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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Sentencing Bill 2016
A BILL FOR
An Act to make provision in relation to the sentencing of offenders in the
criminal justice system; to repeal the
Criminal
Law (Sentencing) Act 1988
; and for other purposes.
Contents
Division 2—Sentencing
purposes
4Secondary sentencing
purposes
Division 3—Interpretation and
application of Act
7Powers
conferred by this Act are additional
8Court may
not impose bond except under this Act
Part 2—Sentencing
purposes, principles and factors
Division 1—Purposes, principles and
factors
9Primary
purpose to be considered
10General
principles of sentencing
11Individual
sentencing factors
Division 2—General
sentencing provisions
Subdivision 1—Procedural
provisions
13Prosecutor to provide
particulars of victim's injury etc
16Statements
to be provided in accordance with rules
19Court to
inform defendant of reasons etc for sentence
20Rectification of sentencing
errors
21Presence of
defendant during sentencing proceedings
22Sentencing
of Aboriginal and Torres Strait Islander defendants
Subdivision 2—General
sentencing powers
24Imposition of penalty
without conviction
25Court may reduce, add
or substitute certain penalties
26Sentencing for multiple
offences
27Non-association or place restriction orders
may be issued on sentence
28Intervention orders may be issued on finding
of guilt or sentencing
29Deferral of
sentence for rehabilitation and other purposes
Subdivision 3—Taking further offences
into account
32Prosecutor may file list of
additional charges
33Outstanding
charges may be taken into account
34Ancillary
orders relating to offences taken into account
35Consequences of taking offences into
account
Subdivision 4—Sentencing
reductions
36Reduction of sentences
for cooperation etc with law enforcement agency
37Reduction of sentences
for cooperation with procedural requirements etc
38Reduction of sentences
for guilty plea in Magistrates Court etc
39Reduction of sentences
for guilty pleas in other cases
40Application
of sentencing reductions
42Re-sentencing for subsequent cooperation with
law enforcement agency
43Commencement of sentences and non-parole
periods
45Application
of Division to youths
46Duty of court to fix or
extend non-parole periods
47Mandatory minimum
non-parole periods and proportionality
Division 3—Serious
firearm offenders
50Sentence of
imprisonment not to be suspended
Division 4—Serious
repeat adult offenders and recidivist young offenders
51Interpretation and application
53Sentencing
of serious repeat offenders
54Declaration
that youth is recidivist young offender
Division 5—Offenders
incapable of controlling, or unwilling to control, sexual
instincts
55Application of this Division
56Offenders incapable of
controlling, or unwilling to control, sexual instincts
59Appropriate board may direct person to
surrender firearm etc
61Inquiries
by medical practitioners
Division 6—Sentencing standards for
offences involving paedophilia
67Sentencing
standards for offences involving paedophilia
Division 7—Community
based custodial sentences
69Home
detention not available for certain offences
71Conditions of home
detention order
72Orders that court may
make on breach of condition of home detention order etc
73Court to
provide CE with copy of home detention order
74CE must
assign home detention officer
75Powers of
home detention officers
76Apprehension and detention of person subject
to home detention order without warrant
77Offence to
contravene or fail to comply with condition of home detention
order
Subdivision 2—Intensive
correction
78Purpose of intensive
correction order
79Intensive
correction not available for certain offences
81Conditions of intensive
correction order
82Orders that court may
make on breach of condition of intensive correction order etc
83Court to
provide CE with copy of intensive correction order
84CE must
assign community corrections officer
85Provisions relating to
community service
86Court to
be notified if suitable community service placement not available
87Community
corrections officer to give reasonable directions
88Power of
Minister in relation to default in performance of community
service
89Apprehension and detention of person subject
to intensive correction order without warrant
90Offence to
contravene or fail to comply with condition of intensive correction
order
91Court may
direct person to surrender firearm etc
Division 8—Effect of imprisonment
for contempt
92Effect of
imprisonment for contempt
Part 4—Other
community based sentences
Division 1—Purpose, interpretation
and application
94Interpretation and application of
Part
Division 2—Bonds,
community service and supervision in community
95Suspension of
imprisonment on defendant entering into bond
96Discharge of other
defendants on entering into good behaviour bond
97Conditions of bonds
under this Act
100Court may
direct person to surrender firearm etc
101Court to
provide CE with copy of court order
102Variation
or discharge of bond
103Court to
be notified if suitable community service placement not available
104Provisions relating to
community service
105Provisions relating to supervision in the
community
106CE must
assign community corrections officer
107Community
corrections officer to give reasonable directions
108Powers of
community corrections officer relating to probationers on home
detention
109Variation
of community service order
110Power of
Minister to cancel unperformed hours of community service
111Power of
Minister in relation to default in performance of community
service
Division 3—Enforcement of bonds,
community service orders and other orders of a non-pecuniary
nature
113Orders
that court may make on breach of bond
Subdivision 2—Community service
orders and other orders of a non-pecuniary nature
114Community service
orders may be enforced by imprisonment
115Other non-pecuniary
orders may be enforced by imprisonment
116Registrar
may exercise jurisdiction under this Division
118Maximum
fine if no other maximum provided
119Order for
payment of pecuniary sum not to be made in certain circumstances
120Preference must be given to compensation for
victims
121Court not
to fix time for payment of pecuniary sums
Part 6—Restitution and
compensation
Division 1—Restitution and
compensation generally
124Certificate for victims of identity
theft
Division 2—Enforcement of
restitution orders
125Non-compliance with order
for restitution of property
126Power of
delegation—intervention program manager
Schedule 1—Repeal and transitional
provisions
Part 1—Repeal of Criminal Law
(Sentencing) Act 1988
Part 2—Transitional
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Sentencing Act 2016.
(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.
Division 2—Sentencing
purposes
The primary purpose for sentencing a defendant for an offence is to protect
the safety of the community (whether as individuals or in general).
4—Secondary
sentencing purposes
(1) The secondary
purposes for sentencing a defendant for an offence are as follows:
(a) to ensure that the defendant—
(i) is punished for the offending behaviour; and
(ii) is held accountable to the community for the offending
behaviour;
(b) to publicly denounce the offending behaviour;
(c) to publicly recognise the harm done to the community and to any victim
of the offending behaviour;
(d) to deter the defendant and others in the community from committing
offences;
(e) to promote the rehabilitation of the defendant.
(2) Nothing about the order in which the secondary purposes are listed in
subsection (1)
implies that any 1 of those secondary purposes is to be given greater
weight than any other secondary purpose.
Division 3—Interpretation
and application of Act
(1) In this Act, unless the contrary intention appears—
bond means an agreement (not being a bail agreement) entered
into pursuant to the sentence of a court under which the defendant undertakes to
the Crown to comply with the conditions of the agreement (see
Part 4
Division 2
);
CE means the chief executive of the administrative unit of
the Public Service that is responsible for assisting a Minister in the
administration of the
Correctional
Services Act 1982
;
close personal relationship means the relationship between
2 adult persons (whether or not related by family and irrespective of their
sex or gender identity) who live together as a couple on a genuine domestic
basis, but does not include—
(a) the relationship between a legally married couple; or
(b) a relationship where 1 of the persons provides the other with domestic
support or personal care (or both) for fee or reward, or on behalf of some other
person or an organisation of whatever kind;
Note—
Two persons may live together as a couple on a genuine domestic basis
whether or not a sexual relationship exists, or has ever existed, between
them.
cognitive impairment includes—
(a) a developmental disability (including, for example, an intellectual
disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);
and
(b) an acquired disability as a result of illness or injury (including,
for example, dementia, a traumatic brain injury or a neurological disorder);
and
(c) a mental illness;
community based custodial sentence—see
Part 3
Division 7
;
community corrections officer means an officer or employee of
the administrative unit of the Public Service that is responsible for assisting
a Minister in the administration of the
Correctional
Services Act 1982
whose duties include the supervision of offenders in the
community;
conditional release means conditional release from a training
centre;
consumption of a drug includes—
(a) injection of the drug (either by the person to whom the drug is
administered or someone else); and
(b) inhalation of the drug; and
(c) any other means of introducing the drug into the body;
court—
(a) means a court of criminal jurisdiction; and
(b) in relation to the exercise of powers under this Act with respect to
the variation, revocation or enforcement of an order of a court or other related
matters, means the court that made the order or a court of coordinate
jurisdiction;
domestic partner—a person is the domestic partner of
another if the person lives with the other in a close personal
relationship;
DPP means the Director of Public Prosecutions;
drug means alcohol or any other substance that is capable
(either alone or in combination with other substances) of influencing mental
functioning;
home detention officer means a home detention officer
appointed by the Minister for Correctional Services under Part 4
Division 6A of the
Correctional
Services Act 1982
;
home detention condition—see
section 71
;
home detention order—see
section 70
;
injury, in relation to an offence, includes pregnancy, mental
injury, shock, fear, grief, distress or embarrassment resulting from the
offence;
intensive correction condition—see
section 81
;
intensive correction order—see
section 80
;
intervention program means a program that
provides—
(a) supervised treatment; or
(b) supervised rehabilitation; or
(c) supervised behaviour management; or
(d) supervised access to support services; or
(e) a combination of any 1 or more of the above,
designed to address behavioural problems (including problem gambling),
substance abuse or cognitive impairment;
intervention program manager means a person employed by the
South Australian Courts Administration Authority to have general oversight of
intervention programs and coordinate the implementation of relevant court orders
(and includes a delegate of such a person);
Minister for Correctional Services means the Minister
responsible for the administration of the
Correctional
Services Act 1982
;
Minister for Youth Justice means the Minister responsible for
the administration of the
Youth
Justice Administration Act 2016
;
Parole Board means the Parole Board of South Australia
established under the
Correctional
Services Act 1982
;
pecuniary sum means—
(a) a fine; or
(b) compensation; or
(c) costs; or
(d) a sum payable under a bond or to a guarantee ancillary to a bond;
or
(e) any other amount payable under an order or direction of a
court,
and includes a VIC levy;
primary purpose—the primary purpose for sentencing a
defendant for an offence is as set out in
section 3
;
prisoner—a reference to a prisoner
includes, where the context so requires, a reference to a person serving a
sentence—
(a) on home detention subject to a home detention order; or
(b) in the community subject to an intensive correction order;
probationer means a defendant who has entered into a bond
under
Part 4
;
probative court means—
(a) in the case of a bond entered into pursuant to an order of an
appellate court on an appeal against sentence—the court that imposed that
sentence; or
(b) in any other case—the court that made the order pursuant to
which the defendant entered into the bond;
recreational use of a drug—consumption of a drug is to
be regarded as recreational use of the drug unless—
(a) the drug is administered against the will, or without the knowledge,
of the person who consumes it; or
(b) the consumption occurs accidentally; or
(c) the person who consumes the drug does so under duress, or as a result
of fraud or reasonable mistake; or
(d) the consumption is therapeutic;
residence includes, if the defendant is an Aboriginal or
Torres Strait Islander person, any place specified by the court as the person's
residence;
secondary purposes—the secondary purposes for
sentencing a defendant for an offence are as set out in
section 4
;
self-induced—see
subsections
(2)
and
(3)
;
sentence means—
(a) the imposition of a penalty; or
(b) the decision of a court to offer a defendant an opportunity to enter
into a bond; or
(c) the fixing, extending or negating of a non-parole period; or
(d) the making of any other order or direction affecting penalty,
including the decision of a court to discharge a defendant—
(i) without imposing a penalty; or
(ii) without recording a conviction;
sentence of indeterminate duration means detention in custody
until further order (and see
Part 3
Division 5
);
spouse—a person is the spouse of another if they are
legally married;
therapeutic—the consumption of a drug is to be regarded
as therapeutic if—
(a) the drug is prescribed by, and consumed in accordance with the
directions of, a medical practitioner; or
(b) the drug—
(i) is a drug of a kind available, without prescription, from registered
pharmacists; and
(ii) is consumed for a purpose recommended by the manufacturer and in
accordance with the manufacturer's instructions;
VIC levy means a levy imposed under the
Victims
of Crime Act 2001
or a corresponding previous law;
working day means any day other than a Saturday, Sunday or
public holiday;
youth has the same meaning as in the
Young
Offenders Act 1993
;
Youth Court means the Youth Court of South
Australia.
(2) Intoxication
resulting from the recreational use of a drug is to be regarded as
self-induced.
(3) If a person
becomes intoxicated as a result of the combined effect of the therapeutic
consumption of a drug and the recreational use of the same or another drug, the
intoxication is to be regarded as self-induced even though in part attributable
to therapeutic consumption.
(4) For the purposes of this Act—
(a) a VIC levy imposed on a person will be taken to have been imposed by
order of the court that found the person guilty of the offence that gave rise to
the levy; and
(b) a person who pleads guilty to a charge of an offence will be taken to
have been found guilty of the offence unless—
(i) the plea is subsequently withdrawn; or
(ii) the person is adjudged incompetent to have made the plea.
6—Application
of Act to youths
(1) Subject to a provision of this Act to the contrary, this Act applies
in relation to the sentencing of a youth and the enforcement of a sentence
against a youth.
(2) However, in the event of conflict between a provision of this Act and
a provision of the
Young
Offenders Act 1993
or the
Youth
Court Act 1993
, the latter provision prevails to the extent of that conflict.
(3) In applying a provision of this Act to a youth who is being or has
been dealt with as a youth (and not as an adult)—
(a) a reference to imprisonment is to be read as a reference to detention;
and
(b) a reference to a warrant of commitment is to be read as an order for
detention; and
(c) a reference to a prison is to be read as a reference to a training
centre; and
(d) a reference to the CE is to be read as a reference to the chief
executive of the administrative unit of the Public Service that is responsible
for assisting a Minister in the administration of the
Youth
Justice Administration Act 2016
; and
(e) a reference to a community corrections officer is to be read as a
reference to a community youth justice officer under the
Youth
Justice Administration Act 2016
; and
(f) a reference to a bond, or to entering into a bond, is to be read as a
reference to an order under section 26 of the
Young
Offenders Act 1993
, or to becoming subject to such an order; and
(g) a reference to a probationer is to be read as a reference to a youth
the subject of such an order; and
(h) a reference to the Minister for Correctional Services is to be read as
a reference to the Minister for Youth Justice.
7—Powers
conferred by this Act are additional
(1) Subject to this Act, the powers conferred on a court by this Act are
in addition to, and do not derogate from, the powers conferred by another Act or
law to impose a penalty on, or make an order or give a direction in relation to,
a person found guilty of an offence.
(2) Nothing in this Act affects the powers of a court to punish a person
for contempt of that court.
8—Court
may not impose bond except under this Act
Despite any other Act or law to the contrary, a defendant may not enter
into a bond except under this Act.
Part 2—Sentencing
purposes, principles and factors
Division 1—Purposes,
principles and factors
9—Primary
purpose to be considered
For the avoidance of doubt, the primary purpose for sentencing a defendant
for an offence must be the paramount consideration when a court is determining
and imposing the sentence.
10—General
principles of sentencing
(1) Subject to this Act or any other Act, in determining a sentence for an
offence, a court must apply (although not to the exclusion of any other relevant
principle) the common law concepts reflected in the following
principles:
(a) proportionality;
(b) parity;
(c) totality;
(d) the rule that a defendant may not be sentenced on the basis of having
committed an offence in respect of which the defendant was not
convicted.
(2) Subject to this Act or any other Act, a court must not impose a
sentence of imprisonment on a defendant unless the court decides
that—
(a) the seriousness of the offence is such that the only penalty that can
be justified is imprisonment; or
(b) it is required for the purpose of protecting the safety of the
community (whether as individuals or in general).
11—Individual
sentencing factors
(1) In determining
a sentence for an offence, a court must take into account such of the factors as
are known to the court that relate to the following matters as may be
relevant:
(a) the nature,
circumstances and seriousness of the offence;
(b) the personal circumstances and vulnerability of any victim of the
offence whether because of the victim's age, occupation, relationship to the
defendant, disability or otherwise;
(c) the extent of any injury, emotional harm, loss or damage resulting
from the offence or any significant risk or danger created by the offence,
including any risk to national security;
(d) the defendant's
character, general background and offending history;
(e) the likelihood of the defendant re-offending;
(f) the defendant's age, and physical and mental condition (including any
cognitive impairment);
(g) the extent of the defendant's remorse for the offence, having regard
in particular as to whether—
(i) the defendant has provided evidence that the defendant has accepted
responsibility for the defendant's actions; and
(ii) the defendant has acknowledged any injury, loss or damage caused by
the defendant's actions, or voluntarily made reparation for any such injury,
loss or damage, or both;
(h) the defendant's prospects of rehabilitation.
(2) The matters referred to in
subsection (1)
are in addition to any other matter the court is required or permitted to
take into account under this Act or any other Act or law.
(3) The court must not have regard to any of the factors in sentencing if
it would be contrary to an Act or law to do so (and the fact that any such
factor is relevant and known to the court does not require the court to increase
or reduce the sentence for the offence).
(4) A court must determine the sentence for an offence without regard
to—
(a) the fact that this Act or another Act prescribes a mandatory minimum
non-parole period in respect of the offence; or
(b) any consequences that may arise under the
Child
Sex Offenders Registration Act 2006
; or
(c) the good character or lack of previous convictions of the defendant
if—
(i) the offence is a class 1 or class 2 offence within the meaning of the
Child
Sex Offenders Registration Act 2006
; and
(ii) the court is satisfied that the defendant's alleged good character or
lack of previous convictions was of assistance to the defendant in the
commission of the offence.
(5) For the purposes of
subsection (1)(a)
, the court must only have regard to the matters personal to the defendant
that the court is satisfied are causally connected with, or have materially
contributed to, the commission of the offence, including (for example) the
defendant's motivation in committing the offence and the degree to which the
defendant participated in its commission.
(6) If a defendant has participated in an intervention program, a court
may treat the defendant's participation in the program, and the defendant's
achievements in the program, as relevant to sentence.
(7) However, the fact that a defendant—
(a) has not participated in, or has not had the opportunity to participate
in, an intervention program; or
(b) has performed badly in, or has failed to make satisfactory progress
in, such a program,
is not relevant to sentence.
Division 2—General
sentencing provisions
Subdivision 1—Procedural
provisions
For the purpose of determining sentence, a court—
(a) is not bound by the rules of evidence; and
(b) may inform itself on matters relevant to the determination as it
thinks fit; and
(c) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
13—Prosecutor
to provide particulars of victim's injury etc
(1) Subject to
subsection (2)
, the prosecutor must, for the purpose of assisting a court to determine
sentence for an offence, provide the court with particulars (that are reasonably
ascertainable and not already before the court in evidence or a pre-sentence
report) of—
(a) injury, loss or damage resulting from the offence; and
(b) injury, loss or damage resulting from—
(i) any other offence that is to be taken into account specifically in the
determination of sentence; or
(ii) a course of conduct consisting of a series of criminal acts of the
same or a similar character of which the offence for which sentence is to be
imposed forms part.
(2) The prosecutor
may refrain from providing the court with particulars of injury, loss or damage
suffered by a person if the person has expressed a wish to that effect to the
prosecutor.
(3) If the offence is not an offence in relation to which a victim impact
statement may be provided in accordance with
section 14
, the court must still allow particulars provided under this section to
include a victim impact statement unless the court determines that it would not
be appropriate in the circumstances of the case (and the other provisions of
this Division relating to victim impact statements apply to such a statement as
if it were provided under
section 14
).
(4) The validity of a sentence is not affected by non-compliance or
insufficient compliance with this section.
(1) A person who has suffered injury, loss or damage resulting from an
indictable offence or a prescribed summary offence committed by another may
provide the sentencing court with a written personal statement (a victim
impact statement) about the impact of that injury, loss or damage on the
person and the person's family.
(2) Before determining sentence for the offence, the court may, if the
person so requested when providing the statement—
(a) allow the person an opportunity to read the statement aloud to the
court; or
(b) cause the statement to be read aloud to the court; or
(c) give consideration to the statement without the statement being read
aloud to the court.
(3) If the court considers there is good reason to do so, it may, in order
to assist a person who wishes to read aloud a victim impact statement to the
court—
(a) allow an audio visual record or audio record of the person reading the
statement to be played to the court; or
(b) exercise any other powers that it has with regard to a vulnerable
witness.
(4) Subject to
subsection (5)
(but despite any other provision of this Act), the court must, if the
person so requested when providing the statement, ensure that—
(a) the defendant; or
(b) if the defendant is a body corporate, a director or some other
representative of the body corporate satisfactory to the court,
is present when the statement is read aloud to the court.
(5)
Subsection (4)
does not apply if the court is satisfied that special reasons exist which
make it inappropriate for the defendant or other person to be present, or that
the presence of the defendant or other person may cause a disturbance or a
threat to public order and safety (however, in such a case, the court must
ensure that the defendant or other person is present by means of an audio visual
link or audio link, if such facilities are reasonably available to the court, or
that arrangements are otherwise made for an audio visual record of the statement
to be made and played to the defendant or other person).
(6) The validity of a sentence is not affected by non-compliance or
insufficient compliance with this section.
