonged attack; and
- No special reason applies.
Minimum non-parole periods for other offences
Where an offender was aged 18 or older at the time of the commission of the offence, and no special reason applies, the following offences attract a mandatory minimum non-parole period.
Offence | Offence category | Maximum penalty | Statutory minimum |
Manslaughter in circumstances of gross violence (Common law; Crimes Act 1958 (Vic) s 5; Sentencing Act 1991 (Vic) ss 3, 9B, Sch 1) | Category 2 | 20 years | 10 years’ non-parole |
Manslaughter by single punch or strike (Common law; Crimes Act 1958 (Vic) ss 4A, 5; Sentencing Act 1991 (Vic) ss 3, 9C, Sch 1) | Category 2 | 20 years | 10 years’ non-parole |
Intentionally causing serious injury in circumstances of gross violence (not a protected official) (Crimes Act 1958 (Vic) s 15A; Sentencing Act 1991 (Vic) s 10, Sch 1) | Category 1 | 20 years | 4 years’ non-parole |
Recklessly causing serious injury in circumstances of gross violence (not a protected official) (Crimes Act 1958 (Vic) s 15B; Sentencing Act 1991 (Vic) ss 3, 10, Sch 1) | Category 1 | 15 years | 4 years’ non-parole |
Aggravated carjacking (Crimes Act 1958 (Vic) s 79A; Sentencing Act 1991 (Vic) ss 3, 10AD) | Category 1 | 25 years | 3 years’ non-parole |
Aggravated home invasion (Crimes Act 1958 (Vic) s 77B; Sentencing Act 1991 (Vic) ss 3, 10AC) | Category 1 | 25 years | 3 years’ non-parole |
Supervision order breaches
A sentence of imprisonment of at least 12 months applies to a person sentenced for breaching a supervision or interim supervision order under section 169 of the Serious Offenders Act 2018 (Vic). Under section 10AB of the Sentencing Act 1991, this minimum term of imprisonment applies unless the court finds a ‘special reason‘ exemption under section 10A.
Federal minimum non-parole periods
Under Commonwealth legislation, treachery, terrorism, treason and espionage (Crimes Act 1914 (Cth) s 19AG(1)), and aggravated people smuggling (Migration Act 1958 (Cth) s 236B) are defined as ‘minimum non-parole offences’. A single non-parole period of at least three-quarters of the head sentence applies when sentencing an offender to one or more of these offences (Crimes Act 1914 s 19AG(2)).
‘Special Reasons’ exceptions s 10A
A court may find a ‘special reason’ exists, permitting an exception to the application of a minimum non-parole period (or statutory minimum sentence), if:
- Assisting authorities: The offender has provided assistance or given an undertaking to assist authorities in the prosecution or investigation of an offence (s 10A(2)(a)); or
- Impaired mental functioning: The offender proves on the balance of probabilities that:
- At the time of committing the offence, the offender had impaired mental functioning that is causally linked to their offending and ‘substantially and materially’ reduced the offender’s culpability (s 10A(2)(c)(i)). This exception does not apply if the impairment was substantially caused by self-induced intoxication (s 10A(2A)); or
- The offender has impaired mental functioning, which would result in them being subject to substantially and materially greater than ordinary burden or risks of imprisonment (s 10A(2)(c)(ii);
- Secure Treatment Orders: The court intends to impose a Court Secure Treatment Order or Residential Treatment Order for the offender (s 10A(2)(d)); or
- Substantial and compelling circumstances: There are rare and exceptional substantial and compelling reasons that justify not imposing a term of imprisonment (s 10A(2)(e)).
Impaired mental functioning
For the purposes of impaired mental functioning exceptions under sections 10A(2)(c)(i) and (ii), impaired mental functioning means:
- A mental illness within the meaning of the Mental Health Act 2014. This includes a medical condition that is characterised by a significant disturbance of thought, mood perception or memory; or
- An intellectual disability within the meaning of the Disability Act 2006; or
- An acquired brain injury; or
- An autism spectrum disorder; or
- A neurological impairment, including but not limited to dementia.
Impaired mental functioning requires a report from a qualified professional to comment on the presence of an impairment, showing the causing link between the impairment and the commission of the offence, and on the burden of imprisonment (if relevant).
