Planting the Yardstick: The Approach to Mandatory Minimum Sentences and the High Court Appeals in Delzotto and Hurt

Abstract

In Delzotto v The King and Hurt v The King, the High Court of Australia must decide a fundamental question which will shape the approach to mandatory minimum sentences in the future, both in terms of their consideration in sentencing and their use generally by Parliament. The appeals offer the High Court an opportunity to clarify whether a sentencing judge must use a mandatory minimum penalty as a yardstick in the sentencing exercise or whether a mandatory minimum penalty is only relevant where the sentence arrived at after the usual exercise of the sentencing discretion is below the mandated minimum. In doing so, the High Court will necessarily consider the core principles underlying criminal sentencing in Australia as well as the need for consistency in sentencing in the future. This column considers the appeals and suggests that the approach adopted should involve the use of a minimum penalty as a yardstick as this approach is the only one which is consistent with established principles of criminal sentencing.