(7) In this section—
prescribed summary offence means—
(a) a summary offence that results in the death of a victim or a victim
suffering total incapacity; or
(b) a summary offence (other than a summary offence of assault) that
results in a victim suffering serious harm;
serious harm means—
(a) harm that endangers a person's life; or
(b) harm that consists of loss of, or serious and protracted impairment
of, a part of the body or a physical or mental function; or
(c) harm that consists of serious disfigurement;
total incapacity—a victim suffers total incapacity if
the victim is permanently physically or mentally incapable of independent
function.
15—Community
impact statements
(1) Any person may make a submission to the Commissioner for Victims'
Rights for the purpose of assisting the Commissioner to compile information
which may be included in a statement under this section.
(2) In proceedings to determine sentence for an offence, the prosecutor or
the Commissioner for Victims' Rights may, if they think fit, provide the
sentencing court with—
(a) a written statement about the effect of the offence, or of offences of
the same kind, on people living or working in the location in which the offence
was committed (a neighbourhood impact statement); or
(b) a written statement about the effect of the offence, or of offences of
the same kind, on the community generally or on any particular sections of the
community (a social impact statement).
(3) Before determining sentence for the offence, the court will cause the
statement to be read aloud to the court by the prosecutor, or such other person
as the court thinks fit, unless the court determines that it is inappropriate or
would be unduly time consuming for the statement to be so read.
(4) The validity of a sentence is not affected by non-compliance or
insufficient compliance with this section.
16—Statements
to be provided in accordance with rules
(1) A statement to be provided to a court under
section 14
or
15
must comply with and be provided in accordance with rules of
court.
(2) Nothing prevents a statement to be provided to a court under
section 14
or
15
from containing recommendations relating to the sentence to be determined
by the court.
(3) A copy of a statement to be provided to a court under
section 14
or
15
must be made available for inspection by the defendant or the defendant's
counsel in accordance with rules of court and the defendant is entitled to make
submissions to the court in relation to the statement.
(1) A court may, if of the opinion that it would assist in determining
sentence, order the preparation of a pre-sentence report on any or all of the
following matters:
(a) the physical or mental condition of the defendant;
(b) the personal circumstances and history of the defendant;
(c) any other matter that would assist the court in determining
sentence.
(2) However, the court should not order the preparation of a pre-sentence
report—
(a) if the information sought by the court cannot be provided within a
reasonable time; or
(b) if the penalty to be imposed is a mandatory penalty for which no other
penalty can be substituted and a non-parole period is not in question.
(3) A pre-sentence report may be given orally or in writing.
(4) A copy of every written pre-sentence report received by a court must
be provided to the prosecutor and to the defendant or the defendant's
counsel.
(5) The person by whom a pre-sentence report is given is liable to be
examined or cross-examined on any of the matters contained in the report and, in
the case of a written report, must appear before the court for that purpose if
requested to do so.
(6) If a statement of fact or opinion in a pre-sentence report is
challenged by the prosecutor or the defendant, the court must disregard the fact
or opinion unless it is substantiated on oath.
(1) If a defendant is to be sentenced for an indictable offence and expert
evidence is to be presented to the court by the defendant or the defendant's
counsel, written notice of intention to introduce the evidence must be given to
the DPP—
(a) at least 28 days before the date appointed for submissions on
sentence; or
(b) if the evidence does not become available to the defence until
later—as soon as practicable after it becomes available to the
defence.
(2) The notice must—
(a) set out the name and qualifications of the expert; and
(b) describe the general nature of the evidence and what it tends to
establish.
(3) The court may, on application by a defendant, exempt the defendant
from the obligation imposed by this section.
(4) If the defence
proposes to introduce expert psychiatric evidence or other expert medical
evidence relevant to the defendant's mental state or medical condition at the
time of an alleged offence, the court may, on application by the prosecutor,
require the defendant to submit, at the prosecutor's expense, to an examination
by an independent expert approved by the court.
(5) If a defendant fails to comply with a requirement of or under this
section, the evidence will not be admitted without the court's permission (but
the court cannot allow the admission of evidence if the defendant fails to
submit to an examination by an independent expert under
subsection (4)
).
(6) If the DPP
receives notice under this section of an intention to introduce expert evidence
less than 28 days before the day appointed for submissions on sentence, the
court may, on application by the prosecutor, adjourn the sentencing to allow the
prosecution a reasonable opportunity to obtain expert advice on the proposed
evidence.
(7) The court should grant an application for an adjournment under
subsection (6)
unless there are good reasons to the contrary.
(8) The court may, on application by the prosecution, require the
defendant to provide to the prosecution a copy of any report obtained by the
defendant from a person proposed to be called to give expert evidence at the
sentencing.
19—Court
to inform defendant of reasons etc for sentence
(1) A court must,
on sentencing a defendant who is present in court (whether in person or by audio
visual link or audio link) for an offence or offences, state the sentence that
it is imposing for the offence or offences and its reasons for imposing that
sentence, including (for example) any reason why a sentence that would otherwise
have been imposed for the offence or offences has been reduced.
(2) Nothing in
subsection (1)
requires a court to state any information that relates to a person's
cooperation, or undertaking to cooperate, with a law enforcement
agency.
(3) The validity of a sentence is not affected by non-compliance or
insufficient compliance with this section.
20—Rectification
of sentencing errors
(1) A court that imposes, or purports to impose, a sentence on a
defendant, or a court of coordinate jurisdiction, may, on its own initiative or
on application by the DPP or the defendant, make such orders as the court is
satisfied are required to rectify an error of a technical nature made by the
sentencing court in imposing, or purporting to impose, the sentence, or to
supply a deficiency or remove an ambiguity in the sentencing order.
(2) The DPP and the defendant are both parties to proceedings under this
section.
21—Presence
of defendant during sentencing proceedings
(1) Subject to the exceptions set out in
subsection (2)
, a defendant who is to be sentenced for an indictable offence must be
present when the sentence is imposed and throughout all proceedings relevant to
the determination of sentence.
(2) The following
exceptions apply:
(a) the defendant may, with the court's consent, be absent during the
whole or part of the proceedings;
(b) if a defendant is in custody prior to sentence and facilities exist
for dealing with proceedings by means of an audio visual link or audio link, the
court may, if of the opinion that it is appropriate in the circumstances to do
so, deal with the proceedings by audio visual link or audio link without
requiring the personal attendance of the defendant;
(c) the court may exclude the defendant from the courtroom if satisfied
that the exclusion is necessary in the interests of safety or for the orderly
conduct of the proceedings (however, if such an exclusion is made, the court
should (if practicable) make arrangements to enable the defendant to see and
hear the proceedings by audio visual link).
(3) If the defendant is a body corporate, the requirement is satisfied by
the presence of a director or some other representative of the body corporate
satisfactory to the court (but, in that case, either the prosecutor or the court
may waive the requirement).
(4) A court may make any order necessary to secure compliance with this
section and, if necessary, issue a warrant to have the defendant (or, if the
defendant is a body corporate, a director or other representative of the
defendant) arrested and brought before the court.
(5) This section—
(a) does not prevent the passing of sentence in the absence of the
defendant in a case where the defendant cannot be found; and
(b) does not invalidate a sentence passed in the absence of the
defendant.
22—Sentencing
of Aboriginal and Torres Strait Islander defendants
(1) Before sentencing
an Aboriginal or Torres Strait Islander defendant, the court may, with the
defendant's consent, and with the assistance of an Aboriginal and Torres Strait
Islander Justice Officer—
(a) convene a sentencing conference; and
(b) take into consideration views expressed at the conference.
(2) Nothing in
subsection (1)
is to be taken to require the court to convene a sentencing conference if
the court, after taking into account all relevant sentencing purposes,
principles and factors, determines not to convene a sentencing
conference.
(3) A sentencing conference must comprise—
(a) the defendant and, if the defendant is a child, the defendant's parent
or guardian; and
(b) the defendant's legal representative (if any); and
(c) the prosecutor; and
(d) if the victim chooses to be present at the conference—the victim
and, if the victim so desires, a person of the victim's choice to provide
assistance and support; and
(e) if the victim is a child—the victim's parent or guardian.
(4) A sentencing conference may also include (if the court thinks the
person may contribute usefully to the sentencing process) 1 or more of the
following:
(a) a person regarded by the defendant, and accepted within the
defendant's Aboriginal or Torres Strait Islander community, as an Aboriginal or
Torres Strait Islander elder;
(b) a person accepted by the defendant's Aboriginal or Torres Strait
Islander community as a person qualified to provide cultural advice relevant to
sentencing of the defendant;
(c) a member of the defendant's family;
(d) a person who has provided support or counselling to the
defendant;
(e) any other person.
(5) A person will be taken to be an Aboriginal or Torres Strait Islander
person for the purposes of this section if—
(a) the person is descended from an Aboriginal or Torres Strait Islander;
and
(b) the person regards themself as an Aboriginal or Torres Strait Islander
or, if the person is a young child, at least 1 of the parents regards the child
as an Aboriginal or Torres Strait Islander; and
(c) the person is accepted as an Aboriginal or Torres Strait Islander by
an Aboriginal or Torres Strait Islander community.
(6) In this section—
Aboriginal and Torres Strait Islander Justice Officer means a
person employed by the South Australian Courts Administration Authority whose
duties include—
(a) assisting the court in sentencing Aboriginal or Torres Strait Islander
persons by providing advice on Aboriginal or Torres Strait Islander society and
culture; and
(b) assisting the court to convene sentencing conferences under this
section; and
(c) assisting Aboriginal or Torres Strait Islander persons to understand
court procedures and sentencing options and to comply with court
orders;
family includes—
(a) the defendant's spouse or domestic partner; and
(b) any person to whom the defendant is related by blood; and
(c) any person who is, or has been, a member of the defendant's household;
and
(d) any person held to be related to the defendant according to Aboriginal
or Torres Strait Islander kinship rules and observances.
Subdivision 2—General
sentencing powers
(1) If a court finds a person guilty of an offence but finds the offence
so trifling that it is inappropriate to impose a penalty, the court
may—
(a) without recording a conviction—dismiss the charge; or
(b) on recording a conviction—discharge the defendant without
penalty.
(2) If a court finds a person guilty of an offence and—
(a) the defendant has spent time in custody in respect of the offence;
and
(b) the court is satisfied there is good reason not to impose any further
penalty on the defendant,
the court may—
(c) without recording a conviction—dismiss the charge; or
(d) on recording a conviction—discharge the defendant without
further penalty.
(3) A court may exercise the powers conferred by this section despite any
minimum penalty fixed by an Act or statutory instrument.
24—Imposition
of penalty without conviction
If a court finds a person guilty of an offence for which it proposes to
impose a fine, a sentence of community service, or both, and the court is of the
opinion—
(a) that the defendant is unlikely to commit such an offence again;
and
(b) that, having regard to—
(i) the character, antecedents, age, or physical or mental condition, of
the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
25—Court
may reduce, add or substitute certain penalties
(1) Subject to this Act or any other Act that prohibits the substitution
or mitigation of a penalty prescribed under the Act, if, on convicting a
defendant or finding a defendant guilty of an offence and after having regard
to—
(a) the character, antecedents, age, or physical or mental condition, of
the defendant; or
(b) the fact that the offence was trifling; or
(c) any other extenuating circumstances,
the court thinks that good reason exists for reducing the penalty below the
minimum, the court may so reduce the penalty.
(2) Subject to this
Act or any other Act that prohibits the substitution or mitigation of a penalty
prescribed under the Act, if, on convicting a defendant or finding a defendant
guilty of an offence, the court thinks that good reason exists for departing
from the penalty provided for the offence under the Act, the court
may—
(a) impose another type of sentence for the sentence prescribed under the
Act for the offence; or
(b) impose more than 1 type of sentence as the court thinks appropriate in
the circumstances.
(3) For the purposes of
subsection (2)
—
(a) if the Act prescribes a sentence of imprisonment only for the offence,
the court may instead impose—
(i) a sentence of imprisonment (including a community based custodial
sentence or a suspended sentence); or
(ii) a fine; or
(iii) a sentence of community service; or
(iv) both a fine and a sentence of community service; or
(b) if the Act prescribes a sentence of both imprisonment and a fine for
the offence, the court may instead impose—
(i) a sentence of imprisonment (including a community based custodial
sentence or a suspended sentence) only; or
(ii) a fine only; or
(iii) a sentence of community service; or
(iv) both a fine and a sentence of community service; or
(c) if the Act prescribes a sentence of imprisonment or a fine in the
alternative for the offence, the court may instead impose—
(i) a sentence of community service; or
(ii) both a fine and a sentence of community service; or
(d) if the Act prescribes a fine only for the offence, the court may
instead impose a sentence of community service.
(4) In this section—
Act includes a statutory instrument;
community based custodial sentence means—
(a) a sentence on home detention under a home detention order;
or
(b) a sentence to be served in the community while subject to intensive
correction under an intensive correction order;
suspended sentence means a sentence of imprisonment that is
suspended on condition that the defendant enter into a bond under
Part 4
Division 2
.
26—Sentencing
for multiple offences
(1) If a person is to
be sentenced by a court for a number of offences, the court may sentence the
person to the 1 penalty for all or some of those offences, but the sentence
cannot exceed the total of the maximum penalties that could be imposed in
respect of each of the offences to which the sentence relates.
(2) However, if any of the offences for which the person is being
sentenced is a prescribed designated offence,
subsection (1)
does not apply to the sentencing of the person for that offence (but
nothing in this subsection affects the operation of
subsection (1)
in respect of the other offences).
(3) In this section—
prescribed designated offence has the same meaning as in
section 95
.
27—Non-association
or place restriction orders may be issued on sentence
(1) A court may, on sentencing a person for a prescribed offence, exercise
the powers of the Magistrates Court to issue against the defendant a
non-association order or a place restriction order under the
Criminal
Procedure Act 1921
as if a complaint had been made under that Act against the defendant in
relation to that conviction (and if the person is already subject to such an
order, the court may vary or revoke that order as if an application for
variation or revocation of the order had been made under that Act, regardless of
whether the order was made by it or by some other court).
(2) A non-association order or a place restriction order issued or varied
under this section on sentencing a person for a prescribed
offence—
(a) has effect as such an order under the
Criminal
Procedure Act 1921
; and
(b) is not a sentence for the purposes of this Act but may be taken into
account in determining the sentence for the prescribed offence.
(3) In this section—
prescribed offence has the same meaning as in Part 4
Division 5 of the
Criminal
Procedure Act 1921
.
28—Intervention
orders may be issued on finding of guilt or sentencing
(1) A court may, on finding a person guilty of an offence or on sentencing
a person for an offence, exercise the powers of the Magistrates Court to issue
against the defendant a restraining order under the
Criminal
Procedure Act 1921
or an intervention order under the
Intervention
Orders (Prevention of Abuse) Act 2009
as if an application had been made under the relevant Act against the
defendant in relation to the matters alleged in the proceedings for the
offence.
(2) Before issuing an order under this section, the court must consider
whether, if the whereabouts of the person for whose benefit the order would be
issued are not known to the defendant, the issuing of the order would be
counterproductive.
(3) If a court, in accordance with this section, determines to exercise
the powers of the Magistrates Court to issue a restraining order under
section 99AAC of the
Criminal
Procedure Act 1921
, section 99KA of that Act applies to proceedings relating to the
restraining order as if—
(a) the court were the Magistrates Court; and
(b) the proceedings were child protection restraining order proceedings
within the meaning of that section.
(4) An order issued under this section—
(a) has effect—
(i) as a restraining order under the
Criminal
Procedure Act 1921
; or
(ii) as a final intervention order issued by the court under the
Intervention
Orders (Prevention of Abuse) Act 2009
,
as the case may require; and
(b) is not a sentence for the purposes of this Act.
(5) A court must, on finding a person guilty of a sexual offence or on
sentencing a person for a sexual offence—
(a) consider whether or not an order should be issued under this section;
and
(b) if the court determines that an order should not be issued under this
section—give reasons for that determination (and the determination is
subject to appeal as if it were an order of the court made on sentence).
(6) In this section—
sexual offence means—
(a) rape; or
(b) compelled sexual manipulation; or
(c) indecent assault; or
(d) any offence involving unlawful sexual intercourse or an act of gross
indecency; or
(e) incest; or
(f) any offence involving sexual exploitation or abuse of a child, or
exploitation of a child as an object of prurient interest; or
(g) an offence of sexual exploitation of a person with a cognitive
impairment under section 51 of the
Criminal
Law Consolidation Act 1935
; or
(h) an attempt to commit, or assault with intent to commit, any of the
offences referred to in a preceding paragraph.
29—Deferral
of sentence for rehabilitation and other purposes
(1) A 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, and granting bail to the defendant in accordance with the
Bail
Act 1985
—
(a) for the purpose of assessing the defendant's capacity and prospects
for rehabilitation; or
(b) for the purpose of allowing the defendant to demonstrate that
rehabilitation has taken place; or
(c) for the purpose of assessing the defendant's eligibility for
participation in an intervention program; or
(d) for the purpose of allowing the defendant to participate in an
intervention program; or
(e) for any other purpose the court considers appropriate in the
circumstances.
(2) As a general rule, proceedings may not be adjourned under this section
(whether by a single adjournment or a series of adjournments) for more than 12
months from the date of the finding of guilt (the usual
maximum).
(3) A court may
adjourn proceedings for a period exceeding the usual maximum if the defendant
is, or will be, participating in an intervention program and the court is
satisfied that—
(a) the defendant has, by participating in, or agreeing to participate in,
the intervention program, demonstrated a commitment to addressing the problems
out of which the defendant's offending arose; and
(b) if the proceedings were not adjourned for such a
period—
(i) the defendant would be prevented from completing, or participating in,
the intervention program; and
(ii) the defendant's rehabilitation would be prejudiced.
(4) In considering whether to adjourn proceedings for a period exceeding
the usual maximum, a court is not bound by the rules of evidence and may (in
particular) inform itself on the basis of a written or oral report from a person
who may be in a position to provide relevant information.
(5) A person who provides information to the court by way of a written or
oral report is liable to be cross-examined on any of the matters contained in
the report.
(6) If a statement of fact or opinion in a report is challenged by the
prosecutor or the defendant, the court must disregard the fact or opinion unless
it is substantiated on oath.
(7) This section does not limit any power that a court has, apart from
this section, to adjourn proceedings or to grant bail in relation to any period
of adjournment.
(1) A court that finds a defendant guilty of a summary or minor indictable
offence may release the defendant without conviction or penalty if
satisfied—
(a) that the defendant—
(i) suffers from a mental impairment that explains and extenuates, at
least to some extent, the conduct that forms the subject matter of the offence;
and
(ii) has completed, or is participating to a satisfactory extent in, a
suitable intervention program; and
(iii) recognises that the defendant suffers from the mental impairment and
is making a conscientious attempt to overcome behavioural problems associated
with it; and
(b) that the release of the defendant under this subsection would not
involve an unacceptable risk to the safety of a particular person or the
community.
(2) A court may, at
any time before a charge of a summary or minor indictable offence has been
finally determined, dismiss the charge if satisfied—
(a) that the defendant—
(i) suffers from a mental impairment that explains and extenuates, at
least to some extent, the conduct that forms the subject matter of the offence;
and
(ii) has completed, or participated to a satisfactory extent in, a
suitable intervention program; and
(iii) recognises that the defendant suffers from the mental impairment and
is making a conscientious attempt to overcome behavioural problems associated
with it; and
(b) that dismissal of the charge under this subsection would not involve
an unacceptable risk to the safety of a particular person or the community;
and
(c) that the court would not, if a finding of guilt were made, make an
order requiring the defendant to pay compensation for injury, loss or damage
resulting from the offence.
(3) If the
defendant is participating in, but has not completed, an intervention program,
the court may, instead of dismissing the charge under
subsection (2)
, release the defendant on an undertaking—
(a) to complete the intervention program; and
(b) to appear before the court for determination of the
charge—
(i) after the defendant has completed the intervention program;
or
(ii) if the defendant fails to complete the intervention
program.
(4) In deciding whether to exercise its powers under this section, the
court—
(a) may act on the basis of information that it considers reliable without
regard to the rules of evidence; and
(b) should, if proposing to dismiss a charge under
subsection (2)
or release a defendant on an undertaking under
subsection (3)
, consider any information about the interests of possible victims that is
before it (but is not obliged to inform itself on the matter).
(5) In this section—
court means—
(a) the Magistrates Court; or
(b) the Youth Court; or
(c) any other court authorised by regulation to exercise the powers
conferred by this section;
mental impairment means an impaired intellectual or mental
function resulting from a mental illness, an intellectual disability, a
personality disorder, or a brain injury or neurological disorder (including
dementia);
suitable intervention program, in respect of a defendant,
means an intervention program that, in the opinion of the court,
provides—
(a) supervised treatment; or
(b) supervised rehabilitation; or
(c) supervised behaviour management; or
(d) supervised access to support services; or
(e) a combination of any 1 or more of the above,
that is suited to address the particular behavioural problems of the
defendant relating to the defendant's mental impairment.
Subdivision 3—Taking
further offences into account
For the purposes of this Subdivision—
further offence means an offence referred to in a list of
additional charges;
list of additional charges means a document filed in court by
the prosecutor as referred to in
section 32
;
principal offence means an offence the subject of proceedings
referred to in
section 32(1)
.