For s 10A(2)(c)(i), it is also necessary to show that the impairment ‘substantially and materially’ reduces the offender’s culpability. While demonstrating that an offender has impaired mental functioning with medical reports is generally straightforward, proving a causal link to reduce culpability, and demonstrating that the impairment was not a result of self-induced intoxication is more challenging.
The impaired mental functioning exception does not apply in matters in which the impairment was ‘substantially’ caused by self-induced intoxication unless intoxication was involuntary or due to fraud, sudden emergency, mistake, duress or force or from the use of medication use as prescribed (Crimes Act 1958 s 322T). The issue of self-induced intoxication is often relevant in matters related to impaired mental functioning.
Regarding section 10A(2)(c)(ii), consideration is given to the factors that increase the ordinary burden of incarceration as a result of impaired mental functioning. For example, if such an impairment makes the offender more vulnerable in the prison environment due to pressures, lack of understanding or awareness of social cues, or pre-existing conditions.
Substantial and compelling circumstances
A court may find a special reason exists if there are substantial and compelling circumstances that are exceptional and rare and that justify doing so. This special reason exception is also found in respect of Category 2 offences under s 5(2H)(e), and the principles apply to both tests.
The Court of Appeal has said that this exception is a stringent test, one that is not discretionary and can rarely be satisfied (Peers v The Queen at [51]). However, the test has two key steps:
- Substantial and compelling circumstances mean circumstances that are sufficiently weighty and powerful to justify not imposing a custodial sentence (DPP v Lombardo at [64])
- And if so, the circumstances must be ‘exceptional and rare’ in the sense that they are ‘wholly outside the “run of the mill” factors typical of the relevant offending’ (DPP v Lombardo at [67], [70], quoting Hudgson v The Queen [2016] VSCA 254, [112]).
An accumulation of detail may compel a decision that mandatory detention should not apply, and different conclusions have been reached (see Farmer v The Queen and Buckley v The Queen in ‘mandatory sentencing cases‘ below).
A difficult factor facing an offender (or their defence council) arguing substantial and compelling circumstances is that an offender’s circumstances are rarely dissimilar to what is often seen in the Courts.
In determining whether there are substantial and compelling circumstances under s 10A(2)(e), the court:
- must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in s 5(1) (per s 10A(2B)(a)); and
- must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence (s 10A(2B)(b)); and
- must not have regard to—
- the offender’s previous good character (except for lack of previous convictions or findings of guilt);
- early guilty plea;
- prospects for rehabilitation; or
- parity with other sentences (s 10A(2B)).
Furthermore, in determining the application of this exception, the court should take into account Parliament’s intention that a custodial term should generally be imposed (s 10A(3)).
List of category 1 offences
Category 1 offences are found in the definitions section (s 3) of the Sentencing Act 1991, and include any of the following offences committed by a person 18 years of age or more at the time of offending conduct:
- Murder
- Causing serious injury intentionally in circumstances of gross violence – Crimes Act 1958 s 15A(1)
- Causing serious injury recklessly in circumstances of gross violence – Crimes Act 1958 s 15B(1)
- Causing serious injury intentionally (victim being an emergency worker, custodial officer, or youth justice custodial worker) – Crimes Act 1958 s 16
- Causing serious injury recklessly (victim being an emergency worker, custodial officer, or youth justice custodial worker) – Crimes Act 1958 s 17
- Causing injury intentionally or recklessly (victim being an emergency worker, custodial officer, or youth justice custodial worker) – Crimes Act 1958 s 18
- Rape – Crimes Act 1958 s 38(1)
- Rape by compelling sexual penetration – Crimes Act 1958 s 39(1)
- Sexual penetration of a child under the age of 12 – Crimes Act 1958 s 49A(1)
- Persistent sexual abuse of a child under the age of 16 – Crimes Act 1958 s 49J(1)
- Sexual penetration of a child or lineal descendant (if victim was under 18) – Crimes Act 1958 s 50C(1)
- Sexual penetration of a step-child (if victim was under 18) – Crimes Act 1958 s 50D(1)
- Aggravated home invasion – Crimes Act 1958 s 77B(2)
- Aggravated carjacking – Crimes Act 1958 s 79A(2)
- Intentionally exposing an emergency worker, custodial officer, or youth justice custodial worker to risk by driving (injury to emergency worker, custodial officer, or youth justice custodial worker) – Crimes Act 1958 s 317AC
- Aggravated offence of intentionally exposing an emergency worker, custodial officer, or youth justice custodial worker to risk by driving (injury to emergency worker, custodial officer, or youth justice custodial worker) – Crimes Act 1958 s 317AD
- Trafficking in a drug or drugs of dependence (large commercial quantity) – Drugs, Poisons and Controlled Substances Act 1981 s 71(1)
- Trafficking in a drug or drugs of dependence for the benefit of or at the direction of a criminal organisation (commercial quantity) – Drugs, Poisons and Controlled Substances Act 1981 s 71AA(2)
- Cultivation of narcotic plants (large commercial quantity) – Drugs, Poisons and Controlled Substances Act 1981 s 72
- Certain sexual offences as per the Crimes Act 1958 prior to the Crimes Amendment (Sexual Offences) Act 2016 – including incest, sexual penetration of a child under 16, and persistent sexual abuse of a child under 16.
