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CRIMES (SENTENCING) BILL 2005
2005
LEGISLATIVE ASSEMBLY
FOR THE
AUSTRALIAN CAPITAL TERRITORY
CRIMES
(SENTENCING) BILL 2005
EXPLANATORY
STATEMENT
Circulated by authority of the
Attorney General
Jon
Stanhope MLA
Crimes (Sentencing) Bill
2005
Outline
The Crimes (Sentencing) Bill 2005 consolidates existing sentencing laws
set out in a number of different statutes. The Bill also introduces a number of
new options for sentencing courts and modernises the law.
The Bill
introduces the concept of combination sentences that allow for greater
flexibility in sentencing. The Bill enables Courts to combine penalties for
individual convictions, allowing greater flexibility to customise sentences to
the offence, the offender and the circumstances of the offence. Combination
sentences aim to improve the options available to Courts to maximise the
prevention, management and rehabilitation of offending behaviour, depending upon
the nature of the offending person.
Other new sentencing options are
non-association orders and place restriction orders against offenders who commit
offences involving violence against a person. Non-association orders prohibit
an offender from associating with a specified person for a specified time.
Place restriction orders prohibit an offender from frequenting, or visiting, a
specified place or district for a specified time.
The Bill also
formalises and extends the Griffiths remand option, under the label of
deferred sentence orders. These orders will enable the Court to adjourn
proceedings to provide an offender with an opportunity to address their criminal
behaviour before sentencing. In this way the Court can assess the
offender’s prospects for rehabilitation, or the offender’s ability
to address their criminal behaviour.
While maintaining traditional
sentencing options, the Bill also modernises sentencing terminology. For
example, the term recognisance has been replaced with good behaviour
order.
The Bill changes how certain non-imprisonment orders can be made.
Rather than existing as a stand-alone dispositions, probation, community service
and rehabilitation are all conditions of a good behaviour order. Greater
flexibility for community service is provided by increasing the maximum number
of hours that can be ordered to 500 and the provisions dealing with how
community service hours work is counted are updated. Changing the framework for
these orders also enables a consistent and simple procedure for dealing with
breaches.
Victim impact statements can now be made by people with
parental responsibility for a victim, a close family member of a victim as
provisions, a carer of a victim and a person with an intimate personal
relationship with the victim. Victim impact statements can be given orally in
court by, or for, a victim and can be made if the trial was for an offence
holding a punishment of more than a year’s
imprisonment.
Crimes (Sentencing) Bill
2005
Detail
Chapter
1 — Preliminary
Clause 1 — Name of Act
This is a technical clause which names the short title of the Act. The
name of the Act would be the Crimes (Sentencing) Act 2005.
Clause 2— Commencement
This clause enables the Act to commence on a day nominated by the Minister
in a commencement notice. The provisions for a commencement notice are set out
in section 77 of the Legislation Act 2001.
If the Minister does not commence the Act six months after the Act is
notified on the Legislation Register, then the Act automatically commences the
following day. The provisions for automatic commencement are set out in section
79 of the Legislation Act 2001.
Clause 3— Dictionary
This is a technical clause identifying the dictionary and explaining
conventions used to define words and terms.
Clause 4 — Notes
This is a technical clause explaining the status of notes to the
Act.
Clause 5 — Offences against Act —
application of Criminal Code etc
This clause makes it clear that the Criminal Code 2002 applies to
the Act.
Chapter 2 — Objects and
important concepts
Clause 6 — Objects of Act
The objects in clause 6, and the purposes informing sentencing outlined in
clause 7 are a legislative statement of the fundamental reasons for the Act
and the balancing of interests that occurs in sentencing orders.
In
Veen v The Queen [No.2] 164 CLR 465 Chief Justice Mason and Justices
Brennan, Dawson and Toohey of the High Court noted that:
. . .
sentencing is not a purely logical exercise, and the troublesome nature of the
sentencing discretion arises in large measure from unavoidable difficulty in
giving weight to each of the purposes of punishment. The purposes of criminal
punishment are various: protection of society, deterrence of the offender and of
others who might be tempted to offend, retribution and reform. The purposes
overlap and none of them can be considered in isolation from the others when
determining what is an appropriate sentence in a particular case. They are
guideposts to the appropriate sentence but sometimes they point in different
directions. [at 476.]
Clause 7 — Purposes of sentencing
The purposes of sentencing set out in clause 7 represent the purposes
articulated by Courts and Parliaments accrued over centuries of law. The clause
intends to maintain the historical continuity. Clause 7(2) ensures there is no
weight attached to the order of the purposes in 7(1).
Clause 8 — Meaning of
offender
Clause 8 specifies that an offender is a person who is either found guilty
of an offence or convicted of an offence. Found guilty includes a finding of
guilt by a jury and conditional release by a Court
after it has found charges proven but has not convicted a
person.
A conviction is the complete
orders made by a court after finding an accused person guilty of an offence
including both the finding of guilt and the sentence passed. In some instances
a Court may have reached a finding of guilt yet not completed its official
function by formally convicting and sentencing a person, because for example,
the Court has ordered something else to happen in the interim. In other
instances a court may convict a person by its actions when it finds a person
guilty and proceeds to sentence the person without explicitly stating that the
person is convicted.
The clause
includes a particular definition of offender for pre-sentence reports, namely
that a person has indicated that they will plead guilty to an
offence.
Chapter 3 — Sentencing and
non-conviction options
Part 3.1 —
General
Clause 9 — Imposition of
penalties
Clause 9(1) stipulates that a penalty that a court of the Australian
Capital Territory can impose is any penalty set out in the Bill or any existing
Australian Capital Territory law.
Clause 9(2) specifies that the
procedure in this Bill for the imposition of penalties applies to all Territory
penalties. Note 1 is a useful summary of the sentencing dispositions available
to the courts. Note 2 indicates that the Bill would authorise a combination of
the sentencing dispositions.
Part 3.2 — Sentences of
imprisonment
Clause 10 —
Imprisonment
Clause 10 provides the overarching power for a court to sentence a
convicted person to imprisonment. Imprisonment is the confinement of an
offender in the custody of the state, and restrains the liberty of the person
during the time of imprisonment.
Clause 10(2) makes it clear that all, or
part of a sentence, can be served in prison.
Clause 10(3) states that
imprisonment must be served by full-time detention in custody unless another
disposition is ordered or authorised by a court, or authorised by legislation.
Examples include a suspended sentence order made by a court (clause 12),
periodic detention (clause 11) and release on parole (part 5.2).
Clause
10(4) requires the court to give reasons if imprisonment is imposed, and clause
10(7) clarifies that clause 10 is subject to chapter 5.
Clause 10(5)
enables the substance of sentence to be upheld despite the fact that a Court or
the Executive did not comply with clause 10.
Clause 10(6) clarifies that the section applies to Territory law unless a
contrary intention is established in the law that creates an offence.
Clause 11 — Periodic detention
Periodic detention is part-time imprisonment. An offender is in full-time
custody for a period of a week, usually over the weekend. This arrangement
allows both the imposition of a custodial sentence and the maintenance of an
offender’s positive contribution to the community such as family life,
work or study.
The Government has opted for a form of periodic detention
linked to a sentence of imprisonment. A Court may set a period of periodic
detention if a sentence of imprisonment is imposed. ACT Corrective Services has
the responsibility of implementing the periodic detention and the Sentence
Administration Board has the responsibility of addressing any breaches of
periodic detention and if necessary reverting the offender to full-time
imprisonment.
Clause 11(1) stipulates that periodic detention is only
available if a person is convicted and sentenced to imprisonment.
Clause
11(2) authorises the Court set a period of imprisonment that may be served by
way of periodic detention.
Clause 11(3) allows periodic detention to be
set for all, or part, of a sentence of imprisonment. However, a period of
periodic detention has to be at least three months but no longer than two
years.
In clause 11(4) the Court is required to state when the period of
periodic detention should begin, and the length of the period, and the first day
of detention. This allows the Court to contemplate time already spent by the
offender in custody.
Clause 11(5) enables the Court to recommend to the
Sentence Administration Board any conditions to be imposed upon the offender the
Court considers appropriate for enforcing or managing the offender during the
period of periodic detention.
Clause 11(6) clarifies that clause 11 is
subject to chapter 5 of the Bill.
Clause 12 — Suspended sentences
A suspended sentence enables a court to sentence an offender to a term of
imprisonment and then suspend the execution of that imprisonment on the basis
that the offender complies with conditions set by the Court. The tool for
setting conditions in this Bill is the good behaviour order. If the offender
breaches the good behaviour order made in conjunction with a suspended sentence,
the Court will have authority to execute the sentence or re-sentence the
offender.
Clause 12(1) states that a suspended sentence can only be
ordered if the offender is both convicted of an offence and sentenced to
imprisonment.
Clause 12(2) enables the Court to suspend all or part of
the imprisonment. The offender will be imprisoned for the period of time not
suspended by the Court.
Clause 12(3) requires the Court to make a good
behaviour order for the period of the suspended sentence, and longer if the
Court determines. In making a good behaviour order in conjunction with the
suspended sentence the Court will impose conditions upon the offender that the
Court requires the offender to meet to prevent the execution of the
sentence.
If a sentence is fully suspended, clause 12(4) requires the
Court to notify the offender and give them a copy of the order. However, if a
court does not succeed in doing this, 12(5) ensures that the order still
stands.
Clause 12(6) clarifies that clause 12 is subject to the
provisions governing good behaviour orders at clause 13 and chapter 6, and
imprisonment at chapter 5. These are discussed below.
Part 3.3 — Non-custodial
alternatives
Clause 13 — Good behaviour
orders
Good behaviour orders replace recognisances and options available currently
under section 403 of the Crimes Act 1900. The Bill contemplates these
orders to be used in conjunction with other orders, such as suspended sentences,
combination sentences, periodic detention, non-conviction orders
etc.
Clause 13(1) enables good behaviour orders to be made by a court if
an offender is convicted or found guilty. (Clause 8 above discusses the nuances
of convicted and found guilty.)
Clause 13(2) empowers the Court to make
good behaviour orders that requires an offender to sign an undertaking to comply
with the order’s obligations. The foreshadowed Crimes (Sentence
Administration) Bill will include an obligation to comply with any statutory
conditions and conditions set by the Court.
Clause 13(3) sets out the
overarching conditions that can be imposed by a good behaviour order. In
13(3)(a) the offender, or another person (a surety), can be required to lodge an
amount of money with the Court. The amounts can be up to $10,000 for the
Supreme Court and $2000 for the Magistrates Court. These amounts are at risk of
forfeiture if the offender does not comply with the good behaviour
order.