32—Prosecutor
may file list of additional charges
(1) In any proceedings
for an offence (the principal offence), the prosecutor may file in
the court a document that specifies other offences with which the defendant has
been charged, but not convicted, being offences that the defendant has indicated
are offences that the defendant wants the court to take into account when
dealing with the defendant for the principal offence.
(2) A list of additional charges may be filed at any time—
(a) after the court finds the defendant guilty of the principal offence,
and
(b) before the court deals with the defendant for the principal
offence.
(3) A copy of the list of additional charges, as filed in the court, must
be given to the defendant.
(4) A list of additional charges—
(a) must be signed by the defendant; and
(b) must be signed by or on behalf of the DPP or by a person, or a person
belonging to a class of persons, prescribed by the regulations.
(5) A failure to comply with the requirements of this section does not
invalidate any sentence imposed by the court for the principal
offence.
33—Outstanding
charges may be taken into account
(1) When dealing with the defendant for the principal offence, the court
must ask the defendant whether the defendant wants the court to take any further
offences into account in dealing with the defendant for the principal
offence.
(2) The court may take a further offence into account in dealing with the
defendant for the principal offence—
(a) if the defendant—
(i) admits guilt to the further offence; and
(ii) indicates that the defendant wants the court to take the further
offence into account in dealing with the defendant for the principal offence;
and
(b) if, in all of the circumstances, the court considers it appropriate to
do so.
(3) If the court takes a further offence into account, the penalty imposed
on the defendant for the principal offence must not exceed the maximum penalty
that the court could have imposed for the principal offence had the further
offence not been taken into account.
(4) A court may not
take a further offence into account—
(a) if the offence is
of a kind for which the court has no jurisdiction to impose a penalty;
or
(b) if the offence is an indictable offence that is punishable with
imprisonment for life.
(5) For the purposes of
subsection (4)(a)
, a court is taken to have jurisdiction to impose a penalty for an offence
even if that jurisdiction may only be exercised with the consent of the
defendant.
(6) Despite
subsection (4)(a)
, the Supreme Court, the Court of Criminal Appeal and the District Court
may take a summary offence into account.
34—Ancillary
orders relating to offences taken into account
(1) If a court takes a further offence into account under this
Subdivision, the court may make such ancillary orders as it could have made had
it convicted the offender of the offence when it took the offence into account,
but may not impose a separate penalty for the offence.
(2) A defendant with respect to whom an ancillary order is made has the
same rights of appeal as the defendant would have had if the order had been made
on the conviction of the defendant for the further offence.
(3) An ancillary order for an offence taken into account lapses, by force
of this subsection, if the defendant’s conviction for the principal
offence is quashed or set aside.
(4) In this section—
ancillary order means an order or direction with respect to
restitution, compensation, costs, forfeiture, destruction, disqualification or
loss or suspension of a licence or privilege.
35—Consequences
of taking offences into account
(1) If a further offence is taken into account under this
Subdivision—
(a) the court is to certify, on the list of additional charges, that the
further offence has been taken into account, and
(b) no proceedings may be taken or continued in respect of the further
offence unless the conviction for the principal offence is quashed or set
aside.
(2) This section does not prevent a court that has taken a further offence
into account when dealing with a defendant for a principal offence from taking
the further offence into account if it subsequently imposes a penalty when
sentencing or re-sentencing the defendant for the principal offence.
(3) An admission of guilt made for the purposes of this Subdivision is not
admissible in evidence in any proceedings relating to—
(a) the further offence in respect of which the admission was made;
or
(b) any other offence specified in the list of additional
charges.
(4) An offence taken into account under this Subdivision is not, merely
because it is taken into account, to be regarded for any purpose as an offence
of which a defendant has been convicted.
(5) In or in relation to any criminal proceedings, reference may lawfully
be made to, or evidence may lawfully be given of, the fact that a further
offence has been taken into account under this Subdivision in imposing a penalty
for a principal offence of which a defendant has been found guilty if, in or in
relation to those proceedings—
(a) reference may lawfully be made to, or evidence may lawfully be given
of, the fact that the defendant was found guilty or convicted of the principal
offence; and
(b) had the defendant been found guilty or convicted of the further
offence so taken into account, reference could lawfully have been made to, or
evidence could lawfully have been given of, the fact that the defendant had been
found guilty or convicted of that further offence.
(6) The fact that a further offence has been taken into account under this
Subdivision may be proved in the same manner as the conviction for the principal
offence.
Subdivision 4—Sentencing
reductions
36—Reduction
of sentences for cooperation etc with law enforcement
agency
(1) A court may
declare a defendant to be a defendant to whom this section applies if the court
is satisfied that the defendant has cooperated or undertaken to cooperate with a
law enforcement agency and the cooperation—
(a) relates directly to combating serious and organised criminal activity;
and
(b) is provided in exceptional circumstances; and
(c) contributes significantly to the public interest.
(2) In determining sentence for an offence or offences to which a
defendant has pleaded guilty or in respect of which a defendant has been found
guilty, the court may, if the defendant is the subject of a declaration under
subsection (1)
, reduce the sentence that it would otherwise have imposed by such
percentage as the court thinks appropriate in the circumstances.
(3) In determining the percentage by which a sentence is to be reduced
under this section, the court must have regard to such of the following as may
be relevant:
(a) if the defendant has pleaded guilty to the offence or
offences—that fact and the circumstances of the plea;
(b) the nature and extent of the defendant's cooperation or
undertaking;
(c) the timeliness of the cooperation or undertaking;
(d) the truthfulness, completeness and reliability of any information or
evidence provided by the defendant;
(e) the evaluation (if any) by the authorities of the significance and
usefulness of the defendant's cooperation or undertaking;
(f) any benefit that the defendant has gained or is likely to gain by
reason of the cooperation or undertaking;
(g) the degree to
which the safety of the defendant (or some other person) has been put at risk of
violent retribution as a result of the defendant's cooperation or
undertaking;
(h) whether the
cooperation or undertaking concerns an offence for which the defendant is being
sentenced or some other offence, whether related or unrelated (and, if related,
whether the offence forms part of a criminal enterprise);
(i) whether, as a
consequence of the defendant's cooperation or undertaking, the defendant would
be likely to suffer violent retribution while serving any term of imprisonment,
or be compelled to serve any such term in particularly severe
conditions;
(j) the nature of
any steps that would be likely to be necessary to protect the defendant on
release from prison;
(k) the likelihood that the defendant will commit further
offences,
and may have regard to any other factor or principle the court thinks
relevant.
(4) In this section—
serious and organised criminal activity includes any activity
that may constitute a serious and organised crime offence within the meaning of
the
Criminal
Law Consolidation Act 1935
.
37—Reduction
of sentences for cooperation with procedural requirements
etc
(1) If a defendant has not pleaded guilty to an indictable offence but the
sentencing court is satisfied that the defendant complied with all statutory or
court ordered requirements relating to pre-trial disclosure and procedures and
has otherwise conducted the case in a cooperative and expeditious manner, the
sentencing court may reduce the sentence that it would otherwise have imposed by
up to 10%.
(2) In determining the percentage by which a sentence for an offence is to
be reduced in accordance with this section, the court must have regard
to—
(a) the impact of the proceedings on any victim of the offence;
and
(b) the utilitarian benefit to the community of the defendant's conduct in
relation to the proceedings,
and may have regard to any factor or principle the court thinks
relevant.
38—Reduction
of sentences for guilty plea in Magistrates Court etc
(a) if the offence is a summary offence; or
(b) if the sentencing court is sentencing in relation to a minor
indictable offence that has been tried in the same way as a summary offence;
or
(c) in any other circumstances prescribed by the regulations.
(2) Subject to this
section, if a defendant has pleaded guilty to an offence or
offences—
(a) not more than
4 weeks after the defendant's first court appearance in relation to the
relevant offence or offences—the sentencing court may reduce the sentence
that it would otherwise have imposed by up to 40%;
(b) more than 4 weeks after the defendant's first court appearance in
relation to the relevant offence or offences but—
(i) if a date has been set for a trial for the offence or
offences—not less than 4 weeks before that day; or
(ii) in any other case—before the commencement of the trial for the
offence or offences,
the sentencing court may reduce the sentence that it would otherwise have
imposed by up to 30%;
(c) less than
4 weeks before the day set for trial for the offence or offences, and if
the defendant satisfies the sentencing court that the defendant could not
reasonably have pleaded guilty at an earlier stage in the proceedings because of
circumstances outside of the defendant's control—the sentencing court may
reduce the sentence that it would otherwise have imposed by up to 30%;
(d) in circumstances other than those referred to in a preceding
paragraph—the sentencing court may, if satisfied that there is good reason
to do so, reduce the sentence that it would otherwise have imposed by
up to 10%.
(3) If—
(a) a maximum reduction available under
subsection (2)
does not apply in relation to a defendant's plea of guilty because the
defendant did not plead guilty within the relevant period; and
(b) the court is satisfied that the only reason that the defendant did not
plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii) the court did not sit during that period at a place where the
defendant could reasonably have been expected to attend; or
(iii) the court did not list the defendant's matter for hearing during
that period; or
(iv) the court was, for any other reason outside of the control of the
defendant, unable to hear the defendant's matter during that period;
or
(v) the prosecution was, for any reason outside of the control of the
defendant, unable to finalise negotiations with the defendant in relation to the
plea during that period,
the court may nevertheless reduce the sentence that it would otherwise have
imposed as if the defendant had pleaded guilty during the relevant
period.
(4) In determining
the percentage by which a sentence for an offence is to be reduced in respect of
a guilty plea made within a particular period, a court must have regard to such
of the following as may be relevant:
(a) whether the
reduction of the defendant's sentence by the percentage contemplated would be so
disproportionate to the seriousness of the offence, or so inappropriate in the
case of that particular defendant, that it would, or may, affect public
confidence in the administration of justice;
(b) the stage in the proceedings for the offence at which the defendant
first indicated the defendant's intention to plead guilty (including whether it
would, in the opinion of the court, have been reasonable to expect the defendant
to have done so at an earlier stage in the proceedings);
(c) whether the defendant was initially charged with a different offence
in respect of the same conduct and whether (and at what stage in the
proceedings) negotiations occurred with the prosecution in relation to the
offence charged;
(d) in the case where the defendant has been charged with more than
1 offence—whether the defendant pleaded guilty to all of the
offences;
(e) whether or not the defendant was made aware of any relevant matter
that would have enabled the defendant to plead guilty at an earlier stage in the
proceedings,
and may have regard to any other factor or principle the court thinks
relevant.
(5) For the purposes of this section, a reference to a defendant appearing
in a court will be taken to include a reference to a person appearing in a court
on behalf of the defendant.
39—Reduction
of sentences for guilty pleas in other cases
(1) This section applies to a court sentencing a defendant for an offence
other than an offence described in
section 38(1)
.
(2) If —
(a) a defendant in any proceedings is pleading guilty to more than 1
offence; and
(b) this section applies to at least 1 of the offences,
this section will be taken to apply to all of the offences (despite
section 38(1)
).
(3) If a defendant
has pleaded guilty to an offence or offences—
(a) not more than
4 weeks after the defendant's first court appearance in relation to the
relevant offence or offences—the sentencing court may reduce the sentence
that it would otherwise have imposed by up to 40%;
(b) more than
4 weeks after the defendant's first court appearance in relation to the
relevant offence or offences but on the day of, or before, the defendant's
committal appearance in relation to the relevant offence or offences—the
sentencing court may reduce the sentence that it would otherwise have imposed by
up to 30%;
(c) during the
period commencing on the day after the defendant's committal appearance in
relation to the relevant offence or offences and ending immediately before the
defendant is committed for trial for the offence or offences—the
sentencing court may reduce the sentence that it would otherwise have imposed by
up to 20%;
Note—
See also section 110(3) of the
Criminal
Procedure Act 1921
(d) during the
period commencing immediately after the defendant is committed for trial for the
relevant offence or offences and ending immediately after the arraignment
appearance of the defendant in a superior court—the sentencing court may
reduce the sentence that it would otherwise have imposed by up to 15%;
(e) during the period commencing immediately after the defendant's
arraignment appearance in a superior court in relation to the relevant offence
or offences and ending at the commencement of the defendant's trial for the
relevant offence or offences—the sentencing court may, if satisfied that
there is good reason to do so, reduce the sentence that it would otherwise have
imposed by up to 10%.
(4) If—
(a) a maximum reduction available under
subsection (3)
does not apply in relation to a defendant's plea of guilty because the
defendant did not plead guilty within the relevant period; and
(b) the court is satisfied that the only reason that the defendant did not
plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii) the court did not sit during that period at a place where the
defendant could reasonably have been expected to attend; or
(iii) the court did not list the defendant's matter for hearing during
that period; or
(iv) the court was, for any other reason outside of the control of the
defendant, unable to hear the defendant's matter during that period;
or
(v) after the making of the charge determination (within the meaning of
section 106 of the
Criminal
Procedure Act 1921
)—the prosecution was, for any reason outside of the control of the
defendant, unable to finalise negotiations with the defendant in relation to the
plea during that period,
the court may nevertheless reduce the sentence that it would otherwise have
imposed as if the defendant had pleaded guilty during the relevant
period.
(5) In determining
the percentage by which a sentence for an offence is to be reduced in respect of
a guilty plea made within a particular period, a court must have regard to such
of the following as may be relevant:
(a) whether the
reduction of the defendant's sentence by the percentage contemplated would be so
disproportionate to the seriousness of the offence, or so inappropriate in the
case of that particular defendant, that it would, or may, affect public
confidence in the administration of justice;
(b) the stage in the proceedings for the offence at which the defendant
indicated an intention to plead guilty (including whether it would, in the
opinion of the court, have been reasonable to expect the defendant to have done
so at an earlier stage in the proceedings);
(c) whether the defendant was initially charged with a different offence
in respect of the same conduct and whether (and at what stage in the
proceedings) negotiations occurred with the prosecution in relation to the
offence charged;
(d) in the case where the defendant has been charged with more than
1 offence—whether the defendant pleaded guilty to all of the
offences;
(e) if the defendant satisfies the court that the defendant could not
reasonably have been expected to plead guilty at an earlier stage in the
proceedings because of circumstances outside of the defendant's
control—that fact;
(f) whether or not the defendant was made aware of any relevant matter
that would have enabled the defendant to plead guilty at an earlier stage in the
proceedings,
and may have regard to any other factor or principle the court thinks
relevant.
(6) For the purposes of this section, a reference to a defendant appearing
in a court will be taken to include a reference to a person appearing in a court
on behalf of the defendant.
(7) Where proceedings have been instituted in a superior court by the DPP
laying an information ex officio in accordance with section 103 of the
Criminal
Procedure Act 1921
, this section applies in relation to those proceedings with the
modifications prescribed by the regulations.
(8) In this section—
committal appearance has the same meaning as in section 109
of the
Criminal
Procedure Act 1921
.
40—Application
of sentencing reductions
(1) For the purpose
of applying
section 36
,
37
,
38
or
39
in sentencing a defendant for a particular offence, the sentencing court
must—
(a) first determine
the sentence that the court would apply but for the existence of those
provisions; and
(b) then determine
the maximum percentage reduction that is applicable to the sentencing in
accordance with those provisions; and
(c) then determine
the percentage reduction that is, in the opinion of the court, appropriate in
the particular case (being not more than the maximum percentage determined in
accordance with
paragraph (b)
); and
(d) finally, apply the percentage reduction determined in accordance with
paragraph (c)
to the sentence determined in accordance with
paragraph (a)
.
(2) A sentencing court that wants to apply
section 26
to sentence a defendant to a single penalty for more than 1 offence must,
if the court would otherwise be required to apply
section 36
,
37
,
38
or
39
in sentencing the defendant for any 1 or more of those offences (the
discounted offences), determine, in accordance with
subsection (1)
, the appropriate sentence for each discounted offence before applying
section 26
to determine the total sentence (and for the purposes of
section 26
, a reference to the maximum penalty that could be imposed in respect of an
offence will, in the case of each discounted offence, be a reference to the
sentence determined, in accordance with
subsection (1)
, for that discounted offence).
(3) Nothing in this Subdivision affects the operation of
sections 23
,
24
or
25
.
41—Re-sentencing
for failure to cooperate in accordance with undertaking under
section 36
(1) This section applies if—
(a) a person is currently serving a sentence of imprisonment for an
offence or offences that was reduced by the sentencing court under
section 36
(the relevant sentence); and
(b) the person has failed to cooperate with a law enforcement agency in
accordance with the terms of an undertaking given by the person under that
section.
(2) The DPP may,
with the permission of the court that imposed the relevant sentence on the
person, apply to the court to have the sentence quashed and a new sentence
imposed, taking into account the person's failure to cooperate with the law
enforcement agency in accordance with the terms of an undertaking given by the
person under
section 36
.
(3) The DPP, the chief officer of the law enforcement agency and the
person are parties to the proceedings on the application.
(4) Nothing in this section authorises a court to impose a new sentence
that would exceed the sentence that would, but for the reduction given under
section 36
, have been imposed by the sentencing court under that section.
42—Re-sentencing
for subsequent cooperation with law enforcement agency
(1) This section applies to a person if—
(a) the person is currently serving a period of imprisonment for an
offence or offences (the relevant sentence); and
(b) the person has cooperated with a law enforcement agency.
(2) A person to
whom this section applies may, with the permission of the court that imposed the
relevant sentence, apply to the court to have the sentence quashed and a new
sentence imposed, taking into account the person's cooperation with the law
enforcement agency in accordance with this section.
(3) The court may only grant permission to make an application under this
section if the court is satisfied that the cooperation relates directly to an
offence that is, in the opinion of the court, a serious offence that has been
committed or may be committed in the future (whether in this or any other
jurisdiction).
(4) The chief officer of the law enforcement agency, the DPP and the
applicant are parties to the proceedings on the application.
(5) In determining a new sentence on an application under this section,
the court must have regard to such of the following as may be
relevant:
(a) the nature and extent of the person's cooperation;
(b) the timeliness of the cooperation;
(c) the truthfulness, completeness and reliability of any information or
evidence provided by the person;
(d) the evaluation (if any) by the authorities of the significance and
usefulness of the person's cooperation;
(e) any benefit that the person has gained or is likely to gain by reason
of the cooperation;
(f) the degree to
which the safety of the person (or some other person) has been put at risk of
violent retribution as a result of the person's cooperation;
(g) whether the
cooperation concerns the offence for which the person is being sentenced or some
other offence, whether related or unrelated;
(h) whether, as a
consequence of the person's cooperation, the person would be likely to suffer
violent retribution while serving any term of imprisonment, or be compelled to
serve any such term in particularly severe conditions;
(i) the nature of
any steps that would be likely to be necessary to protect the person on release
from prison;
(j) the likelihood that the person will commit further offences,
and may have regard to any other factor or principle the court thinks
relevant.
(6) Except as provided in this section, in determining a new sentence on
an application under this section, the court must apply the law that was
applicable in relation to the relevant sentence at the time that sentence was
imposed (and this subsection applies to an application under this section,
whether made or determined before or after the commencement of this
subsection).
(7) On an
application by a person under this section, the court must not impose a sentence
that is more severe than the relevant sentence, but the court may extend the
non-parole period where the court passes a shorter sentence.
(8) In this section—
chief officer of a law enforcement agency
means—
(a) in the case of SA Police—the Commissioner of Police;
(b) in any other case—the person for the time being occupying a
position within the agency prescribed by the regulations.
43—Commencement
of sentences and non-parole periods
(1) If a court imposes a sentence of imprisonment and does not suspend the
sentence under
Part 4
Division 2
, the court must specify the date on which, or the time at which, the
sentence is to commence or is to be taken to have commenced.
(2) If a defendant has spent time in custody in respect of an offence for
which the defendant is subsequently sentenced to imprisonment, the court may,
when sentencing the defendant, take into account the time already spent in
custody and—
(a) make an appropriate reduction in the term of the sentence;
or
(b) direct that the sentence will be taken to have commenced—
(i) on the day on which the defendant was taken into custody; or
(ii) on a date specified by the court that occurs after the day on which
the defendant was taken into custody but before the day on which the defendant
is sentenced.
(3) If a court imposes a sentence of imprisonment on a defendant who is
not present in court, the court must direct that the sentence is to
commence—
(a) on the day on which the defendant is taken into custody under the
warrant of commitment issued in respect of the sentence; or
(b) if the defendant is subject to some other sentence of
imprisonment—on the completion of that other sentence of imprisonment or
at some earlier time fixed by the court.
(4) If a court fixes a non-parole period, the court must specify the date
on which the non-parole period is to commence or is to be taken to have
commenced.
(5) If a court directs that a sentence of imprisonment is to be taken to
have commenced on the day on which the defendant was taken into custody, any
non-parole period fixed by the court in respect of that sentence will be taken
to have commenced on that day.
(6) If, on imposing a sentence of imprisonment, the court fails to specify
the date on which or the time at which the sentence is to commence or is to be
taken to have commenced, the sentence will—
(a) in the case of a defendant not then in custody—commence on the
day on which the defendant is subsequently taken into custody for the offence;
or
(b) in the case of a defendant already in custody for the offence—be
taken to have commenced on the day on which the defendant was last so taken into
custody; or
(c) in the case of a defendant in custody for some other
offence—commence on the day on which the sentence is imposed, unless the
sentence is to be served cumulatively under this Act or any other Act.
