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This is a Bill, not an Act. For current law, see the Acts databases.


SENTENCING REFORM AMENDMENT BILL 2003

2003

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY



(As presented)

(Mr Bill Stefaniak)

Sentencing Reform Amendment Bill 2003



Contents

Page



















































































2003

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY



(As presented)

(Mr Bill Stefaniak)

Sentencing Reform Amendment Bill 2003





A Bill for

An Act to reform the law about sentencing, and for other purposes











The Legislative Assembly for the Australian Capital Territory enacts as follows:



Part 1 Preliminary

1 Name of Act

This Act is the Sentencing Reform Amendment Act 2003.

2 Commencement

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).



Part 2 Supreme Court Act 1933

3 Act amended—pt 2

This part amends the Supreme Court Act 1933.

4 New sections 37SA and 37SB

in part 2A, insert

37SA Guideline judgments

(1) The Court of Appeal may, on its own initiative or at the request of the Attorney-General under section 37SB, give a guideline judgment to be taken into account by courts when sentencing offenders.

(2) A guideline judgment may be given separately or in any proceeding that the Court of Appeal considers appropriate.

(3) A guideline judgment may be given in a proceeding even if it is not necessary for deciding the proceeding.

(4) A guideline judgment may be reviewed, varied or revoked in a later guideline judgment.

(5) This section does not limit any power or jurisdiction that the Court of Appeal has apart from this section.

37SB Attorney-General may request guideline judgment

(1) The Attorney-General may request the Court of Appeal to give a guideline judgment.

(2) The request for a guideline judgment may include submissions about the proposed guidelines.



Part 3 Crimes Act 1900

5 Act amended—pt 3

This part amends the Crimes Act 1900.

6 Offences against Act—application of Criminal Code etc

Section 7A, note 1

insert

• s 28A (Setting trap etc)

• s 35A (Assault, stalking etc of police officer)

• s 35B (Obtaining personal information about police officer)

• s 35C (Stalking etc person associated with police officer)

• s 111A (Carjacking)

7 Manslaughter

Section 15 (2)

omit

20 years

substitute

25 years

8 Intentionally inflicting grievous bodily harm

Section 19

omit

15 years

substitute

20 years

9 Recklessly inflicting grievous bodily harm

Section 20

omit

10 years

substitute

15 years

10 Wounding

Section 21

omit

5 years

substitute

15 years

11 Assault with intent to commit certain indictable offences

Section 22

omit last mention of

5 years

substitute

10 years

12 Acts endangering life etc

Section 27 (3) (f)

omit

13 Section 27 (3)

omit

10 years

substitute

20 years

14 Section 27 (3)

renumber paragraphs when Act next republished under Legislation Act 2001

15 Section 27 (4)

omit

15 years

substitute

25 years

16 Acts endangering health etc

Section 28 (2) (c)

omit

17 Section 28 (2)

renumber paragraphs when Act next republished under Legislation Act 2001

18 Section 28 (2)

omit

5 years

substitute

20 years

19 New section 28A

insert

28A Setting trap etc

(1) A person commits an offence if the person, with intent to kill or inflict grievous bodily harm on a person—

(a) places or sets a trap, device or thing capable of killing a person or inflicting grievous bodily harm on a person; or

(b) knowingly permits any trap, device or thing to continue to be placed or set.

Maximum penalty: imprisonment for 10 years.

(2) This section does not apply in relation to a trap, device or thing placed or set in a dwelling for the protection of the dwelling.

20 Culpable driving of motor vehicle

Section 29 (2)

omit

7 years

substitute

14 years

21 Section 29 (3)

omit

4 years

substitute

11 years

22 Possession of object with intent to kill etc

Section 33

omit

5 years

substitute

10 years

23 New sections 35A to 35C

insert

35A Assault, stalking etc of police officer

(1) A person commits an offence if—

(a) the person assaults or stalks, harasses or intimidates another person; and

(b) the other person is a police officer acting in the course of the officer’s duty.

