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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Sentencing Matrix Bill 1999
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Act amended 2
Part 2 -- Amendments about appropriate and
consistent sentencing
Division 1 -- Sentencing Act 1995 amended
4. Part 14A inserted 3
Division 2 -- Young Offenders Act 1994 amended
5. The Act amended by this Division 19
6. Section 46A amended 20
7. Section 55 amended 20
8. Schedule 2 amended 20
page i
99--1
Western Australia
LEGISLATIVE ASSEMBLY
Sentencing Matrix Bill 1999
A Bill for
An Act to amend the Sentencing Act 1995 and Young Offenders
Act 1994.
The Parliament of Western Australia enacts as follows:
page 1
Sentencing Matrix Bill 1999
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Sentencing Matrix Act 1999.
2. Commencement
5 This Act comes into operation on such day as is, or days as are
respectively, fixed by proclamation.
3. Act amended
The amendments in this Act are to the Sentencing Act 1995*
unless otherwise indicated.
10 [* Act No. 76 of 1995.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 211-12, and Acts Nos. 23, 29
and 38 of 1998.]
page 2
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
Part 2 -- Amendments about appropriate and
consistent sentencing
Division 1 -- Sentencing Act 1995 amended
4. Part 14A inserted
5 After section 101 of the Sentencing Act 1995 the following Part
is inserted --
"
Part 14A -- Sentence reporting and formulation
Division 1 -- Reporting of sentences
10 101A. Application of this Division
(1) This Division applies if --
(a) an offence is prescribed in relation to a court by
regulations under section 101B; and
(b) that court is sentencing an offender for that
15 offence.
(2) However, if Division 2 or 3 applies when a court is
sentencing an offender for an offence, this Division
does not apply.
101B. Reporting offences may be prescribed
20 Regulations may prescribe an offence (a "reporting
offence") in relation to a prescribed court for the
purposes of this Division.
page 3
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
101C. Sentencing reports for reporting offences
(1) A court sentencing an offender for a reporting offence
must prepare a sentencing report and deliver it in
accordance with the regulations.
5 (2) Regulations may provide for the use of computer
programmes approved under the regulations to prepare
sentencing reports.
101D. Contents of sentencing reports for reporting
offences
10 The sentencing report for a reporting offence must --
(a) set out each mitigating, aggravating or other
factor that was taken into account in arriving at
the sentence;
(b) indicate the degree to which --
15 (i) each of those factors;
(ii) the maximum penalty for the offence;
and
(iii) the minimum penalty (if any) for the
offence,
20 affected the sentence; and
(c) provide any other information required by the
regulations.
page 4
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
Division 2 -- Reporting of variations from
indicative sentences
101E. Application of this Division
(1) This Division applies if --
5 (a) a sentencing method for an offence is
prescribed in relation to a court by regulations
under section 101F; and
(b) that court is sentencing an offender for that
offence.
10 (2) However, if Division 3 applies when a court is
sentencing an offender for an offence, this Division
does not apply.
101F. Indicative sentencing method may be prescribed
(1) Regulations may prescribe a method to be applied by a
15 prescribed court to arrive at an indication of the
appropriate sentence (the "indicative sentence") for a
prescribed offence (a "regulated offence").
(2) In prescribing a sentencing method for a regulated
offence the regulations --
20 (a) may provide for the indicative sentence to be
determined in accordance with a prescribed
formula or in such other manner as is
prescribed; and
(b) may provide that the making of a spent
25 conviction order in relation to the offence
would not be appropriate.
page 5
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
101G. Sentencing procedures for regulated offences
(1) A court sentencing an offender for a regulated offence
must --
(a) determine the indicative sentence;
5 (b) impose a sentence for the offence (the "actual
sentence"); and
(c) prepare a sentencing report and deliver it in
accordance with the regulations.
(2) Regulations may provide for the use of computer
10 programmes approved under the regulations to --
(a) determine indicative sentences; and
(b) prepare sentencing reports.
101H. Contents of sentencing reports for regulated
offences
15 The sentencing report for a regulated offence must --
(a) set out the indicative sentence;
(b) set out each mitigating, aggravating or other
factor that was taken into account in arriving at
the indicative sentence and the actual sentence;
20 (c) set out the degree to which --
(i) each of the factors set out under
paragraph (b);
(ii) the maximum penalty for the offence;
and
25 (iii) the minimum penalty (if any) for the
offence,
affected the indicative sentence and the actual
sentence;
page 6
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
(d) if the actual sentence is not the same as the
indicative sentence, explain, in the prescribed
manner, the reasons for the difference between
the actual sentence and the indicative sentence;
5 and
(e) provide any other information required by the
regulations.