In 13(3)(b) the Court can impose a condition that the offender
carries out community service. Community service work is discussed below at
part 6.1.
In 13(3)(c) the Court can impose a condition that the offender
engages in a rehabilitation program. Rehabilitation programs are discussed at
part 6.2.
Clause 13(3)(d) enables the Court to impose a probation
condition as part of a good behaviour order. In essence, probation requires the
person to be under the supervision of a corrections officer, or other authority,
and to obey the directions of that officer.
Clause 13(3)(e) authorises
the Court to impose a reparation order as part of the good behaviour order.
Reparation orders are discussed at clause 19.
Clause 13(3)(f) authorises
the Court to impose any condition prescribed in regulations made by the
Executive.
Clause 13(3)(g) authorises the Court to impose any conditions
the Court considers appropriate and consistent with this Bill and the
foreshadowed Crimes (Sentence Administration) Bill. Examples are
provided.
Clause 13(4) makes it clear that a court can make a good
behaviour order in lieu of imprisonment, or in combination with
imprisonment.
Clause 13(5) clarifies that clause 13(4) does not limit the
Court’s power to impose sentences.
Clause 13(6) enables a
synonymous relationship between good behaviour orders and specific conditions
set in the good behaviour order. So a good behaviour order with a community
service condition can be regarded, and treated, as a community service
order.
Clause 13(7) establishes that clause 13 is subject to clause 17
dealing with non-conviction orders and chapter 6 dealing with good behaviour
orders.
Clause 14 — Fines — orders to
pay
Clause 14(1) and (2) empowers a court to make an order to pay a fine if a
person is convicted of an offence.
Clause 14(3) clarifies that the Court
does not have an obligation to investigate, inquire or seek evidence about a
person’s financial circumstances before making a fine order. However, if
an offender presents evidence of their financial situation the Court must
consider the facts when contemplating a fine order. This will enable the Court
to assess if a fine order will have any utility, given the offender’s
financial circumstances.
Clause 14(4) provides courts with the discretion
to make a fine order if no explicit punishment of a fine exists in the
expression of the offence.
Clause 14(5) requires the Court to state the
amount of the fine and the method of paying the fine.
Clause 14(6)
obliges the Court to provide a written notice of the fine order and a copy of
the order to the offender. However, if a court does not succeed in doing this,
14(7) ensures that the order still stands.
Clause 15 — Fines — maximum
amounts
Clause 15 sets out the maximum fine the Supreme Court ($10,000) and the
Magistrates Court ($2000) is authorised to impose if the offence itself does not
stipulate the maximum fine.
Clause 16 — Driver licence disqualification
orders — motor vehicle theft
Offences involving theft of a motor vehicle or taking a motor vehicle
without consent may attract a penalty of licence disqualification. Clause 16(1)
sets out the type of offences that hold this penalty if the person is found
guilty or convicted.
Clause 16(2) authorises the Court to disqualify an
offender’s licence for a period set by the Court.
Clause 16(3)
clarifies that the exercise of the power to disqualify licences does not impede
or vary any other power the Court may have in Territory law.
Clause 16(4)
obliges the Court to provide a written notice of the fine order and a copy of
the order to the offender and the road transport authority. However, if a court
does not succeed in doing this, 16(5) ensures that the order still
stands.
Clause 16(6) defines certain terms in cause 16. ‘Motor
vehicle’ means a car, car derivative or motorbike. ‘Road transport
legislation’ is the sum of the following Acts:
Road Transport (General) Act
1999; Road Transport (Alcohol
and Drugs) Act 1977; Road
Transport (Dimensions and Mass) Act 1990;
Road Transport (Driver Licensing) Act
1999; Road Transport (Public
Passenger Services) Act 2001;
Road Transport (Safety and Traffic
Management) Act 1999; Road
Transport (Vehicle Registration) Act 1999; and any other Act or any
regulations prescribed under the Road
Transport (General) Act 1999.
Clause 17 — Non-conviction orders
This clause replaces the commensurate provisions in section 402 of the
Crimes Act 1900.
Clause 17(1) authorises non-conviction orders to
be made if a person is found guilty but the Court does not proceed to
conviction. (Clause 8 above discusses found guilty and conviction.) In
Properjohn v Gaughan [1998] SCACT 26 No. SCA 100 of 1997, Justice Gallop
discussed non-conviction orders in reference to the High Court’s judgement
in Griffiths v The Queen 137 CLR 293. Justice Gallop concluded that a
non-conviction order is an alternative to conviction and punishment.
A
non-conviction order is, therefore, not a sentence. However, if a person
breaches any conditions set by the non-conviction order the Court is still
empowered to bring the person before the Court and sentence the person for the
offence in question.
Clause 17(2) authorises the Court to make a
non-conviction order if the Court considers punishment is not appropriate. The
order can dismiss the charge or make a good behaviour order for no longer than
three years.
When made in conjunction with a non-conviction order, a good behaviour
order cannot include a punishment, as discussed by Justice Gallop in
Properjohn. However, the person found guilty can agree to abide by a
good behaviour order and conditions of the order — such as probation and
rehabilitation, fulfilling a reparation order etc — knowing that a breach
of the order may result in a sentence. (A reparation order is not a sentence in
the context of a non-conviction order, as reparation involves returning property
unlawfully taken or making up for a loss as a direct consequence of an
offence.)
Clause 17(3) and (4) set out the criteria the Court must
consider when contemplating a non-conviction order.
Clause 17(5) obliges
the Court to provide a written notice of the non-conviction order and a copy of
the order to the offender. However, if a court does not succeed in doing this,
17(6) ensures that the order still stands.
Clause 17(7) clarifies that
clause 17 is subject to the provisions governing good behaviour orders at clause
13 and chapter 6. These are discussed below.
Clause 18 — Non-conviction orders —
ancillary orders
In conjunction with a non-conviction order, clause 18 enables the Court to
impose ancillary orders of: restitution; compensation; costs; forfeiture;
destruction; or licence disqualification or suspension.
Clause 19 — Reparation orders — losses
and expenses generally
Clause 19(1) allows a reparation order to be made if a person is found
guilty of an offence and a victim of the crime suffers a loss or incurs an
expense as a direct consequence of the offence.
By reference to the
Criminal Code 2002, clause 19(5) defines ‘loss’ as
a loss in property, whether temporary or permanent,
and includes not getting what one might get.
Clauses 19(2) and (3)
enables the Director of Public Prosecutions to apply to the Court for a
reparation order, or for a court on its own initiative, to make a reparation
order.
Clause 19(4) clarifies that clause 19 is subject to chapter
7.
Clause 20 — Reparation orders — stolen
property
If an offender is convicted or found guilty of an offence that involves
stealing property, clause 20 enables a reparation order to be
made.
Clauses 20(2) and (3) enables the Director of Public Prosecutions
to apply to the Court for a reparation order, or for a court on its own
initiative, to make a reparation order. The order can require the property in
question to be returned to the person who has the right to own or possess the
property. Alternatively, the order can require the offender to pay an amount
equal to the value of the stolen property to the person who had the right to own
or possess the property.
Orders under clauses 19 and 20 can be made in
conjunction with one another, as clause 19 contemplates loss other than just
property stolen. For example, if a plumber’s tools are stolen and the
plumber is unable to work until alternative tools are obtained, the loss in
earnings for that time may be contemplated by a reparation order in clause
19.
The amount recoverable will be an amount not exceeding the value of
the stolen property together with the amount of any additional loss suffered, or
expense, including any out-of-pocket expenses, incurred as a direct result of
the commission of the offence.
Clause 20(4) contemplates people who have
innocently purchased stolen property or people who have borrowed money using the
property in question as security for the loan.
If the Court makes a
reparation order under clause 20(3)(a), or the Director of Public Prosecutions
makes an application, the Court can order the offender to pay an innocent
purchaser the money paid by the purchaser, or pay a lender the amount owed by
the innocent borrower.
Clause 20(5) clarifies that clause 20 is subject
to chapter 7.
Clause 20(6) defines stolen property by reference to the
Criminal Code 2002, being: original stolen
property; or previously received property; or tainted
property.
Stolen property
may include all or any part of a general
deficiency in money or other property even though the deficiency is made up of a
number of particular amounts of money or items of other property that were
appropriated or obtained over a
period.
Stolen
property does not include land
appropriated or obtained in the course of theft or obtaining property by
deception.
Property is
original stolen property
if it is property, or a part of
property, that was appropriated in the ACT in the course of theft or a related
offence; or in a place outside the ACT in the course of an offence in that place
that would have been theft or a related offence if it had happened in the ACT,
whether or not the property, or the part of the property, is in the state it was
in when it was appropriated; and is in the custody or possession of the person
who appropriated it.
Original stolen
property is also property, or a part of property, that was obtained in the ACT
in the course of obtaining property by deception; or in a place outside the ACT
in the course of an offence in that place that would have been obtaining
property by deception if it had happened in the ACT whether or not the property,
or the part of the property, is in the state it was in when it was obtained; and
is in the custody or possession of the person who obtained it or for whom it was
obtained.
Property is
previously received property
if it is property that was received in
the ACT in the course of an offence of receiving; or in a place outside the ACT
in the course of an offence in that place that would have been receiving if it
had happened in the ACT; and is in the custody or possession of the person who
received it in the course of that offence.
Property is
tainted property if
it is, in whole or part, the proceeds of sale of, or property exchanged for:
original stolen property; or previously received property; and
in the custody in possession of the person who
appropriated it or obtained it.
If an
amount credited to an account held by a person is property obtained in the ACT
in the course of obtaining property by deception (or outside the ACT in the
course of an offence that would have been obtaining property by deception if it
had happened in the ACT):
the property is
taken to be in the possession of the person while all or any part of the amount
remains credited to the account; and
the
person is taken to have received the property if the person fails to take the
steps that are reasonable in the circumstances to ensure that the credit is
cancelled.
Part 3.4 — Non-association and place
restriction orders
Clause 21 —
Definitions for part 3.4
A non-association order is an order prohibiting an offender from
associating with a specified person for a specified time. A place restriction
order is an order prohibiting an offender from frequenting, or visiting, a
specified place or district for a specified time. Further, a non-association
order can be limited (prohibiting the offender from being in company with a
specified person) or unlimited (prohibiting the offender from being in company
with or communicating by any means with a specified person).
Clause 21
defines non-association orders and place restriction orders.
