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


CRIMES (SENTENCING PROCEDURE) AMENDMENT (PROVISIONAL SENTENCING FOR CHILDREN) BILL 2013





                            New South Wales




Crimes (Sentencing Procedure)
Amendment (Provisional Sentencing
for Children) Bill 2013


Contents

                                                                          Page
              1    Name of Act                                               2
              2    Commencement                                              2
     Schedule 1    Amendment of Crimes (Sentencing Procedure) Act
                   1999 No 92                                                3
     Schedule 2    Amendment of Criminal Appeal Act 1912 No 16               9




b2011-152-40.d11
                           New South Wales




Crimes (Sentencing Procedure)
Amendment (Provisional Sentencing
for Children) Bill 2013
No     , 2013


A Bill for

An Act to amend the Crimes (Sentencing Procedure) Act 1999 to enable the
provisional sentencing of children who are convicted of murder; and for related
purposes.
              Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
Clause 1      Children) Bill 2013




The Legislature of New South Wales enacts:                                          1

 1    Name of Act                                                                   2

           This Act is the Crimes (Sentencing Procedure) Amendment                  3
           (Provisional Sentencing for Children) Act 2013.                          4

 2    Commencement                                                                  5

           This Act commences on the date of assent to this Act.                    6




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Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
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Amendment of Crimes (Sentencing Procedure) Act 1999 No 92                Schedule 1




Schedule 1             Amendment of Crimes (Sentencing                                     1
                       Procedure) Act 1999 No 92                                           2

[1]   Part 4, Division 2A                                                                  3

      Insert after Division 2:                                                             4

      Division 2A          Provisional sentencing for child offenders                      5

      60A    Definitions                                                                   6

                   In this Division:                                                       7
                   case plan means a plan of management for an offender.                   8
                   final sentence means a sentence imposed as a final sentence             9
                   under this Division.                                                   10
                   ordinary sentence means a sentence imposed otherwise than              11
                   under the powers conferred by this Division.                           12
                   person responsible for the detention of the offender means:            13
                    (a) in the case of an offender detained or proposed to be             14
                          detained in a detention centre--the Director-General of the     15
                          Department of Attorney General and Justice, or                  16
                   (b) in the case of an offender detained or proposed to be              17
                          detained in a mental health facility (within the meaning of     18
                          the Mental Health Act 2007)--the Director-General of the        19
                          Ministry of Health, or                                          20
                    (c) in the case of an offender detained or proposed to be             21
                          detained in a correctional centre--the Commissioner of          22
                          Corrective Services or, if no person holds that position, the   23
                          Director-General of the Department of Attorney General          24
                          and Justice.                                                    25
                   progress review--see section 60E.                                      26
                   provisional sentence means a sentence imposed as a provisional         27
                   sentence under this Division.                                          28

      60B    Power to impose provisional sentence                                         29

             (1)   A court that imposes a sentence on an offender for the offence of      30
                   murder may impose a sentence for that offence as a provisional         31
                   sentence if:                                                           32
                   (a) the offender was less than 16 years of age when the offence        33
                         was committed, and                                               34
                   (b) the offender is less than 18 years of age when the                 35
                         provisional sentence is imposed, and                             36




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               Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
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Schedule 1         Amendment of Crimes (Sentencing Procedure) Act 1999 No 92




                      (c)   the sentence proposed to be imposed for the offence is or       1
                            includes a term of imprisonment, and                            2
                      (d)   the court is of the opinion that it is not appropriate to       3
                            impose an ordinary sentence on the offender because the         4
                            information presently available does not permit a               5
                            satisfactory assessment of whether the offender has or is       6
                            likely to develop a serious personality or psychiatric          7
                            disorder, or a serious cognitive impairment, such that the      8
                            court cannot satisfactorily assess either or both of the        9
                            following matters:                                             10
                             (i) whether the offender is likely to re-offend,              11
                            (ii) the offender's prospects of rehabilitation.               12

             (2)      A court may impose a sentence as a provisional sentence of its       13
                      own motion or on application of a party to the proceedings.          14

             (3)      A reference in this Division to a sentence for the offence of        15
                      murder includes a reference to an aggregate sentence for the         16
                      offence of murder and for one or more other offences.                17

     60C     Case plan to be provided                                                      18

             (1)      A court that is considering imposing a provisional sentence on an    19
                      offender may request a person responsible for the detention of the   20
                      offender to provide information on the case plan or proposed case    21
                      plan for the offender.                                               22