Division 3 -- Sentencing according to a
prescribed method
10 101I. Application of this Division
This Division applies if --
(a) a sentencing method for an offence is
prescribed in relation to a court by regulations
under section 101J that have come into
15 operation under section 101K; and
(b) that court is sentencing an offender for that
offence.
101J. Sentencing method may be prescribed
(1) Regulations may prescribe a method to be
20 applied by a court to arrive at the appropriate
sentence (the "relevant sentence") for an offence
(a "controlled offence").
(2) In prescribing a sentencing method for a controlled
offence the regulations --
25 (a) may provide for the relevant sentence to be
determined in accordance with a prescribed
formula or in such other manner as is
prescribed;
page 7
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
(b) may provide for prescribed factors to be taken
into account or ignored, or to be taken into
account to a particular degree, in determining
the relevant sentence; and
5 (c) may provide that the making of a spent
conviction order in relation to the offence is not
appropriate.
101K. Approval of sentencing method by Parliament
(1) In this section --
10 "sentencing regulations" means regulations under
section 101J that --
(a) prescribe a sentencing method for an
offence; or
(b) amend a sentencing method prescribed for an
15 offence.
(2) Sections 41(1)(b) and 42 of the Interpretation Act 1984
do not apply to sentencing regulations.
(3) After being published in the Gazette, sentencing
regulations are to be laid before each House of
20 Parliament.
(4) A House of Parliament may pass a resolution approving
of sentencing regulations that have been laid before it.
(5) If each House of Parliament has passed a resolution
under subsection (4), notice to that effect is to be
25 published in the Gazette within 21 days.
(6) If the Houses of Parliament pass separate resolutions
under subsection (4) on different days, the 21 day
period mentioned in subsection (5) commences after
the later of those days.
page 8
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
(7) If sentencing regulations are approved by each House
of Parliament under subsection (4), they come into
operation --
(a) on the 7th day after the publication of the notice
5 under subsection (5); or
(b) where a later day is specified or provided for in
the regulations, on that day,
and have effect as if enacted in this Act.
(8) If a resolution to approve of sentencing regulations is
10 defeated in either House of Parliament, the defeat of
the resolution repeals the regulations.
(9) Regulations may abolish a sentencing method
prescribed under section 101J and this section does not
apply to those regulations unless they prescribe another
15 sentencing method to replace the method that is
abolished.
101L. Sentencing requirements for controlled offences
(1) A court sentencing an offender to imprisonment for a
controlled offence must --
20 (a) determine the relevant sentence;
(b) impose a sentence for the offence (the "actual
sentence") being --
(i) the relevant sentence; or
(ii) a sentence imposed under
25 subsection (2);
and
(c) prepare a sentencing report and deliver it in
accordance with the regulations.
page 9
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
(2) If the court considers that the relevant sentence would
be so unreasonable that it would be unjust to impose
that sentence, it may elect to impose another sentence.
(3) For the purposes of subsection (2), the relevant
5 sentence cannot be considered as being unreasonable to
the extent to which it was arrived at by --
(a) taking into account or ignoring a factor; or
(b) taking a factor into account to a particular
degree,
10 as required by the sentencing method.
(4) This section has effect despite any provision of this Act
(other than section 87) or any other law but nothing in
this section authorizes the court to impose a sentence
that is greater than the maximum penalty for the
15 offence or less than the minimum penalty (if any) for
the offence.
(5) This section does not prevent the court from making an
order under Part 14 and the making of such an order is
not to be taken into account for the purposes of
20 Division 4.
(6) Regulations may provide for the use of computer
programmes approved under the regulations to --
(a) determine relevant sentences; and
(b) prepare sentencing reports.
25 101M. Contents of sentencing reports for controlled
offences
The sentencing report for a controlled offence must --
(a) set out the relevant sentence;
page 10
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
(b) set out each mitigating, aggravating or other
factor that was taken into account in arriving at
the relevant sentence;
(c) indicate the degree to which --
5 (i) each of those factors;
(ii) the maximum penalty for the offence;
and
(iii) the minimum penalty (if any) for the
offence,
10 affected the relevant sentence;
(d) if the actual sentence is imposed under
section 101L(2), explain, in the prescribed
manner, why the court considered that
imposition of the relevant sentence would be
15 unjust and the reasons for the difference
between the actual sentence and the relevant
sentence; and
(e) provide any other information required by the
regulations.
20 101N. Procedure on appeal
(1) If the actual sentence is more severe than the relevant
sentence as determined by the sentencing court and the
offender appeals against the actual sentence, the onus is
on the prosecution to show cause before the appeal
25 court why the actual sentence should not be quashed
and a less severe sentence imposed.
(2) If the actual sentence is less severe than the relevant
sentence as determined by the sentencing court and the
prosecution appeals against the actual sentence, the
30 onus is on the offender to show cause before the appeal
page 11
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
court why the actual sentence should not be quashed
and a more severe sentence imposed.