Maximum penalty: imprisonment for 5 years.

(2) A person commits an offence if—

(a) the person assaults another person, and by the assault occasions actual bodily harm; and

(b) the other person is a police officer acting in the course of the officer’s duty.

Maximum penalty: imprisonment for 7 years.

(3) A person commits an offence if—

(a) either—

(i) the person wounds another person; or

(ii) the person assaults another person, and by the assault occasions grievous bodily harm; and

(b) the other person is a police officer acting in the course of the officer’s duty.

Maximum penalty: imprisonment for 20 years.

(4) Strict liability applies to subsections (1) (b), (2) (b) and (3) (b).

(5) For this section, an action is taken to be done to a police officer acting in the course of the officer’s duty, even if the officer is not on duty at the time, if it is carried out—

(a) as a consequence of, or in retaliation for, something done by the officer in the course of the officer’s duty; or

(b) because the officer is a police officer.

(6) In a prosecution for an offence against subsection (1) in relation to the stalking, harassing or intimidating of a police officer, it is not necessary to prove that the officer apprehended or feared harm or was harassed.

(7) For this section:

stalk—see section 35 (2).

35B Obtaining personal information about police officer

(1) A person commits an offence if—

(a) the person obtains personal information about a police officer—

(i) as a consequence of, or in retaliation for, something done by the officer in the course of the officer’s duty; or

(ii) because the officer is a police officer; and

(b) the person intends to use the information, or allow its use, to assault, stalk, harass or otherwise harm the officer.

Maximum penalty: imprisonment for 2 years.

(2) For this section:

harm—see section 35 (6).

police officer means a member of any Commonwealth, State or Territory police force or service.

35C Stalking etc person associated with police officer

(1) A person commits an offence if—

(a) the person stalks someone (the person stalked) who is or has been personally associated with a police officer; and

(b) the person intends to cause the person stalked harm or apprehension or fear of harm; and

(c) the stalking is—

(i) as a consequence of, or in retaliation for, something done by the officer in the course of the officer’s duty; or

(ii) because the officer is a police officer.

Maximum penalty: imprisonment for 5 years.

(2) A person commits an offence if—

(a) the person obtains personal information about someone who is or has been personally associated with a police officer; and

(b) the person obtains the information—

(iii) as a consequence of, or in retaliation for, something done by the officer in the course of the officer’s duty; or

(iv) because the officer is a police officer; and

(c) the person intends to use the information, or allow its use, to cause the officer to fear personal harm or harm to a person who is or has been personally associated with the officer.

Maximum penalty: imprisonment for 2 years.

(3) Without limiting subsection (1), a person is taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely to cause apprehension or fear of harm in the person stalked.

(4) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked apprehended or feared harm.

(5) For this section, a person is personally associated with a police officer if the person—

(a) is married to or in a domestic relationship with the officer; or

(b) has an intimate relationship with the officer, whether or not of a sexual nature; or

(c) is living in the same household or residential facility as the officer; or

(d) is in a relationship with the officer that involves dependence or ongoing paid or unpaid care; or

(e) is a member of the officer’s family.

(6) For this section:

domestic relationship—see the Domestic Relationships Act 1994, section 3 (1).

harm—see section 35 (6).

member of the family, of a police officer, means a parent, step-parent, parent-in-law, grandparent, child, stepchild, grandchild, son-in-law, daughter-in-law, brother, sister, half-brother, half-sister, brother-in-law, sister-in-law, uncle, aunt, nephew, niece or cousin of the officer or of a person married to, or in a domestic relationship with, the officer.

police officer means a member of any Commonwealth, State or Territory police force or service.

stalk—see section 35 (2).