Clause 22 — Application of part 3.4
Clause 22 establishes that non-association and place restriction orders can
be made if a periodic detention period is set or a good behaviour order is
made. If any combination of these orders are made consecutively or
concurrently, then again, place restriction and non-association orders can be
made.
Clause 23 — Non-association and place
restriction orders — when may be made
Clause 23(1) allows the Court to make a non-association or place
restriction order if the offence contemplated is a personal violence offence and
the Court considers the order necessary and reasonable to prevent harassment,
prevent further offences or assist to manage offending behaviour.
Clause
23(2) requires the Court to make the order proportionate to the purpose of the
order.
Examples:
Darryn is convicted of stalking. During the
trial it was evident that Darryn was obsessed with a particular person who works
at a restaurant in Civic. The court sentences Darryn to a term of periodic
detention and orders Darryn not to go to the restaurant, the restaurant’s
outdoor eating area or the home of the victim, or to associate with the victim
or specified friends of the victim for 12 months. The order is proportionate to
the purpose of the order.
If the court had ordered that Darryn could not
associate with anyone of the same gender and age of the victim, or that Darryn
couldn’t go to Civic, the order would not be proportionate to the purpose
of the order.
Patricia is convicted of common assault. The assault arose
in the context of an industrial dispute. The court sentences Patricia to
periodic detention for a year and orders Patricia not to associate with the
victim of the assault for 12 months.
If the court had ordered that
Patricia should not associate with anyone in her industrial organisation, it
would be disproportionate and a breach of human rights. If the court had
ordered that Patricia should not associate with anyone from the industrial
organisation the assaulted person belongs to, this would also be
disproportionate.
Todd is found to have committed an act of indecency in
the presence of a young person. During the trial the court heard evidence that
Todd frequented schools and committed the offence in the grounds of a school.
Todd has a mental impairment. Although the trial established that Todd did know
the act was wrong, the Court has taken Todd’s impairment into account.
Todd is sentenced to a good behaviour bond. Amongst other things, the Court
makes a place restriction orders that prohibits Todd from being in, or going
within a stated distance of, schools.
Clause 23(3) makes it clear that
the exercise of the power to impose non-association and place restriction orders
not impede or vary any other power the Court may have in Territory
law.
Clause 23(4) defines harm and personal violence offence for the
purposes of non-association orders and place restriction orders.
Harm
mean physical harm to a person, including
unconsciousness, pain, disfigurement, infection with a disease and any physical
contact with the person that a person might reasonably object to in the
circumstances (whether or not the person was aware of it at the time). Harm
also means harm to a person’s mental health, including psychological harm,
but not including mere ordinary emotional reactions (for example, distress,
grief, fear or anger) — whether temporary or permanent — but does
not include being subjected to any force or impact that is within the limits of
what is acceptable as incidental to social interaction or to life in the
community.
Personal violence offence means any offence that causes
harm or threatens harm to anyone. Personal violence offence also contemplates
domestic violence offences. A domestic violence offence
Domestic
violence offences are set out in the Protection Orders Act 2001. Section
9(1) of the Protection Orders Act 2001 sets out the meaning of domestic
violence. Section 9(2) refers to the various criminal offences that are taken
to be domestic violence when they are committed in a domestic context.
In
essence, a person’s behaviour is domestic violence if the
behaviour:
• causes, or threatens, physical injury to a relevant
person;
• causes, or threatens, damage to the property of a relevant
person;
• is directed, or threatened to be directed, at a relevant
person and is a domestic violence offence; or
• is harassing or
offensive towards a relevant person.
A
relevant person, in relation to the Protection Orders Act 2001, is
either a domestic partner; a relative; a child of a domestic partner; or a
parent of a child when the other parent of the child is the alleged
offender.
Clause 24 — Non-association and place
restriction orders — maximum period
Clause 24 limits the length of a non-association order and a place
restriction order to 12 months from the day the order starts. However, clause
24(2) makes it clear that the term of any other sentence does not limit the
length of a non-association or place restriction order. For example, if a good
behaviour order and a non-association order is made at the same time and the
good behaviour order only lasts for six months, the Court is still able to order
that the non-association order last 12 months.
Clause 25 — Non-association and place
restriction orders — explanation and official notices
Clause 25(1) requires the Court to explain to the offender the nature of
the order imposed, the obligations upon the offender because of the order and
the consequences of failing to comply with the order. This clause only requires
the Court to do what is reasonable to explain the order to the
offender.
Clause 25(2) obliges the Court to provide a written notice of
the non-association or place restriction order (or both) and a copy of the order
to the offender. However, if a court does not succeed in doing this, 25(3)
ensures that the order still stands.
Clause 26 — Non-association orders —
disclosure of identifying information
Clause 26 upholds the privacy of people who may benefit from
non-association orders. For example, Alice has been stalked by Mary. Mary
becomes subject to a non-association order that stipulates Mary cannot attempt
to be with or communicate with Alice. Alice benefits from the order and clause
26 protects Alice’s privacy despite the fact that Mary’s sentencing
hearing was in open court.
Clause 26(1) creates an offence for publishing
the fact that someone, other than an offender, is named by a non-association
order. An offence is also created if information that could identify an
individual, other than an offender, as being named in a non-association
order.
Clause 26(2) excludes specific classes of people who would not be
liable for the offence in clause 26(1). There are particular people who because
of their profession or job would be privy to the information. These people are
defined as relevant people in clause 26(5), namely: the offender; any person
named in the order; police; anyone who administers the order or other relevant
orders; anyone involved in breaches of the order; any person named in the order
as a person who may be told, informed, or written to about the order (as per
clause 26(5)(b)); and anyone else authorised by Australian law.
Clause
26(2) also exempts from prosecution people named in the order and anyone
involved in publishing the Court’s proceedings.
Clause 26(3)
obliges the Court not to authorise publication to named people unless the Court
is satisfied that the interests of justice will be served.
Clause 26(4)
stipulates that the offence created by clause 27 is a strict liability offence.
The Criminal Code 2002 sets out the nature of a strict liability offence
at section 23:
(1) If a law that creates an offence provides that the
offence is a strict liability offence—
(a) there are no fault elements
for any of the physical elements of the offence; and
(b) the defence of
mistake of fact under section 36 (Mistake of fact—strict liability) is
available.
(2) If a law that creates an offence provides that strict
liability applies to a particular physical element of the offence—
(a)
there are no fault elements for the physical element; and
(b) the defence of
mistake of fact under section 36 is available in relation to the physical
element.
(3) The existence of strict liability does not make any other
defence unavailable.
Part 3.5 — Deferred sentence orders
Deferred sentence orders are a codification of an existing power available
to the Court known as Griffiths remands following the High Court’s
decision in Griffiths v The Queen 137 CLR 293.
Deferred sentence
orders will enable the Court to adjourn proceedings to provide an offender with
an opportunity to address their criminal behaviour before sentencing. In this
way the Court can assess whether the offender demonstrates prospects for
rehabilitation, or the offender’s ability to address their criminal
behaviour.
Clause 27 — Deferred sentence orders —
making
Clause 27(1) sets out the criteria that must exist before a deferred
sentence order can be made. Clause 27(1)(a) requires that the offender has been
convicted or found guilty, while (1)(b) and (c) requires that the offender
isn’t already serving a prison sentence or liable to serve a prison
sentence.
Clause 27(1)(d) is the consideration that gives the deferred
sentence order its particular quality, namely that the Court considers the
offender should be given an opportunity to address their criminal
behaviour.
Clause 27(1)(e) requires the Court to consider if the offender
would be entitled to bail under the Bail Act 1992. The Bail Act
1992 contemplates a presumption against bail for certain offences and
circumstances in Division 2.4. Likewise the Bail Act 1992 also includes
a neutral presumption for offences contemplated by Division 2.3.
If an
offender was not entitled to bail, a deferred sentence order could not be
made.
Clause 27(2) authorises the Court to make a deferred sentence order
and to require the offender to appear before it at a later, stated time. Clause
125 (discussed below) limits the order to a period of 12 months.
Clause
27(3) requires the Court to apply the Bail Act 1992 to the person’s
release if a deferred sentence order is made.
Clause 27(4) clarifies that
deferred sentence orders are not limited to sentences of imprisonment, but may
also be used for other sentences such as good behaviour orders.
Clause
27(5) enables the Court to apply any conditions the Court deems appropriate.
These conditions are in addition to any conditions the Court may set under the
Bail Act 1992.
Clause 27(6) clarifies that clause 27 is subject
to chapter 8 (discussed below).
Part 3.6 — Combination sentences
Part 3.6 provides for combination sentences. The Court will have the
flexibility of imposing any number of orders as part of a whole sentence. For
example, the Court may impose a sentence of full-time imprisonment with a period
of periodic detention, followed by a good behaviour order with a community
service conditions.
Clause 28 — Application of part 3.6
Clause 28 stipulates that part 3.6 applies only if an offender is convicted
of an offence.
Clause 29 — Combination sentences —
offences punishable by imprisonment
Clause 29(1) authorises the Court to impose a sentence that combines a
number of orders. The orders are:
(a) a sentence of imprisonment (see part
3.2 above);
(b) a suspended sentence (see clause 12 above);
(c) a good
behaviour order (see clause 13 above);
(d) a fine order (see clause 14
above);
(e) a diver licence disqualification order (see clause 16
above);
(f) a reparation order (see clauses 19 and 20 above);
(g) &
(h) a non-association or place restriction order, or both, (see part 3.4)
above;
(i) a treatment order under the Drugs of Dependence Act 1989;
and
(j) any order imposing any other penalty available under any other
Territory law.
Item (j) is included to contemplate any type of lawful
penalty that has yet to be made or was not contemplated at the time the Bill was
made.
Clause 29(1) provides three examples of how combination sentences
are intended to work.
Clause 29(2) clarifies that combination sentences
are intended to only involve orders that the relevant court has jurisdiction to
issue and are issued in a lawful way.
Clause 30 — Combination sentences —
offences punishable by fine
In the ACT there are a range of offence that hold a punishment of a fine
but none of imprisonment. Akin to combination sentences that can be made for
offences punishable by imprisonment, clause 30(1) authorises combination
sentences for offences punishable by fine.
The orders are:
(a) a good
behaviour order (see clause 13 above);
(b) a fine order (see clause 14
above);
(c) a diver licence disqualification order (see clause 16
above);
(d) a reparation order (see clauses 19 and 20 above);
(e) &
(f) a non-association or place restriction order, or both, (see part 3.4) above;
and
(g) any order imposing any other penalty available under any other
Territory law.