(3) The relevant sentence is not a sentence fixed by law for
the purposes of section 688(1b)(b) of The Criminal
5 Code.
Division 4 -- Comparison of actual sentences with
indicative or relevant sentences
101O. Purpose of this Division
The provisions of this Division have effect for the
10 purpose of determining under Division 2 or 3 whether
the actual sentence is the same as, more severe than or
less severe than the indicative sentence or the relevant
sentence.
101P. Meaning of terms used in this Division
15 (1) In this Division --
"actual sentence" has the meaning given by
section 101G or 101L, whichever is applicable;
"indicative sentence" has the meaning given by
section 101F;
20 "punishment option" means a sentencing option listed
in section 39(2) or a combination of 2 or more of
those sentencing options;
"recommended sentence" means the indicative
sentence or the relevant sentence, whichever is
25 applicable;
"relevant sentence" has the meaning given by
section 101J;
page 12
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
"sentencing method" means the sentencing method
prescribed under section 101F or 101J, whichever
is applicable.
(2) For the purposes of this Division, a punishment option
5 is higher than any other punishment option that is listed
before it in section 39(2).
(3) In the case of a punishment option that is a
combination of options, its position in section 39(2) is
determined by reference to the highest of those options.
10 101Q. One sentencing option provided
(1) This section applies if the sentencing method provides
for the recommended sentence to involve the use of a
particular punishment option (the "prescribed
option").
15 (2) If the actual sentence only involves the use of the
prescribed option, the actual sentence is to be regarded
as more severe than the recommended sentence if it is
greater than the recommended sentence.
(3) If the actual sentence involves the use of another
20 sentencing option, or other sentencing options, in
addition to the prescribed option, the actual sentence is
to be regarded as more severe than the recommended
sentence if --
(a) that other option, or one or more of those other
25 options, is higher than the prescribed option; or
(b) the portion of the sentence imposed using the
prescribed option is not less than the
recommended sentence.
page 13
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
(4) If the actual sentence does not involve the use of the
prescribed option, the actual sentence is to be regarded
as more severe than the recommended sentence if a
sentencing option used is higher than the prescribed
5 option.
(5) Unless --
(a) the actual sentence only involves the use of the
prescribed option and is the same as the
recommended sentence; or
10 (b) subsection (2), (3) or (4) provides otherwise,
the actual sentence is to be regarded as less severe than
the recommended sentence.
(6) If the sentencing method provides for the recommended
sentence to be within a range of sentences involving the
15 use of the prescribed option then --
(a) for the purposes of subsection (5)(a), the actual
sentence is the same as the recommended
sentence if it is within that range;
(b) for the purposes of subsection (2), the actual
20 sentence is greater than the recommended
sentence if it is greater than the most severe
sentence in that range; and
(c) for the purposes of subsection (3)(b), the actual
sentence is not less than the recommended
25 sentence if it is not less than the most severe
sentence in that range.
page 14
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
101R. Two or more sentencing options provided
(1) This section applies if the sentencing method provides
for the recommended sentence to involve the use of
any of 2 or more punishment options (the "prescribed
5 options").
(2) If the actual sentence only involves the use of one of
the prescribed options, the actual sentence is to be
regarded as being the same as the recommended
sentence if it is the same as the recommended sentence
10 determined using that option.
(3) If the actual sentence only involves the use of the
highest of the prescribed options, the actual sentence is
to be regarded as more severe than the recommended
sentence if it is greater than the recommended sentence
15 determined using that option.
(4) If the actual sentence involves the use of another
sentencing option, or other sentencing options, in
addition to the highest of the prescribed options, the
actual sentence is to be regarded as more severe than
20 the recommended sentence if --
(a) that other option, or one or more of those other
options, is higher than the highest of the
prescribed options; or
(b) the portion of the sentence imposed using the
25 highest prescribed option is not less than the
recommended sentence determined using that
option.
(5) In subsection (4) --
"sentencing option" includes a prescribed option.
page 15
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
(6) If the actual sentence involves the use of another
sentencing option, or other sentencing options in
addition to a prescribed option (other than the highest
of the prescribed options), the actual sentence is to be
5 regarded as more severe than the recommended
sentence if that other option, or one of those other
options, is higher than the highest of the prescribed
options.
(7) If no prescribed option is used in the actual sentence,
10 the actual sentence is to be regarded as more severe
than the recommended sentence if a sentencing option
used is higher than the highest of the prescribed
options.
(8) Unless subsection (2), (3), (4), (6) or (7) provides
15 otherwise, the actual sentence is to be regarded as less
severe than the recommended sentence.
