Mandatory Sentencing

Our new Mandatory Sentencing Resource, available for download by clicking on the image to the right, discusses the NSW offence of ‘Assault Causing Death’, the so-called One Punch offence, and includes a case note summarising the sentencing decision in  R v Garth(No 2) [2017] NSWDC 471. The independence of the judiciary is a key principle of the rule of law. For the right to a fair trial to be preserved, the judiciary need to be free to act according to the law, without influence from outside actors – such as parliament or the media. The introduction of mandatory sentences for criminal offences by parliaments threatens this independence.

What is a mandatory sentence?

A mandatory sentence is a sentence which provides a mandatory or minimum sentence when is found guilty of a crime. This limits a judge’s discretion, in particular the influence of mitigating and aggravating circumstances, in sentencing. Some mandatory sentences are for “life imprisonment” and specify non parole periods, these generally relate to the crime of murder. However, more numerous are sentences where legislation dictates a minimum sentence that must be issued, though the judge may also choose to impose a heavier sentence if the case warrants it. There is disagreement in the community and among legal academics about mandatory sentencing. The links below reflect some of the debate in each jurisdiction: Academic views on  mandatory sentencing as remedy, sentencing of life imprisonment and the constitutionality of mandatory sentencing provide a deeper analysis of the legal complexities.