Instruments of Injustice: The Emergence of Mandatory Sentencing in Victoria

Over the past decade, sentencing law in the State of Victoria has been transformed. Through legislation enacted by both Coalition and Labor governments, and notwithstanding strong opposition from the legal profession, a mechanism for presumptive sentencing was introduced, expanded, and incrementally hardened. New offences attracting presumptive sentences have been created, exceptions have been made more difficult to satisfy, and for some offences imprisonment is now mandatory. Over this period the courts have wrestled with the correct methodological approach to the new regime and its consequences. This article sets out the pitfalls of presumptive and mandatory sentencing, examines the legislative reforms and emerging jurisprudence, and considers how the sentencing discretion of judicial officers has been systematically eroded and then removed.