As the UK reviews the law relating to homicide offences, including the existing sentencing framework for murder, new research from Australia shows disconnect between mandatory sentencing and community values.
In 2024, the Law Commission of England and Wales announced a major review of the law governing homicide, conceding several of its rules rely on assumptions about people and behaviour that are outmoded and/or plainly incorrect. Among the problems identified for review is operation of the law of joint enterprise, which can render people liable for crimes they never intended and did not physically commit.
A growing body of evidence calls into question the current low threshold for culpability, especially in light of the mandatory life sentence a conviction for murder automatically attracts. The data also reveal that young, black and ethnic minority males are disproportionately prosecuted in these cases, often under the guise of purported gang membership. Similar racial disparities are observed in equivalent laws of complicity in both the US and Australia .
As part of the current review, the Law Commission undertakes to ‘consider the need to include a public opinion component … to ensure the review reflects societal values and maintains public confidence in the justice system’. My recent research in Australia assessed public knowledge and views on sentencing, specifically focusing on liability and sentencing in joint enterprise murder cases.
Mandatory sentencing for murder
In Australia, as in the UK, individuals convicted of murder are liable for life imprisonment, with a mandatory minimum term of 20 years in several States. This applies to both primary and secondary offenders in multi-defendant cases and to children in the States of Queensland and South Australia. Against this backdrop, joint enterprise is often said to violate the principle of proportionality – that punishment should align with the seriousness of the offence and offender culpability. Yet despite the social and economic costs of lengthy prison sentences, public support for mandatory minimums, particularly for individuals convicted under joint enterprise, has received little scholarly attention.
Assessing public knowledge and views
Funded by the Law Foundation of South Australia, we surveyed 1,556 members of the South Australian public to determine whether, in their view, there were some offenders who did not merit the mandatory minimum sentence, but rather some lesser penalty. We did this by assessing public knowledge about murder trends and the circumstances in which mandatory sentences were consistent with the views of the public.
Following this, we conducted 90-minute focus groups with 101 community members. In the focus groups, participants were presented with several murder scenarios and asked to impose an appropriate minimum sentence range on each of the defendants, and to give reasons for their decisions. Each scenario was based on a real-life South Australian case where each of the offenders had been convicted as either principal or secondary offenders. From this, the public were seen to distinguish between the roles played by individuals in a fatal incident, often departing from the mandatory minimum non-parole period of 20 years.
Reflecting culpability and proportionality
Don, from Focus Group 1:
I came in here thinking I was fairly tough on sentencing … but I am not as tough as
the law obviously is. I didn’t realise everyone would get life.
This is the voice of one South Australian who, like most community members, demonstrated poor knowledge of current sentencing practices for murder. Here, the public was seen to significantly underestimate the length of the resulting sanctions, revealing very low awareness about the existence of mandatory minimum prison sentences.
Ted, from Focus Group 10:
Absolutely no prison time whatsoever for Sam. That’s definitely off the table. I
cannot see any conceivable way you could make a case for putting him in prison in this scenario.
Our study also found significant variation in what the public considers an appropriate penalty for murder. More specifically, the findings suggest that current practice may be inconsistent with, and significantly harsher than, public expectation for some offenders. When provided with specific details on real murder cases, most participants believed sentences well below the mandatory 20-year non parole period were appropriate for secondary offenders under joint enterprise.
Indeed, these findings suggest the public may not view some murder convictions as legitimate at all. More widely the responses we heard suggest the current lengthy mandatory minimum sentencing in murder may violate the principle of proportionality, a disconnection which is likely to undermine, rather than enhance, public confidence in the justice system.