Item (g) is included to contemplate any type of lawful
penalty that has yet to be made or was not contemplated at the time the Bill was
made.
Clause 30(2) clarifies that combination sentences for fines are
intended to only involve orders that the relevant court has jurisdiction to
issue and are issued in a lawful way.
Clause 31 — Combination sentences —
start and end
Clause 31 provides three triggers for the Court to use when authorising the
start and end dates of sentences and within combination sentences. The Court is
able to name particular days or sentencing events, such as the beginning of
parole, to determine when aspects of the sentence will be imposes. An example
is provided with the clause.
Chapter 4 — Sentencing
procedures generally
Part 4.1 — General
principles
Clause 32 — Power to reduce
penalties
In English and Australian legal tradition, statutory penalties have been
interpreted as providing the maximum penalty a court can impose. In Sillery
v The Queen (1981) 180 CLR 353 Chief Justice Gibbs stated that if the
legislature intends to impose a mandatory penalty the legislature must clearly
and explicitly do so.
Clause 32 re-states the present principle in the
ACT, namely that sentences of life imprisonment, statutory terms of imprisonment
or fines attached to Territory offences may be reduced by a court. For example,
if an offence in the Criminal Code 2002 holds a penalty of 15 years
imprisonment, the Court has the power to apply a sentence of 12 years. However,
the Court could not impose a penalty greater than 15 years
imprisonment.
Clause 33 — Sentencing — relevant
considerations
The task of a judge or magistrate sentencing an offender is to impose a
sentence in a manner that applies sentencing principles and considerations to
all cases equally. The sentencing court must balance the needs of the victim,
the community and the offender; determine the factual basis upon which the
sentence should be imposed; and consider the circumstances of the offence. The
last item is set out in clause 33. Historically, the ACT has had the longest
list of matters that the Court must consider when determining a
sentence.
The majority of items in clause 33(1) re-state the existing
provisions in section 342 of the Crimes Act 1900. The additional items
in this Bill are (f) and (j).
Clause 33(f) requires the Court to consider
the effect of the offence on the victim(s) of the offence and anyone closely
connected to the victim who is also affected because of how the victim is
affected. Clause 49 (below) explains the people who are contemplated for making
victim impact statements.
Clause 33(j) enables the Court to consider
disclosures by the defence prior to the trial. Disclosures made by the defence
that save a traumatised witness from having to give evidence, for example, or
conserve court time, can be considered in favour of the offender.
If the
Court is considering a good behaviour order as an appropriate penalty, in clause
33(2) the Court must consider the affect of any conditions it wishes to impose
upon the offender.
Clause 33(3) makes it clear that the Court is not
limited to the factors in (1) and (2) and may develop the common law by
requiring, or considering, other factors.
Clause 33(4) upholds the
Court’s discretion to sentence an offender by clarifying that the factors
in clause 33 hold no requirement to increase or decrease the severity of a
sentence.
Clause 33(5) qualifies the meaning of the word
‘defence’.
Clause 34 — Sentencing — irrelevant
considerations
Clause 34 sets out what factors the Court must not take into account to
increase or decrease the severity of a sentence. Clause 34 re-states the
existing provisions in section 344 of the Crimes Act 1900.
Clause 35 — Reduction of sentence —
guilty plea
Discounting for guilty pleas on the basis of contrition or pragmatism, or
both, is accepted by the majority of Australian courts.
Clause 35(1) sets
out the circumstances that enable the Court to take into account a guilty plea:
firstly the offender must plead guilty to an offence and secondly the Court must
be considering a sentence of imprisonment for the offence.
Clause 35(2)
lists a set of factors the Court must consider in determining the quantum of the
reduction, if any. Clause 35(2)(b) is included as an early guilty plea may be
an indication of the offender’s remorse, but also provides considerable
practical assistance to the criminal justice system and saves court
time.
In relation to clause 35(2)(b), clause 35(5) enables the Court to
increase any reduction for a guilty plea commensurate to the stage in criminal
proceedings,
Clause 35(2)(c) is included to enable the Court to discern
whether or not a guilty plea associated with negotiations is intended to induce
the prosecution not to proceed with a more serious charge. Diminishing credit
for guilty pleas associated with negotiations or bargaining is consistent with
R v Gray [1977] VR 225, R v Shannon (1979) 21 SASR 442 and R v
Lyons (unreported) 1993 CCA Tas 29. These cases argued that a lesser
discount, or no discount, for a plea of guilty is appropriate in circumstances
where the defendant enters a plea as a means of inducing the prosecution not to
proceed with a more serious charge.
However, discussions and negotiations
between prosecution and defence to determine the correct charges to lay and
prosecute may have no connection to inducing the prosecution not to proceed with
other charges. Clause 35(2)(c) leaves the Court to determine the
circumstances.
Clause 35(3) is the crux of the Court’s authority to
impose a lesser sentence if the offender pleaded guilty, compared to the same
situation if the offender pleaded not-guilty.
Clause 35(4) requires the
Court to diminish any amount of reduction for a guilty plea if the
prosecution’s case was overwhelmingly strong.
Clause 35(6) obliges the Court to act proportionally to the seriousness of
the offence if it imposes a lesser penalty for a guilty plea. The penalty
cannot be unreasonably remote from the nature and circumstances of the
offence.
Clause 35(7) provides definitions for the terms ‘available
documents’, ‘defence’ and ‘established
facts’.
Clause 36 — Reduction of sentence —
assistance to law enforcement authorities
Clause 36 authorises a reduction in a sentence if the offender has helped
the police or any other law enforcement agencies.
Clause 36 applies if
the conditions in 36(1) are met: the offender is convicted or found guilty of an
offence; and the offender has helped law enforcement agencies to prevent, detect
or investigate any offence; or the offender has assisted in legal proceedings
relating to any offence.
Having considered the degree of assistance
provided by an offender, clause 36(2) authorises the Court to make a reduction
in sentence it would have otherwise imposed.
Clause 36(3) outlines the
factors the Court must consider when it determines if a lesser penalty, or the
quantum of a reduction to a penalty, should be imposed.
Clause 36(4)
obliges the Court to act proportionally to the seriousness of the offence if it
imposes a lesser penalty for cooperation with law enforcement agencies. The
penalty cannot be unreasonably remote from the nature and circumstances of the
offence.
Clause 37 — Reduction of sentence —
statement by court about penalty
Clauses 35 and 36 would be an important means to encourage offenders to
plead guilty when appropriate and to cooperate with law enforcement agencies.
To give the full-effect to these provisions clause 37 requires the sentencing
court to state what the penalty would have been if the offender had not pleaded
guilty or cooperated with police, as the case may be.
A consistent record
of penalties imposed in sentencing decisions when clauses 35 or 36 apply will
greatly assist defence solicitors, prosecution and police to demonstrate the
utility of pleading guilty or cooperating with police.
Clause 38 — Sentence of imprisonment and
uncompleted young offender orders
Clause 38 re-states the current law set out in section 355 of the Crimes
Act 1900. This provision contemplates an offender who was a juvenile for an
earlier offence but has become an adult when the Court considers a sentence for
another offence.
The clause will enable the Court to contemplate any
existing sanction applying to the person when sentencing the person who has
become an adult. The Court may discharge the young offender order when
sentencing and account for the outstanding period of the young offender order in
the adult sentence.
Clause 39 — Judgement after sentence
deferred
Clause 39 should be distinguished between a deferred sentence order and
deferring a sentence in general. Clause 39 simply empowers a court to sentence
an offender if there has been some procedural time between when the person was
found guilty or convicted and the imposition of a sentence. Deferring sentence
is not an unlimited power: a person could not be indefinitely detained, for
example, on the basis that a court had not imposed a sentence.
Part 4.2 Pre-sentence
reports
Clause 40 — Application of part
4.2
Clause 40 stipulates that part 4.2 has effect when an offender is found
guilty or a person indicates an intention to plead guilty to an
offence.
Clause 41 — Pre-sentence reports —
order
Clause 41(1) enables the Court to adjourn proceedings and order the Chief
Executive, of the relevant department to prepare a pre-sentence report. (Part
19.4 of the Legislation Act 2001 enables the Chief Executive to delegate
this function as a matter of course. References to the Chief Executive may be
taken to include a person delegated by the Chief Executive to exercise the power
or carry out the function.)
Clause 41(2) gives the Court the ability to
determine the scope of the pre-sentence report by indicating the relevant
matters the report should cover. It is envisaged that a form would be developed
to facilitate the order. The Court can simply ask for a report of the core
pre-sentence issues (41(2)(a)) or ask for the offenders suitability for a
deferred sentence order and a sentence of imprisonment by way of periodic
detention, or ask for a report on the offender’s suitability for all of
the options.
Clause 41(3) requires the Chief Executive to organise person
delegated by the Chief Executive to prepare the pre-sentence report. In clause
41(4) the word ‘assessor’ is used to define the Chief
Executive’s delegate responsible for preparing the report.
Clause 42 — Presentence reports —
contents
Clause 42(1), (2) and (3) obliges the assessor to conduct a pre-sentence
report commensurate with the scope of the report ordered by the Court. (Clause
41(2) above discusses the scope of reports.)
Clause 42(4) sets out the
core matters that should be addressed by the pre-sentence report. Items (j),
(k), (l)(iii), and (l)(iv) intend to provide the Court with information that
will assist the Court to determine if any orders conducive to managing offending
behaviour or rehabilitating the offender are of use.
In (k) it is
intended that where an assessor uses an instrument, or tool, to assess an
offender’s risk of re-offending the assessment should be cited in the
report. It is not expected that the assessor would be required to explain the
whole assessment process or methodology, simply that the assessor would cite the
basis that informs the pre-sentence report’s comments on the likelihood of
re-offending.
In (l)(iii) the assessor may cite any criminogenic factors
that contribute to increasing the probability of an offender
re-offending.
In (l)(ii) the assessor can provide an assessment of a
victim’s need for protection from violence or harassment. This provision
will assist the Court to determine if any relevant orders to manage the
behaviour should be made.
Clause 43 — Pre-sentence reports —
powers of assessors
Clause 43 provides clear authority for assessors to conduct investigations
to address a pre-sentence report. The assessor may request information from a
broad range of government authorities. Clause 43(2) and (3) stipulates that
prompt and open cooperation is expected and that any cooperation in good faith
is not a breach of professional standards or a ground for civil
proceedings.