(9) If the sentencing method provides for the
recommended sentence determined under a prescribed
option to be within a range of sentences involving the
20 use of that option then --
(a) for the purposes of subsection (2), the actual
sentence is the same as the recommended
sentence determined using that option if it is
within that range;
25 (b) for the purposes of subsection (3), the actual
sentence is greater than the recommended
sentence determined using that option if it is
greater than the most severe sentence in that
range; and
page 16
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Sentencing Act 1995 amended Division 1
s. 4
(c) for the purposes of subsection (4)(b), the actual
sentence is not less than the recommended
sentence determined using that option if it is
not less than the most severe sentence in that
5 range.
Table showing some examples of the operation of Division 4
Recommended sentence Actual sentence imposed Comparison of
("RS") ("AS") AS with RS
$10 000 fine $5 000 fine and AS less severe
12 months CRO
$10 000 fine and AS more severe
6 months CRO
$5 000 fine and AS more severe
12 months CBO
6 months CBO AS more severe
$10 000 to $20 000 fine $15 000 fine AS same as RS
OR $25 000 fine AS less severe
12 to 24 months CBO $25 000 fine and AS less severe
15 months CRO
$20 000 fine and AS less severe
20 months CBO
$2 000 fine and AS more severe
24 months CBO
$2 000 fine and AS more severe
6 months imprisonment
$10 000 to $20 000 fine $20 000 fine AS same as RS
OR 24 months CBO AS same as RS
12 to 24 months CBO $20 000 fine and AS less severe
OR 24 months CBO
6 to 9 months
$20 000 fine and AS less severe
imprisonment
8 months imprisonment
$20 000 fine and AS more severe
9 months imprisonment
page 17
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 1 Sentencing Act 1995 amended
s. 4
Division 5 -- Application of this Part to the sentencing
of young persons
101S. Meaning of terms used in this Division
In this Division --
5 "Schedule 1 offence", "Schedule 2 offence" and
"young person" have the same meanings as they
have in the Young Offenders Act 1994.
101T. Prescribing offences in relation to the Children's
Court
10 (1) Regulations may be made under section 101B, 101F
or 101J to apply provisions of this Part to sentencing
by the Children's Court but only in relation to a
Schedule 1 offence or a Schedule 2 offence.
(2) Regulations referred to in subsection (1) may be made
15 in a way that makes the operation of provisions of this
Part depend on, or differ according to, the age of an
offender at the time of --
(a) committing;
(b) being charged with;
20 (c) being convicted of; or
(d) being sentenced for,
the offence.
101U. Sentencing of young persons by other courts
If regulations referred to in section 101T(1) are made,
25 provisions of this Part that apply to the Children's
Court also apply in the same way to any other court
sentencing a young person for the offence in question.
page 18
Sentencing Matrix Bill 1999
Amendments about appropriate and consistent sentencing Part 2
Young Offenders Act 1994 amended Division 2
s. 5
101V. Modified operation of certain provisions of this Part
(1) If regulations referred to in section 101T(1) are made
under section 101J, section 101L(5) applies as if it
were amended by inserting after "Part 14" the
5 following --
"
, or under Part 7, Division 9 of the Young
Offenders Act 1994
".
10 (2) If regulations referred to in section 101T(1) are made
under section 101F or 101J then, unless section 50B of
the Young Offenders Act 1994 applies, references in
Division 4 to section 39(2) are to be read as references
to the Table to this subsection.
15 Table
Sentencing options under the Young Offenders Act 1994
1. The imposition of a fine under section 71.
2. The making of a youth community based order under
section 73.
3. The making of an intensive youth supervision order under
section 98.
4. The imposition of a custodial sentence under section 118.
".
Division 2 -- Young Offenders Act 1994 amended
5. The Act amended by this Division
The amendments in this Division are to the Young Offenders
20 Act 1994*.
[* Reprinted as at 26 March 1996.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 259, and Act No. 29 of 1998.]
page 19
Sentencing Matrix Bill 1999
Part 2 Amendments about appropriate and consistent sentencing
Division 2 Young Offenders Act 1994 amended
s. 6
6. Section 46A amended
Section 46A(1) is amended after paragraph (b) by deleting "or"
and inserting --
"
5 (ba) to the extent that Division 5 of Part 14A of the
Sentencing Act 1995 provides for that Part to
apply; or
".
7. Section 55 amended
10 After section 55(4) the following subsection is inserted --
"
(4a) Although a conviction is not recorded, the offender is
deemed to have been convicted for the purpose of the
application of Part 14A of the Sentencing Act 1995 to
15 the sentencing of the offender for another offence.
".
8. Schedule 2 amended
Schedule 2 is amended in the Division headed "1. The Criminal
Code" by deleting the item relating to s. 378(2) and inserting
20 instead --
" s. 378 Stealing a motor vehicle ".
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