List of category 2 offences
Category 2 offences are also found in the definitions section 3 of the Sentencing Act 1991 and include any of the following offences committed by a person 18 years of age or older at the time of offending:
- Manslaughter – Crimes Act 1958 s 3(1)
- Child homicide – Crimes Act 1958 s 5A
- Homicide by firearm – Crimes Act 1958 s 5B
- Causing serious injury intentionally (other than against a protected official) – Crimes Act 1958 s 16
- Kidnapping – Crimes Act 1958 s 63A
- Armed robbery (if offender has a firearm, victim injured, or committed in company) – Crimes Act 1958 s 75A(2)
- Home invasion – Crimes Act 1958 s 77A(3)
- Carjacking – Crimes Act 1958 s 79(2)
- Arson causing death – Crimes Act 1958 s 197A
- Culpable driving causing death – Crimes Act 1958 s 318(1)
- Dangerous driving causing death – Crimes Act 1958 s 319(1)
- Kidnapping at common law – Common law offence
- Trafficking in a drug or drugs of dependence (commercial quantity) – Drugs, Poisons and Controlled Substances Act 1981 s 71AA(1)
- Cultivation of narcotic plants (commercial quantity) – Drugs, Poisons and Controlled Substances Act 1981 s 72A
- Providing documents or information facilitating terrorist acts – Terrorism (Community Protection) Act 2003 s 4B(1)
- Aggravated offence of intentionally exposing an emergency worker, custodial officer, or youth justice custodial worker to risk by driving (other than a category 1 offence) – Crimes Act 1958 s 317AD
- Aggravated offence of recklessly exposing an emergency worker, custodial officer, or youth justice custodial worker to risk by driving – Crimes Act 1958 s 317AF
- Discharging a firearm reckless to safety of a police officer or a protective services officer in certain circumstances – Crimes Act 1958 s 31C
- Common assault committed in specific circumstances – Crimes Act 1958 s 320A(1) or (2)
Mandatory sentencing cases
Farmer v The Queen
In Farmer v The
The case concerned an 18 year old offender with no prior convictions involved in an armed robbery (a category 2 offence) with two co-offenders.
- Interpretation of s 5(2H)(a): The court emphasized the importance of interpreting the text of the law itself rather than departing from it based solely on context. Section 5(2H)(a) applies when an offender assists or undertakes to assist law enforcement authorities in the investigation or prosecution process. The assistance provided should be capable of aiding the authorities in achieving favourable law enforcement outcomes, contributing to the investigation or prevention of crimes.
- Assessment of ‘assistance’: The court evaluated whether the offender’s admissions and identification of co-offenders constituted “assistance” within the scope of section 5(2H)(a). The court ruled that while the defendant’s actions amounted to admissions, they did not fulfil the criteria of providing substantial assistance that alters the course of the investigation or provides previously unknown information to investigators. Therefore, the exemption in paragraph (a) was not applicable in this case.
- Substantial and compelling circumstances s 5(2H(e): The court considered whether substantial and compelling circumstances existed that justified a departure from the mandatory detention requirement. The offender’s vulnerable disposition, lack of prior convictions, prospects of rehabilitation, and responsiveness to strict bail conditions were acknowledged. Despite the seriousness of the offence, the court concluded that the defendant’s commitment to rehabilitation and his vulnerability in a custodial setting rendered a further period of detention unjustified.
Given that the offender had been in youth detention, a further period of CCO was considered unduly punitive, and the court was satisfied that the period of detention already served appropriately met the demands for punishment and denunciation. Accordingly, the court allowed the appeal, set aside the sentence and resentenced the applicant to detention in a Youth Justice Centre for a period equal to time served.