(1) Subject to
subsection (2)
, the court by which a sentence of imprisonment is imposed may direct that
the sentence be cumulative on any other sentence, or sentences, of imprisonment
or detention in a training centre then being served, or to be served, by the
defendant.
(2) If a sentence
of imprisonment is imposed for an offence committed by the
defendant—
(a) during a period of release on parole or conditional release;
or
(b) while serving a period of imprisonment under an order of the Parole
Board for breach of parole conditions,
the sentence will (except where 1 of the sentences to which the defendant
is subject is life imprisonment) be cumulative on the sentence, or sentences, in
respect of which the defendant was on parole.
(3) A direction may be given under
subsection (1)
irrespective of the number of cumulative sentences that the defendant is
already serving or will, in consequence of the direction, be liable to
serve.
(4) This section does not apply in relation to a youth unless the youth is
sentenced as an adult.
45—Application
of Division to youths
(1) The following provisions of this Division do not apply in relation to
a youth (whether or not the youth is sentenced as an adult, or is sentenced to
detention to be served in a prison, or is otherwise transferred to or ordered to
serve a period of detention in a prison):
(a)
section 46(5)(b)
;
(b)
section 46(5)(d)
;
(c)
section 46(6)
;
(d)
section 47
.
(2) The remaining provisions of this Division do not apply in relation to
a youth unless the youth is sentenced as an adult, or is sentenced to detention
to be served in a prison, or is otherwise transferred to or ordered to serve a
period of detention in a prison.
(3)
Section 46
applies in relation to a person who is serving concurrent sentences of
imprisonment and detention in a prison as if the person were serving concurrent
sentences of imprisonment.
46—Duty
of court to fix or extend non-parole periods
(1) Subject to this
section, when a court, on convicting a person of an offence, sentences the
person to imprisonment, the court must—
(a) if the person
is not subject to an existing non-parole period—fix a non-parole period;
or
(b) if the person is subject to an existing non-parole period—review
the non-parole period and extend it by such period as the court thinks fit (but
not so that the period of extension exceeds the period of imprisonment that the
person becomes liable to serve by virtue of the sentence, or sentences, imposed
by the court); or
(c) if the person is serving a minimum term imposed in respect of an
offence under a law of the Commonwealth or is liable to serve such a term on the
expiry of an existing non-parole period—fix a non-parole period in respect
of the sentence, or sentences, to be served on the expiry of that minimum
term.
(2) If the sentence of imprisonment is imposed for an offence committed
during a period of release on parole or conditional release from a previous
sentence of imprisonment or detention, the court, in fixing a non-parole period
under
subsection (1)(a)
, must have regard to the total period of imprisonment (or detention and
imprisonment) that the person is, by virtue of the new sentence and the balance
of the previous sentence, liable to serve.
(3) If a prisoner
is serving a sentence of imprisonment but is not subject to an existing
non-parole period, the sentencing court may, subject to
subsection (5)
, fix a non-parole period, on application by the prisoner or the presiding
member of the Parole Board.
(4) The fact that the prisoner has completed a non-parole period
previously fixed in respect of the same sentence of imprisonment, or that a
court has previously declined to fix a non-parole period in respect of that
sentence, does not preclude an application under
subsection (3)
.
(5) The above
provisions are subject to the following qualifications:
(a) a non-parole period may not be fixed—
(i) in respect of a person who is liable to serve a total period of
imprisonment (or detention and imprisonment) of less than 12 months;
or
(ii) in respect of a person who is liable to serve a sentence in the
community while subject to an intensive correction order;
(b) if fixing a
non-parole period in respect of a person sentenced to life imprisonment for an
offence of murder, the mandatory minimum non-parole period prescribed in respect
of the offence is 20 years;
(c) if a person who is subject to a sentence of life imprisonment is
further sentenced to imprisonment by the Magistrates Court or the Youth Court,
the question of whether a non-parole period should be fixed or extended must be
referred to the court by which the sentence of life imprisonment was
imposed;
(d) if fixing a
non-parole period in respect of a person sentenced to imprisonment for a serious
offence against the person, the mandatory minimum non-parole period prescribed
in respect of the offence is four-fifths the length of the sentence;
(e) a court may, by order, decline to fix a non-parole period in respect
of a person sentenced to imprisonment if the court is of the opinion that it
would be inappropriate to fix such a period because of—
(i) the gravity of the offence or the circumstances surrounding the
offence; or
(ii) the criminal record of the person; or
(iii) the behaviour of the person during any previous period of release on
parole or conditional release; or
(iv) any other circumstance.
(a) a court sentences a person under
section 26
to the 1 penalty for a number of offences; and
(b) a mandatory minimum non-parole period is prescribed (mandatory
period) in respect of any of those offences,
any non-parole period to be fixed by the court under that
section—
(c) must be a period not less than the mandatory period prescribed in
respect of the relevant offence; and
(d) if there is more than 1 such offence in respect of which a
mandatory period is prescribed—must be a period not less than the greater
of any such mandatory period; and
(e) must be commenced or be taken to have commenced on the date specified
by the court (which may be the day on which the person was first taken into
custody or a later date specified by the court that occurs after the day on
which the defendant was taken into custody but before the day on which the
person is sentenced).
Note—
See PNJ v The Queen
2009
HCA 6.
(7) The DPP or the
presiding member of the Parole Board or the Training Centre Review Board (as the
case may require) may apply to the sentencing court for an order extending a
non-parole period fixed in respect of the sentence, or sentences, of a prisoner,
whether the non-parole period was fixed before or after the commencement of this
Act.
(8) The DPP must be notified of an application made by the presiding
member of the Parole Board or Training Centre Review Board under this
section.
(9) In fixing or extending a non-parole period, the court—
(a) must, if the person in respect of whom the non-parole period is to be
fixed or extended is in prison or a training centre serving a sentence of
imprisonment or detention, take into account the period already served;
and
(b) in the case of an application by the DPP or the presiding member of
the Parole Board or Training Centre Review Board under
subsection (7)
, must have regard to—
(i) the likely behaviour of the person the subject of the application
should the person be released from custody; and
(ii) the necessity (if any) to protect some other person or persons
generally should the person be released from custody; and
(iii) the behaviour of the person while in custody (but only insofar as it
may assist the court to determine how the person is likely to behave should the
person be released); and
(iv) such other matters as the court thinks relevant.
(10) This section does not apply in relation to a person who is serving,
or is liable to serve, a sentence of indeterminate duration.
(11) The Parole Board or the Training Centre Review Board (as the case may
require) must, at the request of a sentencing court, make a report to the court
on any person in respect of whom the court proposes to fix or extend a
non-parole period.
(12) For the purposes of this section—
(a) a court that orders a suspended sentence of imprisonment to be carried
into effect will be taken to have sentenced the person to whom the order relates
to imprisonment; and
(b) the person the subject of an application by the DPP or the presiding
member of the Parole Board or Training Centre Review Board under this section is
a party to the application and the DPP is a party to an application under
subsection (3)
; and
(c) a reference to an offence of murder
includes—
(i) an offence of conspiracy to murder; and
(ii) an offence of aiding, abetting, counselling or procuring the
commission of murder; and
(d) the sentencing court means—
(i) if the prisoner is subject to a single sentence of imprisonment, or a
number of sentences imposed by the 1 court or by a number of courts of
coordinate jurisdiction—that court, or a court of coordinate jurisdiction;
or
(ii) if the prisoner is subject to a number of sentences of imprisonment
imposed by courts of different jurisdiction—the court of the highest
jurisdiction or a court whose jurisdiction is coordinate with the jurisdiction
of that court; and
(e) a serious offence against the person
means—
(i) a major
indictable offence (other than an offence of murder) that results in the death
of the victim or the victim suffering total incapacity; or
(ii) a conspiracy to commit an offence referred to in
subparagraph (i)
; or
(iii) aiding, abetting, counselling or procuring the commission of an
offence referred to in
subparagraph (i)
; and
(f) a victim suffers total incapacity if the victim is
permanently physically or mentally incapable of independent function.
47—Mandatory
minimum non-parole periods and proportionality
(1) If a mandatory minimum non-parole period is prescribed in respect of
an offence, the period prescribed represents the non-parole period for an
offence at the lower end of the range of objective seriousness for offences to
which the mandatory minimum non-parole period applies.
(2) In fixing a
non-parole period in respect of an offence for which a mandatory minimum
non-parole period is prescribed, the court may—
(a) if satisfied that a non-parole period that is longer than the
prescribed period is warranted because of any objective or subjective factors
affecting the relative seriousness of the offence, fix such longer non-parole
period as it thinks fit; or
(b) if satisfied
that special reasons exist for fixing a non-parole period that is shorter than
the prescribed period, fix such shorter non-parole period as it thinks
fit.
(3) In deciding whether special reasons exist for the purposes of
subsection (2)(b)
, the court must have regard to the following matters and only those
matters:
(a) the offence was committed in circumstances in which the victim's
conduct or condition substantially mitigated the offender's conduct;
(b) if the offender pleaded guilty to the charge of the offence—that
fact and the circumstances surrounding the plea;
(c) the degree to which the offender has cooperated in the investigation
or prosecution of that or any other offence and the circumstances surrounding,
and likely consequences of, any such cooperation.
(4) This section applies whether a mandatory minimum non-parole period is
prescribed under this Act or some other Act.
Division 3—Serious
firearm offenders
(1) In this Division—
serious drug offence means an offence under section 32,
33, 33A, 33B, 33C, 33F, 33G, 33H, 33I, 33J, 33K, 33LA or 33LB of the
Controlled
Substances Act 1984
;
serious firearm offence means—
(a) an offence under the
Criminal
Law Consolidation Act 1935
or the
Firearms
Act 2015
involving the use or carriage of—
(i) a category H firearm—
(A) that is unregistered at the time of the offence or is registered in
the name of a person other than the defendant; and
(B) for which the defendant does not, at the time of the offence, hold a
firearms licence authorising possession of the firearm; or
(ii) a category C firearm or category D firearm that is an
automatic firearm; or
(iii) a prescribed firearm (other than a firearm declared by the
regulations to be excluded from the ambit of this subparagraph); or
(iv) any other firearm declared by the regulations to be included in the
ambit of this paragraph; or
(b) an offence under the
Criminal
Law Consolidation Act 1935
or the
Firearms
Act 2015
involving the use or possession of a firearm and
committed—
(i) while the defendant is the subject of a control order under the
Serious
and Organised Crime (Control) Act 2008
; or
(ii) in the circumstances contemplated by section 5AA(1)(ga) of the
Criminal
Law Consolidation Act 1935
; or
(iii) while the defendant is the subject of a firearms prohibition order;
or
(c) an offence under section 29A of the
Criminal
Law Consolidation Act 1935
; or
(d) an offence under the
Firearms
Act 2015
involving the use or possession of a firearm if the use or possession of
the firearm occurred in the course of, or was for a purpose related to, the
commission of a serious drug offence; or
(e) an offence under the
Firearms
Act 2015
committed while the defendant—
(i) is on bail (being bail that was, at the relevant time, subject to the
condition imposed by section 11(1)(a) of the
Bail
Act 1985
); or
(ii) is the subject of a bond under this or any other Act (being a bond
that was, at the relevant time, subject to the condition imposed by
section 95(2)(a)
, or a condition of a similar kind); or
(iii) is serving a sentence on home detention under a home detention order
subject to the condition imposed by
section 71(1)(e)
; or
(iv) is on release from prison on home detention (being a release subject
to the condition imposed by section 37A(3)(ca) of the
Correctional
Services Act 1982
); or
(v) is on parole (being parole that was, at the relevant time, subject to
the condition imposed by section 68(1)(a)(ia) of the
Correctional
Services Act 1982
); or
(vi) is on release on licence from custody under this or any other Act
(being a licence that was, at the relevant time, subject to a condition
prohibiting the defendant from possessing a firearm, part of a firearm or
ammunition); or
(f) an offence under section 45(9) of the
Firearms
Act 2015
; or
(g) an offence under section 22(2)(a) of the
Firearms
Act 2015
; or
(h) an offence that was a serious firearms offence within
the meaning of section 20AA of the
Criminal
Law (Sentencing) Act 1988
at the time of the commission of the offence;
serious firearm offender means a person who is, by virtue of
the operation of
section 49
, a serious firearm offender.
(2) In this Division, the following terms have the same meaning as in the
Firearms
Act 2015
:
(a) automatic firearm;
(b) category C firearm;
(c) category D firearm;
(d) category H firearm;
(e) firearm;
(f) firearms prohibition order;
(g) prescribed firearm.
(3) For the purposes of this Division, a reference to imprisonment
includes, in the case of a youth, a reference to detention in a training centre
or home detention (within the meaning of the
Young
Offenders Act 1993
).
(1) A person will,
by force of this section, be taken to be a serious firearm
offender if the person is convicted of a serious firearm offence
(whether the offence was committed as an adult or as a youth).
(2)
Subsection (1)
does not apply in relation to a conviction of a serious firearm offence
if—
(a) the defendant was prosecuted and punished as a principal offender in
respect of the offence under section 267 of the
Criminal
Law Consolidation Act 1935
; or
(b) the defendant's liability in respect of the offence derives solely
from the defendant's involvement in a joint criminal enterprise (however
described).
50—Sentence
of imprisonment not to be suspended
(1) Subject to
subsection (2)
, but despite any other provision of this Act or any other Act or law, the
following provisions apply in relation to the sentencing of a person who is a
serious firearm offender for a serious firearm offence (including where the
offence is the serious firearm offence that resulted in the person being a
serious firearm offender):
(a) if the maximum
penalty for the serious firearm offence includes a period of
imprisonment—a sentence of imprisonment must be imposed on the
person;
(b) the sentence of
imprisonment cannot be suspended;
(c)
section 25
does not apply in respect of the sentencing of the person.
(2) A court
sentencing a person who is a serious firearm offender for a serious firearm
offence may declare that
subsection (1)(b)
does not apply to the person if the person satisfies the court, by
evidence given on oath, that—
(a) the person's personal circumstances are so exceptional as to outweigh
the paramount consideration of protecting the safety of the community (whether
as individuals or in general) and personal and general deterrence; and
(b) it is, in all the circumstances, appropriate to suspend the
sentence.
Division 4—Serious
repeat adult offenders and recidivist young offenders
51—Interpretation
and application
(1) In this Division—
category A serious offence means any of the following
serious offences:
(a) home invasion;
(b) a serious and organised crime offence;
(c) a serious firearm offence;
home invasion means a criminal trespass committed in a place
of residence while a person is lawfully present in the place and the trespasser
knows of the person's presence or is reckless about whether anyone is in the
place;
serious and organised crime offence has the same meaning as
in the
Criminal
Law Consolidation Act 1935
;
serious drug offence means—
(a) an offence under Part 5 Division 2 or 3 of the
Controlled
Substances Act 1984
or a substantially similar offence under a corresponding previous
enactment; or
(b) a conspiracy to commit, or an attempt to commit, such an
offence;
serious firearm offence means a serious firearm offence
within the meaning of
Division 3
;
serious offence means—
(a) a serious drug offence; or
(b) an offence under a law of the Commonwealth dealing with the unlawful
importation of drugs into Australia; or
(c) an offence involving a terrorist act (within the meaning of the
Terrorism (Commonwealth Powers) Act 2002); or
(d) one of the
following offences:
(i) an offence
under Part 3 of the
Criminal
Law Consolidation Act 1935
;
(ii) an offence of
robbery or aggravated robbery;
(iv) an offence of
damage to property by fire or explosives;
(v) an offence of
causing a bushfire;
(vi) an offence under a corresponding previous enactment substantially
similar to an offence referred to in any of the preceding
subparagraphs;
(vii) a conspiracy to commit, or an attempt to commit, an offence referred
to in any of the preceding subparagraphs; or
Note—
A person who acts as an accessary to the commission of an offence described
in
paragraph (d)
is, by virtue of section 267 of the
Criminal
Law Consolidation Act 1935
, guilty of the principal offence and has, therefore, committed a serious
offence.
(e) an offence that is committed in circumstances in which the offender
uses violence or a threat of violence for the purpose of committing the offence,
in the course of committing the offence, or for the purpose of escaping from the
scene of the offence; or
(f) a serious firearm offence; or
(g) a serious and organised crime offence; or
(h) an offence under the law of another State or a Territory that would,
if committed in this State, be a serious offence;
serious repeat offender means—
(a) a person who is a serious repeat offender under
section 52(1)
; or
(b) a person declared to be a serious repeat offender under section 20B of
the
Criminal
Law (Sentencing) Act 1988
as in force immediately before the commencement of section 17 of the
Statutes
Amendment (Serious Firearm Offences) Act 2012
; or
(c) a person declared to be a serious repeat offender under section 20B of
the
Criminal
Law (Sentencing) Act 1988
as in force immediately before the repeal of that Act;
serious sexual offence means—
(a) any of the
following serious offences:
(i) an offence
under section 48, 48A, 49, 50, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the
Criminal
Law Consolidation Act 1935
;
(ii) an offence under 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
those offences; or
(b) an offence under the law of another State or a Territory corresponding
to an offence referred to in
paragraph (a)
.
(2) For the purposes of this Division, an offence (other than a serious
firearm offence) will not be regarded as a serious offence unless the maximum
penalty prescribed for the offence is, or includes, imprisonment for at least
5 years.
(3) An offence is
one to which this Division applies if the offence is a serious offence
and—
(a) a sentence of imprisonment (other than a suspended sentence) has been
imposed for the offence; or
(b) if a penalty is yet to be imposed—a sentence of imprisonment
(other than a suspended sentence) is, in the circumstances, the appropriate
penalty.
(1) A person will,
by force of this subsection, be taken to be a serious repeat
offender if—
(a) the person (whether as an adult or as a youth)—
(i) has committed on at least 3 separate occasions a category A
serious offence to which this Division applies (whether or not the same offence
on each occasion); and
(ii) has been convicted of those offences; or
(b) the person (whether as an adult or as a youth)—
(i) has committed on at least 3 separate occasions an offence to which
this Division applies (whether or not the same offence on each occasion);
and
(ii) has been convicted of those offences; or
(c) the person (whether as an adult or as a youth)—
(i) has committed on at least 2 separate occasions a serious sexual
offence against a person or persons under the age of 14 years (whether or not
the same offence on each occasion); and
(ii) has been convicted of those offences; or
(d) the person (whether as an adult or as a youth)—
(i) has committed on at least 2 separate occasions a category A
serious offence (whether or not the same offence on each occasion);
and
(ii) has been convicted of those offences.
(2) For the purposes of this section, when determining the number of
occasions on which a person has committed a particular kind of offence, the
offence for which the person is being sentenced is to be included if it is of
the relevant kind.
53—Sentencing
of serious repeat offenders
(1) The following
provisions apply in relation to the sentencing of a person who is a serious
repeat offender for an offence (including an offence that resulted in the person
being a serious repeat offender):
(a) the court sentencing the person is not bound to ensure that the
sentence it imposes for the offence is proportional to the offence;
(b) any non-parole period fixed in relation to the sentence must be at
least four-fifths the length of the sentence.
(2) However, a
court that is sentencing a person who is a serious repeat offender for an
offence may declare that
subsection (1)
does not apply if the person satisfies the court, by evidence given on
oath, that—
(a) the person's personal circumstances are so exceptional as to outweigh
the paramount consideration of protecting the safety of the community (whether
as individuals or in general) and personal and general deterrence; and
(b) it is, in all the circumstances, not appropriate that the person be
sentenced as a serious repeat offender.
54—Declaration
that youth is recidivist young offender
(1) A youth is liable to be declared a recidivist young offender
if—
(a) the youth—
(i) has committed on at least 3 separate occasions an offence to which
this Division applies (whether or not the same offence on each occasion);
and
(ii) has been convicted of those offences; or
(b) the youth—
(i) has committed on at least 2 separate occasions a serious sexual
offence against a person or persons under the age of 14 years (whether or not
the same offence on each occasion); and
(ii) has been convicted of those offences.
(2) If a court convicts a youth of a serious offence, and the youth is
liable, or becomes liable as a result of the conviction, to a declaration that
the youth is a recidivist young offender, the court—
(a) must consider whether to make such a declaration; and
(b) if of the opinion that the youth's history of offending warrants a
particularly severe sentence in order to protect the community—should make
such a declaration.
(3) If a court convicts a youth of a serious offence, and the youth is
declared (or has previously been declared) to be a recidivist young
offender—
(a) the court is not bound to ensure that the sentence it imposes for the
offence is proportional to the offence (but, in the case of the Youth Court, the
limitations relating to a sentence of detention under section 23 of the
Young
Offenders Act 1993
apply to the sentence that may be imposed by the Youth Court on the
recidivist young offender); and
(b) any non-parole period fixed in relation to the sentence must be at
least four-fifths the length of the sentence.
Division 5—Offenders
incapable of controlling, or unwilling to control, sexual
instincts
55—Application
of this Division
(1) Subject to
subsection (2)
, this Division does not apply in relation to a youth.
(2) The Supreme
Court may exercise its powers under
section 56
in relation to a youth who is sentenced as an adult under the
Young
Offenders Act 1993
.