Clause 43 authorises assessors to seek information from
victims. However, clause 43(2) ensures that victims are not obliged to provide
information or cooperate with an assessor in any way. Clause 43 does not
require the assessor to directly approach victims in person. The Chief
Executive may determine how, who and when victims may be approached: for example
via a victim liaison officer or the Victims of Crime Coordinator.
Clause
43(5) would authorise the Executive to make regulations governing the
preparation and provision of pre-sentence reports and the conduct of assessments
in relation to deferred sentence orders. (For deferred sentence orders see
clause 27 above.)
Clause 44 — Pre-sentence reports —
provision to court
This clause enables reports to be given orally or in writing.
Clause 45 — Pre-sentence reports —
availability of written reports
In clause 45, if a pre-sentence report is in writing and a copy has been
provided to the Court more than two days before a sentencing hearing, the Court
must make available a copy of the report two days before the sentencing hearing
to the parties mentioned in 45(2).
If the Court has not received the
report in time, there is no obligation to provide the report.
Clause 45
does not impose any obligation upon the Chief Executive to provide reports two
days before a hearing. Timelines governing the provision of pre-sentence
reports will remain a matter for ACT Corrective Services and ACT Courts to
determine by agreement.
Clause 46 — Pre-sentence reports —
cross-examination
Clause 46 authorises cross-examination of an assessor during sentencing
proceedings.
Part 4.3 — Victim impact
statements
Clause 47 — Definitions for
part 4.3
Clause 47 provides specific definitions for ‘because of’,
‘harm’, ‘victim’ and ‘victim impact
statement’ for part 4.3. The intent of the definitions is to ensure that
the ambit of ‘victim’ intended by the Government is clear.
Clause 48 — Application of part 4.3
Clause 48 expands the availability of victim impact statements. Presently
victim impact statements can only be tendered if the offence in question holds a
penalty of at least five year’s gaol. Clause 48(a) enables victim impact
statements to be tendered for any indictable offence, which is an offence
punishable by imprisonment for longer than one year. 48(b) ensures that the
summary offence of common assault is also contemplated. (The summary offence of
common assault holds a penalty of 6 months imprisonment.) 48(c) would authorise
the Executive to list other offences for which a victim impact statement could
be tendered.
Clause 49 — Victim impact statements —
who may make
Clause 49 enables victims, parents, close family members of victims, people
who are carers of victims, and people who are in an intimate relationship with a
victim (such as a spouse, life partner, lover, boyfriend, girlfriend etc) to
make a victim impact statement.
Clause 50 — Victim impact statements —
oral or written
Clause 50 enables victim impact statements to be given orally or in
writing.
Clause 51 — Victim impact statements —
form and contents
Clause 51 sets out what must be in a victim impact statement, including
identifying the status of any person providing a victim impact
statement.
Clause 52 — Victim impact statements —
use in court
Clause 52 enables a victim impact statement to be tendered or given orally
by the person who makes or made the victim impact statement or someone else on
behalf of the person making the statement.
Clause 52(2) gives the Court
the discretion to consider the report anytime after the offender is convicted
and before sentencing.
Clause 53 — Victim impact statements —
effect
Clause 53 provides for the effect of a victim impact statement on the
sentencing hearing.
Clause 53(1) requires the Court to consider a victim
impact statement. If an statement is not provided, the Court cannot inherently
infer that the victim suffered no harm.
In clause 53(2)Written victim
impact statements can only be tendered to Court if the statement is consistent
with clause 51 and a copy is provided to the defence.
Clause 53(3)
authorises cross examination of the person who makes or has made a victim impact
statement.
Clause 53(4) provides protection from potential intimidation
to people who make victim impact statements when an offender is representing
themself in a sentencing hearing. In these circumstances, the offender must
tell the Court what the offender wants to ask the person who made the victim
impact statement and the Court must give leave to cross-examine.
Clause
53(5) provides specific definitions of ‘defence’ and
‘given’ for clause 53.
Part 4.4 Taking additional offences into
account
Clause 54 — Definitions for
part 4.4
Clause 54 points to the source of the definitions for particular terms used
throughout part 4.4.
Clause 55 — Application of part 4.4
Clause 55 sets out the conditions that enliven the application of the
provisions that govern the Court’s authority to take additional offences
into consideration when sentencing.
An offender must be convicted or
found guilty of an offence but a sentence not yet passed. The Director of
Public Prosecutions must also submit a list of additional offences alleged to
have been committed by the offender.
Clause 55(2) stipulates that part
4.4 cannot be invoked if the offence contemplated for sentencing holds a penalty
of life imprisonment.
Clause 56 — List of additional
offences
Clause 56 the list of additional offences can only include offences the
offender wants the Court to take into account when sentencing. The list must be
signed by the Director of Public Prosecutions and the offender, and the offender
must have a copy.
Clause 57 — Outstanding additional offences
taken into account in sentencing
Clause 57 requires the Court to confirm that the offender wants the
additional offences taken into account when sentencing.
The Court can
take the additional offences into account if the offender admits guilt to the
additional offences, the offender confirms their want to have the additional
offences accounted, and the Director of Public Prosecutions
agrees.
Clause 57(3) makes it clear that taking additional offences into
account does not mean the Court can impose a sentence greater than the maximum
penalty attached to the offence the offender is being sentenced for. In other
words, taking the additional offences into account does not allow additional
penalties to be imposed: the additional offences are considered in the context
of the penalty allowed for by the original offence.
Clause 57(4) and (5)
clarifies that if the Court does not have lawful jurisdiction to pass sentence
on the additional offences, then the additional offences cannot be accounted
for. Clause 57(6) provides the Supreme Court with the jurisdiction to account
for a summary offence.
Clause 58 — Ancillary orders relating to
offences taken into account in sentencing
Although clause 57 provides that penalties cannot be imposed for additional
offences accounted for in sentencing, clause 58 enables the Court to impose
ancillary orders of:
restitution; compensation; costs; forfeiture;
destruction; or licence disqualification or suspension.
Clause 59 — Consequences of taking offences
into account in sentencing
Clause 59 links the sentence imposed for the principal offence with the
additional offences accounted for by the Court. Proceedings for the additional
offences on the list cannot begin or continue unless the outcome for the
principal offence is changed.
While the admission of guilt in relation to
the additional offence is not admissible in proceedings involving the additional
offences, the offender is not taken to have been convicted or found guilty of
the additional offences.
Clause 60 — Evidence of offences taken into
account in sentencing
Clause 60 enables the fact that additional offences had been taken into
account during sentencing to be admitted as evidence in subsequent proceedings
if the conviction for the principal offence is admissible in the proceedings and
the additional offence could have been admitted if a conviction, or a finding of
guilt, had been made.
Part 4.5 Correction and adjustment of
penalties
Clause 61 — Reopening
proceedings to correct penalty errors
Sentencing is a skilful task that brings together qualitative determination
about the appropriate penalty and a quantitative expression of the penalty
itself.
Clause 61 enables the Court to re-open proceedings on its own
initiative or upon application from a party to correct a sentence, or to make a
sentence when one should have been made.
If an order is made to correct
an error using these provisions, clause 61(5) provides that the allowable appeal
period begins on the day the order is made under clause 61. This does not
affect other rights of appeal.
Clause 61(7) clarifies that the term
‘sentence related order’ includes an order imposing a penalty, a
deferred sentence order, a non-conviction order and any ancillary
orders.
Chapter 5 —
Imprisonment
Part 5.1 — Imprisonment — start and end
of sentences
Clause 62 — Start and end
of sentences — general rule
Clause 62(1) simply states that a sentence begins on the day it is imposed
or when the person is arrested if they are at large. Clause 62(2) corrals the
relevant provisions of the Bill that impact upon the beginning or end of a
sentence, or periods within a sentence. The clause also refers to the
foreshadowed Crimes (Sentence Administration) Bill 2005.
Clause 62(3) and
(4) clarifies the beginning and end of a day. This is consistent with section
151 of the Legislation Act 2001, which provides for the reckoning of
time.
Clause 62(5) ensures that sentence of imprisonment for this clause
does not include a suspended sentence, as a suspended sentence does not
immediately execute the sentence. Suspended sentences are discussed in clause
12 above.
Clause 63 — Start of sentence —
backdated sentences
Clause 63 authorises the Court to backdate a sentence to a day named by the
Court. If this power is used, the sentence will be regarded as having begun on
the named day.
Clause 63(2) requires the Court to account for any period the
offender has already spent in custody. Time in custody is usually spent on
remand in accordance with the Bail Act 1992.
Clause 63(3) sets out
the exceptions to time in custody that must be accounted for in clause
63(2).
For simplicity clause 63(4) enables the Court to consider all time
in custody since the person was arrested, irrespective of the fact that the
arrest and remand may be for various offences. Clause 63(5) clarifies that the
period of custody after arrest or remand for other offences is still relevant
even though the person was not found guilty or convicted of the other
offences.
Part 5.2 — Imprisonment — non-parole
periods
The purpose of parole is to moderate a sentence of imprisonment to enable
the offender to rehabilitate. In R v Shrestha (1991) 173 CLR 48,
Justices Deane, Dawson and Toohey said:
The basic theory of the parole
system is that, notwithstanding that a sentence of imprisonment is the
appropriate punishment for the particular offence in all the circumstances of a
case, considerations of mitigation or rehabilitation may make it unnecessary, or
even undesirable, that the whole of that sentence should actually be served in
custody. [at 67]
To enable parole to occur, the sentencing Judge or
Magistrate must determine what period of a sentence must be served by
imprisonment, leaving the remaining period to be eligible for parole. For
example, if a court imposed a four year sentence of imprisonment the Court could
determine that the first three years are a nonparole period. After serving the
first three years of the sentence the offender would be eligible for
parole.
Clause 64 — Application of part 5.2
Clause 64 establishes the scope of sentences that can have non-parole
periods set. A sentence of imprisonment can have a nonparole period set, unless
it is an excluded sentence in clause 64(3). The excluded sentences are: life
imprisonment, imprisonment served by way of periodic detention; imprisonment for
offences committed in custody (usually in prison); imprisonment for not paying a
fine; and a suspended sentence. (A suspended sentence is a sentence that is not
executed: see clause 12 above.)
Clause 64(2) clarifies that a nonparole
period can be set for sentences of imprisonment where part of the imprisonment
is served by periodic detention. The nonparole period can only be set for the
period of imprisonment that isn’t the period of periodic
detention.