24 Abduction of young person

Section 37

omit

5 years

substitute

10 years

25 Neglect etc of children

Section 39 (1), penalty

omit

2 years

substitute

5 years

26 Section 39 (3), penalty

omit

1 year

substitute

5 years

27 Alternative verdicts for certain offences against the person

Section 49, table, item 10

omit

28 Section 49, table, item 11

renumber as item 10

29 Section 49, table

insert

11

section 35A (1) (a) (Assault, stalking etc of police officer) if the offence charged is an assault

section 26

12

section 35A (1) (a) if the offence charged is stalking

section 35

13

section 35A (2)

(a) section 23

(b) section 24

(c) section 26

14

section 35A (3) (a) (i)

section 21

15

section 35A (3) (a) (ii)

(a) section 20

(b) section 21

(c) section 23

(d) section 24

(e) section 25

(f) section 26

30 Sexual assault in the first degree

Section 51 (1)

omit

17 years

substitute

25 years

31 Section 51 (2)

omit

20 years

substitute

life

32 Sexual assault in the second degree

Section 52 (1)

omit

14 years

substitute

20 years

33 Section 52 (2)

omit

17 years

substitute

25 years

34 Sexual assault in the third degree

Section 53 (1)

omit

12 years

substitute

15 years

35 Section 53 (2)

omit

14 years

substitute

18 years

36 Sexual intercourse without consent

Section 54 (1)

omit

12 years

substitute

15 years

37 Section 54 (2)

omit

14 years

substitute

18 years

38 Sexual intercourse with young person

Section 55 (1)

omit

17 years

substitute

20 years

39 Maintaining a sexual relationship with young person

Section 56 (5)

omit

7 years

substitute

10 years

40 Act of indecency in the first degree

Section 57

omit

15 years

substitute

20 years

41 Act of indecency in the second degree

Section 58

omit

12 years

substitute

15 years

42 Act of indecency without consent

Section 60 (1)

omit

5 years

substitute

10 years

43 Section 60 (2)

omit

7 years

substitute

15 years

44 Acts of indecency with young people

Section 61 (1)

omit

12 years

substitute

15 years

45 Incest and similar offences

Section 62 (4)

omit

46 Section 62

renumber subsections when Act next republished under Legislation Act 2001

47 Abduction

Section 63

omit

10 years

substitute

14 years

48 Employment of young people for pornographic purposes

Section 64 (1)

omit

10 years

substitute

14 years

49 Possession of child pornography

Section 65 (1)

omit

5 years

substitute

7 years

50 Using the Internet etc to deprave young people

Section 66 (1), penalty, paragraph (a)

omit

5 years

substitute

7 years

51 Section 66 (1), penalty, paragraph (b)

omit

10 years

substitute

12 years

52 Section 66 (2), penalty

omit

100 penalty units, imprisonment for 5 years

substitute

200 penalty units, imprisonment for 7 years

53 Minor theft

Section 90

omit

54 Making off without payment

Section 98 (2)

omit

55 Section 98 (3)

omit

Subsections (1) and (2) do

substitute

This section does

56 Section 98

renumber subsections when Act next republished under Legislation Act 2001

57 False accounting

Section 100 (1)

omit

7 years

substitute

10 years

58 False statements by officers of associations

Section 102 (1)

omit

7 years

substitute

10 years

59 Suppression etc of documents

Section 103 (1)

omit

7 years

substitute

10 years

60 New section 111A

insert

111A Carjacking

(1) A person commits an offence if the person—

(a) assaults someone else with intent to take a motor vehicle; and

(b) takes and drives the motor vehicle, or takes the motor vehicle for the purpose of driving it, without the consent of the owner or person in lawful possession of the motor vehicle.

Maximum penalty: imprisonment for 10 years.

(2) A person commits an offence if the person—

(a) takes and drives a motor vehicle, or takes a motor vehicle for the purpose of driving it, without the consent of the owner or person in lawful possession of the motor vehicle; and

(b) someone else is in or on the motor vehicle.

Maximum penalty: imprisonment for 10 years.

(3) A person commits an offence against this subsection if the person commits an offence against subsection (1) or (2) in circumstances of aggravation.

