Northern Territory Explanatory Statements

[Index] [Search] [Download] [Bill] [Help]


JUSTICE AND OTHER LEGISLATION AMENDMENT BILL 2014



LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

ATTORNEY-GENERAL AND MINISTER FOR JUSTICE

Justice and Other Legislation Amendment Bill 2014

SERIAL NO. 69

EXPLANATORY STATEMENT


GENERAL OUTLINE

The purpose of the Bill is to:

1. amend section 64 of the Sentencing Act to ensure that every parolee is required to serve any unexpired term of imprisonment upon sentencing to imprisonment for a new offence whether their parole has been revoked by a court or the Parole Board;

2. amend section 131 of the Youth Justice Act to mirror the amendments to section 64, but with application to youth offenders;

3. amend section 104A of the Sentencing Act to alleviate inconsistency with the Racial Discrimination Act 1975 (Cth);

4. amend section 107 of the Sentencing Act to allow the Supreme Court to take into account summary offences when sentencing an offender on indictment; and

5. introduce new sections 388, 389, 390 and 391 into the Criminal Code to allow the Supreme Court to finalise and dispose of summary charges when sentencing an offender on indictment.

NOTES ON CLAUSES

Part 1 Preliminary matters

Clause 1. Short title

This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the
Justice and Other Legislation Amendment Act 2014.

Clause 2. Commencement

This clause provides that the Act will commence on a day fixed by the Administrator by Gazette notice.

Part 2 Criminal Code amended

Clause 3. Act amended

This Part of the Bill will amend the Criminal Code.

Clause 4. Part IX, Division 7 inserted

Clause 4 inserts new Part IX, Division 7 into the Criminal Code, after section 387.

Division 7 is titled ‘Hearing summary offence with indictable offence’ and provides for new sections 388, 389, 390 and 391 which allow the transfer of summary charges to the Supreme Court so that they can be disposed of when the Supreme Court is sentencing an offender on indictment.

The new provisions have been adapted from similar Queensland provisions contained in sections 651, 652 and 653 of the Criminal Code Act 1899 (Qld).

New section 388 provides the definitions for Division 7.

The term ‘summary offence’ is defined to include an indictable offence that is capable of being heard and determined in a summary manner.

The definition is intended to include offences generally known as summary offences, being simple and regulatory offences, which are punishable by less than two years imprisonment, in addition to any indictable offences that may be dealt with summarily (for example minor indictable offences and certain offences under the Misuse of
Drugs Act
).

New section 389 confers jurisdiction on the Supreme Court to hear and determine a summary offence when sentencing an offender on indictment if the Court considers it appropriate.

New section 389(2) provides that the Supreme Court must not hear and determine a summary charge unless the charge has been transmitted to a Registrar of the Supreme Court

Although this provision provides for the Supreme Court to hear and determine, summarily, a summary offence, section 389(3) notes that the practice and procedure to be followed in relation to the plea is the same as that which is followed in relation to taking a plea on indictment.

Section 389(4) provides that the Supreme Court may make any orders in relation to the summary offence that the Court of Summary Jurisdiction could have made. This means that the Supreme Court may sentence an offender for the summary charge but may not impose any penalty higher than that which a magistrate could impose, if the matter were being dealt with in the Court of Summary Jurisdiction.

As the Court of Summary Jurisdiction may only impose a maximum of five years imprisonment or a fine of 250 penalty units, unless otherwise specified (under section 122 of the Sentencing Act), this is the maximum penalty that the Supreme Court may impose, despite any higher maximum penalty prescribed under the Criminal Code that would ordinarily be open to the Supreme Court.

Section 389(5) ensures that the Court of Summary Jurisdiction is notified of the result of the determination of the charge within 30 days. This then allows the Court of Summary Jurisdiction to formally vacate any future court dates relating to the summary offence, notify the parties that their appearance is not required, update their records and close their file.

New section 390 outlines the formal application process that must be complied with in order for a summary offence to be transferred to the Supreme Court for determination under section 389. The formal written application is to be made by the defendant to the Clerk of the Court of Summary Jurisdiction in which the summary offences were laid.

Under section 390, the defendant may apply for the summary charge to be transferred under section 389 if:

(a) an indictment has been presented; and

(b) they have been charged with a summary offence, whether charged before or after the indictment was presented.

Section 390 provides that, if a person wishes to have the charge of the summary offence heard and determined by the Supreme Court, the person must apply to the clerk of the Court of Summary Jurisdiction to transmit the charge to the Supreme Court.

The form and requirements of the application are contained in section 390(3) and are as follows:

(a) the application must be made as a written statutory declaration; and

(b) the application must contain:

Upon being satisfied that the application meets the requirements of section 390 and that the Court of Summary Jurisdiction has not started hearing sentencing submissions in relation to the summary charge, the clerk of the Court of Summary Jurisdiction must transmit the charge to the Supreme Court. Section 390(4)(b) has been drafted so that a summary offence for which the defendant has formally entered a plea of guilty in the Court of Summary Jurisdiction may still be transferred to the Supreme Court but only if the sentencing submissions have not commenced.

New section 391 provides for the remission of the summary offence by the Supreme Court to the Court of Summary Jurisdiction if:

(a) the person changes their mind and pleads not guilty to the summary offence; or

(b) the Supreme Court decides for any other reason not to hear and determine the charge.

The new provisions allow the Supreme Court to finalise summary offences when sentencing an offender on indictment, if it is appropriate to do so (refer sections 389(1) and391(2)(b)). The Supreme Court will therefore exercise discretion regarding the summary charges that will be heard and determined when sentencing an offender on indictment.

Clause 5. Section 410 amended

Clause 5 of the Bill amends section 410 of the Criminal Code to expand its application to a person found guilty of an indictable offence or a person found guilty of a summary offence under section 389.

Section 410 of the Criminal Code outlines the right of appeal for a defendant. If a summary offence is heard and determined by the Supreme Court when sentencing an offender on indictment, and the defendant wishes to appeal their sentence (for example on the grounds that it is manifestly excessive), it is desirable that the appeal is heard before the same court.

As the intention of new section 389 is for the indictable and summary offences to be heard together as part of the same sentencing process, it is desirable for an appeal regarding the indictable offence and the summary offence be heard before the Court of Criminal Appeal.

Clause 6. Part XI, Division 5 inserted

Clause 6 inserts Division 5, section 448 into the Criminal Code which contains the transitional provision for the application of new section 389.

It is the intention of the Bill that all amendments apply to any sentencing process that occurs after commencement of the Act. The application of the amended provisions is therefore retrospective with regard to the offence date as the provisions apply even if the offences were committed prior to commencement of the Act.

The transitional provision contained in section 448 specifically provides that the Supreme Court may exercise power under section 389:

(a) even if the indictment was presented before commencement of the Act; or

(b) the charge for the summary offence was laid before commencement of the Act.

In addition, new section 390(4)(b) of the Criminal Code provides that the Clerk of the Court of Summary Jurisdiction must not transfer a charge to the Supreme Court if the court has begun hearing sentencing submissions.

In essence, this means that the provisions are to apply, even if the defendant formally entered a plea of guilty to either the indictable or summary offence prior to commencement of the Justice and Other Legislation Amendment Act 2014, as long as sentencing submissions have not commenced.

Part 3. Sentencing Act amended

Clause 7. Act amended

This Part of the Bill will amend the Sentencing Act.

Clause 8. Section 64 replaced

This clause repeals current section 64 of the Sentencing Act, replacing it with an amended section 64 to provide that every parolee who commits a new offence while on parole is required to serve any unexpired term of imprisonment if the court sentences them to imprisonment for the new offence, regardless of whether their parole has been cancelled or revoked by a court or the Parole Board.

The Court of Criminal Appeal in Hankin v The Queen 25 NTLR 110 held that the wording of current section 64 led to the conclusion that the provision only applied when an offender’s parole was revoked by a court upon sentence to imprisonment for new offences, and did not apply if the Parole Board formally revoked parole prior to the sentence.

As a result of this anomaly, section 64 has been amended so that it applies if:

(a) a person is sentenced to a term of imprisonment, or is committed to prison under section 15(4) of the Sentencing Act for an offence that was committed while a parole order was in force; and

(b) the parole order:

Consistent with previous section 64, the amended provision provides that, upon sentencing to imprisonment for an offence committed while on parole, the unexpired term of imprisonment is to be served at the expiration of the term of imprisonment for the new offence.

Amended section 64(2) redrafts the ‘calculation provisions’ of the previous section 64(2) in order to assist in calculating the length of time remaining on an offender’s prison sentence.

However, the amended section 64 does not alter the current legislative position under section 14(1)(a) of the Parole of Prisoners Act that offenders are not to be credited for ‘street-time’. The calculations provided under new section 64(2) supports this position by noting that the term of imprisonment remaining on an offender’s sentence is to be calculated from their date of release on parole.

Section 64(2)(a) applies if an offender’s parole order was revoked or cancelled as mentioned in section 64(1)(b)(i) or (ii). The section provides that, in addition to the imprisonment term for the new offence, the offender must be imprisoned for:

(a) the term that they had not served when released from prison under the parole order; minus

(b) the part of the term the person served after the parole order was revoked or cancelled.

Section 64(2)(b) applies if an offender’s parole order was not revoked or cancelled prior to sentence for the new offence. The section provides that, in addition to the imprisonment term for the new offence, the offender must be imprisoned for the term that they had not served when released from prison under the parole order.

Amended section 64(4) provides the definitions for the section.

For the term ‘Chairperson’, reference is made to section 3(1) of the Parole of Prisoners Act.

‘Offence’ is defined to include an offence against an Act or regulation of the Commonwealth. This definition has been adapted from the previous section 64 to ensure that the provisions apply to an offender who commits any offence while on parole, including a Commonwealth offence.

Clause 9. Section 90 amended

This clause omits section 90(3) from the Sentencing Act.

Section 90(3) provides for the right of appeal against a decision to order restitution or compensation in relation to listed offences which have been taken into account under section 107. As the right to appeal from a decision made under section 107 (including a decision to order restitution or compensation) is already set out in new section 107(5), section 90(3) is redundant.

The amendments to section 107 are detailed further below.

Clause 10. Section 104A replaced

Clause 10 repeals current section 104A of the Sentencing Act replacing it with an amended section 104A which:

(a) broadens the application of section 104A so that it applies to any form of customary law or cultural practice, rather than solely applying to Aboriginal customary law; and

(b) makes the application of section 104A discretionary, so that the court has the option of ordering parties provide evidence on oath, in affidavit form or statutory declaration, if the court deems it appropriate in the circumstances.

These amendments are designed to alleviate inconsistency with the Racial Discrimination Act 1975 (Cth) by ensuring that a court may receive information regarding customary law or cultural practice during the sentencing process without restriction.

Currently, section 104A prevents a court from taking into account any aspect of Aboriginal customary law or the view of other members of an Aboriginal community when sentencing an offender, unless certain procedural requirements are met. Amended section 104A applies to a party seeking to present information, as part of the sentencing process, to a court about:

(a) an aspect of any form of customary law (including punishment or restitution under that law); or

(b) a cultural practice.

New section 104A(2) then details the various matters that the court must consider before agreeing to receive the information, including:

(a) whether the party intends to present the information in the form of evidence on oath, an affidavit or a statutory declaration; and

(b) whether each other party to the proceedings:

Previously section 104A restricted the court from receiving information from Aboriginal community members unless the information was presented by a party to the proceeding and complied with certain procedural requirements under sections 104A(2) and (3). As a result, community members (for example elders participating in a community court or ‘circle sentencing’) could not present information to the court to be considered when sentencing an offender. The only way this information could be considered was if one of the parties to the proceeding (either prosecution or defence) sought to present the information to the court. Amended section 104A still applies if a party seeks to present information from a community member; however, the provision no longer excludes community members, who are not parties to the proceedings, from presenting information to the court. The court may therefore receive information from persons who are not parties to the proceeding ‘as it thinks fit’ under section 104 in the same way it would consider a character reference in any other sentencing proceeding.