Clause 65 — Nonparole periods — courts
to set
Clause 65(1) authorises a court to set a non-parole period if an offender
is sentenced to at least a year’s imprisonment, or at least two terms of
imprisonment adding up to at least a year or more.
Clause 65(2) requires
a nonparole period to be set. During the nonparole period the offender is not
entitled to parole.
Clause 65(3) requires the Court to determine when the
nonparole period starts and ends.
Clause 65(4) enables the Court to
decline from setting a nonparole period given the nature of the offence and the
offenders criminal history.
Clause 65(5) stipulates that a nonparole
period cannot be set for a sentence of imprisonment imposed upon an offender who
is already sentenced to life imprisonment.
Clause 65(6) clarifies that if
a sentence of imprisonment is partly suspended, then only the actual period of
imprisonment should be considered by the Court for a nonparole period.
Clause 66 — Nonparole periods — setting
if sentence currently being served
Clause 66 applies to offenders who are already imprisoned for one offence
and are being sentenced to imprisonment for a subsequent offence.
Clause
66(2), (3) and (4) works by cancelling any nonparole period for the first
sentence. The Court then applies the method of setting parole in clause 65
above but accounts for both the sentence the offender is already serving and the
sentence the Court is imposing as one whole. In any case, the Court is not
entitled to set a nonparole period that would totally nullify the addition of
the subsequent sentence.
Clause 67 — Nonparole periods —
recommended conditions
Clause 67 enables the Court to recommend parole conditions for the Sentence
Administration Board to consider when the Board considers applications for
release on parole. The Sentence Administration Board’s procedures will be
set out in the foreshadowed Crimes (Sentence Administration) Bill.
Clause 68 — Nonparole periods — review
of decision on nonparole period
This clause enables a review of a decision, or lack of a decision, on
nonparole periods.
Part 5.3 — Imprisonment — concurrent and
consecutive sentences
Clause 69 —
Definitions for part 5.3
Clause 69 sets out definitions by reference to clauses in the Bill and
section 146 of the Magistrates Court Act 1930 for the meaning of fine.
Section 146 states:
fine
means—
(a) a pecuniary penalty imposed by a court in
relation to an offence; or
(b) a fee or charge payable to the Territory that
is imposed by a court in a proceeding for an offence; or
(c) costs payable to
the Territory under a court order in a proceeding for an offence; or
(d) a
levy imposed under the Victims of Crime
(Financial Assistance) Act 1983; or
(e) an amount payable to the
territory under an order for reparation under the Crimes Act, section
350.
Clause 70 — Application of part 5.3
Clause 70(1) identifies two concepts: a primary sentence and an existing
sentence. In essence the primary sentence is the sentence being contemplated at
the time the court is sentencing an offender. A existing sentence is either:
another sentence already being served by the offender; another sentence against
the offender made but not yet executed; or another sentence being imposed at the
same time as the primary sentence.
In essence, part 5.3 contemplates how
courts should deal with two or more sentences. This part assists the Court to
answer the question: should the sentences be served concurrently, consecutively,
or partially overlap? Concurrent has its common meaning of ‘occurring
side by side’, or ‘existing together’. Likewise, consecutive
has its common meaning of ‘following one another’.
Clause
70(1)(b) clarifies that clause 70 can apply to an offence committed under ACT
law or another jurisdiction, where courts in the ACT have authority to impose a
sentence.
Clause 70(1)(c) excludes fully suspended sentences from
decisions about whether sentences should be served consecutively or
concurrently.
Clause 70(2) defines ‘sentence of imprisonment’
for clause 70.
Clause 71 — Concurrent and consecutive
sentences — general rule
Clause 71 stipulates the application concurrent and consecutive sentences.
The default position is that both sentences are served
concurrently.
Clause 71(2) provides the Court with a power to direct that
sentences are served consecutively or are to partially overlap.
Clause
71(3) indicates other provisions in the Bill that qualify the operation of
clause 71. For clause 38, see above. For clauses 72, 73, 82 and 87, see
below.
Clause 72 — Concurrent and consecutive
sentences — offences in custody or unlawfully at large
For sentences imposed for offences committed in custody (such as in prison)
or involving escape from custody, the default position is that they are served
consecutively with existing sentences.
However, clause 72(3) enables the
Court to direct that the sentences are to be served consecutively or are to
partially overlap.
Clause 72(4) qualifies clause 72(3) where a
corrections officer is harmed or threatened. If this is the case, then the
sentences must be served consecutively unless the Court considers that special
circumstances apply.
Clause 73 — Concurrent and consecutive
sentences — fine default offences
Clause 73 establishes that the sentences for fine default are to be served
consecutively unless the Court makes a contrary order. However, a fine default
sentence is to be served concurrently when the existing sentence is not a fine
default sentence.
Clause 73(3) enables the Court to direct that fine
default sentences are to be served consecutively or are to partially
overlap.
Clause 74 — Amending of start of sentences on
setting aside or amending other sentences
Clause 74 empowers the Court to amend the starting day of other sentences
imposed upon an offender if a court sets aside or amends a
sentence.
However, nonparole periods cannot be amended in these
circumstances.
Clause 75 — Previous sentences to be noted in
new sentence
If the Court has ordered a sentence to be served concurrently with an
existing sentence, or to overlap with an existing sentence, the Court must
record information about the existing sentences in the sentence. This will
greatly assist corrections staff to calculate the precise terms of
imprisonment.
Part 5.4 — Periodic detention
Periodic detention is part-time imprisonment. An offender is in full-time
custody for a period of a week, usually over the weekend. This arrangement
allows both the imposition of a custodial sentence and the maintenance of an
offender’s positive contribution to the community such as family life,
work or study.
Clause 76 — Application of part 5.4
Part 5.4 covers the provisions a court must consider if the Court
contemplates setting a periodic detention period for a sentence of imprisonment,
as per clause 12, above.
Clause 77 — Periodic detention —
eligibility
An offender cannot serve a sentence of imprisonment by way of periodic
detention unless the offender is both eligible and suitable to serve periodic
detention.
Clause 77 stipulates that a court cannot set a period of
periodic detention unless the court is satisfied:
• the offender is
suitable for periodic detention;
• periodic detention is appropriate
for the offender;
• there is an appropriate facility available for
periodic detention; and
• the offender formally agrees to comply with
the periodic detention obligations in the foreshadowed Crimes (Sentence
Administration) Bill.
Clause 77(2) ensures that the Court can decline to
set a periodic detention period if an offender does not participate in a medical
examination directed by the Court.
Clause 78 — Periodic detention —
suitability
Clause 78(1) stipulates that the Court cannot set a period of periodic
detention if a pre-sentence report assessing suitability for periodic detention
has not been provided to the Court.
Clause 78(2) lists what the Court
must consider before setting a periodic detention period. However, (3) makes it
clear that the Court can consider other matters.
Clause 78(4) refers to
table 79, discussed below, in relation to other issues that may render the
offender unsuitable for periodic detention.
Clause 78(5) empowers the
Court to set, or not set, a periodic detention order despite the recommendation
of a pre-sentence report. However, clause 78(6) requires the Court to state its
reasons why it has acted contrary to the pre-sentence report.
Clause
78(7) ensures that an error in applying clause 78(6) does not undermine a
periodic detention period.
Clause 79 — Periodic detention —
pre-sentence report matters
Clause 79 augments the matters that must be considered in a pre-sentence
report, if the Court orders that an assessment for periodic detention is
included in a pre-sentence report. Part 4.2 above discusses pre-sentence
orders.
Clause 79 provides a table of matters that must be addressed in a
pre-sentence report contemplating periodic detention.
Clause 80 — Periodic detention —
concurrent and consecutive periods
Clause 80 applies if an offender is already serving a sentence of
imprisonment by way of periodic detention and the Court is considering another
sentence of imprisonment to be served by periodic detention. Under these
circumstances, a new period of periodic detention cannot be longer than 2 years
after the day the period is set.
Part 5.5 — Imprisonment — explanation
and information
Clause 81 — Application
of part 5.5
Clause 81 stipulates that part 5.5 relates to sentences of imprisonment
that are not fully suspended. See clause 12 above for suspended
sentences.
Clause 82 — Imprisonment — explanation
to offender
Clause 82 is a restatement of section 359 of the Crimes Act 1900.
The Court is obliged to explain the reason and purpose of the sentence. Any
periods of full-time imprisonment and periodic detention should be explained as
well as the offenders obligations under the foreshadowed Crimes (Sentence
Administration) Bill. Dates relating to the start of the sentence, suspended
sentences and nonparole periods must be explained. The fact that conditions
apply to parole must be explained.
It should be noted that clause 82(1)
only requires the Court to take reasonable steps to explain these
matters.
Clause 82(2) ensures that an error in applying clause 82 does
not undermine a sentence.
Examples are provided with the
clause.
Clause 83 — Imprisonment — written
record of explanation
Apart from the requirement to provide a written explanation no later than
10 days, clause 83 is also a restatement of section 359 of the Crimes Act
1900.
Clause 83 obliges the Court to provide the explanation of the
sentence, under clause 82, in writing to the offender, their lawyer no later
than 10 days after the sentencing hearing when the sentence was explained to the
offender.
The written explanation can be a transcript of the sentencing
hearing or a standard form.
Clause 83(2) ensures that an error in
applying clause 90 does not undermine a sentence.
Clause 84 — Imprisonment — official
notice of sentence
Clause 84 ensures that official notice of a sentence of imprisonment is
provided to the relevant parties and relevant authorities. The intent of this
common notice is to provide the same information to all involved and to maximise
accuracy in the administration of the sentence.
In clause 84(1) reference
to the Chief Executive is the Chief Executive of ACT Corrective Services. The
Sentence Administration Board receives a copy of the order to facilitate the
administration of the sentence.
Clause 84(2) sets out what must be in the
official notice. A notice can be made by a standard form, as per the
Legislation Act 2001.
Clause 84(3) enables the Court to remand an
offender in custody until official notice of periodic detention is given. The
Court is not required to remand the offender.
Clause 84(4) ensures that
an error in applying clause 84 does not undermine a sentence.
Chapter 6 — Good behaviour
orders
Good behaviour orders replace recognisances and options available currently
under section 403 of the Crimes Act 1900. The Bill contemplates these
orders to be used in conjunction with other orders, such as suspended sentences,
combination sentences, periodic detention, non-conviction orders
etc.
Good behaviour orders can also be used in relation to non-conviction
orders, explained above at clause 18. However, a good behaviour order cannot
include a condition that amounts to a sentence.