             (2)      The court may have regard to the case plan, in addition to any       23
                      other relevant evidence provided by a party to the proceedings, in   24
                      deciding whether or not it is appropriate to impose a provisional    25
                      sentence.                                                            26

     60D     Effect of provisional sentence                                                27

             (1)      A provisional sentence is subject to review and redetermination      28
                      under this Division.                                                 29

             (2)      The other Divisions of this Part apply in respect of a provisional   30
                      sentence in the same way as they apply in respect of an ordinary     31
                      sentence.                                                            32

             (3)      A provisional sentence is not a sentence for an indeterminate        33
                      period, for the purposes of Division 1, merely because it is         34
                      subject to review and redetermination under this Division.           35




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Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
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Amendment of Crimes (Sentencing Procedure) Act 1999 No 92               Schedule 1




     60E     Progress reviews                                                             1
             (1)   A court that imposes a provisional sentence on an offender is to       2
                   review the offender's case from time to time for the purpose of        3
                   deciding whether it is appropriate to impose a final sentence.         4

             (2)   Such a review is a progress review.                                    5

             (3)   The court may conduct a progress review on application of a            6
                   party to the proceedings in which the provisional sentence was         7
                   imposed or of its own motion.                                          8

             (4)   A progress review may be conducted as often as the court               9
                   considers appropriate but must be conducted at least once every       10
                   2 years after the provisional sentence is imposed.                    11

             (5)   The court that conducts the progress review is, if practicable, to    12
                   be constituted in the same way as the court that imposed the          13
                   provisional sentence.                                                 14

             (6)   A progress review is to be conducted in the presence of the           15
                   offender.                                                             16

     60F     Progress reports to be provided by person responsible for                   17
             detention of an offender                                                    18

             (1)   When a progress review is conducted by a court, the person            19
                   responsible for the detention of the offender who is the subject of   20
                   the progress review is to provide a report to the court about the     21
                   offender's progress.                                                  22

             (2)   The report is to include the following:                               23
                   (a) an assessment of the care and treatment of the offender           24
                         while in custody,                                               25
                   (b) an assessment of the offender's psychiatric, cognitive and        26
                         psychological development since the provisional sentence        27
                         was imposed,                                                    28
                   (c) such other matters as the court requires to be addressed in       29
                         the report.                                                     30

             (3)   A court that conducts a progress review may also request any          31
                   other person who, or body that, has responsibilities with respect     32
                   to the care and treatment of the offender to provide information      33
                   about the offender.                                                   34

             (4)   A court that conducts a progress review may have regard to the        35
                   information obtained under this section, in addition to any other     36
                   relevant evidence provided by a party to the proceedings, in          37
                   deciding whether or not it is appropriate at that time to impose a    38
                   final sentence on the offender.                                       39




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                Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
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Schedule 1         Amendment of Crimes (Sentencing Procedure) Act 1999 No 92




     60G     Final sentence                                                                     1
             (1)      A court may, after conducting a progress review:                          2
                      (a) impose a final sentence on the offender, or                           3
                      (b) decline to impose a final sentence on the offender.                   4

             (2)      A court imposes a final sentence by:                                      5
                      (a) setting aside the provisional sentence and substituting               6
                            instead another sentence as the final sentence for the              7
                            offender, or                                                        8
                      (b) confirming the provisional sentence as the final sentence             9
                            for the offender.                                                  10

             (3)      If the court sets aside the provisional sentence:                        11
                       (a) the term of imprisonment imposed under the final sentence           12
                             is not to exceed the term of imprisonment imposed under           13
                             the provisional sentence, and                                     14
                      (b) the non-parole period (if any) set for the final sentence is         15
                             not to exceed the non-parole period set for the provisional       16
                             sentence, and                                                     17
                       (c) the final sentence imposed is taken to have commenced on            18
                             the day on which the provisional sentence commenced.              19

             (4)      Subject to this Division, this Part applies to a final sentence in the   20
                      same way as it applies to an ordinary sentence.                          21

             (5)      A final sentence is not subject to review and redetermination            22
                      under this Division.                                                     23

             (6)      A decision to decline to impose a final sentence on an offender is       24
                      not a sentence and, accordingly, is not subject to appeal under the      25
                      Criminal Appeal Act 1912.                                                26

