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This is a Bill, not an Act. For current law, see the Acts databases.
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 Page 2 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013 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 Page 3 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013 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 Page 4 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013 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 Page 5 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013 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 Page 6 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013 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 Page 7 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013 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 Page 8 Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013 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 Page 9
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