Chapter 6 distinguishes
between conditions that can be applied in a good behaviour order following
conviction, and following non-conviction.
Part 6.1 — Good behaviour orders —
community service conditions
Clause 85
— Meaning of community service conditions
A community service condition is a requirement to perform community service
for a stated number of hours as part of a good behaviour order.
Clause 86 — Application of part 6.1
Part 6.1 applies if a court considers community service could be
appropriate as part of a sentence, or as a sentence.
Clause 87 — Community service —
convicted offenders only
As discussed in relation to clause 17 above, clause 87 ensures that
community service can only be imposed upon convicted people, as it is a
sentence.
Clause 88 — Community service —
eligibility
Clause 88 stipulates that an offender is eligible for community service if
the offender is suitable (discussed at clause 89) and it is appropriate that
community service is imposed.
In clause 88(2), if the offender does not
participate in a medical examination directed by the Court, the Court may
decline to impose community service.
Clause 89 — Community service —
suitability
A community service condition cannot be imposed unless a pre-sentence
report is provided to the Court about the offenders suitability for community
service.
Clause 89(2) lists what the Court must consider before imposing
a community service condition. However, (3) makes it clear that the Court can
consider other matters.
Clause 89(4) refers to table 90, discussed below,
in relation to other issues that may render the offender unsuitable for
community service.
Clause 89(5) empowers the Court to impose, or not, a
community service condition despite the recommendation of a pre-sentence report.
However, clause 89(6) requires the Court to state its reasons why it has acted
contrary to the pre-sentence report.
Clause 89(7) ensures that an error
in applying clause 89(6) does not undermine a community service
condition.
Clause 90 — Community service —
pre-sentence report matters
Clause 90 augments the matters that must be considered in a pre-sentence
report, if the Court orders that an assessment for a community service condition
is included in a pre-sentence report. Part 4.2 above discusses pre-sentence
reports.
Clause 90 provides a table of matters that must be addressed in
a pre-sentence report contemplating periodic detention.
Clause 91 — Community service — hours to
be performed
Clause 91 sets the maximum and minimum limits on the number of hours of
community service that can be imposed.
Clause 92 — Community service —
concurrent and consecutive orders
Clause 92 enables the court to impose subsequent community service for
another sentence either concurrently, consecutively or overlapping. The total
hours of the existing sentence and the new sentence cannot be greater than 500
hours.
Part 6.2 — Good behaviour orders —
rehabilitation program orders
Clause 93
— Definitions for part 6.2
A rehabilitation program can be prescribed by the Executive in regulations.
If a court imposes a rehabilitation program condition, the offender is obliged
to participate in the specific program(s) stated.
Clause 94 — Application for part 6.2
Part 6.2 applies if a court considers a rehabilitation program could be
appropriate or of benefit to the offender or community as part of a sentence, or
as a sentence.
Clause 95 — Rehabilitation programs —
probation condition required
A condition to participate in a rehabilitation program must include a
probation condition. As defined in the Bill’s dictionary, a probation
condition contemplates the offender being supervised by a relevant authority
during the probation period and to obey the reasonable directions of the
authority.
Clause 96 — Rehabilitation programs —
eligibility
Imposing a rehabilitation condition requires both eligibility and
suitability.
Clause 96(1) requires the court to be satisfied that the
offender is suitable for a rehabilitation program (discussed at clause 97
below), it is appropriate that the offender undertake the program, and that a
place is available in the program within reasonable time.
In clause
96(2), if the offender does not participate in a medical examination directed by
the Court, the Court may decline to impose a rehabilitation condition.
Clause 97 — Rehabilitation programs —
suitability
A rehabilitation condition cannot be imposed without a pre-sentence report
assessing the offender’s suitability for the program. Information about
the program that justifies a rehabilitation program’s suitability for the
offender must also be provided before a rehabilitation condition can be
imposed.
Clause 97(2) lists what the Court must consider before imposing
a rehabilitation program condition. However, (3) makes it clear that the Court
can consider other matters.
Clause 97(4) empowers the Court to impose, or
not, a rehabilitation program condition despite the recommendation of a
pre-sentence report, or evidence provided by the reporter. However, clause
97(5) requires the Court to state its reasons why it has acted contrary to the
pre-sentence report.
Clause 97(6) ensures that an error in applying
clause 97(5) does not undermine a rehabilitation program condition.
Clause 98 — Rehabilitation programs —
pre-sentence report matters
Clause 98 augments the matters that must be considered in a pre-sentence
report, if the Court orders that an assessment for a rehabilitation program
condition is included in a pre-sentence report. Part 4.2 above discusses
pre-sentence orders.
Clause 99 — Rehabilitation programs —
maximum period
A rehabilitation program condition cannot be imposed for longer than 3
years.
Clause 100 — Rehabilitation programs —
concurrent and consecutive orders
Clause 100 enables the court to impose a subsequent rehabilitation
communication program for another sentence either concurrently, consecutively or
overlapping. The new condition imposed must not be longer than 3 years after
the day the order is made.
Part 6.3 — Good behaviour orders —
explanations and official notice
Clause 101
— Application of part 6.3
Part 6.3 applies to good behaviour orders.
Clause 102 — Good behaviour orders —
explanation to offenders
If good behaviour orders are made, clause 102 requires the Court to explain
to the offender any conditions imposed under the good behaviour order, any
obligations under the foreshadowed Crimes (Sentence Administration) Bill; and
the consequences of breaching any conditions imposed or statutory
conditions.
Clause 102(2) ensures that if an error is made in applying
clause 102 a good behaviour order is not undermined.
Clause 103 — Good behaviour orders —
official notice of order
Clause 103 ensures that official notice of a good behaviour order is
provided to the offender and the relevant authority. The intent of this common
notice is to provide the same information to all involved and to maximise
accuracy in the administration of the order.
Clause 103(2) sets out what
must be in the official notice. A notice can be made by a standard form, as per
the Legislation Act 2001.
Clause 103(3) ensures that an error in
applying clause 103 does not undermine a sentence.
Clause 104 — Good behaviour orders —
explanation and notice to sureties
Clause 13(3)(a) enables another person (a surety) to lodge an amount of
money with the Court. The amounts can be up to $10,000 for the Supreme Court
and $2000 for the Magistrates Court. These amounts are at risk of forfeiture if
the offender does not comply with the good behaviour order.
If good
behaviour orders are made, clause 104 requires the Court to explain to the
surety any conditions imposed upon the offender under the good behaviour order,
any obligations under the foreshadowed Crimes (Sentence Administration) Bill;
and the consequences of the offender breaching any conditions imposed or
statutory conditions.
Clause 104(3) requires the Court to provide a copy
of the good behaviour order to any surety under the order.
Clause 104(4)
ensures that an error in applying clause 104 does not undermine a
sentence.
Part 6.4 — Good behaviour orders — other
provisions
Clause 105 — Good behaviour
— consequences of failure to sign undertaking
Clause 13(2) empowers the Court to make good behaviour orders that requires
an offender to sign an undertaking to comply with the order’s obligations.
The foreshadowed Crimes (Sentence Administration) Bill will include an
obligation to comply with any statutory conditions and conditions set by the
Court.
If the offender fails to sign the undertaking, clause 105 empowers
the Court to re-sentence the offender. Re-sentencing does not affect any rights
of appeal.
Clause 106 — Good behaviour — maximum
amount of security
Clause 13(3)(a) enables an offender, or another person (a surety), to lodge
an amount of money with the Court. The amounts can be up to $10,000 for the
Supreme Court and $2000 for the Magistrates Court. These amounts are at risk of
forfeiture if the offender does not comply with the good behaviour
order.
Clause 106(2) qualifies the imposition of a condition of providing
security. Security can only be imposed for offences holding a penalty of over
six months imprisonment or a suspended sentence. (See clause 12 for suspended
sentences.)
Chapter 7 — Reparation
orders
Chapter 7 contains further provisions about reparation orders. Clause 19
allows a reparation order to be made if a person is found guilty of an offence
and a victim of the crime suffers a loss or incurs an expense as a direct
consequence of the offence.
Clause 107 — Application of chapter 7
Chapter 7 applies to reparation orders being made.
Clause 108 — Reparation orders — no
agreement about amount of loss
Clause 108 authorises the Court to settle any dispute about the value of
the loss contemplated for a reparation order. Clause 108(2) refers to clause
110 about the evidential basis for forming a reparation order.
Clause 109 — Reparation orders — payment
by instalments
Clause 109 enables the Court to order reparation payments to be paid in
instalments and for the offender, or a surety, to give security that for the
payment in instalments.
Clause 110 — Reparation orders —
evidential basis for orders
Clause 110 sets out the types of information the Court may consider for
making a reparation order. Clause 110(2) defines the meaning of the term
‘available documents’, which is used in clause 110(1). An example
is provided as part of the clause.
Clause 111 — Reparation orders — power
to make other orders etc
Clause 111 clarifies that the Court has the power to make reparation orders
and other orders authorised by Territory law. The making of a reparation order
for one type of loss does not prevent making another reparation order for
another type of loss as a consequence of a particular offence, a series of
offences connected to an event, or additional offences taken into account during
sentencing. (See clause 58 above for the imposition of ancillary orders in
relation to the account of additional offences.)
The example provided in
clause 111 clarifies that a reparation order for stolen property can be made
under clause 20 and a concurrent reparation order under clause 19 can be made
for the damaged caused by the burglary.
Clause 112 — Reparation orders —
Confiscation of Criminal Assets Act
The Confiscation of Criminal Assets Act 2003 is a scheme to
restrain and forfeit property, income, or any form of assets derived from, or
used in, the commission of crime.
Clause 112 ensures that property
restrained or forfeited under the Confiscation of Criminal Assets Act 2003
cannot be the subject of a reparation order. If a victim has a claim over
the property, the victim can use the proceedings in the Confiscation of
Criminal Assets Act 2003 to have the property returned, or to be compensated
for the loss of the property.
Clause 113 — Reparation orders —
official notice of order
Clause 113 ensures that official notice of reparation order is provided to
the offender and the person who will have the loss restored. The intent of this
common notice is to provide the same information to all involved and to maximise
accuracy in the administration of the order.
Clause 113(3) provides that
if clause 113 is not followed the reparation order is not undermined.
Chapter 8 — Deferred sentence
orders
Deferred sentence orders are a codification of an existing power available
to the Court known as Griffiths remands following the High Court’s
decision in Griffiths v The Queen 137 CLR 293.
