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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Sentencing)
Bill 2017
A BILL FOR
An Act to amend various Acts to update obsolete references to the
Criminal
Law (Sentencing) Act 1988
; and for various other purposes consequential on, or related to, the
enactment of the
Sentencing
Act 2017
.
Contents
Part 2—Amendment of Bail
Act 1985
4Amendment of section 10A—Presumption
against bail in certain cases
Part 3—Amendment of Births, Deaths and
Marriages Registration Act 1996
5Amendment of section
29B—Interpretation
Part 4—Amendment of Child Sex
Offenders Registration Act 2006
6Amendment of section
4—Interpretation
7Amendment of Schedule 1—Class 1 and 2
offences
Part 5—Amendment of Community Based
Sentences (Interstate Transfer) Act 2015
8Amendment of section
3—Interpretation
Part 6—Amendment of Correctional
Services Act 1982
9Amendment of section
4—Interpretation
10Amendment of section 37CA—Home detention
officers
11Amendment of section 38—Release of
prisoner from prison or home detention
12Amendment of section 66—Automatic
release on parole for certain prisoners
Part 7—Amendment of Criminal Assets
Confiscation Act 2005
13Amendment of section 224—Effect of
confiscation scheme on sentencing
Part 8—Amendment of Criminal Law
Consolidation Act 1935
14Amendment of section
83GF—Sentencing
15Amendment of section 83K—Enforcement of
order for compensation etc
16Amendment of section 269R—Reports and
statements to be provided to court
Part 9—Amendment of Criminal Law
(High Risk Offenders) Act 2015
17Amendment of section
4—Interpretation
Part 10—Amendment of District Court
Act 1991
18Amendment of section 54—Accessibility to
Court records
Part 11—Amendment of Environment,
Resources and Development Court Act 1993
19Insertion of sections 28D and
28E
28EDeferral of
sentence following sentencing conference
20Amendment of section 47—Accessibility of
evidence
Part 12—Amendment of Firearms Act
2015
21Amendment of section 57—Power to inspect
or seize firearms etc
Part 13—Amendment of Intervention
Orders (Prevention of Abuse) Act 2009
22Amendment of section 31—Contravention of
intervention order
Part 14—Amendment of Magistrates
Court Act 1991
23Amendment of section 9—Criminal
jurisdiction
24Amendment of section 51—Accessibility to
Court records
Part 15—Amendment of Parliamentary
Committees Act 1991
25Amendment of section 15O—Functions of
Committee
Part 16—Amendment of Prisoners
(Interstate Transfer) Act 1982
26Amendment of section 28—Ancillary
provisions relating to translated sentences
Part 17—Amendment of Road Traffic
Act 1961
27Amendment of 44B—Misuse of motor
vehicle
Part 18—Amendment of Shop Theft
(Alternative Enforcement) Act 2000
28Amendment of section
3—Interpretation
29Amendment of Schedule 3—Provisions
relating to community service
Part 19—Amendment of Spent
Convictions Act 2009
30Amendment of section
3—Preliminary
Part 20—Amendment of Summary Offences
Act 1953
31Amendment of section 17AA—Misuse of a
motor vehicle on private land
Part 21—Amendment of Supreme Court
Act 1935
32Amendment of section 131—Accessibility
to Court records
Part 22—Amendment of Victims of Crime
Act 2001
34Amendment of section 32—Imposition of
levy
35Amendment of section 32A—Victim may
exercise rights through an appropriate representative
Part 23—Amendment of Young Offenders
Act 1993
36Amendment of section
4—Interpretation
37Amendment of section 22—Power to
sentence
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Sentencing)
Act 2017.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the
Acts
Interpretation Act 1915
does not apply to this Act or a provision of this Act.
(1) In this Act, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
(2) If an Act sought to be amended by this Act is, before the commencement
of the relevant Part, amended in a manner that renders an amendment contained in
that Part ineffective, that amendment will be taken to have been struck out from
that Part.
