Western Australian Current Acts

SENTENCING ACT 1995 - SECT 9D

9D .         Mandatory minimum sentences where declared criminal organisation involved

        (1)         Subsections (3) and (4) apply if —

            (a)         an offender is convicted of —

                  (i)         a relevant indictable offence, whether the offence is dealt with on indictment or summarily; or

                  (ii)         a relevant simple offence;

                and

            (b)         the offence was committed by that offender —

                  (i)         at the direction of a declared criminal organisation; or

                  (ii)         in association with one or more persons who, at the time of the commission of the offence, were members of a declared criminal organisation (whether or not those persons were also convicted of the offence), but only if the offender knew, at the time of the commission of the offence, that one or more of those persons were members of a declared criminal organisation; or

                  (iii)         for the benefit of a declared criminal organisation.

        (2)         For the purposes of subsection (1), if, at the time of the commission of the offence, the offender was a member of a declared criminal organisation —

            (a)         it is presumed that the offence was committed by the offender in all of the circumstances referred to in subsection (1)(b)(i) to (iii), without the prosecution having to show which of those circumstances actually applies; and

            (b)         that presumption is rebutted only if the offender shows that the offence was not committed in any of those circumstances.

        (3)         If this subsection applies, and the offence of which the offender was convicted is a relevant indictable offence dealt with on indictment, the court must impose on the offender —

            (a)         if the statutory penalty for the offence includes life imprisonment, a term of imprisonment of not less than 15 years; or

            (b)         if the statutory penalty for the offence is or includes a period of imprisonment (but not life imprisonment), a term of imprisonment of not less than 75% of that statutory penalty, but in no case less than 2 years (even if the maximum penalty for the offence is otherwise less than 2 years’ imprisonment); or

            (c)         if the statutory penalty for the offence does not otherwise include imprisonment, a term of imprisonment of 2 years.

        (4)         If this subsection applies, and the offence of which the offender was convicted is a relevant indictable offence dealt with summarily or a relevant simple offence, the court must impose on the offender —

            (a)         if the statutory penalty for the offence is or includes a period of imprisonment, a term of imprisonment of not less than 2 years (even if the maximum penalty for the offence is otherwise less than 2 years’ imprisonment); or

            (b)         if the statutory penalty for the offence does not otherwise include imprisonment, a term of imprisonment of 2 years.

        (5)         However, the court must sentence the offender under subsection (3) if the offence is a relevant indictable offence dealt with summarily but the offender is committed for sentence and, under The Criminal Code section 5(10), is liable to the penalty with which the offence is punishable on indictment.

        (6)         This section is subject to section 9E.

        [Section 9D inserted: No. 49 of 2012 s. 181(2).]