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CLAUSE NOTES
Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences
Against Children) Bill 2018
Clause 1: Short title
Cites the Act as the Sentencing Amendment (Mandatory Sentencing for Serious Sexual
Offences Against Children) Act 2018.
Clause 2: Commencement
Clause 2 provides for the provisions of the Act to commence on Royal Assent.
Clause 3: Principal Act
Clause 3 provides that the Principal Act to which the amendments apply is the
Sentencing Act 1997.
Clause 4: Section 16AA inserted
Clause 4 inserts sections 16AA into the Sentencing Act 1997.
Section 16AA provides for the matters the court is to have regard to in determining
whether exceptional circumstances exist for the purposes of sections 16A and 16B of
the Sentencing Act 1997.
Clause 5: Sections 16B and 16C inserted
Clause 5 inserts sections 16B and 16C, defines ‘aggravating circumstance’, and defines
‘minimum period’ for the purposes of sections 124 (Sexual intercourse with a young
person), 125A (Maintaining sexual relationship with a young person) and 185 (Rape) of
the Criminal Code.
Section 16B provides that:
the minimum term of imprisonment for an offence under section 124 of the
Criminal Code committed in relation to a victim under 17 years in a circumstance
of aggravation is 2 years’ imprisonment;
the minimum term of imprisonment for an offence under section 125A of the
Criminal Code committed in relation to a victim under 17 years in a circumstance
of aggravation is 3 years’ imprisonment if none of the unlawful sexual acts is a
crime of rape;
the minimum term of imprisonment for an offence under section 125A of the
Criminal Code committed in relation to a victim under 17 years is 4 years’
imprisonment where one of the unlawful sexual acts is a crime of rape;
the minimum term of imprisonment for an offence under section 185 of the
Criminal Code committed in relation to a victim under 17 years is 4 years’
imprisonment; and
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a mandatory minimum sentence does not apply to offenders who are under the
age of 18 years at the time of the commission of the offence, or to offenders
with impaired mental functioning that is causally linked to the offence, or where
there are exceptional circumstances.
Section 16C provides that:
section 10(2)(b)(v) of the Sentencing Act 1997 does not apply in relation to an
offence to which new section 16B applies, to the extent that section 10(2)(b)(v)
might otherwise require sections 16B or 16C to apply to an offence in relation
to which a finding of guilt has been made but a conviction has not been
recorded;
the court must not make or amend an order (with the exception of a parole
order) if the effect is that the offender is not imprisoned for the mandatory
minimum period;
section 11 of the Sentencing Act 1997 applies to an offence to which section
16B applies, such that the court may make a single, general or mixed sentence;
courts may impose in respect of an offence to which section 16B applies a term
of imprisonment of more than the mandatory minimum period set out in
section 16B;
sentences are to operate as a ‘floor’ for offences rather than increasing all
sentences;
section 12 of the Sentencing Act 1997 does not apply in relation to an offence
to which section 16B applies, that is, the court may not impose a non-custodial
sentence as an alternative; and
the court may make additional sentencing orders that do not impact the
operation of the sentence of imprisonment.
Clause 6: Repeal of Act
Clause 6 inserts a repeal provision to remove the empty shell of the Bill after its
provisions have come into effect.
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