Mandatory Sentencing

Mandatory sentencing cases

Farmer v The Queen

In Farmer v The Queen, the Court of Appeal examined the application of s 5(2H)(a), whether the offender assisted law enforcement, and whether the application of substantial and compelling circumstances under s 5(2H)(e) justified a departure from mandatory sentencing (note that this provision is equivalent to s 10A(2) provisions concerning minimum non-parole periods).

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 Queen concerned an aggravated carjacking (a category 1 offence) in which the offender and a co-offender used knives to threaten and rob a victim of his car keys and phone. The offending occurred only several weeks after the offender’s eighteenth birthday, and evidence indicated that the applicant was exceptionally immature and would be particularly vulnerable in prison.

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]).