Maximum penalty: imprisonment for 14 years.

(4) For subsection (3), a person commits an offence in circumstances of aggravation if—

(a) the person is in company with someone else; or

(b) the person is armed with an offensive weapon or instrument; or

(c) the person inflicts actual bodily harm on someone else.

(5) In this section:

motor vehicle—see Road Transport (General) Act 1999, dictionary.

61 Aiding prisoner to escape

Section 159

omit

5 years, a fine of $10 000

substitute

7 years, 200 penalty units

62 Escaping

Section 160

omit

5 years, a fine of $10 000

substitute

10 years, 200 penalty units

63 Section 341

omit everything before paragraph (a), substitute

341 Purposes to which court to have regard

In deciding a sentence to be imposed, the court must have regard to the following purposes:

64 Section 341 (a)

omit

or

65 Section 341 (b)

omit last mention of

or

66 Section 341 (c) and (d)

omit

or

67 Section 341 (e) and (f)

substitute

(e) to protect the community from the offender.

68 Matters to which court to have regard

Section 342 (1)

omit everything before paragraph (a), substitute

(1) In deciding the sentence to be imposed on a person, a court must have regard to any of the following matters that are relevant and known to the court:

69 Section 342 (1) (i)

omit

cultural background,

70 Section 342 (1) (j) and (m)

omit

71 Section 342 (1) (q)

substitute

(q) current sentencing practice in other States;

72 Section 342 (1) (s)

omit

73 Section 342 (1)

renumber paragraphs when Act next republished under Legislation Act 2001

74 Section 342 (2)

substitute

(2) The court may have regard to any other matter the court considers appropriate.

75 New section 342A

insert

342A Guideline judgments

(1) In deciding the sentence to be imposed on a person for an offence, a court must have regard to any relevant guideline judgment.

(2) If a court imposes on a person a sentence that is inconsistent with a relevant guideline judgment, the court must give written reasons for the inconsistency.

(3) This section is in addition to and does not limit section 342.

(4) For this section:

relevant guideline judgment, for an offence, means a judgment of the Court of Appeal that is expressed to contain guidelines to be taken into account by courts sentencing offenders.

76 Matters not to be taken into account

Section 344 (d) and (e)

omit

77 Section 344

renumber paragraphs when Act next republished under Legislation Act 2001

78 Restriction on imposing sentences of imprisonment

Section 345

omit

79 Summary disposal of certain cases

Section 375 (1) (b)

substitute

(b) an offence punishable by imprisonment for not longer than 15 years.



Part 4 Rehabilitation of Offenders (Interim) Act 2001

80 Act amended—pt 4

This part amends the Rehabilitation of Offenders (Interim) Act 2001.

81 Court to set nonparole period

Section 31 (1), note

substitute

Note 1 Section 31A provides for standard nonparole periods for certain offences.

Note 2 Section 43 provides that, if the person is released on parole, the sentence is not discharged unless the parole is completed without the parole order being revoked.

82 New section 31A

31A Standard nonparole period

(1) When setting a nonparole period under section 31 (1) in relation to an offence for which there is a standard nonparole period, the court must set the standard nonparole period as the nonparole period for the offence unless the court considers that there are reasons for setting a nonparole period for the offence that is longer or shorter than the standard nonparole period.

(2) When setting the nonparole period for the offence, the court may have regard to any relevant aggravating circumstance mentioned in subsection (3) (other than a circumstance that is an element of the offence) and any relevant mitigating circumstance mentioned in subsection (4).