56—Offenders
incapable of controlling, or unwilling to control, sexual
instincts
(1) In this section—
institution means—
(a) a prison; and
(b) a place declared by the Governor by proclamation to be a place in
which persons may be detained under this section; and
(c) in relation to a youth, includes a training centre;
person to whom this section applies means—
(a) a person convicted by the Supreme Court of a relevant offence;
or
(b) a person remanded by the District Court or the Magistrates Court under
subsection (2)
to be dealt with by the Supreme Court under this section; or
(c) a person who is the subject of an application by the Attorney-General
under
subsection (3)
;
relevant offence means—
(a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69
or 72 of the
Criminal
Law Consolidation Act 1935
; or
(b) an offence under section 23 of the
Summary
Offences Act 1953
; or
(c) an offence under a corresponding previous enactment substantially
similar to an offence referred to in either of the preceding paragraphs;
or
(d) any other offence where the evidence indicates that the defendant may
be incapable of controlling, or unwilling to control, the defendant's sexual
instincts; or
(e) an offence of failing to comply with a reporting obligation relating
to reportable contact with a child without a reasonable excuse where the
defendant is a registrable offender within the meaning of the
Child
Sex Offenders Registration Act 2006
;
unwilling—a person to whom this section applies will be
regarded as unwilling to control sexual instincts if there is a significant risk
that the person would, given an opportunity to commit a relevant offence, fail
to exercise appropriate control of the person's sexual instincts.
(2) If, in
proceedings before the District Court or Magistrates Court, a person is
convicted of a relevant offence and—
(a) the court is of the opinion that the defendant should be dealt with
under this section; or
(b) the prosecutor applies to have the defendant dealt with under this
section,
the court will, instead of sentencing the defendant itself, remand the
convicted person, in custody or on bail, to appear before the Supreme Court to
be dealt with under this section.
(3) If a person has
been convicted of a relevant offence, the Attorney-General may, while the person
remains in prison serving a sentence of imprisonment, apply to the Supreme Court
to have the person dealt with under this section.
(4) The Attorney-General may make an application under
subsection (3)
in respect of a person serving a sentence of imprisonment whether or not
an application to the Supreme Court to have the person dealt with under this
section has previously been made (but, if a previous application has been made,
a further application cannot be made more than 12 months before the person is
eligible to apply for release on parole).
(5) The Supreme
Court must, before determining whether to make an order that a person to whom
this section applies be detained in custody until further order, direct that at
least 2 legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of a person to whom
this section applies and report to the Court on whether the person is incapable
of controlling, or unwilling to control, the person's sexual
instincts.
(6) The Supreme Court may order that a person to whom this section applies
be detained in custody until further order if satisfied that the order is
appropriate.
(7) The paramount consideration of the Supreme Court in determining
whether to make an order that a person to whom this section applies be detained
in custody until further order must be to protect the safety of the community
(whether as individuals or in general).
(8) The Supreme
Court must also take the following matters into consideration in determining
whether to make an order that a person to whom this section applies be detained
in custody until further order:
(a) the reports of the medical practitioners (as directed and nominated
under
subsection (5)
) provided to the Court;
(b) any relevant evidence or representations that the person may desire to
put to the Court;
(c) any report required by the Court under
section 60
;
(d) any other matter that the Court thinks relevant.
(9) A copy of a report provided to the Supreme Court under
subsection (8)
must be given to each party to the proceedings or to counsel for those
parties.
(10) If a person to whom this section applies refuses to cooperate with an
inquiry or examination for the purposes of this section, the Supreme Court may,
if satisfied that the order is appropriate, order that the person be detained in
custody until further order having given—
(a) paramount consideration to protecting the safety of the community
(whether as individuals or in general); and
(b) consideration to any relevant evidence and representations that the
person may desire to put to the Court.
(11) If a person to whom this section applies has not been sentenced for a
relevant offence, the Supreme Court will deal with the question of sentence at
the same time as it deals with the question whether an order is to be made under
this section and, if the Court decides to make such an order, the order may be
made in addition to, or instead of, a sentence of imprisonment.
(12) If the detention is in addition to a sentence of imprisonment, the
detention will commence on the expiration of the term of imprisonment, or of all
terms of imprisonment, that the person is liable to serve.
(13) A person detained in custody under this section will be
detained—
(a) if the defendant is under 18 years of age—in such institution
(not being a prison) as the Minister for Youth Justice from time to time
directs;
(b) in any other case—in such institution as the Minister for
Correctional Services from time to time directs.
(14) The progress
and circumstances of a person subject to an order under this section must be
reviewed at least once in each period of 12 months—
(a) if the person is detained in, or released on licence from, a training
centre—by the Training Centre Review Board; or
(b) in any other case—by the Parole Board,
for the purpose of making a recommendation about whether the person
is—
(c) if the person is in custody—suitable for release on licence
under
section 58
; or
(d) if the person has been authorised to be released, or has been
released, on licence under
section 58
—suitable to be so released.
(15) The results of a review under
subsection (14)
, including the recommendation of the relevant Board, must be embodied in a
written report, a copy of which must be provided to the person the subject of
the report, the Attorney-General and—
(a) in the case of a report of the Training Centre Review Board—the
Minister for Youth Justice;
(b) in the case of a report of the Parole Board—the Minister for
Correctional Services.
57—Discharge
of detention order under
section 56
(1) Subject to this Act, a person subject to an order for detention under
section 56
will not be released from detention under that section until the Supreme
Court, on application by the DPP or the person, discharges the order for
detention.
(2) The Supreme
Court must, before determining an application under this section for the
discharge of an order for detention under
section 56
, direct that at least 2 legally qualified medical practitioners (to be
nominated by a prescribed authority for the purpose) inquire into the mental
condition of the person subject to the order and report to the Court on whether
the person is incapable of controlling, or unwilling to control, the person's
sexual instincts.
(3) The paramount consideration of the Supreme Court when determining an
application for the discharge of an order for detention under
section 56
must be to protect the safety of the community (whether as individuals or
in general).
(4) The Supreme
Court must also take the following matters into consideration when determining
an application for the discharge of an order for detention under
section 56
:
(a) the reports of the medical practitioners (as directed and nominated
under
subsection (2)
) provided to the Court;
(b) any relevant evidence or representations that the person may desire to
put to the Court;
(c) a report provided to the Court by the Training Centre Review Board or
Parole Board (as the case may be) in accordance with the direction of the Court
for the purposes of assisting the Court to determine the application,
including—
(i) any opinion that the relevant Board may have about the effect the
discharge of the order may have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the order
is discharged; and
(iii) the recommendation of the relevant Board about whether the order
should be discharged;
(d) the reports resulting from the periodic reviews under
section 56(14)
on the progress and circumstances of the person tendered to the
Court;
(e) any other report required by the Court under
section 60
;
(f) any other matter that the Court thinks relevant.
(5) A copy of a report provided to the Supreme Court under
subsection (4)
must be given to each party to the proceedings or to counsel for those
parties.
(1) The Supreme
Court may, on application by the DPP or the person, authorise the release on
licence of a person detained in custody under this Division.
(2) The Supreme
Court must, before determining an application under this section for the release
on licence of a person detained in custody under this Division, direct that at
least 2 legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of the person and
report to the Court on whether the person is incapable of controlling, or
unwilling to control, the person's sexual instincts.
(3) The paramount consideration of the Supreme Court when determining an
application under this section for the release on licence of a person detained
in custody under this Division must be to protect the safety of the community
(whether as individuals or in general).
(4) The Supreme
Court must also take the following matters into consideration when determining
an application under this section for the release on licence of a person
detained in custody under this Division:
(a) the reports of the medical practitioners (as directed and nominated
under
subsection (2)
) provided to the Court;
(b) any relevant evidence or representations that the person may desire to
put to the Court;
(c) a report provided to the Court by the appropriate board in accordance
with the direction of the Court for the purposes of assisting the Court to
determine the application, including—
(i) any opinion of the appropriate board on the effect that the release on
licence of the person would have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the person
is released on licence; and
(iii) the recommendation of the appropriate board as to whether the person
should be released on licence;
(d) evidence tendered to the Court of the estimated costs directly related
to the release of the person on licence;
(e) the reports resulting from the periodic reviews under
section 56(14)
on the progress and circumstances of the person tendered to the
Court;
(f) any other report required by the Court under
section 60
;
(g) any other matter that the Court thinks relevant.
(5) A copy of any report provided to the Supreme Court under
subsection (4)
must be given to each party to the proceedings or to counsel for those
parties.
(6) On the Supreme Court authorising the release of a person under
subsection (1)
, the appropriate board must order the release of the person on licence on
the day specified by the Court.
(7) Subject to this
Act, every release of a person on licence under this section is subject to the
following conditions:
(a) a condition
prohibiting the person from possessing a firearm or ammunition or any part of a
firearm;
(b) a condition requiring the person to submit to such tests (including
testing without notice) for gunshot residue as may be reasonably required by a
person or class of persons or body specified by the appropriate board.
(8) Without limiting
subsection (7)
, the release of a person on licence under this section will be subject to
such conditions as the appropriate board thinks fit and specifies in the licence
(including a condition that the person be monitored by use of an electronic
device approved under section 4 of the
Correctional
Services Act 1982
).
(9) If the Supreme Court has refused a person's application for release on
licence, the person may not further apply for release for a period of
6 months, or such lesser or greater period as the Court may have directed
on refusing the application.
(10) The
appropriate board may—
(a) on application by the DPP or the person, or on its own initiative,
vary or revoke a condition of a licence or impose further conditions;
or
(b) on application by the DPP, or on its own initiative, cancel the
release of a person on licence, if satisfied that the person has contravened, or
is likely to contravene, a condition of the licence.
(11) A board cannot exercise its powers under
subsection (10)
on its own initiative in relation to a person released on licence unless
the person and the Crown have been afforded a reasonable opportunity to make
submissions to the board on the matter, and the board has considered any
submissions so made.
(12) The
appropriate board may only vary or revoke the conditions imposed by
subsection (7)
on the release of a person on licence if the board is satisfied
that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
person does not represent an undue risk to the safety of the public.
(13) For the purposes of proceedings under
subsection (10)
, a member of the appropriate board may—
(a) summon the person the subject of the proceedings to appear before the
board; or
(b) in the case of proceedings for cancellation of
release—
(i) with the concurrence of a second member of the board—issue a
warrant for the apprehension and detention of the person pending determination
of the proceedings; or
(ii) apply to a magistrate for a warrant for the apprehension and
detention of the person pending determination of the proceedings.
(14) If a person who has been summoned to appear before the appropriate
board fails to attend in compliance with the summons, the board
may—
(a) determine the proceedings in the person's absence; or
(b) direct a member of the board to—
(i) issue a warrant; or
(ii) apply to a magistrate for a warrant,
for the apprehension and detention of the person for the purpose of
bringing the person before the board.
(15) A member of the appropriate board may apply to a magistrate for a
warrant for the apprehension and return to custody of a person whose release on
licence has been cancelled by the board.
(16) A magistrate must, on application under this section, issue a warrant
for the apprehension and detention of a person or for the apprehension and
return to custody of a person, as the case may require, unless it is apparent,
on the face of the application, that no reasonable grounds exist for the issue
of the warrant.
(17) The appropriate board may, if it thinks good reason exists for doing
so, cancel a warrant issued under this section at any time before its
execution.
(18) If a person who has been released on licence commits an offence while
subject to that licence and is sentenced to imprisonment for the offence, the
release on licence is, by virtue of this subsection, cancelled.
(19) If a person
has been subject to a licence under this section for a continuous period of
3 years, the order for the person's detention under this Division will,
unless the Supreme Court, on application by the DPP, orders otherwise, be taken
to have been discharged on the expiration of that period.
(20) For the purposes of this section, the appropriate
board, in relation to proceedings under this section,
means—
(a) if the person the subject of the proceedings is being detained in a
training centre, or has been released on licence from a training
centre—the Training Centre Review Board;
(b) in any other case—the Parole Board.
59—Appropriate
board may direct person to surrender firearm etc
(1) The appropriate
board may, in relation to the release of a person on licence under
section 58
that is subject to the condition imposed by
section 58(7)(a)
, direct the person to immediately surrender at a police station specified
by the appropriate board any firearm, ammunition or part of a firearm owned or
possessed by the person.
(2) A person who refuses or fails to comply with a direction under
subsection (1)
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) No criminal liability attaches to a person to the extent that the
person is complying with a direction under this section.
(4) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(5) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(6) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
(7) In this section—
appropriate board has the same meaning as in
section 58
.
(1) A court may,
for the purpose of obtaining assistance in making a determination under this
Division, require the Parole Board, the Training Centre Review Board or any
other body or person to provide the court with a report on any matter.
(2) A copy of a report provided to a court under
subsection (1)
must be given to each party to the proceedings or to counsel for those
parties.
61—Inquiries
by medical practitioners
If, for the purposes of this Division, the Supreme Court directs that at
least 2 legally qualified medical practitioners (to be nominated by a prescribed
authority) inquire into the mental condition of a person and report to the Court
on whether the person is incapable of controlling, or unwilling to control, the
person's sexual instincts, each medical practitioner so
nominated—
(a) must carry out an independent personal examination of the person;
and
(b) may have access to any evidence before the court by which the person
was convicted; and
(c) may obtain the assistance of a psychologist, social worker, community
corrections officer or any other person.
Both the DPP and the person to whom an application under this Division
relates are parties to the application.
If the person to whom an application under this Division relates is under
18 years of age, a copy of the application must be served on a guardian of the
child, unless—
(a) it is not practicable to do so; or
(b) the whereabouts of all of the guardians of the child cannot, after
reasonable inquiries, be ascertained.
(1) An appeal lies to the Full Court against—
(a) a decision of the Supreme Court on an application to discharge an
order for detention under this Division;
(b) a decision of the Supreme Court on an application to release a person
on licence under this Division;
(c) a decision of the Supreme Court on an application by the DPP under
section 58(19)
.
(2) An appeal under this section may be instituted by the DPP or by the
person to whom the particular decision relates.
(3) Subject to a contrary order of the Full Court, an appeal cannot be
commenced after 10 days from the date of the decision against which the
appeal lies.
(4) On an appeal, the Full Court may—
(a) confirm, reverse or annul the decision subject to appeal;
(b) make any order that it considers should have been made in the first
instance;
(c) make any consequential or ancillary orders.
(5) Subject to
subsection (6)
, if—
(a) the Supreme Court decides—
(i) to discharge an order for detention under this Division; or
(ii) to release a person on licence under this Division; or
(iii) to refuse an application by the DPP under
section 58(19)
; and
(b) counsel appearing on behalf of the DPP gives immediate notice that an
appeal against the decision will be instituted,
the decision has no force or effect pending the outcome of the
appeal.
(6) If the DPP
gives notice under
subsection (5)
of an appeal against a decision of the Supreme Court but then a person
acting on behalf of the DPP subsequently files with the Supreme Court a notice
that the DPP does not desire to proceed with the appeal, the decision will take
effect.
The Governor may, by proclamation, vary or revoke a proclamation under this
Division.
The Governor may make regulations—
(a) providing for the care, treatment, rights and duties of a person
detained in custody under this Division in consequence of being found to be
incapable of controlling the person's sexual instincts;
(b) providing for the granting of periods of leave for a person so
detained;
(c) providing for any other related matter.
Division 6—Sentencing
standards for offences involving paedophilia
67—Sentencing
standards for offences involving paedophilia
(1) The Parliament declares that—
(a) the 1997 amendment of sentencing standards reflected an emerging
recognition by the judiciary and the community generally of the inherent
seriousness of offences involving paedophilia; and
(b) the reformed standards should be applied to offences involving
paedophilia committed before or after the enunciation of the 1997 amendment of
sentencing standards (or committed in part before, and in part after, the
enunciation of the 1997 amendment of sentencing standards).
(2) In this section—
1997 amendment of sentencing standards means the change to
sentencing standards enunciated in R v D (1997) 69 SASR 413;
offences involving paedophilia means all offences to which
the 1997 amendment of sentencing standards is applicable, whether individual
sentences for the offences have been, or are to be, imposed or a global sentence
covering a series of offences (see
section 26
) or a course of conduct involving a number of criminal incidents (see
section 74 of the
Criminal
Law Consolidation Act 1935
);
reformed standards means sentencing standards as changed by
the 1997 amendment of sentencing standards.
Division 7—Community
based custodial sentences
(1) The purpose of a home detention order is to allow a court to impose a
custodial sentence but direct that the sentence be served on home
detention.
(2) The paramount consideration of the court when determining whether to
make a home detention order must be to protect the safety of the community
(whether as individuals or in general).
69—Home
detention not available for certain offences
(1) The powers vested in a court by this Subdivision—
(a) are exercisable despite the fact that an Act prescribes a minimum
penalty; but
(b) are not exercisable in relation to—
(i) murder or treason; or
(ii) any other offence in respect of which an Act expressly prohibits the
reduction, mitigation or substitution of penalties or sentences.
(2) In this section—
Act includes a statutory instrument.
(1) Subject to this
section, if—
(a) a court has imposed a sentence of imprisonment on a defendant;
and
(b) the court considers that the sentence should not be suspended under
Part 4
Division 2
; and
(c) the court considers that the defendant is a suitable person to serve
the sentence on home detention,
the court may order that the defendant serve the sentence on home detention
(a home detention order).
(2) The following provisions apply to a home detention order:
(a) a home detention order must not be made if the court considers that
the making of such an order would, or may, affect public confidence in the
administration of justice;
(b) a home detention order must not be made if the defendant is being
sentenced—
(i) as an adult to
a period of imprisonment with a non-parole period of 2 years or more for a
prescribed designated offence; or
(ii) as an adult
for a serious and organised crime offence or specified offence against police;
or
(iii) as an adult
for a designated offence and, during the 5 year period immediately
preceding the date on which the relevant offence was committed, a court has
sentenced the defendant to home detention for a designated offence;
(c) a home detention order must not be made unless the court is satisfied
that the residence the court proposes to specify in its order is suitable and
available for the detention of the defendant and that the defendant will be
properly maintained and cared for while detained in that place;
(d) a home detention order must not be made if the home detention is to be
served concurrently with a term of imprisonment then being served, or about to
be served, by the defendant;
(e) a home detention order should not be made unless the court is
satisfied that adequate resources exist for the proper monitoring of the
defendant while on home detention by a home detention officer.
(3) The court must take the following matters into consideration when
determining whether to make a home detention order:
(a) the impact that the home detention order is likely to have
on—
(i) any victim of the offence for which the defendant is being sentenced;
and
(ii) any spouse or domestic partner of the defendant; and
(iii) any person residing at the residence at which the prisoner would, if
released, be required to reside;
(b) the pre-sentence report (if any) ordered by the court;
(c) any other matter the court thinks relevant.
(4) In this section—
designated offence means any of the following offences under
the
Criminal
Law Consolidation Act 1935
:
(a) an offence
under section 12, 12A, 13 or 13A;
(b) an offence under section 19;
(c) an offence under section 19AA;
(d) an offence under section 19AC;
(e) an offence under section 19A;
(f) an offence under section 23 or 24;
(g) an offence under section 29A;
(h) an offence under section 39;
(i) an offence under section 48, 48A, 49, 50, 56, 58 or 59;
(j) an offence
under section 137;
(k) an offence under section 170;
(l) an offence under section 270B if the offence against the person
to which that section applies is a relevant offence referred to in a preceding
paragraph;
prescribed designated offence means an offence under
section 13 or 23 of the
Criminal
Law Consolidation Act 1935
;
serious and organised crime offence means—
(a) any of the following offences under the
Criminal
Law Consolidation Act 1935
:
(i) an offence under section 83E;
(ii) an aggravated offence under section 172 or 251, where the
aggravating circumstances of the offence are the circumstances referred to in
section 5AA(1)(ga)(i) or (ii) of that Act;
(iii) an offence under section 244 or 245; or
(b) any of the following offences under the
Controlled
Substances Act 1984
:
(i) an offence under section 32(1);
(ii) an aggravated offence under section 32(2), 32(2a) or 32(3);
(iii) an offence under section 33(1);
(iv) an aggravated offence under section 33(2) or 33(3);
(v) an aggravated offence under section 33A(1), 33A(2), 33A(3), 33A(4) or
33A(5);
specified offence against police means—
(a) an aggravated offence under section 23(1) or 23(3) of the
Criminal
Law Consolidation Act 1935
where the aggravating circumstances of the offence are the circumstances
referred to in section 5AA(1)(c) of that Act and the victim is a police
officer; or
(b) an offence of attempted murder or attempted manslaughter under the
Criminal
Law Consolidation Act 1935
where the victim is a police officer and the offender committed the
offence—
(i) knowing the victim to be acting in the course of the victim's official
duty; or
(ii) in retribution for something the offender knows or believes to have
been done by the victim in the course of the victim's official duty.