Part 2—Amendment
of Bail Act 1985
4—Amendment
of section 10A—Presumption against bail in certain
cases
Section 10A(2), definition of prescribed applicant,
(e)—delete "Part 2 Division 2AA of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 3 Division 3 of the
Sentencing
Act 2017
Part 3—Amendment
of Births, Deaths and Marriages Registration
Act 1996
5—Amendment
of section 29B—Interpretation
Section 29B, definition of restricted person,
(d)—delete "section 24 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 4—Amendment
of Child Sex Offenders Registration
Act 2006
6—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of good behaviour
bond—delete "Part 5 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
(2) Section 4(5)—delete "section 19A of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
7—Amendment
of Schedule 1—Class 1 and 2 offences
(1) Schedule 1, clause 2(k)—delete "section 20B(1)(b) of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 53(1)(c) of the
Sentencing
Act 2017
(2) Schedule 1, clause 2(l)—delete "section 23 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 57 of the
Sentencing
Act 2017
Part 5—Amendment
of Community Based Sentences (Interstate
Transfer) Act 2015
8—Amendment
of section 3—Interpretation
Section 3, definition of community based sentence, (a) to
(c)—delete paragraphs (a) to (c) (inclusive) and substitute:
(a) any of the following sentences imposed under the
Sentencing
Act 2017
:
(i) a sentence to be served in the community while subject to intensive
correction;
(ii) a sentence of community service;
(iii) a sentence of imprisonment suspended on entering into a bond under
the Act;
(iv) a bond to be of good behaviour; or
Part 6—Amendment
of Correctional Services
Act 1982
9—Amendment
of section 4—Interpretation
Section 4(1), definition of home detention order—delete
"Part 3 Division 3A of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
10—Amendment
of section 37CA—Home detention officers
Section 37CA(1)—delete "Part 3 Division 3A of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
11—Amendment
of section 38—Release of prisoner from prison or home
detention
Section 38(4), definition of pecuniary sum—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
12—Amendment
of section 66—Automatic release on parole for certain
prisoners
Section 66(2)(aca)—delete "Part 2 Division 2AA of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 3 Division 3 of the
Sentencing
Act 2017
Part 7—Amendment
of Criminal Assets Confiscation
Act 2005
13—Amendment
of section 224—Effect of confiscation scheme on
sentencing
Section 224—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 8—Amendment
of Criminal Law Consolidation
Act 1935
14—Amendment
of section 83GF—Sentencing
Section 83GF(1)(c) and (d)—delete paragraphs (c) and (d) and
substitute:
(c) section 25 of the
Sentencing
Act 2017
does not apply;
(d) section 26 of the
Sentencing
Act 2017
does not apply (but nothing in this subsection affects the operation of
that section in respect of other offences for which the person is being
sentenced).
15—Amendment
of section 83K—Enforcement of order for compensation
etc
(1) Section 83K(a)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
(2) Section 83K(b)—delete "section 53" and substitute:
section 124
16—Amendment
of section 269R—Reports and statements to be provided to
court
(1) Section 269R(3)—delete "section 7A of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 14 of the
Sentencing
Act 2017
(2) Section 269R(4)—delete "section 7A(3b) and (3c) of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 14(4) and (5) of the
Sentencing
Act 2017
(3) Section 269R(5)—delete "section 7B of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 15 of the
Sentencing
Act 2017
(4) Section 269R(6), definition of prescribed summary
offence—delete "section 7A of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 14 of the
Sentencing
Act 2017
Part 9—Amendment
of Criminal Law (High Risk Offenders)
Act 2015
17—Amendment
of section 4—Interpretation
Section 4, definition of serious sexual offence—delete
the definition and substitute:
serious sexual offence means any of the following offences
where the maximum penalty prescribed for the offence is, or includes,
imprisonment for at least 5 years:
(i) an offence
under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or
72 of the
Criminal
Law Consolidation Act 1935
;
(ii) an offence against a corresponding previous enactment substantially
similar to an offence referred to in
subparagraph (i)
;
(iii) an attempt to commit or an assault with intent to commit any of the
offences referred to in either of the preceding subparagraphs;
(b) an offence against the law of another State or a Territory
corresponding to an offence referred to in
paragraph (a)
;
Part 10—Amendment
of District Court
Act 1991
18—Amendment
of section 54—Accessibility to Court records
Section 54(2)(fa)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 11—Amendment
of Environment, Resources and Development Court
Act 1993
19—Insertion
of sections 28D and 28E
After section 28C insert:
28D—Sentencing conferences
(1) Before sentencing a defendant in criminal proceedings, the Court may,
if the defendant expresses contrition for the offence and consents to the
convening of a sentencing conference, convene a sentencing conference.
(2) A sentencing conference is to comprise—
(a) the defendant; and
(b) the defendant's legal representative (if any); and
(c) the prosecutor; and
(d) such representatives of persons affected by the commission of the
offence as the Court thinks appropriate; and
(e) such other persons as the Court thinks may contribute usefully to the
sentencing process.
(3) The primary purpose of a sentencing conference is to negotiate action
that the defendant is to take to make reparation for any injury, loss or damage
resulting from the offence, or to otherwise show contrition for the
offence.
28E—Deferral of sentence following sentencing
conference
(1) The Court may, on finding a person guilty of an offence (whether or
not it proceeds to conviction), make an order adjourning proceedings to a
specified date for the purpose of allowing the defendant to take action as
agreed at a sentencing conference convened by the Court.
(2) As a general rule, proceedings should not be adjourned under this
section (whether by a single adjournment or a series of adjournments) for more
than 3 months from the date of the agreement reached at the sentencing
conference.
(3) This section does not limit any power that the Court has, apart from
this section, to adjourn proceedings or to grant bail in relation to any period
of adjournment.