Buckley v The Queen
Buckley v The
The Court of Appeal specifically centred on the interpretation of the Sentencing Act 1991, section 10A(2)(e), which requires “substantial and compelling circumstances” that are “exceptional and rare” to depart from a mandatory minimum sentence. On consideration of the offender’s youth, immaturity, difficulties during adolescence and likely vulnerability in prison, the court stated:
“On ordinary principles, those matters taken in combination might well constitute ‘substantial and compelling circumstances’ justifying a non-custodial order. But the sad reality of our criminal justice system is that such circumstances — whether alone or in combination — simply could not be described as ‘exceptional and rare’. On the contrary, they are all too common.”
The court acknowledged the importance of rehabilitating young offenders but noted that the legislation deliberately set a stringent standard for such departures. While the offender’s background, psychological struggles, and immaturity could be considered mitigating factors, the court upheld that the cumulative impact of these factors, though relevant and often encountered, did not reach the high threshold of “exceptional and rare” circumstances. The court highlighted the legislative intent to make departures from mandatory sentences nearly impossible unless the circumstances truly warrant it.
Acknowledging that it was “compelled to do the [offender] an injustice, and the community a disservice”, the court advocated for a more balanced approach that considers the rehabilitative needs of young offenders while ensuring community safety ([47]-[50]).
DPP v Bowen
Another case highlighting issues resulting from mandatory sentencing is DPP v Bowen. In this case, the offender was charged with the Category 2 offence of trafficking in a commercial quantity of a drug of dependence and the offender was sentenced by the trial judge to a community corrections order combined with 12 months of imprisonment.
On a crown appeal against sentence, the Court of Appeal viewed the sentence as appropriate in the circumstances, stating that the non-custodial component of the sentence ‘served the purposes of both punishment and rehabilitation’ and highlighted the importance of strategies designed to help prevent an offender from relapsing into reoffending. However, while the Court of Appeal acknowledged that a combination sentence was ‘peculiarly appropriate’ in this case, it greatly ‘regretted that the legislature has seen fit to limit sentencing discretion’.
As the sentence imposed in the originating court was not authorised by law under the stringent requirements of s 5(2H)(e), and, therefore, did not meet the standard of ‘substantial and compelling circumstances’, the Court of Appeal was required to resentence the offender to three years of imprisonment with a non-parole period of 18 months.
DPP v Lombardo
Mandatory sentencing laws were also criticised by the Court of Appeal in the case of DPP v Lombardo. In this case, Lombardo, an agricultural contractor and tractor driver, was charged with dangerous driving causing death. The incident occurred when Lombardo, whose vehicle’s windows were fogged, turned onto a highway and collided with a motorcycle. Lombardo pleaded guilty to the charge and was sentenced to a three-year community correction order with a condition requiring 250 hours of unpaid community work, and his driver’s licence was cancelled with a disqualification from driving for 18 months.
The Director of Public Prosecutions (DPP) appealed the sentence on the grounds that it did not comply with s 5(2H) of the Sentencing Act 1991, arguing that the circumstances of the case were not ‘exceptional and rare’ and that Lombardo’s symptoms of anxiety and post-traumatic stress did not meet the criteria for ‘impaired mental functioning’ as defined in the Act.
The judges agreed with the Director’s submission, stating that Lombardo’s mild symptoms of anxiety and post-traumatic stress did not constitute ‘impaired mental functioning’, further agreeing that the judge erred in finding that Lombardo’s circumstances were ‘exceptional and rare’. However, the court held that the DPP had failed to establish that the sentence imposed in this case was manifestly inadequate.
The court noted that Lombardo had already served seven months of the community correction order and completed more than half the hours of work prescribed. He had obtained new employment and had strong family and other support. The court concluded that this was a case that warranted exercise of the residual discretion not to interfere with the sentence imposed. Accordingly, the appeal was dismissed.
The court commented on the potentially unintended consequence of treating ‘dangerous driving causing death’ as a Category 2 offence. Stating that the effect of the ‘exceptional and rare’ requirement (under s 5(2H)(e)) places instances of dangerous driving causing death involving low moral culpability in the same position as the significantly more serious offence of culpable driving causing death, despite cases of this kind being closer to cases of mere carelessness. The court noted that sentences for these offences warrant reconsideration (at [104]).