71—Conditions
of home detention order
(1) A home
detention order is subject to the following conditions:
(a) a condition requiring the person subject to the order to remain at the
residence specified by the court throughout the period of the home detention
order and not to leave that residence at any time during that period except for
the following purposes:
(i) attendance at such remunerated employment at such times and places as
approved from time to time by the home detention officer to whom the person is
assigned during the period of the home detention order;
(ii) urgent medical or dental treatment for the defendant;
(iii) attendance at a course of education, training or instruction or any
other activity as approved or directed by the home detention officer to whom the
defendant is assigned;
(iv) any other purposes as approved or directed by the home detention
officer to whom the person is assigned;
(b) a condition requiring the person to be of good behaviour;
(c) a condition requiring the person to be under the supervision of a home
detention officer;
(d) a condition requiring the person to obey the lawful directions of the
home detention officer to whom the person is assigned;
(e) a condition
prohibiting the person from possessing a firearm or ammunition or any part of a
firearm;
(f) a condition relating to the use of drugs by the person other than for
therapeutic purposes;
(g) a condition
requiring the person to submit to such tests (including testing without
notice)—
(ii) relating to drug use,
as a home detention officer may reasonably require;
(h) a condition that
the defendant be monitored by use of an electronic device approved under section
4 of the
Correctional
Services Act 1982
;
(i) such other
conditions as the court thinks appropriate and specifies in the order.
(2) A person subject to a home detention order will, unless the home
detention order is earlier revoked, remain on home detention—
(a) in the case of a person subject to a non-parole period—until the
person is released on parole; or
(b) in the case of any other person—in accordance with Part 4
Division 7 of the
Correctional
Services Act 1982
.
(3) Subject to
subsection (4)
, the court may vary or revoke a condition imposed under this
section.
(4) The court may
only vary or revoke the following conditions in the following
circumstances:
(a) the conditions imposed by
subsection (1)(e)
and
(g)(i)
—if the court is satisfied, by evidence given on oath,
that—
(i) there are cogent reasons to do so; and
(ii) the possession of a firearm, ammunition or part of a firearm by the
person does not represent an undue risk to the safety of the public;
(b) the condition imposed by
subsection (1)(h)
—if the court is satisfied, by evidence given on oath, that removal
of the electronic device is necessary for medical reasons.
72—Orders
that court may make on breach of condition of home detention order
etc
(1) Subject to this
section, if the court that imposed a home detention order on a person is
satisfied that—
(a) a person
subject to a home detention order has breached a condition of the order;
or
(b) the residence specified by the court at which the person is required
to remain throughout the period of the home detention order is no longer
suitable for the person and no other suitable residence is available for the
person's detention,
the court must revoke the home detention order and order that the balance
of the sentence the person was serving on home detention be served in
custody.
(2) Despite
subsection (1)(a)
, if the court is satisfied that the failure of the person to comply with
the conditions of the home detention order was trivial or there are proper
grounds on which the failure should be excused, the court—
(a) may refrain from revoking the order; and
(b) may impose a further condition on, or revoke or vary a condition of,
the order.
(3) A person subject to a home detention order is not in breach of a
condition requiring the person to remain at the person's residence if the person
leaves the residence for the purpose of averting or minimising a serious risk of
death or injury (either to the person or some other person).
(4) If a court revokes a home detention order and orders that the balance
of the sentence be served in custody under
subsection (1)
, the court—
(a) must direct that the following periods be taken into
account:
(i) the period of compliance by the person with the conditions of the home
detention order;
(ii) the period spent by the person on home detention or in custody
pending determination of the proceedings under this section; and
(b) may, if it considers that there are special circumstances justifying
it in so doing, reduce the term of the sentence of imprisonment; and
(c) may direct that the sentence be cumulative on any other sentence, or
sentences, of imprisonment then being served, or to be served, by the
person.
(5) The court may,
if it thinks it is necessary to do so for the purpose of proceedings under this
section—
(a) issue a summons to a person subject to a home detention order
requiring the person to appear before the court at the time and place specified
in the summons; or
(b) issue a warrant for the person's arrest.
(6) If a person fails to appear before the court as required by a summons
issued under this section, the court may issue a warrant for the person's
arrest.
(7) If a person is
arrested pursuant to a warrant issued under this section, the person must be
brought before the court or the Magistrates Court not later than the next
working day and may be remanded in custody or released on bail pending
determination of the proceedings.
(8) A warrant
issued under this section authorises the detention of the person in custody
pending appearance before the court.
(9) The obligations
of a person subject to a home detention order are suspended during any period
the person is in custody.
(10) If a person subject to a home detention order is found guilty of an
offence by a court of a superior jurisdiction to that of the court that made the
order, being an offence committed during the period of the home detention order,
any proceedings for breach of condition arising out of the offence are to be
taken in the court of superior jurisdiction.
(11) If a person subject to a home detention order is found guilty of an
offence by a court of an inferior jurisdiction to that of the court that made
the order, being an offence committed during the period of the home detention
order, the court of inferior jurisdiction must—
(a) sentence the person for the offence and remand the person to the court
that made the home detention order to be dealt with for breach of condition of
the order; or
(b) remand the person to the court that made the home detention order to
be sentenced for the offence and dealt with for breach of condition of the
order.
(12) The court dealing with a person for breach of condition of a home
detention order must hear any evidence adduced tending to establish that the
person has failed to comply with a condition of the order and any evidence or
representations that the person may wish to adduce or make in reply.
(13) In this section—
court of an inferior jurisdiction means—
(a) if the court that made the home detention order is the Supreme
Court—the District Court or the Magistrates Court;
(b) if the court that made the home detention order is the District
Court—the Magistrates Court;
court of a superior jurisdiction means—
(a) if the court that made the home detention order is the Magistrates
Court—the Supreme Court or the District Court;
(b) if the court that made the home detention order is the District
Court—the Supreme Court.
73—Court
to provide CE with copy of home detention order
If a home detention order is made in respect of a person, or the order or
conditions of the order are varied or revoked, or a further order is made in
respect of the person, the court must notify the CE of the terms of the order,
variation, revocation or further order, as the case may require.
74—CE
must assign home detention officer
(1) The CE must, on receiving a copy of a home detention order (and may
after then from time to time) assign the person to whom the order relates to a
home detention officer.
(2) The CE must ensure that the person is notified in writing of the name
of the home detention officer to whom the person has been assigned and, if
necessary, of the place and time at which the person must first report to that
officer.
(3) It is the duty of a home detention officer to endeavour to ensure that
any person assigned to the officer complies with the conditions of the
order.
75—Powers
of home detention officers
(1) A home detention officer may, at any time—
(a) enter or telephone the residence of a person to whom the officer has
been assigned; or
(b) telephone the person's place of employment or any other place at which
the person is permitted or required to attend; or
(c) question any person who is at that residence or place as to the
whereabouts of the person to whom the officer has been assigned,
for the purposes of ascertaining whether or not the person is complying
with a condition of the home detention order.
(2) A person must not—
(a) hinder a home detention officer in the exercise of powers under this
section; or
(b) fail to answer truthfully any question put to the person by a home
detention officer under those powers.
Maximum penalty: $2 500.
76—Apprehension
and detention of person subject to home detention order without
warrant
(1) If the CE suspects on reasonable grounds that a person subject to a
home detention order has breached a condition of the order, the person may be
apprehended, without warrant, by a police officer or home detention officer and
detained in custody for the purposes of proceedings relating to the suspected
breach under
section 72
before the court that imposed the order.
(2)
Section 72(7)
to
(9)
(inclusive) apply to a person apprehended under this section as if the
person were arrested pursuant to a warrant issued under
section 72
.
77—Offence
to contravene or fail to comply with condition of home detention
order
A person subject to a home detention order who contravenes or fails to
comply with a condition of the order is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
Subdivision 2—Intensive
correction
78—Purpose
of intensive correction order
(1) The purpose of an intensive correction order is to provide a court
with an alternative sentencing option for a defendant where the
court—
(a) is considering imposing a sentence of imprisonment of 12 months or
less; and
(b) considers there is a genuine risk that the defendant will re-offend if
not provided with a suitable intervention program for rehabilitation
purposes.
(2) The court should not impose an intensive correction order on a
defendant unless the court considers that, given the short custodial sentence
that the court would otherwise have imposed, rehabilitation of the defendant is
more likely to be achieved by allowing the defendant to serve the sentence in
the community while subject to strict conditions of intensive
correction.
(3) Despite the preceding subsections, the paramount consideration of the
court when determining whether to make an intensive correction order must be to
protect the safety of the community (whether as individuals or in
general).
79—Intensive
correction not available for certain offences
(1) The powers vested in a court by this Subdivision—
(a) are exercisable despite the fact that an Act prescribes a minimum
penalty; but
(b) are not exercisable in relation to any offence in respect of which an
Act expressly prohibits the reduction, mitigation or substitution of penalties
or sentences.
(2) In this section—
Act includes a statutory instrument.
80—Intensive
correction orders
(1) Subject to this
section, if—
(a) a court has imposed a sentence of imprisonment on a defendant of a
term that is 2 years or less; and
(b) the court considers that the sentence should not be suspended under
Part 4
Division 2
; and
(c) the court
determines that there is good reason for the defendant to serve the sentence in
the community while subject to intensive correction,
the court may order that the defendant serve the sentence in the community
while subject to intensive correction (an intensive correction
order).
(2) For the purposes of
subsection (1)(c)
, the court may determine that, even though a custodial sentence is
warranted and there is a moderate to high risk of the defendant re-offending,
any rehabilitation achieved during the period that would be spent in prison is
likely to be limited compared to the likely rehabilitative effect if the
defendant were instead to spend that period in the community while subject to
intensive correction.
(3) The following provisions apply to an intensive correction
order:
(a) an intensive correction order must not be made if the sentence is to
be served concurrently with a term of imprisonment then being served, or about
to be served, by the defendant;
(b) an intensive correction order should not be made if the court is not
satisfied that adequate resources exist for the proper monitoring of the
defendant while subject to an intensive correction order by a community
corrections officer.
(4) The court must take the following matters into consideration when
determining whether to make an intensive correction order:
(a) the impact that the intensive correction order is likely to have
on—
(i) any victim of the offence for which the defendant is being sentenced;
and
(ii) any spouse or domestic partner of the defendant; and
(iii) any person residing at the residence at which the defendant may, if
released, reside;
(b) the pre-sentence report (if any) ordered by the court;
(c) any other matter the court thinks relevant.
81—Conditions
of intensive correction order
(1) An intensive
correction order is subject to the following conditions:
(a) a condition requiring the person to be of good behaviour;
(b) a condition requiring the person to be under the supervision of a
community corrections order;
(c) a condition requiring the person to obey the lawful directions of the
community corrections officer to whom the person is assigned;
(d) a condition requiring the person to report to a specified place not
later than 2 working days after the date of the order unless, within that
period, the defendant receives a notice from the CE to the contrary;
(e) a condition
prohibiting the person from possessing a firearm or ammunition or any part of a
firearm;
(f) a condition
requiring the person to submit to such tests (including testing without notice)
for gunshot residue as a community corrections officer may reasonably
require;
(g) a condition that the person undergo assessment or treatment (or both)
relating to the person's mental or physical condition;
(h) a condition requiring the person to report to the community
corrections officer to whom the person is assigned any change of address or
employment, not later than 2 working days after the date of the
change;
(i) a condition that the person must not leave the State for any reason
except in accordance with the written permission of the CE;
(j) if the defendant is unemployed—a condition requiring the person
to perform a specified number of hours of community service;
(k) a condition
requiring the person to comply with the following:
(i) regulations made for the purposes of this section;
(ii) the lawful
directions of the CE;
(l) such other
conditions as the court thinks appropriate and specifies in the order.
(2) Without
limiting the generality of
subsection (1)(l)
, an intensive correction order may (for example) be subject to any of the
following conditions:
(a) a condition
that the person subject to the order reside at specified premises;
(b) a condition that the defendant be monitored by use of an electronic
device approved under section 4 of the
Correctional
Services Act 1982
;
(c) a condition requiring the defendant to abstain from drugs of a
specified class (including alcohol);
(d) a condition requiring the defendant to undertake an intervention
program;
(e) a condition
requiring the person to submit to such tests (including testing without notice)
relating to drug use, as a community corrections officer may reasonably
require;
(f) a condition that the person contribute financially to any course or
treatment program that the person is required to undertake;
(g) any other condition that the court thinks fit.
(3) Without limiting the generality of
subsection (1)(k)(ii)
, the CE may (for example) direct the person subject to the order to do 1
or more of the following during the period of the order:
(a) reside at specified premises;
(b) be monitored (for a period not exceeding 28 days) by use of an
electronic device approved under section 4 of the
Correctional
Services Act 1982
;
(c) submit to such
tests (including testing without notice) relating to drug use, as a community
corrections officer may reasonably require;
(d) if the defendant is unemployed—perform a specified number of
hours of community service per week (which must be at least 12 hours but not
more than 20 hours per week).
(4) A person subject to an intensive correction order will, unless the
intensive correction order is earlier revoked, remain subject to intensive
correction in the community until the expiry of the order.
(5) Subject to
subsection (6)
, the court may vary or revoke a condition imposed under this
section.
(6) The court may
only vary or revoke the conditions imposed by
subsection (1)(e)
and
(f)
if the court is satisfied, by evidence given on oath,
that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
person does not represent an undue risk to the safety of the public.
82—Orders
that court may make on breach of condition of intensive correction order
etc
(1) Subject to this
section, if the court that imposed an intensive correction order on a person is
satisfied that a person subject to an intensive correction order has breached a
condition of the order, the court must revoke the intensive correction order and
order that the balance of the sentence the person was serving in the community
be served in custody.
(2) Despite
subsection (1)
, if the court is satisfied that the failure of the person to comply with
the conditions of the intensive correction order was trivial or there are proper
grounds on which the failure should be excused, the court—
(a) may refrain from revoking the order; and
(b) may vary the order (including by extending the term of the order but
not so that the order would exceed in aggregate a period of 12 months or
imposing a condition of home detention); and
(c) may impose a further condition on, or revoke or vary a condition of,
the order.
(3) If a court revokes an intensive correction order and orders that the
balance of the sentence be served in custody under
subsection (1)
, the court—
(a) must direct that the following periods be taken into
account:
(i) the period of compliance by the person with the conditions of the
intensive correction order;
(ii) the period spent by the person in custody or in the community subject
to intensive correction pending determination of the proceedings under this
section; and
(b) may, if it considers that there are special circumstances justifying
it in so doing, reduce the term of the sentence of imprisonment; and
(c) may direct that the sentence be cumulative on any other sentence, or
sentences, of imprisonment then being served, or to be served, by the
person.
(4) If the court
imposes a condition of home detention, the terms of the condition require the
defendant to reside in a specified place and to remain at that place for a
specified period (which may not exceed the balance of the term of the sentence),
not leaving it except for 1 of the following purposes:
(a) remunerated employment;
(b) necessary medical or dental treatment for the defendant;
(c) averting or minimising a serious risk of death or injury (whether to
the defendant or some other person);
(d) any other purpose approved or directed by the community corrections
officer to whom the defendant is assigned.
(5) The court may,
if it thinks it is necessary to do so for the purpose of proceedings under this
section—
(a) issue a summons to a person subject to an intensive correction order
requiring the person to appear before the court at the time and place specified
in the summons; or
(b) issue a warrant for the person's arrest.
(6) If a person fails to appear before the court as required by a summons
issued under this section, the court may issue a warrant for the person's
arrest.
(7) If a person is
arrested pursuant to a warrant issued under this section, the person must be
brought before the court or the Magistrates Court not later than the next
working day and may be remanded in custody or released on bail pending
determination of the proceedings.
(8) A warrant
issued under this section authorises the detention of the person in custody
pending appearance before the court.
(9) The obligations
of a person subject to an intensive correction order are suspended during any
period the person is in custody.
(10) If a person
subject to an intensive correction order is found guilty of an offence by a
court of a superior jurisdiction to that of the court that made the order, being
an offence committed during the period of the intensive correction order, any
proceedings for breach of condition arising out of the offence are to be taken
in the court of superior jurisdiction.
(11) If a person subject to an intensive correction order is found guilty
of an offence by a court of an inferior jurisdiction to that of the court that
made the order, being an offence committed during the period of the intensive
correction order, the court of inferior jurisdiction must—
(a) sentence the person for the offence and remand the person to the court
that made the intensive correction order to be dealt with for breach of
condition of the order; or
(b) remand the person to the court that made the intensive correction
order to be sentenced for the offence and dealt with for breach of condition of
the order.
(12) The court dealing with a person for breach of condition of an
intensive correction order must hear any evidence adduced tending to establish
that the person has failed to comply with a condition of the order and any
evidence or representations that the person may wish to adduce or make in
reply.
(13) In this section—
court of an inferior jurisdiction means—
(a) if the court that made the intensive correction order is the Supreme
Court—the District Court or the Magistrates Court;
(b) if the court that made the intensive correction order is the District
Court—the Magistrates Court;
court of a superior jurisdiction means—
(a) if the court that made the intensive correction order is the
Magistrates Court—the Supreme Court or the District Court;
(b) if the court that made the intensive correction order is the District
Court—the Supreme Court.
83—Court
to provide CE with copy of intensive correction order
If an intensive correction order is made in respect of a person, or the
order or conditions of the order are varied or revoked, or a further order is
made in respect of the person, the court must notify the CE of the terms of the
order, variation, revocation or further order, as the case may
require.
84—CE
must assign community corrections officer
(1) The CE must, on receiving a copy of an intensive correction order (and
may after then from time to time) assign the person to whom the order relates to
a community corrections officer.
(2) The CE must ensure that the person is notified in writing of the name
of the community corrections officer to whom the person has been assigned and,
if necessary, of the place and time at which the person must first report to
that officer.
(3) It is the duty of a community corrections officer to endeavour to
ensure that any person assigned to the officer complies with the conditions of
order.
85—Provisions
relating to community service
(1) The following
provisions apply to an intensive correction order that includes a condition
requiring the performance of community service:
(a) the court must
specify the number of hours of community service to be performed by the person
to whom the sentence relates, being not less than 15 or more than 300;
(b) the court must
not specify a number of hours of community service to be performed by a person
who is already performing, or is liable to perform, community service, where the
aggregate of that number and the number of hours previously specified would
exceed 300;
(c) the court must specify a period, not exceeding 18 months, within which
the community service is to be performed;
(d) the person is required to report to a specified place not later than 2
working days after the date of the order unless, within that period, the person
receives a notice from the CE to the contrary;
(e) the person is required to perform community service for not less than
4 hours each week and on such day, or days, as the community corrections officer
to whom the person is assigned may direct;
(f) the person may not, except in circumstances approved by the Minister
for Correctional Services, be required to perform community service for a
continuous period exceeding 7.5 hours;
(g) if on any day a period of community service is to exceed 4 continuous
hours, the next hour must be a meal break;
(h) the person may not be required to perform community service at a time
that would interfere with the person's remunerated employment or with a course
of training or instruction relating to, or likely to assist the person to
obtain, remunerated employment, or that would cause unreasonable disruption of
the person's commitments in caring for the person's dependants;
(i) the person may not be required to perform community service at a time
that would cause the person to offend against a rule of a religion that the
person practises;
(j) the attendance of the person at any educational or recreational course
of instruction approved by the Minister for Correctional Services will be taken
to be performance of community service;
(k) the person will not be remunerated for the performance of community
service under the order;
(l) the person must obey the lawful directions of the community
corrections officer to whom the person is assigned.
(2) This section does not apply in relation to the performance of
community service by a youth.
86—Court
to be notified if suitable community service placement not
available
(1) If the CE, on
being notified that a court has included in an intensive correction order a
condition requiring the performance of community service, is of the opinion that
suitable community service work cannot be found for the defendant, whether
because of the defendant's physical or mental disability, the location of the
defendant, or for some other reason, the CE must notify the court in writing of
that fact.
(2) On receiving a notification under
subsection (1)
, the court may revoke the condition or discharge the intensive correction
order (as the case may be) and may require the defendant to appear before the
court for further order.
87—Community
corrections officer to give reasonable directions
(1) A community corrections officer responsible for supervising a person
in the community under this Subdivision—
(a) must give reasonable directions to the person requiring the person to
report to the officer on a regular basis; and
(b) may give reasonable directions to the person—
(i) requiring the person to notify the officer of any change in the
person's place of residence or employment; or
(ii) requiring the person to reside, or not to reside, in any particular
place or area or with any particular person; or
(iii) requiring the person to take up, or not to take up, any particular
employment, to be punctual in reporting to work or not to give up some
particular employment; and
(c) may give the person other directions of a kind authorised by the
Minister for Correctional Services, either generally or in relation to that
person.
(2) If the person is required to perform community service as a condition
of an intensive correction order, the community corrections officer may also
give reasonable directions to the person—
(a) requiring the person to report to a community service centre or other
place at certain times; or
(b) requiring the person to perform certain projects or tasks as community
service; or
(c) requiring the person to undertake or participate in courses of
instruction at a community service centre or other place; or
(d) requiring the person to behave in a particular manner while
undertaking community service.
88—Power
of Minister in relation to default in performance of community
service
(1) If the Minister
for Correctional Services is satisfied that a person who is required to perform
community service as a condition of an intensive correction order has failed to
obey a direction given by the community corrections officer to whom the person
is assigned, the Minister may, instead of commencing proceedings for breach of
order, by notice in writing served personally, increase the number of hours of
community service that the person is required to perform.
(2) If the Minister increases the hours of community service to be
performed under a condition of an intensive correction order, the order will be
taken to have been amended accordingly.
(3) The number of hours of community service may not be increased under
subsection (1)
by more than 24 in aggregate, but such an increase may be made despite the
fact that its effect is to increase the total number of hours to be performed
beyond the normal limit.
