Mandatory Minimum Sentences in Australia: Balancing Justice and Judicial Discretion

Mandatory minimum sentences are receiving significant media coverage as we approach both State and Federal elections. 

A mandatory minimum sentence is a law that sets a minimum punishment that must be imposed by a judge for certain crimes, regardless of the circumstances surrounding the case or the offender. This means that even if a judge believes a lesser sentence would be more appropriate based on the facts of the case (such as the offender’s background, remorse, or personal situation), they are still required by law to impose at least the minimum sentence specified.

While supporters argue that mandatory minimum sentences provide consistency and deterrence, critics believe that the flexibility of judicial discretion is important to achieve fairness and justice in sentencing.

Mandatory minimum sentences are controversial for several reasons:

1. Limited Judicial Discretion: They remove the ability of judges to tailor sentences to the unique circumstances of each case. Judges usually consider factors such as the offender's background, the severity of the offence, and any mitigating circumstances (e.g., remorse, personal circumstances, or a guilty plea). Mandatory minimums can prevent judges from making a nuanced decision.
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2. Harshness and Injustice: Critics argue that mandatory minimum sentences can result in disproportionately harsh sentences for offenders, especially in cases where there are extenuating circumstances. 
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3. Overcrowding in Prisons: By imposing mandatory minimums, the law may require long prison sentences for individuals who could otherwise be rehabilitated through alternative measures like community service or treatment programs. This can contribute to overcrowded prisons and strain the justice system.
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4. Ineffectiveness in Crime Prevention: Some studies suggest that mandatory minimum sentences do not effectively deter crime. Instead of preventing criminal behavior, they can simply increase the number of people incarcerated without addressing the root causes of crime, such as social or economic factors.
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5. Disproportionate Impact on Marginalized Groups: Mandatory minimums can disproportionately affect marginalized or vulnerable populations. These groups are often subject to over policing, exacerbating issues of inequality within the criminal justice system.

In the High Court case Hurt v The King; Delzotto v The King [2024] HCA 8, decided on 13 March 2024, the Court addressed the application of mandatory minimum sentences under section 16AAB of the Crimes Act 1914 (Cth). The appellants, Hurt and Delzotto, had been convicted of offences carrying mandatory minimum sentences. The central issue was whether these mandatory minimum sentences should be considered as the base of the sentencing range or as the minimum permissible sentence.

The Court held that where legislation imposes a mandatory minimum sentence, it sets the lowest possible sentence that a judge can impose for the offence, regardless of any mitigating factors. Essentially, even if a court believes a lesser sentence would be appropriate based on the circumstances, it must still impose at least the mandatory minimum sentence. This decision reinforces that mandatory minimum sentences limit judicial discretion in sentencing, ensuring the sentence cannot fall below the statutory minimum.

This decision underscores the binding nature of mandatory minimum sentences in Australian criminal law, limiting judicial discretion in sentencing for offences where such minimums are prescribed.