20—Amendment
of section 47—Accessibility of evidence
Section 47(2)(c)—delete "furnished under section 7 of the Criminal
Law (Sentencing) Act 1988" and substitute:
provided under section 13 of the
Sentencing
Act 2017
Part 12—Amendment
of Firearms Act 2015
21—Amendment
of section 57—Power to inspect or seize firearms etc
(1) Section 57(5)(c)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
(2) Section 57(5)(d)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 13—Amendment
of Intervention Orders (Prevention of Abuse)
Act 2009
22—Amendment
of section 31—Contravention of intervention order
Section 31(4)—delete "Section 10(5) of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Section 11(7) of the
Sentencing
Act 2017
Part 14—Amendment
of Magistrates Court
Act 1991
23—Amendment
of section 9—Criminal jurisdiction
(1) Section 9—delete "
Summary
Procedure Act 1921
" and substitute:
(2) Section 9—after its present contents as amended by this section
(now to be designated as subsection (1)) insert:
(2) The Court does not, unless it is constituted of a Magistrate, have the
power to impose a sentence of imprisonment.
(3) If the Court, constituted otherwise than by a Magistrate, is of the
opinion that a sentence of imprisonment should be imposed in any particular
case, it may remand the defendant to appear for sentence before the Court
constituted of a Magistrate.
(4) The Court does
not have the power to impose—
(a) a sentence of imprisonment that exceeds—
(i) if the penalty is for 1 offence—5 years; and
(ii) if the penalty is for more than 1 offence—10 years;
or
(i) in the case of an offence under the
Work
Health and Safety Act 2012
being heard by an industrial magistrate—$300 000; or
(ii) in any other case—$150 000.
(5) The limits imposed by
subsection (4)(b)
apply regardless of whether the relevant offence was committed before or
after the commencement of that paragraph.
(6)
Subsection (4)
applies whether the offence to which the sentence relates is a summary
offence or an indictable offence.
(7) If the Court is of the opinion in any particular case that a sentence
should be imposed that exceeds the limits prescribed by
subsection (4)
, the Court may remand the defendant to appear for sentence before a
superior court.
24—Amendment
of section 51—Accessibility to Court records
Section 51(2)(fa)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 15—Amendment
of Parliamentary Committees
Act 1991
25—Amendment
of section 15O—Functions of Committee
(1) Section 15O(1)(b)(iii)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
(2) Section 15O(1)(b)(iii)—delete "
Summary
Procedure Act 1921
" and substitute:
Part 16—Amendment
of Prisoners (Interstate Transfer)
Act 1982
26—Amendment
of section 28—Ancillary provisions relating to translated
sentences
Section 28(4)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 17—Amendment
of Road Traffic
Act 1961
27—Amendment
of 44B—Misuse of motor vehicle
Section 44B(6)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 18—Amendment
of Shop Theft (Alternative Enforcement)
Act 2000
28—Amendment
of section 3—Interpretation
Section 3(1), definition of community corrections
officer—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
29—Amendment
of Schedule 3—Provisions relating to community
service
Schedule 3, clause 1, definitions of Chief Executive and
Minister—delete the definitions and substitute:
Chief Executive means the CE within the meaning of the
Sentencing
Act 2017
;
Minister means the Minister performing functions under Part 4
of the
Sentencing
Act 2017
.
Part 19—Amendment
of Spent Convictions
Act 2009
30—Amendment
of section 3—Preliminary
Section 3(3)(c)—delete "section 23 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 57 of the
Sentencing
Act 2017
Part 20—Amendment
of Summary Offences
Act 1953
31—Amendment
of section 17AA—Misuse of a motor vehicle on private
land
Section 17AA(5)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 21—Amendment
of Supreme Court
Act 1935
32—Amendment
of section 131—Accessibility to Court records
Section 131(2)(fa)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 22—Amendment
of Victims of Crime
Act 2001
33—Amendment
of section 10—Victim entitled to have impact of offence considered by
sentencing court and to make submissions on parole
Section 10, Note 1—delete Note 1 and substitute:
1 The
Sentencing
Act 2017
provides a mechanism for exercising this right. See also that, under that
Act, the prosecutor is obliged to place before the sentencing court details of
injury, loss or damage resulting from the offence.
34—Amendment
of section 32—Imposition of levy
Section 32(7)(c)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
35—Amendment
of section 32A—Victim may exercise rights through an appropriate
representative
Section 32A(1), Note—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 23—Amendment
of Young Offenders
Act 1993
36—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of recidivist young
offender—delete "Part 2 Division 2A of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 3 Division 4 of the
Sentencing
Act 2017
(2) Section 4(1), definition of serious firearm
offender—delete "section 20AAB of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Part 3 Division 3 of the
Sentencing
Act 2017
37—Amendment
of section 22—Power to sentence
Section 22(2)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute: