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PENALTIES AND SENTENCES (SENTENCING ADVISORY COUNCIL) AMENDMENT ACT 2010 No. 48 - SECT 6

6 Insertion of new pt 2A

After part 2--

insert--

'In this part--

Attorney-General includes the nominee of the Attorney-General.

chief executive officer of Legal Aid Queensland includes the nominee of the chief executive officer of Legal Aid Queensland.

court means the Court of Appeal.

director of public prosecutions includes the nominee of the director of public prosecutions.

guideline judgment means a judgment that--

(a) is declared to be a guideline judgment by the court; and
(b) contains guidelines to be taken into account by courts in sentencing offenders being guidelines applying--
(i) generally; or
(ii) to a particular court or class of court; or
(iii) to a particular offence, or class of offence, including under a Commonwealth Act; or
(iv) to a particular penalty or class of penalty; or
(v) to a particular class of offender.

guideline judgment for an offence under a Commonwealth Act means a guideline judgment to the extent it relates to an offence under a Commonwealth Act.

guideline proceeding means--

(a) that part of a proceeding relating to the giving or review of a guideline judgment under section 15AD; or
(b) a proceeding, or part of a proceeding, under section 15AE on an application for the giving or review of a guideline judgment under that section.

review, a guideline judgment, means--

(a) confirm the guideline judgment; or
(b) vary the guideline judgment; or
(c) revoke the guideline judgment; or
(d) substitute a new guideline judgment for the guideline judgment.

'(1) The court may give or review a guideline judgment--

(a) on its own initiative under section 15AD; or
(b) on an application under section 15AE.

'(2) However--

(a) a guideline judgment for an offence under a Commonwealth Act may be given or reviewed only in a proceeding where the guideline judgment relates to a matter in the proceeding; and
(b) the court must comply with section 15AC.

'(1) A guideline judgment, other than a guideline judgment for an offence under a Commonwealth Act, must be consistent with Queensland law.

'(2) A guideline judgment for an offence under a Commonwealth Act must--

(a) be consistent with Commonwealth law; and
(b) set out non-binding considerations to guide the future exercise of discretion and not purport to establish a rule of binding effect; and
(c) articulate principles to underpin the determination of a particular sentence and not state the expected decisions in a future proceeding.

'(1) The court may, on its own initiative--

(a) give or review a guideline judgment, other than a guideline judgment for an offence under a Commonwealth Act, in a proceeding and whether or not the court considers giving or reviewing the guideline judgment is necessary for the purpose of determining the proceeding; and
(b) pronounce the guideline judgment separately or by inclusion in any judgment the court considers appropriate.

'(2) The court may, on its own initiative--

(a) give or review a guideline judgment for an offence under a Commonwealth Act in a proceeding and only if the court considers giving or reviewing the guideline judgment is necessary for the purpose of determining the proceeding; and
(b) pronounce the guideline judgment only by inclusion in the judgment for the proceeding.

'(1) The following persons may apply to the court for a guideline judgment to be given or reviewed--

(a) the Attorney-General;
(b) the director of public prosecutions;
(c) the chief executive officer of Legal Aid Queensland.

'(2) For subsection (1), the application is not required to be an application in a proceeding.

'(3) Also, on an appeal after a person is convicted, the person may apply to the court for review of a guideline judgment to the extent it contains a guideline that is relevant in the circumstances.

'(4) The application may include submissions in support of the application.

'(5) The court may, on an application under this section--

(a) give or review a guideline judgment, other than a guideline judgment for an offence under a Commonwealth Act, whether or not this is necessary for the purpose of determining a proceeding; and
(b) pronounce the guideline judgment separately or by inclusion in any judgment the court considers appropriate.

'(6) The court may, on an application under this section--

(a) give or review a guideline judgment for an offence under a Commonwealth Act only if the court considers giving or reviewing the guideline judgment is necessary for the purpose of determining a proceeding in relation to the offence; and
(b) pronounce the guideline judgment only by inclusion in the judgment for the proceeding.

'(1) The following persons may appear in a guideline proceeding--

(a) the Attorney-General;
(b) the director of public prosecutions;
(c) the chief executive officer of Legal Aid Queensland.

'(2) Also, for a guideline proceeding in which the court is giving or reviewing a guideline judgment relevant to an appeal before the court against the sentence of a convicted person, the convicted person may appear in the guideline proceeding.

'(3) Without limiting subsection (1) or (2), a person who may appear under subsection (1) or (2) may--

(a) oppose or support the giving or reviewing of the guideline judgment by the court; and
(b) make submissions in relation to the framing of the guidelines to be contained in the guideline judgment; and
(c) inform the court of any relevant pending appeal against sentence; and
(d) assist the court in relation to any relevant matter.

'(1) Nothing in the Director of Public Prosecutions Act 1984 or any Act or law prevents, or in any way limits, the exercise of a power conferred on the director of public prosecutions under section 15AE or 15AF.

'(2) Without limiting subsection (1), in exercising a power conferred on the director of public prosecutions under this section, the director is not, despite the Director of Public Prosecutions Act 1984, section 10, responsible to, or subject to the direction of, the Attorney-General.

'(3) Nothing in any Act or law prevents, or in any way limits, the performance of a function conferred on the Attorney-General under section 15AE or 15AF.

'(1) If the court is considering giving or reviewing a guideline judgment, the court must--

(a) consider--
(i) the need to promote consistency of approach in sentencing offenders; and
(ii) the need to promote public confidence in the criminal justice system; and
(b) notify the council and consider the written views of the council given within the reasonable period stated in the notification.

'(2) However, the court does not have to notify the council under subsection (1)(b) if--

(a) the court is considering giving or reviewing a guideline judgment relevant to an appeal before the court against the sentence of a convicted person; and
(b) the court considers that the time taken to notify the council and consider its views would result in an injustice to the convicted person.

'(1) This section applies if the court decides to give or review a guideline judgment.

'(2) The court must--

(a) for any guideline proceeding--notify the following persons of their right to appear before the court in the guideline proceeding--
(i) the Attorney-General;
(ii) the director of public prosecutions;
(iii) the chief executive officer of Legal Aid Queensland; and
(b) if the court is giving or reviewing a guideline judgment relevant to an appeal before the court against the sentence of a convicted person--notify the convicted person.

'(3) If the court has received the written views of council under section 15AH(1)(b), the court must give a copy of the council's views to the persons mentioned in subsection (2)(a) and (b).

'(1) Nothing in this part--

(a) limits any power or jurisdiction of the court to give or review a judgment providing guidance on matters relating to sentencing that the court has apart from this part; or
(b) requires the court to give or review a guideline judgment if it considers giving or reviewing a guideline judgment inappropriate.

'(2) If, on an application under section 15AE, the court decides not to give or review a guideline judgment, the court must give reasons for its decision.

'Nothing in the Criminal Code, section 671B limits the evidence or other matters the court may take into consideration in giving or reviewing a guideline judgment and the court may inform itself in the way it considers appropriate.

'A guideline in a guideline judgment--

(a) is additional to anything else required under part 2; and
(b) does not limit or otherwise affect any requirement under that part.'.


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