(3) Aggravating circumstances to which the court may have regard include the following:

(a) the victim is a police officer, emergency services worker, correctional officer, judicial officer, health professional, health or community worker or teacher and the offence arose because of the victim’s occupation;

(b) the offence involved the actual or threatened use of violence;

(c) the offence involved the actual or threatened use of a weapon;

(d) the offender has a record of previous convictions;

(e) the offence was committed in company with someone else;

(f) the offence involved gratuitous cruelty;

(g) the injury, emotional harm, loss or damage caused by the offence was substantial;

(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged;

Examples

1 people of a particular religion, racial or ethnic origin

2 people who speak a particular language

3 people of a particular sexual orientation

4 people of a particular age

5 people with a disability

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(i) the offence was committed without regard for public safety;

(j) the offence was committed while the offender was on bail in relation to an offence or alleged offence;

(k) the offender abused a position of trust or authority in relation to the victim;

(l) the victim was vulnerable because of age or occupation;

Examples

1 the victim was very young or old

2 the victim had a disability

3 the victim was a taxi driver, bank teller or service station attendant

(m) the offence involved multiple victims or a series of criminal acts;

(n) the offence was part of a planned or organised criminal activity.

(4) Mitigating circumstances to which the court may have regard include the following:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial;

(b) the offence was not part of a planned or organised criminal activity;

(c) the offender was provoked by the victim;

(d) the offender was acting under duress;

(e) the offender does not have any record, or any significant record, of previous convictions;

(f) the offender was a person of good character;

(g) the offender is unlikely to reoffend;

(h) the offender has good prospects of rehabilitation, whether because of age or otherwise;

(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other way;

(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability;

(k) a plea of guilty by the offender;

(l) if the offender is tried on indictment—the degree of pre-trial disclosure by the defence for the purposes of the trial;

(m) the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in a proceeding in relation to, the offence concerned or any other offence.

(5) If the court sets a nonparole period that is different to the standard nonparole period for the offence, the court must give written reasons for the difference.

(6) The standard nonparole period for an offence mentioned in column 2 in the table is the period mentioned in column 3 of the same item.

Table Standard nonparole periods

column 1

item

column 2

offence

column 3

period

1

offence against Crimes Act 1900, section 12 (Murder), other than an offence to which item 2 applies





20 years

2

offence against Crimes Act 1900, section 12 (Murder), if the victim is a police officer, emergency services worker, correctional officer, judicial officer, health professional, health or community worker or teacher and the offence arose because of the victim’s occupation











25 years

3

offence against the Criminal Code, section 44 (Attempt), if the offence attempted is murder



10 years

4

offence against Crimes Act 1900, section 51 (2) (Sexual assault in the first degree)



15 years

5

offence against Crimes Act 1900, section 19 (Intentionally inflicting grievous bodily harm)



5 years

6

offence against Crimes Act 1900, section 27 (4) (b) (Acts endangering life etc)



7 years

7

offence against Crimes Act 1900, section 92 (Armed robbery)



7 years

8

offence against Crimes Act 1900, section 93 (Burglary), if the offender has been convicted of a burglary offence in the previous 5 years





2 years

9

offence against Crimes Act 1900, section 94 (Aggravated burglary), if serious injury is caused to a person





7 years

10

offence against Crimes Act 1900, section 111A (1) or (2) (Carjacking)



3 years

11

offence against Crimes Act 1900, section 111A (3) (Carjacking) (which is about carjacking in aggravated circumstances)





5 years

12

offence against Drugs of Dependence Act 1989, section 164 (2) (Sale or supply) if the quantity of the drug to which the offence relates is at least 50 times the quantity prescribed as a trafficable quantity







15 years

13

offence against Drugs of Dependence Act 1989, section 164 (2) (Sale or supply) if the quantity of the drug to which the offence relates is at least 30 but less than 50 times the quantity prescribed as a trafficable quantity









10 years

14

offence against Drugs of Dependence Act 1989, section 164 (2) (Sale or supply) if the quantity of the drug to which the offence relates is at least 20 but less than 30 times the quantity prescribed as a trafficable quantity









5 years

Endnotes

Republications of amended laws

1 For the latest republication of amended laws, see www.legislation.act.gov.au.

Penalty units

2 The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.



















































© Australian Capital Territory 2003

 


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