(4) If the Minister for Correctional Services is satisfied that a person
has failed to comply with a condition of an intensive correction order requiring
performance of community service, the Minister may, by notice in writing served
personally or by post, suspend the operation of the order until proceedings for
breach of the intensive correction order have been determined.
89—Apprehension
and detention of person subject to intensive correction order without
warrant
(1) If the CE suspects on reasonable grounds that a person subject to an
intensive correction order has breached a condition of the order, the person may
be apprehended, without warrant, by a police officer or community corrections
officer and detained in custody for the purposes of proceedings relating to the
suspected breach under
section 82
before the court that imposed the order.
(2)
Section 82(8)
to
(10)
(inclusive) apply to a person apprehended under this section as if the
person were arrested pursuant to a warrant issued under
section 82
.
90—Offence
to contravene or fail to comply with condition of intensive correction
order
A person subject to an intensive correction order who contravenes or fails
to comply with a condition of the order is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
91—Court
may direct person to surrender firearm etc
(1) This section applies to the following persons:
(a) a person subject to a home detention order under
Subdivision 1
;
(b) a person subject to an intensive correction order under
Subdivision 2
.
(2) A court may,
when imposing a sentence on a person to whom this section applies, direct the
person to immediately surrender at a police station specified by the court any
firearm, ammunition or part of a firearm owned or possessed by the
person.
(3) No criminal liability attaches to a person to the extent that the
person is complying with a direction under this section.
(4) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(5) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(6) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
Division 8—Effect
of imprisonment for contempt
92—Effect
of imprisonment for contempt
If a person is imprisoned for contempt of court—
(a) any sentence of imprisonment that the person has not yet begun to
serve (and any non-parole period in respect of that sentence) will not commence
until the expiry of the period of imprisonment for contempt; and
(b) any sentence of imprisonment that the person is then serving (and any
non-parole period in respect of that sentence) ceases to run for the period of
imprisonment for contempt.
Part 4—Other
community based sentences
Division 1—Purpose,
interpretation and application
The purpose of this Part is to provide a court with an option to impose a
non-custodial community based sentence on a defendant.
94—Interpretation
and application of Part
(1) In this Part, a reference to a bond under this Act is a
reference to a bond under
section 95
or
96
, as the case requires.
(2) The powers
vested in a court by this Part—
(a) are exercisable despite the fact that an Act prescribes a minimum
penalty; but
(b) are not exercisable in relation to—
(i) murder or treason; or
(ii) any other offence in respect of which an Act expressly prohibits the
reduction, mitigation or substitution of penalties or sentences.
(3) In
subsection (2)
—
Act includes a statutory instrument.
Division 2—Bonds,
community service and supervision in community
95—Suspension
of imprisonment on defendant entering into bond
(1) Subject to this
section, if a court has imposed a sentence of imprisonment on a defendant, the
court may, if it thinks that good reason exists for doing so, suspend the
sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the conditions of the bond referred to in
subsection (2)
; and
(c) to comply with any other conditions of the bond as the court thinks
appropriate and specifies in the bond.
(2) Subject to this
Act, a bond under this section is subject to the following conditions:
(a) a condition
prohibiting the defendant from possessing a firearm or ammunition or any part of
a firearm;
(b) a condition requiring the defendant to submit to such tests (including
testing without notice) for gunshot residue as may be reasonably required by a
person or class of persons or body specified by the court.
(3) A sentence of
imprisonment may not be suspended under this section if the defendant is being
sentenced—
(a) to a sentence
of imprisonment that is to be served cumulatively on another term of
imprisonment, or concurrently with another term of imprisonment then being
served, or about to be served, by the defendant; or
(b) as an adult to
a period of imprisonment of 2 years or more for a prescribed designated
offence; or
(c) as an adult for
a serious and organised crime offence or specified offence against police;
or
(d) as an adult for
a designated offence and, during the 5 year period immediately preceding
the date on which the relevant offence was committed, a court has suspended a
sentence of imprisonment or period of detention imposed on the defendant for a
designated offence.
(4) Despite
subsection (3)(a)
, if the period of imprisonment to which a defendant is liable under
1 or more sentences is more than 3 months but less than 12 months, the
sentencing court may, by order—
(a) direct that the defendant serve a specified period (being not less
than 1 month) of the imprisonment in prison; and
(b) suspend the remainder of the sentence on condition that the defendant
enter into a bond of a kind described in
subsection (1)
that will have effect on the defendant's release from prison.
(5) Despite
subsection (3)(b)
, if a defendant is being sentenced as an adult to a period of imprisonment
of 2 years or more for a prescribed designated offence, the sentencing
court may, by order—
(a) direct that the defendant serve a specified period of the imprisonment
in prison (which, if a non-parole period has been fixed in respect of the
defendant, must be a period that is one-fifth of the non-parole period fixed);
and
(b) suspend the remainder of the sentence on condition that the defendant
enter into a bond of a kind described in
subsection (1)
that will have effect on the defendant's release from prison.
(6) Despite
subsection (3)(c)
and
(d)
, the court may, if satisfied that exceptional circumstances exist for
doing so—
(a) suspend a sentence of imprisonment imposed on a defendant for a
serious and organised crime offence or specified offence against police, or for
a designated offence in the circumstances described in
subsection (3)(d)
, on condition that the defendant enter into a bond of a kind described in
subsection (1)
; or
(b) make an order under
subsection (4)
in respect of a defendant being sentenced for a serious and organised
crime offence or specified offence against police, or for a designated offence
in the circumstances described in
subsection (3)(d)
, if the period of imprisonment to which the defendant is liable under
1 or more sentences is more than 3 months but less than 12
months.
(7) If the court
suspends a sentence of imprisonment under this section on the ground that,
because of the defendant's ill health, disability or frailty, it would be unduly
harsh for the defendant to serve any time in prison, the court may, in addition
to any other conditions included in the bond, include a condition (a home
detention condition) requiring the defendant to reside in a specified
place and to remain at that place for a specified period of no more than 12
months, not leaving it except for 1 of the following purposes:
(a) remunerated employment;
(b) necessary medical or dental treatment for the defendant;
(c) averting or minimising a serious risk of death or injury (whether to
the defendant or some other person);
(d) any other purpose approved or directed by the community corrections
officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include
a condition requiring the defendant to be under the supervision of a community
corrections officer for at least the same period).
(8) If a probationer under a bond entered into under this section complies
with the conditions of the bond, the sentence of imprisonment is, on the
expiration of the bond, wholly extinguished.
(9) In this section—
designated offence means any of the following offences under
the
Criminal
Law Consolidation Act 1935
:
(a) an offence
under section 12, 12A, 13 or 13A;
(b) an offence under section 19;
(c) an offence under section 19AA;
(d) an offence under section 19AC;
(e) an offence under section 19A;
(f) an offence under section 23 or 24;
(g) an offence under section 29A;
(h) an offence under section 39;
(i) an offence under section 48, 48A, 49, 50, 56, 58 or 59;
(j) an offence
under section 137;
(k) an offence under section 170;
(l) an offence under section 270B if the offence against the person
to which that section applies is a relevant offence referred to in a preceding
paragraph;
prescribed designated offence means an offence under
section 13 or 23 of the
Criminal
Law Consolidation Act 1935
;
serious and organised crime offence means—
(a) any of the following offences under the
Criminal
Law Consolidation Act 1935
:
(i) an offence under section 83E;
(ii) an aggravated offence under section 172 or 251, where the
aggravating circumstances of the offence are the circumstances referred to in
section 5AA(1)(ga)(i) or (ii) of that Act;
(iii) an offence under section 244 or 245; or
(b) any of the following offences under the
Controlled
Substances Act 1984
:
(i) an offence under section 32(1);
(ii) an aggravated offence under section 32(2), 32(2a) or 32(3);
(iii) an offence under section 33(1);
(iv) an aggravated offence under section 33(2) or 33(3);
(v) an aggravated offence under section 33A(1), 33A(2), 33A(3), 33A(4) or
33A(5);
specified offence against police means—
(a) an aggravated offence under section 23(1) or 23(3) of the
Criminal
Law Consolidation Act 1935
where the aggravating circumstances of the offence are the circumstances
referred to in section 5AA(1)(c) of that Act and the victim is a police
officer; or
(b) an offence of attempted murder or attempted manslaughter under the
Criminal
Law Consolidation Act 1935
where the victim is a police officer and the offender committed the
offence—
(i) knowing the victim to be acting in the course of the victim's official
duty; or
(ii) in retribution for something the offender knows or believes to have
been done by the victim in the course of the victim's official duty.
96—Discharge
of other defendants on entering into good behaviour bond
(1) If a court
finds a person guilty of an offence, the court may, if it thinks that good
reason exists for doing so, discharge the defendant with or without recording a
conviction, and without imposing any other penalty, on condition that the
defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with
the other conditions (if any) included in the bond; and
(c) if the terms of the bond so require, to appear before the court for
sentence, or conviction and sentence, if the defendant fails during the term of
the bond to comply with a condition of the bond.
(2) However, if the defendant is not to be so required to appear before
the court, the court cannot impose any conditions under
subsection (1)(b)
.
(3) If a defendant is discharged on a bond under this
section—
(a) no fresh prosecution may be commenced in respect of the offence;
and
(b) the defendant will only be liable to sentence, or conviction and
sentence, if the defendant fails to comply with a condition of the bond and the
terms of the bond require the defendant to appear before the court for
sentencing in that event.
97—Conditions
of bonds under this Act
(1) Subject to this Act, a bond under this Act may include such of the
following conditions as the court thinks appropriate and directs be
included:
(a) a condition requiring the defendant to be under the supervision of a
community corrections officer for a specified period;
(b) a condition requiring the defendant to reside with a specified person
or in a specified place or area;
(c) a condition requiring the defendant not to reside with a specified
person or in a specified place or area;
(d) a condition requiring the defendant to perform a specified number of
hours of community service;
(e) a condition requiring the defendant to undertake an intervention
program;
(f) a condition requiring the defendant to undergo medical or psychiatric
treatment in accordance with the terms of the bond;
(g) a condition requiring the defendant to abstain from drugs of a
specified class (including alcohol);
(h) a condition
requiring the person to submit to such tests (including testing without notice)
relating to drug use as a community corrections officer may reasonably
require;
(i) a condition requiring the defendant—
(i) to restore misappropriated property to any person apparently entitled
to possession of it; or
(ii) to pay compensation of a specified amount to any person for injury,
loss or damage resulting from the offence;
(j) a condition requiring the defendant to attend and complete, within the
term of the bond or such lesser period as the court may specify, a specified
education program approved by the Attorney-General for the offence of which the
defendant has been found guilty;
(k) a condition requiring the defendant to comply with—
(i) regulations (if any) made for the purposes of this section;
or
(ii) the lawful directions of the CE;
(l) any other condition that the court thinks appropriate and specifies in
the bond.
(2) A court must not include a condition (whether under this or any other
section) requiring the defendant to reside with a specified person or in a
specified place unless the court is satisfied that accommodation is available
for the defendant with that person or in that place and that the accommodation
is suitable in all the circumstances.
(3) A court must not include a condition requiring the defendant to
undergo specified medical or psychiatric treatment unless it is satisfied that
treatment of the nature specified in the bond has been recommended for the
defendant by a legally qualified medical practitioner and is available to the
defendant.
(4) The following provisions apply in relation to an education program
approved or to be approved for the purposes of this section:
(a) the Attorney-General may approve such a program unconditionally or
subject to such conditions as the Attorney-General thinks fit and specifies in
the instrument of approval;
(b) the Attorney-General may, by written notice to the program provider,
revoke an approval or vary the conditions of an approval;
(c) any fees for undertaking an approved education program are to be borne
by the defendant, subject to any relief from payment given by the program
provider in accordance with conditions imposed by the Attorney-General under
this subsection.
(5) Before the court imposes a condition requiring a defendant to
undertake an intervention program, the court must satisfy itself that—
(a) the defendant is eligible for the services to be included on the
program in accordance with applicable eligibility criteria (if any);
and
(b) the services are available for the defendant at a suitable time and
place.
(6) The court may
make appropriate orders for assessment of a defendant to
determine—
(a) a form of intervention program that is appropriate for the defendant;
and
(b) the defendant's eligibility for the services included on the
program,
and may release the defendant on bail on condition that the defendant
undertake the assessment as ordered.
(7) A certificate apparently signed by—
(a) an intervention program manager as to—
(i) whether the services to be included on an intervention program are
available for a particular person and, if so, when and where they will be
available; or
(ii) whether a particular person is eligible for the services to be
included on the program; or
(b) a case manager as to whether a particular person has complied with
conditions regulating the person's participation in an intervention
program,
is admissible as evidence of the matter so certified.
Subject to this Act, a bond under this Act is effective for the term that
is specified in the bond.
(1) If the court thinks it appropriate—
(a) a bond under this Act may oblige the defendant to pay a sum specified
in the bond in the event of non-compliance with a condition of the bond;
and
(b) the court may require the defendant to find 1 or more guarantors of
such an obligation.
(2) A court—
(a) may require a defendant to find 1 or more persons to guarantee the
defendant's compliance with the conditions of the bond; and
(b) if such a requirement is made, must specify the amount that any such
guarantor will be liable to pay in the event of the defendant's non-compliance
with a condition of the bond.
100—Court
may direct person to surrender firearm etc
(1) A probative
court may, in relation to a bond that is subject to the condition imposed by
section 95(2)(a)
, direct the probationer to immediately surrender at a police station
specified by the court any firearm, ammunition or part of a firearm owned or
possessed by the probationer.
(2) No criminal liability attaches to a person to the extent that the
person is complying with a direction under this section.
(3) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(4) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(5) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
101—Court
to provide CE with copy of court order
If a defendant enters into a bond under this Act, the conditions of a bond
are varied, the term of a bond is extended, or a bond is discharged, the court
must notify the CE of the terms of the bond, variation or extension, or of the
discharge, as the case may require.
102—Variation
or discharge of bond
(1) A probative
court may, on the application of a probationer or the Minister for Correctional
Services, vary or revoke a condition of a bond under this Act.
(2) If, on an application for variation under
subsection (1)
, a probative court extends, beyond the term of the bond, the period within
which community service is to be performed by the probationer, the term of the
bond is extended accordingly, despite the fact that the term, as so extended,
exceeds 3 years.
(3) A probative court cannot extend the period within which community
service is to be performed by more than 6 months.
(4) A probative
court may only vary or revoke the conditions imposed by
section 95(2)
on a bond if the court is satisfied, by evidence given on oath,
that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
probationer does not represent an undue risk to the safety of the
public.
(5) Subject to
subsection (6)
, if the Minister for Correctional Services is satisfied, on the
application of a probationer—
(a) that it is no longer necessary for the probationer to remain under
supervision; and
(b) that it would not be in the best interests of the probationer to
remain under supervision,
the Minister may, by instrument in writing, waive the obligation of the
probationer to comply any further with the condition requiring
supervision.
(6) The Minister
for Correctional Services must, before deciding whether to waive the obligation
of a probationer to comply any further with a condition requiring supervision,
take into account the likely impact on a victim to which this subsection applies
if the probationer is no longer required to remain under supervision.
(7)
Subsection (6)
applies to a victim in respect of whom a victim impact statement was
provided to the sentencing court when the probationer was sentenced.
(8) If a probative court is satisfied, on the application of a
probationer, that it is no longer necessary for the probationer to remain
subject to the bond, the court may, by order, discharge the bond.
103—Court
to be notified if suitable community service placement not
available
(1) If the CE, on
being notified that a court has made an order for community service or included
in a bond a condition requiring the performance of community service, is of the
opinion that suitable community service work cannot be found for the defendant,
whether because of the defendant's physical or mental disability, the location
of the defendant, or for some other reason, the CE must notify the court in
writing of that fact.
(2) On receiving a notification under
subsection (1)
, the court may discharge the community service order or revoke the
condition (as the case may be) and may require the defendant to appear before
the court for further order.
104—Provisions
relating to community service
(1) The following
provisions apply if a court imposes a sentence of community service, or includes
in a bond a condition requiring the performance of community service:
(a) the court must
specify the number of hours of community service to be performed by the person
to whom the sentence relates, being not less than 15 or more than 300;
(b) the court must
not specify a number of hours of community service to be performed by a person
who is already performing, or is liable to perform, community service, where the
aggregate of that number and the number of hours previously specified would
exceed 300;
(c) the court must specify a period, not exceeding 18 months, within which
the community service is to be performed;
(d) the person is required to report to a specified place not later than 2
working days after the date of the order unless, within that period, the person
receives a notice from the CE to the contrary;
(e) the person is required to perform community service for not less than
4 hours each week and on such day, or days, as the community corrections officer
to whom the person is assigned may direct;
(f) the person may not, except in circumstances approved by the Minister
for Correctional Services, be required to perform community service for a
continuous period exceeding 7.5 hours;
(g) if on any day a period of community service is to exceed 4 continuous
hours, the next hour must be a meal break;
(h) the person may not be required to perform community service at a time
that would interfere with the person's remunerated employment or with a course
of training or instruction relating to, or likely to assist the person to
obtain, remunerated employment, or that would cause unreasonable disruption of
the person's commitments in caring for the person's dependants;
(i) the person may not be required to perform community service at a time
that would cause the person to offend against a rule of a religion that the
person practises;
(j) the attendance of the person at any educational or recreational course
of instruction approved by the Minister for Correctional Services will be taken
to be performance of community service;
(k) the person will not be remunerated for the performance of community
service under the order;
(l) the person must obey the lawful directions of the community
corrections officer to whom the person is assigned.
(2) This section does not apply in relation to the performance of
community service by a youth.
105—Provisions
relating to supervision in the community
(1) A court may, in addition to sentencing a defendant to community
service—
(a) order that the defendant be under the supervision of a community
corrections officer for the duration of the sentence; and
(b) make such other orders as the court thinks necessary for securing
compliance with this Part.
(2) The following provisions apply if a court makes an order, or includes
a condition in a bond, requiring the person to whom the order or bond relates to
be under the supervision of a community corrections officer:
(a) the court must, in the case of a probationer, specify the period
during which the probationer is to be under supervision;
(b) except in the case of a bond with a home detention condition, the
person is required to report to a specified place not later than 2 working days
after the date of the order or bond unless, within that period, the defendant
receives a notice from the CE to the contrary;
(c) the person must obey the lawful directions of the community
corrections officer to whom the person is assigned;
(d) the person must not, during the period of supervision, leave the State
for any reason except in accordance with the written permission of the
CE.
106—CE
must assign community corrections officer
(1) The CE must, on receiving a copy of an order or a bond requiring
supervision or the performance of community service (and may, after then, from
time to time) assign the person to whom the bond or order relates to a community
corrections officer.
(2) The CE must ensure that the person is notified in writing of the name
of the community corrections officer to whom the person has been assigned and,
if necessary, of the place and time at which the person must first report to
that officer.
(3) It is the duty of a community corrections officer to endeavour to
ensure that any person assigned to the officer complies with the conditions of
the bond or order.
107—Community
corrections officer to give reasonable directions
(1) A community corrections officer responsible for supervising a person
in the community—
(a) must give reasonable directions to the person requiring the person to
report to the officer on a regular basis; and
(b) may give reasonable directions to the person—
(i) requiring the person to notify the officer of any change in the
person's place of residence or employment; or
(ii) requiring the person to reside, or not to reside, in any particular
place or area or with any particular person; or
(iii) requiring the person to take up, or not to take up, any particular
employment, to be punctual in reporting to work or not to give up some
particular employment; and
(c) may give the person other directions of a kind authorised by the
Minister for Correctional Services, either generally or in relation to that
person.
(2) If the person is required to perform community service, the community
corrections officer may also give reasonable directions to the
person—
(a) requiring the person to report to a community service centre or other
place at certain times; or
(b) requiring the person to perform certain projects or tasks as community
service; or
(c) requiring the person to undertake or participate in courses of
instruction at a community service centre or other place; or
(d) requiring the person to behave in a particular manner while
undertaking community service.
108—Powers
of community corrections officer relating to probationers on home
detention
(1) A community corrections officer may, at any time—
(a) enter or telephone the residence of a probationer who is subject to a
bond with a home detention condition; or
(b) telephone the probationer's place of employment or any other place at
which the probationer is permitted or required to attend; or
(c) question any person who is at that residence or place as to the
whereabouts of the probationer,
for the purposes of ascertaining whether or not the probationer is
complying with the home detention condition.
(2) A person must not—
(a) hinder a community corrections officer in the exercise of powers under
this section; or
(b) fail to answer truthfully any question put to the person by a
community corrections officer under those powers.
Maximum penalty: $2 500.
(3) A community
corrections officer or a police officer who believes on reasonable grounds that
a probationer who is subject to a bond with a home detention condition is
contravening, has contravened or is about to contravene that condition of the
bond may arrest the probationer without warrant and take the probationer to the
nearest police station at which facilities are continuously available for the
probationer's care and custody.
(4) A probationer arrested under
subsection (3)
must be brought as soon as practicable before the sentencing court to be
dealt with for breach of bond.
109—Variation
of community service order
(1) If, on the
application of a person required to perform community service under a bond or an
order of a court, the Minister for Correctional Services is satisfied
that—
(a) the person will not complete the community service in the time
provided for in the order or the bond; and
(b) sufficient reason exists for the person not being able to complete the
community service in the required time,
the Minister may, by instrument in writing, extend the period within which
the person must complete the performance of the community service.