The amendment to section 104A has been drafted to balance the importance of customary law and culture when a court is sentencing an offender with allowing the court to order information be provided in an evidentiary fashion, if deemed necessary. However, the amendments to section 104A are not intended to oppose section 16AA of the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth) and do not allow the court to take into account any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring, lessening or aggravating the seriousness of the defendant’s actions.

It is intended that information is to be received under section 104A in order to provide a context and explanation for an offender’s actions and to provide information about their role in the community, predisposition to offend, rehabilitation prospects and the impact on the community so that the court can make an assessment of the offender’s circumstances.

It is envisaged that the court will exercise discretion to receive information on oath, in affidavit form or statutory declaration in appropriate cases having regard to the difficulties in some remote communities with literacy, the time and resource constraints on agencies providing legal assistance and the suitability of informal procedures in the majority of cases.

Clause 11. Part 6, Division 3 heading replaced

Clause 11 omits the current heading for Part 6, Division 3 and replaces it with ‘Taking alleged offences into account’.

The amendment to the heading for Division 3 reflects the amendments made to section 107 to allow the Supreme Court to take summary offences into account when sentencing an offender on indictment, which is addressed further below.

Clause 12. Section 107 amended

This clause amends section 107 of the Sentencing Act to allow the Supreme Court to take into account summary charges when sentencing an offender on indictment.

Concern with the interpretation and application of section 107 was raised by Justice Jenny Blokland in her former capacity as
Chief Magistrate in the case of Police v Sullivan [2009] NTMC 035. Although the construction of current section 107(1) and (3) clearly provide for the Supreme Court to take into account related summary offences when sentencing an offender on indictment,
current section 107(6) appears to negate this intention by specifically stating that the Court ‘must not take into account a charge of an offence which it would not have jurisdiction to try even with the consent of the person charged with it’.

The Bill removes section 107(6) to cure its negative effect on the operation of sections 107(1) and (3). This amendment ensures that there is no jurisdictional impediment to the Supreme Court taking into account summary charges when sentencing an offender on indictment.

Current sub-sections (1) to (3) of section 107 are replaced with new sub-sections (1) to (3A), which modernise the old provisions to make construction of the section clearer. As a result, the application of amended section 107 is very similar to the current section, with minor amendments.

Amended section 107(1) applies to offences that it is alleged the offender has committed, whether or not they have been charged. Although current section 107 only applies to charged acts, the provision is expanded to include uncharged acts.

Reference to the offence of ‘treason’ has been removed from
section 107(1) as treason is not an offence contained within the Criminal Code. Treason is a Commonwealth offence and section 107 of the
Sentencing Act does not apply to Commonwealth offences.

Unlike the process under new sections 389 and 390 of the Criminal Code, the relevant application form for section 107 of the Sentencing Act does not have to be filed by the offender, although both the prosecution and offender still have to consent to the offences being taken into account.

Amended section 107(2) confers jurisdiction on the court to take the listed offences into account, if appropriate, when sentencing the offender.

The test in amended section 107(2) has been changed so that the court simply needs to ‘consider it appropriate’ to deal with the listed offences, rather than being ‘satisfied in all the circumstances it is proper to do so’.
The language in the new provision is consistent with the test used in other provisions in the
Sentencing Act but is not intended to affect the scope of the discretion.

For uniformity, the test in amended section 107(3) has also been amended from ‘thinks fit’ to ‘considers it appropriate’.

