LEGAL ANALYSIS: Victorian Court rules mandatory minimum sentences are 'unjustified'

"In refusing this application...we have been compelled to do the applicant an injustice, and the community a disservice."

The Court of Appeal of the Supreme Court of Victoria has concluded that mandatory minimum sentences are “unjustified” and violate criminal justice principles.

In handing down their verdict in Buckley v The Queen [2022] VCSA 138 on 14 July, Court of Appeals President Chris Maxwell and Justice of Appeal Terence Forrest JA critical of Section 10AD of the Sentencing Act 1991 (Vic) for forcing the court to sentence an 18-year-old to 3 years behind bars, without parole. Although the two judges opposed the legislation, they were unable to vary the sentence that the legislation imposed.

Beau Buckley, aged 18 years and 4 weeks, was charged with ‘aggravated carjacking’ after he and his co-offender took the car of the victim at knifepoint, shortly before 5 am. The two also robbed the victim of his phone and $300 worth of ‘cream chargers,’ which are used in conjunction with whipped cream dispensers to get high from nitrous oxide.

Although the police eventually recovered all of the stolen property, Buckley had only retained possession of the cream chargers; the car and phone were kept by the co-offender.

Aggravated carjacking is a criminal offence under Section 79A of the Crimes Act 1958 (Vic). Following the passage of the Justice Legislation Miscellaneous Amendment Act 2018 (Vic), which amended the Sentencing Act 1991 (Vic), a mandatory minimum sentence of three years was imposed.

According to Section 10AD of the Sentencing Act 1991 (Vic), there must be a minimum non-parole period of 3 years, followed by at least 6 months where parole is available. Under Section 79A(2) of the Crimes Act 1958 (Vic), the maximum possible sentence is 25 years.

The court heard expert evidence that Buckley, barely 18, had a history of drug use, an abusive father, and suffered from “depression, anxiety and stress,” which led him to self-harm. Dr Aaron Cunningham, who conducted an assessment of Buckley, concluded that Buckley was “immature, naïve and impressionable,” and that he would be open to “contamination and manipulation in an adult prison,” with the potential to commit graver offences after finishing his sentence.

Maxwell P and T Forrest JA discussed the benefits of other alternative sentences, including detention in a Youth Justice Centre or “a community correction order … with tight therapeutic conditions.” However, as Buckley was an 18, Section 10AD applied. Because Buckley’s case was not “exceptional or rare,” the court could not exempt him from the mandatory minimum sentence.

The court argued that they would be better suited to determine sentences than Parliament, because rather than taking a blanket-style approach to sentencing, they could apply a sentence that better fit the circumstances of the offender. They commented that, especially for young offenders, it was important to find solutions that included “significant punitive sanctions, but [left] open a clear pathway to rehabilitation.”

The two judges concluded that “in refusing this application [by Buckley] we have been compelled to do the applicant an injustice, and the community a disservice.”

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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