What Is Mandatory Sentencing in WA Law?

Mandatory sentencing in Western Australia is where Parliament requires a court to impose at least a minimum sentence for a particular offence or for an offence committed in particular circumstances. In those cases, the judge does not have full freedom to sentence below that minimum, even if there are personal circumstances that would usually matter at sentencing.

In WA, mandatory sentencing is not a general rule that applies to all criminal offences. It only applies where the legislation itself says the court must impose a minimum term, or must impose a sentence despite any other written law. That is why the exact wording of the Criminal Code matters.

This article explains what mandatory sentencing means in WA, how it works in practice, and some of the main Criminal Code examples.

 

What does mandatory sentencing mean?

In plain terms, mandatory sentencing means the court must impose at least the minimum penalty fixed by legislation. The court may still have some discretion above that minimum, but not below it.

That is different from the usual sentencing process. In many cases, a court looks at the seriousness of the offence, the offender’s background, whether there was a plea of guilty, whether there is remorse, and any other aggravating or mitigating factors before deciding on a penalty. But where a mandatory minimum applies, part of that ordinary discretion has already been removed by Parliament.

 

When does mandatory sentencing apply in WA?

The key point is that mandatory sentencing only exists when the legislation clearly creates it. If the offence provision does not say the court must impose a minimum term, then the court keeps its ordinary sentencing discretion, subject to the usual sentencing laws.

That is why mandatory sentencing questions in WA usually start with the same issue: what does the relevant section of the Criminal Code actually say?

 

Examples of mandatory sentencing in WA

Mandatory sentencing for repeat home burglary

One of the best-known WA examples is repeat home burglary. Section 401B says a person being sentenced for a home burglary is a repeat offender if they have at least 3 relevant convictions. The section also makes clear that the conviction for the current offence is counted if it is a relevant conviction.

Section 401 then sets out the penalties for burglary. Where the offender is a repeat offender, section 401(4) generally requires the court to impose a minimum sentence. For an adult offender, the minimum is at least 2 years imprisonment for a current offence committed on or after the commencement day. For a person who was under 18 at the time of the offence, the court must impose either at least 12 months imprisonment or at least 12 months detention. Section 401(5) says the court must not suspend a term of imprisonment imposed under that subsection.

However, that is not quite the end of the story. Section 401 operates subject to section 401A(4), which allows a lesser sentence in the specific exceptional circumstances described in that provision.

So in a repeat home burglary case, the court is not simply choosing from a broad range of options. The legislation generally directs the court to impose at least the minimum term set out in section 401, unless the exceptional circumstances provision applies.

Mandatory sentencing for serious assault in prescribed circumstances

Another important example appears in section 318 of the Criminal Code, which deals with serious assault. The offence covers assaults on various protected workers and public officers, including police officers, prison officers, ambulance officers, some transport officers, hospital workers, and certain contract custodial workers. The general penalty is up to 10 years imprisonment in the armed or in-company circumstances in section 318(1)(l), or up to 7 years in other cases.

Section 318 also creates mandatory sentencing for offences committed in prescribed circumstances. For an offender aged 18 or over, section 318(4) requires the court to impose at least 9 months imprisonment if the offence was committed in the armed or in-company circumstances in section 318(1)(l), or at least 6 months imprisonment in other prescribed circumstances. The term imposed must not be suspended.

Those prescribed circumstances are defined in section 318(5). They include assaults under section 318(1)(d) or (e) against certain public officers, such as police officers and prison officers, where the officer suffers bodily harm. They also include certain assaults on ambulance officers and some other protected workers where bodily harm is suffered.

This is one of the clearest examples of how mandatory sentencing works in practice. Once the relevant facts are proved, the court must impose at least the minimum sentence fixed by the Code.

Mandatory sentencing for murder in WA

Murder is another key example. Section 279 defines murder and then deals with sentence. Under section 279(4), a person other than a child who is guilty of murder must be sentenced to life imprisonment unless that sentence would be clearly unjust in the circumstances and the person is unlikely to be a threat to community safety when released, in which case the person is liable to imprisonment for 20 years.

Section 279(5A) goes further for an adult offender who commits murder in the course of conduct that constitutes an aggravated home burglary. If the court does not impose life imprisonment, it must still impose a term of at least 15 years.

For children, section 279(5) provides different sentencing options. A child guilty of murder is liable either to life imprisonment or to be detained during the Governor’s pleasure. In aggravated home burglary cases, additional minimum sentencing rules can still apply to juvenile offenders, so age can change how the law operates, but it does not automatically remove mandatory sentencing from the picture.

Mandatory sentencing for attempt to unlawfully kill during aggravated home burglary

Section 283 makes attempt to unlawfully kill punishable by life imprisonment. It also contains a mandatory sentencing rule for adult offenders where the offence is committed in the course of conduct that constitutes an aggravated home burglary. In that situation, if the court does not impose life imprisonment, it must impose a term of at least 15 years.

That is another example of a mandatory minimum. The court still has some room to decide the final sentence, but it cannot go below the statutory floor.

 

Does mandatory sentencing apply to young offenders?

Sometimes, yes.

The answer depends on the offence provision. For example, section 318 includes a special rule for offenders who had reached 16 but not 18 years of age. In prescribed circumstances, the court must impose either at least 3 months imprisonment or at least 3 months detention, must not suspend any term of imprisonment imposed, and must record a conviction.

Likewise, section 401 contains specific rules for offenders who were under 18 at the time of a repeat home burglary offence. In that situation, the court must impose either imprisonment or detention for at least the minimum period set out in the section, unless the exceptional circumstances provision in section 401A(4) applies.

So while the rules for children and young people are not always identical to the rules for adults, mandatory sentencing can still apply.

 

Can a mandatory sentence be suspended?

Usually, no, at least not to the extent of the minimum term.

In section 318, the Code expressly says the mandatory term imposed under section 318(4) must not be suspended. Section 401(5) also expressly says the court must not suspend a term of imprisonment imposed for repeat home burglary under section 401(4).

The Sentencing Act also reinforces the practical effect of mandatory minimums. Section 95A says that for prescribed offences, a prisoner becomes eligible for parole only after serving the greater of the mandatory minimum sentence for that offence or the ordinary period required before parole eligibility.

Put simply, where a mandatory minimum applies, the offender cannot expect the court to simply suspend that minimum term and let them walk out of court.

 

Why is mandatory sentencing controversial?

Mandatory sentencing is often controversial because it limits judicial discretion. The Law Society of Western Australia says these regimes impose restrictions on judicial discretion and independence, and the paper also points to concerns about harsh and disproportionate outcomes, limited evidence of deterrence, and increased recidivism.

Whether a person agrees with that criticism or not, the important legal point is simple. Mandatory sentencing changes the normal sentencing process by reducing the court’s ability to tailor the penalty to the facts of the individual case.

 

The main takeaway

Mandatory sentencing in WA means that for certain offences, or offences committed in certain circumstances, the court must impose at least a minimum sentence fixed by legislation.

Under the Criminal Code, important examples include repeat home burglary under section 401, serious assault in prescribed circumstances under section 318, murder under section 279, and attempt to unlawfully kill in the course of aggravated home burglary under section 283. But the exact effect of these provisions depends on the wording of the legislation, including any exceptions built into the section itself.

Because these provisions can have a major effect on sentencing outcome, it is important to get legal advice as early as possible if you are charged with an offence that may attract mandatory sentencing.