Amended section 107(3) provides that the court may take the listed offences into account, if appropriate, but must not impose a sentence in respect of the offence for which the defendant is being sentenced in excess of the maximum penalty for that offence. The Bill replaces the term ‘maximum sentence’ in section 107(3) with the term ‘maximum penalty’. It is clear that the intention of the provision is to restrict the maximum penalty that a sentencing court can impose when taking into account other offences by providing that the court cannot impose a penalty higher than the prescribed maximum for the indicted offence. This is consistent with the use of the term ‘maximum penalty’ in the Criminal Code and other offence provisions. The court may take the listed offences into account by way of aggravation and to obtain a complete picture of the defendant’s offending but may not impose a higher penalty than the maximum prescribed for the offence the defendant is being sentenced for.

Current section 107 is not confined, in application, to the Supreme Court and can apply to any court, including the Court of Summary Jurisdiction. In amending section 107, this position has not been altered and the provision may also be applied in the Court of Summary Jurisdiction. Consequently, if an offender wishes other offences, to be taken into account when being sentenced for an offence in the Court of Summary Jurisdiction, they may rely on section 107.

New section 107(3A) will, however, be inserted to reduce the scope of the provision when applying in the Court of Summary Jurisdiction by clarifying that the intention of the provision is for the Supreme Court to take into account summary charges and not for the Court of
Summary Jurisdiction to take into account indictable offences that it would not otherwise be able to hear.

This provision will not impact the operation of sections 120 and 121A of the Justices Act which allow the Court of Summary Jurisdiction to hear and determine ‘minor indictable offences’.

The Bill also makes other minor grammatical and statute law revision amendments to sections 107(4), (5), (9), (10), (11) and (12).
These amendments are not intended to change the policy of the section 107.

Clause 13. Part 12, Division 6 inserted

Clause 13 inserts new Division 6 into Part 12 of the Sentencing Act, which contains the transitional provisions for the application of amended sections 64, 104A and 107.

It is the intention of the Bill that all amendments apply to any sentencing process that occurs after commencement of the Act. The application of the amended provisions is therefore retrospective with regard to the offence date as the provisions apply even if the offences were committed prior to commencement of the Act.

New section 134 provides the transitional provision for section 64 and confirms that the amended section 64 applies only in relation to a sentence or commitment to prison for an offence committed before the commencement of the new section 134 if the sentence is imposed in proceedings in which a court starts hearing submissions after commencement or the commitment to prison is imposed in a hearing under section 15(4) that starts after commencement. The intention is that the new section 64 can apply to offences committed prior to the commencement of the Justice and Other Legislation Amendment Act 2014 but it is not intended to apply to proceedings halfway through a court hearing submissions or a hearing under section15(4).

New section 135 provides the transitional provision for section 104A and confirms that the amended section 104A applies only in relation to proceedings for an offence committed before the commencement of the new section 135 if the court starts hearing sentencing submissions after commencement. The intention is that the new section 104A can apply to offences committed prior to the commencement of the Justice and Other Legislation Amendment Act 2014 but it is not intended to apply to proceedings halfway through a court hearing sentencing submissions.

New section 135(2) preserves the operation of current section 104A for offences committed prior to the commencement of section 135 and for which a court started hearing sentencing submissions.

New section 136 provides that section 107 only applies in relation to proceedings for an offence committed before the commencement of section 136 if a court starts hearing sentencing submissions after commencement. New section 136(2) makes it clear that an offence may be listed in the document to be filed under section 107(1) even if the charge for the offence was laid before commencement or the offence is alleged to have been committed before commencement. Section 136(3) provides that section 107, as in force before the commencement of this Act, is preserved and applies in relation to proceedings for an offence committed before commencement if a court started hearing sentencing submissions before commencement.

The intention is that the new section 107 can apply to offences committed prior to the commencement of the Justice and Other Legislation Amendment Act 2014 but it is not intended to apply to proceedings halfway through a court hearing sentencing submissions.

Part 4 Youth Justice Act amended

Clause 14. Act amended

This Part of the Bill will amend the Youth Justice Act.

