The Mandatory Story: Part 2 (Home Burglaries)

The Mandatory Story: Part 2 (Home Burglaries)

In 2015, the West Australian Parliament passed the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA). This amendment was designed to implement the government’s 2013 election promise to reduce the rate of home invasions.

It amends the Criminal Code[1] to make a number of key changes, including:

  • providing mandatory minimum sentences for aggravated home burglaries (to 75% of the maximum sentence specified in the code),
  • revising the counting rules for “third strike” home burglars (Lord Coke’s rule is out); and
  • increasing the mandatory minimum for adult repeat home burglary offenders (from 12 months to 2 years).[2]

This begs the question, will the imposition of the mandatory sentences for home burglars deliver the government’s election promise?

The simple answer is no.

Mandatory sentences in general are a “populist approach to sentencing,” used to counter media hysteria and create the perception that the government is committed to decreasing the crime rate. With last week’s election results, it is no surprise that the government was trying to increase voter support.

In reality, mandatory sentences get in the way of the courts producing a just outcome. Sentencing is a very complex and important process, in GJT v Western Australia[3] (‘GJT’) McLure P stated that a “sentencing judge must be positively satisfied that suspension of the term of imprisonment (or other less penalty) is not appropriate before a term of imprisonment can be imposed.”[4] This process simply does not occur if the government gets to force imprisonment on home burglars.

Now you might think, well, home burglars deserve to be punished. It doesn’t matter if we are being harsh on them, because the safety of the community is at stake here. That’s what Hon Michael Mischin said too — in the second reading speech he justifies the Amendment by saying; “citizens are concerned that those who perpetrate such outrages appear not to be punished with sufficient severity by the courts.”[5]

The problem is that Mandatory sentences actually offend one of the foundational principles our justice system is based on — the independence of the judiciary. The courts are independent because not every case is the same and they need discretion to ensure they are fair outcomes.

We know mandatory sentences do create unfair outcomes, especially in relation to Indigenous Australian Youths. For example, an Amnesty International Report found that WA Indigenous Children were 53 times more likely to be jailed than peers.[6] The Home burglary Amendment applies to children and exacerbates this issue.  Mandatory sentencing also breaches International treaties that Australia is a signatory too, such as article 14(5) of the International Covenant on Civil and Political Rights[7], because offenders are not able to appeal their sentences. [8]

What’s more is that home burglaries are actually at an all time high, which confirms that mandatory sentencing is not effective.[9]

It’s time for the government to admit they made a mistake and let the court process take its course to produce the right outcomes.

Nadia Cavallaro

[1] Criminal Code Act Compilation Act 1913(WA)

[2] Explanatory memorandum, Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 (WA)

[3] [2011] WASCA 263

[4] GJT v Western Australia [2011] WASCA 263, [4].

[5] Ibid.


[7] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Australia ratified on 13 August 1980.

[8] Wright v Gettings [2016] WASC 426, [22].