Deferred sentence
orders will enable the Court to adjourn proceedings to provide an offender with
an opportunity to address their criminal behaviour before sentencing. In this
way the Court can assess whether the offender demonstrates prospects for
rehabilitation, or the offender’s ability to address their criminal
behaviour.
Part 8.1 — Deferred sentence orders —
making
Clause 114 — Application of part
8.1
Chapter 8 applies to the making of deferred sentence orders under part 3.5
above.
Clause 115 — Meaning of deferred sentence
obligations for part 8.1
Clause 115 is a definition that relies upon a meaning in clause
120.
Clause 116 — Deferred sentence orders —
eligibility
Offenders must be both eligible and suitable for a deferred sentence
order.
Clause 116 enables a deferred sentence order to be made if the
Court believes the offender’s release would provide an opportunity for the
offender to address their criminal behaviour and any factors contributing to the
behaviour, and consequently encourage the Court to impose a lesser
penalty.
A deferred sentence can be made even if the offence justifies
imprisonment.
Clause 117 — Deferred sentence orders —
suitability
Clause 117 sets out the matters the Court must consider when deciding to
impose a deferred sentence order. The Court is not limited to these
matters.
Clause 117(3) empowers the Court to impose, or not, a deferred
sentence order despite the recommendation of a pre-sentence report, or evidence
provided by the reporter. However, clause 117(4) requires the Court to state
its reasons why it has acted contrary to the pre-sentence report.
Clause
117(5) ensures that an error in applying clause 117(4) does not undermine an
order.
Clause 118 — Deferred sentence orders —
indication of penalties
If a deferred sentence order is made, the Court must provide an overview of
the penalty the Court thinks it might impose if the offender complies with the
order, and the penalty the Court thinks it might impose if the offender
doesn’t comply withe order. This will provide the offender with further
incentive to comply with the order.
Clause 119 — Deferred sentence orders —
review requirements in orders
Clause 119 enables the Court to set some times for the offender to appear
before the Court so the Court can monitor the offender’s compliance and
progress with the order.
Clause 120 — Deferred sentence orders —
obligations
During a deferred sentence order the offender is obliged to abide by any
conditions in the order itself, any conditions set under the Bail Act
1992, and any statutory obligations in this Bill.
Clause 121 — Deferred sentence orders —
explanation and official notice
A court must explain a deferred sentence order to an offender, including
the conditions and obligations imposed upon the offender and the consequences of
failing to meet the conditions and obligations.
Clause 121(2) requires
the Court to notify the offender of the order and give the offender a copy of
the order. If the Court fails to do this clause 121(3) ensures that the order
is not invalidated.
Clause 122 — Deferred sentence orders —
period of effect
A deferred sentence order cannot last longer than 12 months after the day
it is made. At the end of the order, or after the Court cancels the order, the
Court must sentence the offender. See also clause 27 above.
Part 8.2 — Deferred sentence orders —
supervision
Clause 123 — Application of
part 8.2
Part 8.2 applies if a court makes a deferred sentence order.
Clause 124 — Deferred sentence orders —
arrest without warrant
Clause 124 empowers police to arrest an offender, who is subject to a
deferred sentence order, if the officer believes the offender has breached the
order or any obligations related to the order or the bail
conditions.
After arrest, the police officer must bring the offender
before the Court that made the order, or a magistrate.
Clause 125 — Deferred sentence orders —
arrest warrant
Clause 125 provides for an arrest warrant to be issued and executed if
there are reasonable grounds that an offender, who is subject to a deferred
sentence order, has breached the order or any obligations related to the order
or the bail conditions.
After arrest, the police officer must bring the offender before the Court
that made the order, or a magistrate.
Clause 126 — Deferred sentence orders —
review
Clause 126 enables the Court to review a deferred sentence
order.
The Chief Executive of ACT Corrective Services and the Director of
Public Prosecutions may apply for a review of the order.
Clause 127 — Deferred sentence orders —
notice of review
If a court decides to review a deferred sentence order it must give a
notice of the review, which includes reasons and a hearing time, to the offender
and the Director of Public Prosecutions.
Part 8.3 — Deferred sentence orders —
change or cancellation
Clause 128 —
Deferred sentence orders — court’s powers on review
Clause 128 set out what the court can do having reviewed a deferred
sentence order.
If the Court has reviewed a deferred sentence order
decides not to cancel the order, the Court may warn the offender, vary the
conditions of the order, or take no action.
Clause 129 — Deferred sentence orders —
when changes to obligations take effect
Clause 129 stipulates when a new order following a review takes
effect.
The Court must give notice and a copy of the new order to the
offender. However, clause 129(6) ensures that failure to do so does not
invalidate the cancellation.
Clause 130 — Deferred sentence orders —
when cancellation takes effect
If a deferred sentence order is cancelled it takes effect on the day it is
cancelled.
The Court must give notice of the cancellation and a copy of
the order to the offender. However, clause 130(5) ensures that failure to do so
does not invalidate the cancellation.
Clause 131 — Deferred sentence orders —
effect of cancellation
If a deferred sentence order is cancelled, bail is automatically revoked on
the day the order is cancelled and the Court must sentence the
offender.
Part 8.4 — Deferred sentence orders —
other provisions
Clause 132 — Deferred
sentence orders — automatic cancellation on bail revocation
To carry out a deferred sentence order an offender is released on bail
under the Bail Act 1992. The Bail Act 1992 requires the offender
to comply with any conditions of bail and any undertakings made by the
offender.
Clause 132 stipulates that if an offender breaches their bail
conditions or undertakings the deferred sentence order is automatically revoked.
In these circumstances an offender can be arrested under clauses 124 and 125
above or by the authority of sections 56A and 56B of the Bail Act
1992.
Clause 133 — Deferred sentence orders —
relationship with Bail Act
Clause 133 governs the relationship between the Bail Act 1992 and a
deferred sentence order.
Clause 133(1)(a) ensures that the Court’s
power to require people to appear before it under the Bail Act 1992 is
not impeded in any way by a deferred sentence order.
Clause 133(1)(b)
clarifies that the entitlement to liberty following bail under the Bail Act
1992 is qualified by a deferred sentence order. If a deferred sentence
order is breached the offender is not entitled to liberty despite not having
breached the bail conditions.
Clause 133(2), (3) and (4) ensures that any
conditions, varied conditions or power to review under a deferred sentence order
does not directly, indirectly, limit the Court’s powers under the Bail
Act 1992.
Chapter 9 —
Miscellaneous
Clause 134 — Reparation — other actions
for recovery
Australians have legal rights to take civil action to recover property and
seek damages for a civil ‘wrong’ against a person’s
possession of goods (known in traditional legal language as ‘torts’
from a French word used in French Law for ‘wrong’.) Likewise,
Australians have legal rights to make claims on insurance policies covering loss
or damage to goods.
Clause 134 clarifies that the Bill would not abolish
or impede upon any civil cause of action a person may have to recover goods or
property, or to recover damages, or claim insurance for loss or
expense.
Clause 134 does not mean, however, that in civil proceedings a
Court is barred from considering any amounts paid to a claimant under a
reparation order.
Clause 135 — Information exchanges between
criminal justice entities
Clause 135 creates an explicit authority for the exchange of information
between criminal justice agencies, including the Attorney General’s
department in its role of supervising criminal justice agencies. The authority
is limited to the agencies’ responsibilities in relation to an
offence.
The National Privacy Principles (2000) allow exchange of
information by criminal justice agencies if the purpose of the exchange includes
prevention, detection, investigation, prosecution or punishment of a criminal
offence. The preparation for, or conduct of, proceedings before any court or
implementation of the orders of a court are also exceptions to the privacy
principles.
Clause 136 — Reduction of sentence —
appeal if assistance undertaking breached
Clause 36 (above) authorises a reduction in a sentence if an offender has
helped the police or any other law enforcement agencies. Clause 136 enables a
right of appeal against a sentence if an offender has breached an undertaking
made under clause 36 to assist law enforcement authorities.
If the
offender has completely failed to assist the authorities the Court must
substitute the sentence with the sentence the Court said it would have imposed
if the assistance was not forthcoming.
If the offender partly fails to
assist authorities, the Court may substitute another sentence in place of the
existing sentence.
Clause 136(6) ensures that the Court cannot impose a
sentence or nonparole period greater than the Court said it would have imposed
if the assistance was not forthcoming.
Clause 137 — Effect of failure to comply with
Act
Clause 139 stipulates that the Bill would not oust any ability for a court,
in an appeal, to consider a failure to comply with the Bill. Even though the
Bill includes provisions that ensure a failure to comply with the Bill does not
invalidate a sentence, the Court hearing the appeal would still have
jurisdiction to consider the lack of compliance.
Clause 138 — Regulation making power
Clause 140 authorises the Executive to make regulations for the
Act.
Chapter 10 —
Transitional
Clause 139 —
Application of Act — charges after commencement
Clause 139 stipulates that the new Bill would only apply to offences
charged after the enactment of the Bill. Offences charged before the enactment
of the Bill would be sentenced under the existing scheme.
Clause 139(3)
prevents a home detention order being made once the Bill commences, whether the
person is charged or not.
However, in relation to the administration of
sentences in the foreshadowed Crimes (Sentence Administration) Bill some
procedures for administration and enforcement will apply to offences committed
before the commencement of the Bill.
Clause 139(5) provides a definition of ‘old sentencing
law’, being the range of laws that apply to sentencing the day before the
commencement of this Bill.
These provisions expire five years after
commencement of the Bill.
Clause 140 — Nonparole periods —
Rehabilitation of Offenders (Interim)
Act s 31
Clause 140 provides that a non-parole period set under section 31 of
the Rehabilitation of Offenders (Interim) Act 2001 continues to apply if
the nonparole period was set before the commencement of this Bill. After this
Bill commences, the nonparole period is taken to be a non-parole period set
under this Act, even if it was set using section 31 of the Rehabilitation of
Offenders (Interim) Act 2001.
Clause 141 — Reparation orders — Crimes
Act s 350
Clause 141 provides that a reparation
order made under section 350 of the Crimes Act 1900 will be taken to be a
reparation order under part 3.3 of this Bill. The reparation order may be
enforced under this Act whenever made.
Clause 142
— Transitional regulations
Clause 142 authorises the Executive to make regulations that address any
transitional needs that were not contemplated at the time the foreshadowed Act
was passed.
Any regulations made under this clause would have the effect
and force of a provision of the foreshadowed Act.
Dictionary
The Bill includes a dictionary of definitions for the Bill, including
definitions made by reference to provisions in the Bill and provisions of other
Acts.
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