             (7)      A court that conducts a further progress review after having             27
                      declined to impose a final sentence on an offender is to conduct         28
                      that review as a fresh hearing in relation to the question of            29
                      whether it is appropriate to impose a final sentence on the              30
                      offender.                                                                31

     60H     Time limit for imposition of final sentence                                       32

             (1)      A final sentence must be imposed on an offender who is the               33
                      subject of a provisional sentence before the expiry of the initial       34
                      custodial period.                                                        35




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Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
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Amendment of Crimes (Sentencing Procedure) Act 1999 No 92                   Schedule 1




             (2)   The expiry of the initial custodial period is:                              1
                   (a) the date that is 5 years after the date the provisional                 2
                         sentence is imposed, or                                               3
                   (b) the date that is one year before the date the non-parole                4
                         period (if any) for the provisional sentence ends,                    5
                   whichever happens first.                                                    6

             (3)   A final sentence is not invalid merely because it is imposed after          7
                   the expiry of the initial custodial period.                                 8

      60I    Appeals                                                                           9

             (1)   On appeal against a provisional sentence, a court hearing the              10
                   appeal that has power to vary the provisional sentence and                 11
                   substitute a new sentence (however expressed) may:                         12
                   (a) substitute a new provisional sentence, or                              13
                   (b) substitute a final sentence.                                           14

             (2)   If a provisional sentence is varied and a new provisional sentence         15
                   is imposed by a court on appeal:                                           16
                    (a) the functions of the court under this Division with respect           17
                          to progress reviews and the imposition of a final sentence          18
                          on the offender are to be exercised by the court that first         19
                          imposed a provisional sentence on the offender, and not             20
                          the appeal court, and                                               21
                   (b) a reference in this Division to the date on which the                  22
                          sentence is imposed is a reference to the date on which a           23
                          provisional sentence for the relevant offence was first             24
                          imposed (and not the date a new provisional sentence was            25
                          imposed by the appeal court), and                                   26
                    (c) a reference in this Division to a term of imprisonment                27
                          imposed, or non-parole period set, under a provisional              28
                          sentence is a reference to a term of imprisonment imposed,          29
                          or non-parole period set, under the new provisional                 30
                          sentence as imposed by the appeal court.                            31

             (3)   To avoid doubt, a court that imposes a provisional sentence that           32
                   is varied on appeal can set aside the provisional sentence (as             33
                   varied on appeal) under section 60G and substitute another                 34
                   sentence as the final sentence for the offender in accordance with         35
                   this Division.                                                             36
                   Note. Appeals against provisional sentences can be made to the Court       37
                   of Criminal Appeal under the Criminal Appeal Act 1912. If the Court of     38
                   Criminal Appeal varies the provisional sentence, the original sentencing   39
                   court (and not the Court of Criminal Appeal) must conduct progress         40




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                Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
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Schedule 1      Amendment of Crimes (Sentencing Procedure) Act 1999 No 92




                   reviews and impose a final sentence. The final sentence can also be    1
                   appealed under the Criminal Appeal Act 1912.                           2

[2]   Schedule 2 Savings, transitional and other provisions                               3

      Insert at the end of clause 1 (1):                                                  4

                   any Act that amends this Act                                           5

[3]   Schedule 2                                                                          6

      Insert at the end of the Schedule with appropriate Part and clause numbers:         7


      Part         Provision consequent on enactment of                                   8
                   Crimes (Sentencing Procedure)                                          9
                   Amendment (Provisional Sentencing for                                 10
                   Children) Act 2013                                                    11

             Provisional sentencing                                                      12

                   Division 2A of Part 4, as inserted by the Crimes (Sentencing          13
                   Procedure) Amendment (Provisional Sentencing for Children)            14
                   Act 2013, applies in respect of any sentence imposed after the        15
                   commencement of that Division (including for an offence               16
                   committed before that commencement).                                  17




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Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for
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Amendment of Criminal Appeal Act 1912 No 16                            Schedule 2




Schedule 2             Amendment of Criminal Appeal Act 1912                           1
                       No 16                                                           2

      Section 2 Definitions                                                            3

      Insert after section 2 (2):                                                      4

             (3)    For the purposes of this Act, a sentence imposed under Part 2 of   5
                    the Crimes (Sentencing Procedure) Act 1999 includes a              6
                    provisional sentence and a final sentence within the meaning of    7
                    Division 2A of Part 4 of that Act.                                 8




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