(2) The court that
ordered a person to perform community service, or a court of coordinate
jurisdiction, may, on application by the person or the Minister for Correctional
Services, vary the terms of the order for community service, or vary or revoke
an ancillary order.
(3) The period within which community service must be performed cannot be
extended under this section, whether by the Minister or the court, by a period
exceeding 6 months, or periods that, in aggregate, exceed
6 months.
(4) If the Minister extends the period within which a person must complete
the performance of community service under an order or bond, the order or bond
will be taken to have been amended accordingly.
(5) The Minister must notify the probative or sentencing court of any
exercise of powers under
subsection (1)
.
110—Power
of Minister to cancel unperformed hours of community
service
(1) If, on the
application of a person required to perform community service under a bond or an
order of a court, the Minister for Correctional Services is satisfied
that—
(a) although some hours of community service remain unperformed, the
person has substantially complied with the requirement; and
(b) there is no apparent intention on the person's part to deliberately
evade the person's obligations under the bond or order; and
(c) sufficient reason exists for not insisting on performance of some or
all of those hours,
the Minister may, by instrument in writing, waive compliance with the
requirement to perform those hours, or a specified number of them.
(2) The Minister cannot exercise powers under
subsection (1)
to waive performance of more than 10 hours under the 1 bond or
order.
(3) The Minister must notify the probative or sentencing court of any
exercise of powers under
subsection (1)
.
111—Power
of Minister in relation to default in performance of community
service
(1) If the Minister
for Correctional Services is satisfied that a person who is required to perform
community service has failed to obey a direction given by the community
corrections officer to whom the person is assigned, the Minister, instead of
commencing proceedings for breach of order or bond, may, by notice in writing
served personally, increase the number of hours of community service that the
person is required to perform.
(2) If the Minister increases the hours of community service to be
performed under an order or bond, the order or bond will be taken to have been
amended accordingly.
(3) The number of hours of community service may not be increased under
subsection (1)
by more than 24 in aggregate, but such an increase may be made despite the
fact that its effect is to increase the total number of hours to be performed
beyond the normal limit.
(4) If the Minister for Correctional Services is satisfied that a person
has failed to comply with an order or bond requiring performance of community
service, the Minister may, by notice in writing served personally or by post,
suspend the operation of the order or the relevant condition of the bond until
proceedings for breach of the community service order or bond have been
determined.
Division 3—Enforcement
of bonds, community service orders and other orders of a non-pecuniary
nature
(1) If it appears to a probative court, by evidence given on oath, that a
probationer may have failed to comply with a condition of the probationer's
bond, the court—
(a) may—
(i) issue a summons to the probationer requiring the probationer to appear
before the court at the time and place specified in the summons; or
(ii) issue a warrant for the probationer's arrest; and
(b) may issue a summons to a guarantor.
(2) If a person fails to appear before the court as required by a summons
issued under this section, the court may issue a warrant for the person's
arrest.
(3) If a person is arrested pursuant to a warrant issued under this
section, the person must be brought before the probative court or the
Magistrates Court not later than the next working day and may be remanded in
custody or released on bail pending determination of the proceedings.
(4) If a probationer is found guilty of an offence by a court of a
superior jurisdiction to that of the probative court, being an offence committed
during the term of the bond, any proceedings for breach of condition arising out
of the offence are to be taken in the court of superior jurisdiction.
(5) If a probationer is found guilty of an offence by a court of an
inferior jurisdiction to that of the probative court, being an offence committed
during the term of the bond, the court of an inferior jurisdiction
must—
(a) sentence the probationer for the offence and remand the probationer to
the probative court to be dealt with for breach of the conditions of the bond;
or
(b) remand the probationer to the probative court to be sentenced for the
offence and dealt with for breach of the conditions of the bond.
(6) The court dealing with a probationer for breach of condition must hear
any evidence adduced tending to establish that the probationer has failed to
comply with a condition of the bond and any evidence or representations that the
probationer may wish to adduce or make in reply.
(7) In this section—
court of an inferior jurisdiction means—
(a) if the probative court is the Supreme Court—the District Court
or the Magistrates Court;
(b) if the probative court is the District Court—the Magistrates
Court;
court of a superior jurisdiction means—
(a) if the probative court is the Magistrates Court—the Supreme
Court or the District Court;
(b) if the probative court is the District Court—the Supreme
Court.
113—Orders
that court may make on breach of bond
(1) If the court is
satisfied that the probationer has failed to comply with a condition of the
bond, the court—
(a) may, if the
bond requires the probationer to pay a sum in the event of non-compliance with a
condition of the bond, order the probationer to pay the whole or a part of that
sum; or
(b) may order a guarantor to pay the whole or a part of the amount due
under the guarantee; or
(c) may, if the probationer has not been sentenced for the original
offence and the terms of the bond require the defendant to appear before the
court for sentencing in the event of failure to comply with a condition of the
bond—
(i) sentence the probationer for the offence, or convict and sentence the
probationer for the offence, as the case may require; or
(ii) if the court is satisfied that the failure of the probationer to
comply with the conditions of the bond was trivial or that there are proper
grounds on which the failure should be excused, refrain from taking any action
in respect of the failure; or
(d) if the probationer has been sentenced to imprisonment for the original
offence and that sentence has been suspended—must, subject to
subsection (3)
, revoke the suspension and order that the sentence be carried into
effect.
(2) The court may not order a person to pay an amount pursuant to
subsection (1)(a)
unless the court is satisfied that—
(a) the person has, or will within a reasonable time have, the means to
pay the amount; and
(b) payment of the amount would not unduly prejudice the welfare of
dependants of the person.
(3) If a
probationer is subject to a suspended sentence of imprisonment and the court is
satisfied that the failure of the probationer to comply with the conditions of
the bond was trivial or that there are proper grounds upon which the failure
should be excused, the court may refrain from revoking the suspension
and—
(a) in the case of a bond requiring performance of community
service—may—
(i) extend the term of the bond by such period (not exceeding 12 months)
as the court thinks fit; or
(ii) extend the period within which any uncompleted hours of community
service must be performed by not more than 6 months; or
(iii) if the period within which the community service must be performed
has expired, impose a period of not more than 6 months within which any
uncompleted hours of community service must be performed; or
(iv) cancel the whole or a number of any unperformed hours of community
service; or
(v) revoke or vary any other condition of the bond; and
(b) in the case of any
other bond—may—
(i) extend the term of the bond by such period (not exceeding 12 months)
as the court thinks fit; or
(ii) impose a condition
on the bond requiring the probationer to perform a specified number of hours of
community service; or
(iii) revoke or vary any other condition of the bond; and
(c) if the bond has expired in any case—may require the probationer
to enter into a further bond, the term of which must not exceed 12
months.
(4)
Section 104
applies in relation to a bond in respect of which a condition requiring
the performance of community service is imposed under
subsection (3)(b)(ii)
.
(5) If a court revokes the suspension of a sentence of imprisonment, the
court may make any of the following orders:
(a) if it considers that there are special circumstances justifying it in
so doing—an order reducing the term of the suspended sentence;
(b) an order directing that time spent by the probationer in custody
pending determination of the proceedings for breach of condition be counted as
part of the term of the suspended sentence;
(c) in the case of a probationer whose sentence of imprisonment was
partially suspended under
section 95(5)
and even if the term of the sentence now to be served in custody is less
than 12 months—an order fixing or extending a non-parole period taking
into account the time spent in custody by the probationer before being released
on the bond;
(d) in the case of a bond with a home detention condition—an order
directing that the period of compliance by the probationer with that condition
be counted as part of the term of the suspended sentence;
(e) an order directing that—
(i) in the case of a sentence partially suspended under
section 95(4)
or
(5)
—any part of the sentence that the probationer has not served in
custody; or
(ii) in any other case—the suspended sentence,
be cumulative on another sentence, or sentences, of imprisonment then being
served, or to be served, by the probationer.
(6) If a court other than the probative court sentences a probationer for
the original offence, the court cannot impose a sentence that the probative
court could not have imposed.
Subdivision 2—Community
service orders and other orders of a non-pecuniary nature
114—Community
service orders may be enforced by imprisonment
(1) Subject to this section, an order requiring community service is
enforceable by imprisonment in default of compliance.
(2) The term of
imprisonment to be served in default of compliance will be—
(a) a term calculated on the basis of 1 day for each 7.5 hours of
community service remaining to be performed under the order; or
(b) 6 months,
whichever is the lesser.
(3) If it appears
to the court, by evidence given on oath, that a person has failed to comply with
an order requiring performance of community service, the court
may—
(a) issue a notice requiring the person to appear before the court at the
time and place specified in the notice to show cause why a warrant of commitment
should not be issued against the person for the default; or
(b) issue a warrant for the person's arrest.
(4) If a person fails to appear before the court as required by a notice
issued under
subsection (3)
, the court may issue a warrant for the person's arrest.
(5) If the court is
satisfied that the person has failed to comply with the order requiring
performance of community service—
(a) the court may
issue a warrant of commitment for the appropriate term of imprisonment fixed in
accordance with
subsection (2)
; but
(b) if the person is a youth, the court may, instead of taking action
under
paragraph (a)
, make an order for home detention for a period fixed on the same
basis.
(6) The court may, on issuing a warrant under
subsection (5)
, direct that the imprisonment to which the person becomes liable by virtue
of the warrant be cumulative on any other term of imprisonment being served, or
to be served, by the person.
(7) Despite
subsection (5)
, if the court is satisfied that the failure of a person to comply with an
order requiring performance of community service was trivial or that there are
proper grounds on which the failure should be excused, the
court—
(a) may refrain from issuing a warrant of commitment; and
(b) may—
(i) extend the term of the order by such period, not exceeding 6 months,
as the court thinks necessary for the purpose of enabling the person to perform
the remaining hours of community service (if any);
(ii) if the order has expired, impose a further order, for a term not
exceeding 6 months, requiring the person to perform the number of hours of
community service unperformed under the previous order;
(iii) cancel the whole or a number of the unperformed hours of community
service under the order.
(8) However, if the
court is satisfied that the person who has failed to comply with the order
requiring performance of community service has the means to pay a fine without
the person or the person's dependants suffering hardship, the court
may—
(a) revoke the community service order; and
(b) impose a fine not exceeding the maximum fine that may be imposed for
the offence in respect of which the community service order was made (or, if the
order was made in respect of more than 1 offence—the total of the maximum
fines that may be imposed for the offences).
(9) In imposing a fine under
subsection (8)
, the court must take into account the number of hours of community service
(if any) that the person performed under the revoked order.
115—Other
non-pecuniary orders may be enforced by imprisonment
(1) If it appears
to the court, by evidence given on oath, that a person has failed to comply with
an order requiring the person to do some act (other than the performance of
community service or the payment of a pecuniary sum), the court
may—
(a) issue a notice requiring the person to appear before the court at the
time and place specified in the notice to show cause why the person should not
be dealt with for the default; or
(b) issue a warrant for the person's arrest.
(2) If a person fails to appear before the court as required by a notice
issued under
subsection (1)
, the court may issue a warrant for the person's arrest.
(3) If the court is
satisfied that the person has failed to comply with the order, the court may
sentence the person to such term of imprisonment (not exceeding 6 months) as the
court thinks fit and issue a warrant of commitment accordingly.
(4) The court may, on issuing a warrant under
subsection (3)
, direct that the imprisonment to which the person becomes liable by virtue
of the warrant be cumulative on any other term of imprisonment being served, or
to be served by the person.
116—Registrar
may exercise jurisdiction under this Division
(1) Subject to
rules of court or the regulations, the powers of a court under
sections 114
and
115
are exercisable by—
(a) if the person in relation to whom the powers are to be exercised is a
youth—the Registrar of the Youth Court;
(b) in any other case—a Registrar of the Magistrates
Court.
(2) Subject to rules of court or the regulations, a person who is
aggrieved by a decision or order of a Registrar made under
subsection (1)
may apply in accordance with rules of court to the court for a review of
the decision or order.
(3) The court may, on completion of the review—
(a) confirm the decision or order;
(b) quash the decision or order and substitute any decision or order that
could have been made in the first instance;
(c) make any ancillary order (including an order as to costs) the court
thinks fit.
If the court issues an order for detention of a youth or sentences a youth
to detention under this Division—
(a) where the youth is already in custody in a prison, the youth will
serve the detention in a prison; or
(b) where the youth has previously served a sentence of imprisonment or
detention in a prison, the court may direct that the youth serve the detention
in a prison,
and the
Correctional
Services Act 1982
applies to and in relation to a youth serving detention in a prison under
this section.
118—Maximum
fine if no other maximum provided
If a fine is imposed in respect of an offence for which an Act or statutory
instrument does not prescribe a fine, the fine may not exceed—
(a) if the Supreme Court imposes the fine—$75 000;
and
(b) if the District Court imposes the fine—$35 000;
and
(c) if the Magistrates Court imposes the
fine—$10 000.
119—Order
for payment of pecuniary sum not to be made in certain
circumstances
(1) The court must not make an order requiring a defendant to pay a
pecuniary sum (other than a VIC levy) if the court is satisfied that the means
of the defendant, so far as they are known to the court, are such
that—
(a) the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of
dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a
lesser amount).
(2) Subject to
subsection (3)
, the court is not obliged to inform itself as to the defendant's means,
but it should consider any evidence on the subject that the defendant or the
prosecutor has placed before it.
(3) In considering
whether the defendant would be able to comply with the order, the court should
have regard to any information available to the court as to other pecuniary sums
that have been paid, or are payable, by the defendant.
120—Preference
must be given to compensation for victims
If a court considers—
(a) that it is appropriate—
(i) to make an order for compensation (under this Act or any other Act);
and
(ii) to impose a fine or make any other order for the payment of a
pecuniary sum; but
(b) that the defendant has insufficient means to pay both the compensation
and the fine or other pecuniary sum,
the court must give preference to compensation.
121—Court
not to fix time for payment of pecuniary sums
(1) If a court
makes an order requiring a defendant to pay a pecuniary sum, the court is not
empowered to make any order relating to the time or manner in which the sum is
to be paid.
(2)
Subsection (1)
does not derogate from an order of a court or an officer of a court that
was in force immediately before this section came into operation.
Part 6—Restitution
and compensation
Division 1—Restitution
and compensation generally
(1) If the offence
of which the defendant has been found guilty, or any other offence that is to be
taken into account by the court in determining sentence, involves the
misappropriation of property, the court may order the defendant, or any other
person in possession of the property, to restore the property to a person who
appears to be entitled to possession of the property.
(2) An order under
subsection (1)
does not prejudice a person's title to the property.
(1) Subject to this section, a court may make an order requiring a
defendant to pay compensation for injury, loss or damage resulting from the
offence of which the defendant has been found guilty or for any offence taken
into account by the court in determining sentence for that offence.
(2) An order for compensation may be made under this
section—
(a) either on application by the prosecutor or on the court's own
initiative; and
(b) instead of, or in addition to, dealing with the defendant in any other
way.
(3) If—
(a) a court finds a defendant guilty of an offence, or takes an offence
into account in determining sentence; and
(b) the circumstances of the offence are such as to suggest that a right
to compensation has arisen, or may have arisen, under this section,
the court must, if it does not make an order for compensation, give its
reasons for not doing so.
(4) Compensation under this section will be of such amount as the court
considers appropriate having regard to any evidence before the court and to any
representations made by or on behalf of the prosecutor or the
defendant.
(5) If property of which a person was dispossessed as a result of the
offence is recovered, any damage to the property while it was out of the
person's possession is to be treated for the purposes of this section as having
resulted from the offence.
(6) The power of a court to award compensation under this section is
subject to the following qualifications:
(a) no compensation may be awarded for injury, loss or damage caused by,
or arising out of the use of, a motor vehicle except damage to
property;
(b) no compensation may be awarded against an employer in favour of an
employee or former employee if—
(i) the offence arises from breach of a statutory duty related to
employment; and
(ii) the injury, loss or damage is compensable under the
Return
to Work Act 2014
;
(c) the Magistrates Court may not award more than $20 000 (or if a
greater amount is prescribed—the prescribed amount) by way of
compensation.
(7) Compensation may be ordered under this section in relation to an
offence despite the fact that compensation may be ordered under some other
statutory provision that relates more specifically to the offence or proceedings
in respect of the offence.
(8) The amount paid to a person pursuant to an order under this section
for compensation for injury, loss or damage must be taken into consideration by
a court or any other body in awarding compensation for that injury, loss or
damage under any other Act or law.
124—Certificate
for victims of identity theft
(1) A court that finds a person guilty of an offence
involving—
(a) the assumption of another person's identity; or
(b) the use of another person's personal identification
information,
may, on application by a victim of the offence, issue a certificate under
subsection (2)
.
(2) The certificate
is to give details of—
(a) the offence; and
(b) the name of the victim; and
(c) any other matters considered by the court to be relevant.
personal identification information has the same meaning as
in Part 5A of the
Criminal
Law Consolidation Act 1935
;
victim means a person whose identity has been assumed, or
personal identification information has been used, without the person's consent,
in connection with the commission of the offence.
Division 2—Enforcement
of restitution orders
125—Non-compliance
with order for restitution of property
(1) If—
(a) an order is made under
section 122
requiring property to be restored to a person; and
(b) the order is not complied with,
the person may request an authorised officer to take action under this
section for enforcement of the order.
(2) On receiving a
request under this section in relation to an order requiring the restitution of
property, an authorised officer may—
(a) enter any land
(using such force as may be necessary) on which the officer reasonably suspects
the property is situated and seize and remove the property; or
(b) cause the
property to be valued (in such manner as the officer thinks fit) and make an
order requiring the defendant to pay to the person an amount equal to the value
of the property.
(3) In exercising powers under
subsection (2)(a)
, an authorised officer may be assisted by such other persons (including a
member of the police force) as the officer considers necessary in the
circumstances.
(4) An authorised officer who makes an order under
subsection (2)(b)
must cause a copy of the order to be served on the defendant personally or
by post.
(5) An order under
subsection (2)(b)
—
(a) may be made in the absence of, and without prior notice to, the
defendant; and
(b) may be varied or cancelled by an authorised officer in such
circumstances as the officer considers just; and
(c) is enforceable as a pecuniary sum.
(6) The prescribed fees for issuing, serving and executing an order under
subsection (2)(b)
are payable in addition to the amount specified in the order as the value
of the relevant property and form part of the amount payable under the
order.
authorised officer means the sheriff or a person authorised
in writing by the sheriff for the purposes of this section;
defendant, in relation to property, means the defendant in
the proceedings in which the order requiring restitution of the property was
made.
126—Power
of delegation—intervention program manager
(1) An intervention program manager may, by instrument in writing,
delegate a power or function under this Act—
(a) to a particular person; or
(b) to the person for the time being occupying a particular position.
(2) A power or function so delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will.
(1) The Governor
may make such regulations as are contemplated by, or as are necessary or
expedient for the purposes of, this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) prescribe forms for the purposes of this Act;
(b) prescribe, or provide for the calculation of, costs, fees or charges
for the purposes of this Act;
(c) exempt any person or class of persons from the obligation to pay any
costs, fees or charges so prescribed;
(d) prescribe penalties, not exceeding $5 000, for breach of, or
non-compliance with, a regulation.
(3) The regulations may—
(a) be of general or limited application; and
(b) make different provision according to the persons, things or
circumstances to which they are expressed to apply; and
(c) provide that a specified provision of this Act does not apply, or
applies with prescribed variations, to any person, circumstance or situation (or
person, circumstance or situation of a prescribed class) specified by the
regulations, subject to any condition to which the regulations are expressed to
be subject; and
(d) provide that any matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister, an
authorised officer or another prescribed person.
(4) The regulations may make provisions of a savings or transitional
nature consequent on the commencement of any provisions of this Act (including
provisions of a transitional nature modifying any provisions of this
Act).
Schedule 1—Repeal
and transitional provisions
Part 1—Repeal of Criminal Law (Sentencing)
Act 1988
The
Criminal
Law (Sentencing) Act 1988
is repealed.
Part 2—Transitional
provisions
(1) Subject to this clause, this Act applies to the sentencing of a
defendant after the commencement of this Act, regardless of whether the offence
for which the defendant is being sentenced was committed before or after that
commencement.
(a) the old sentence reduction provisions of the repealed Act will
continue to apply in relation to the sentencing of a defendant for an offence
where the proceedings for that offence are commenced before the commencement of
the amendments to the repealed Act to be effected by the
Summary
Procedure (Indictable Offences) Amendment Act 2016
; while
(b) the new sentence reduction provisions of this Act will apply in
relation to the sentencing of a defendant for an offence where the proceedings
for that offence are commenced after the commencement of the amendments to the
repealed Act to be effected by the
Summary
Procedure (Indictable Offences) Amendment Act 2016
, regardless of when the offence was committed
(3) In this clause—
new sentence reduction provisions means
Part 2
Division 2 Subdivision 4
of this Act;
old sentence reduction provisions means sections 10A, 10B and
10C and Part 2 Division 6 of the repealed Act;
repealed Act means the
Criminal
Law (Sentencing) Act 1988
repealed by
clause 1
.