Clause 15. Section 131 replaced

As a result of the anomaly identified in relation to section 64 of the Sentencing Act (referred to above), section 131 of the Youth Justice Act required amendment, consistent with the amendment to section 64 (except with application to youth offenders).

Clause 15, therefore, repeals current section 131 of the Youth Justice Act, replacing it with an amended section 131 to provide that every parolee, who commits a new offence while on parole, is required to serve any unexpired term of imprisonment, upon sentencing to a term of detention or imprisonment for the new offence, whether their parole has been cancelled or revoked by a court or the Parole Board.

Consequently amended section 131 of the Youth Justice Act applies if:

(a) a youth is sentenced to a term of detention or imprisonment for an offence that was committed while a parole order was in force; and

(b) the parole order:

In accordance with previous section 131, the amended section 131(3) provides that, upon sentencing to detention or imprisonment for an offence committed while on parole, the unexpired term of detention or imprisonment is to be served at the expiration of the term of detention or imprisonment for the new offence.

Amended section 131(2) redrafts the ‘calculation provisions’ of the previous section 131(2) in order to assist in calculating the length of time remaining on a youth’s sentence.

The amended section 131 does not alter the current legislative position under section 14(1)(a) of the Parole of Prisoners Act that offenders are not to be credited for ‘street-time’. The calculations provided under
new section 131(2) support this position by noting that the term of detention remaining on an offender’s sentence is to be calculated from their date of release on parole.

Section 131(2)(a) applies if an offender’s parole order was revoked or cancelled as mentioned in section 131(1)(b)(i) or (ii). The section provides that, in addition to the sentence for the new offence, the youth must be detained or imprisoned for:

(a) the term that they had not served when released from detention under the parole order; minus

(b) the part of the term the youth served after the parole order was revoked or cancelled.

Section 131(2)(b) applies if an offender’s parole order was not revoked or cancelled prior to sentence for the new offence. The section provides that, in addition to the sentence for the new offence, the youth must be detained or imprisoned for the term that they had not served when released from detention under the parole order.

Amended section 131(4) defines the term ‘Chairperson’ with reference to section 3(1) of the Parole of Prisoners Act.

Clause 16. Part 17 heading replaced

Clause 16 amends the heading of Part 17 of the Youth Justice Act to ‘Transitional matters’. This Part amalgamates the existing transitional provisions of the Youth Justice Act and establishes divisions for each.

Due to the increasing number of transitional provisions in the Youth Justice Act, this will ensure better structure and flow for each of the transitional provisions.

Clause 16 creates Division 1 which caters for section 226, being the transitional provisions of the Criminal Code Amendment (Criminal Damage) Act 2011.

Clause 17 Part 17, Division 2 inserted

Clause 17 creates Division 2 and inserts section 227 into the Youth Justice Act. Section 227 contains the transitional provisions for the Justice and Other Legislation Amendment Act 2014.

New section 227 provides the transitional provision for amended section 131.

That section provides that new section 131 applies only to a sentence for an offence committed before the commencement of section 227 if the sentence is imposed in proceedings in which a court starts hearing sentencing submissions after commencement. The intention is that the new section 131 can apply to offences committed prior to the commencement of the Justice and Other Legislation Amendment Act 2014 but it is not intended to apply to proceedings halfway through a court hearing sentencing submissions.

Section 227(2) provides that section 131, as in force before the commencement of this Act, applies in relation to a sentence for an offence committed before commencement if the sentence is or was imposed in proceedings in which the court started hearing sentencing submissions before commencement.

In essence, this means that the amended provisions are to apply, even if the youth committed an offence or formally entered a plea of guilty in respect of an offence prior to commencement of the Justice and Other Legislation Amendment Act 2014, as long as sentencing submissions have not commenced.

Part 5 Expiry of Act

Clause 18. Expiry

Clause 18 states that the Justice and Other Legislation Amendment
Act 2014
will expire after its commencement.

 


[Index] [Search] [Download] [Bill] [Help]