Crimes (Administration of Sentences)
Amendment Bill 2004

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Crimes (Administration of Sentences) Act
1999 to provide for a more severe penalty to be imposed on a correctional centre
inmate found with a mobile phone and with respect to other miscellaneous
matters, including the types of samples that may be taken for the purpose of
testing for the presence of prohibited drugs, the conduct of correctional centre
disciplinary proceedings, the revocation of periodic detention orders and the
extension of sentences.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days
to be appointed by proclamation, other than the amendments made by
Schedule 2 and Schedule 3.2. Clause 2 (2) provides for the amendments made
by Schedule 2 to commence on the commencement of certain currently
uncommenced amendments in the Crimes (Administration of Sentences) Further
Amendment Act 2002. Clause 2 (3) provides for the amendments to the Criminal
Appeal Act 1912 to commence on assent.

Clause 3 is a formal provision that gives effect to the amendments to the Crimes
(Administration of Sentences) Act 1999 set out in Schedules 1 and 2.

Clause 4 is a formal provision that gives effect to the amendments to the Acts
and instrument set out in Schedule 3.

Schedule 1 Amendment of Crimes (Administration of
Sentences) Act 1999
Schedule 1 [1] inserts a definition of non-invasive sample in section 3, the
definitions section. Non-invasive sample is defined to mean samples of
specified types of human biological material such as hair and urine (but not
blood). Schedule 1 [15], [16], [19], [21] and [22] make amendments to replace
references to a sample of a particular biological material with the defined term
non-invasive sample.

The proposed Act makes amendments to remove the distinction between a
correctional centre offence dealt with as a major offence and a correctional
centre offence dealt with as a minor offence. Schedule 1 [2] omits the
definitions of major offence and minor offence from section 51. Schedule 1 [3]
replaces references in section 53 to minor offences with references to
correctional centre offences. Schedule 1 [6], [9] and [20] make amendments
consequential on these amendments.

The proposed Act makes amendments to increase certain types of penalties that
governors and Visiting Magistrates can impose in administering correctional
centre discipline. Schedule 1 [4] amends section 53 to increase the maximum
number of days of deprivation of withdrawable privileges a governor can impose
from 28 to 56. Schedule 1 [5] amends section 53 to increase the maximum
number of days of confinement to a cell a governor can impose from 3 to 7.

Schedule 1 [10] amends section 56 to increase the maximum number of days of
deprivation of withdrawable privileges a Visiting Magistrate can impose from
56 to 90. Schedule 1 [11] amends section 56 to increase the maximum period a
Visiting Magistrate can extend the term of a sentence (and if applicable, the nonparole
period of the sentence) of an inmate from 28 days to 6 months.

Associated with these increases in maximum penalties, Schedule 1 [12] amends
section 56 to confer, on a Visiting Magistrate hearing a charge on a correctional
centre offence, the power to impose a sentence of imprisonment for a period not
exceeding 6 months. Schedule 1 [18] makes an amendment to section 62 to
confer a right of appeal to the District Court in respect of a sentence of
imprisonment imposed under proposed section 56 (1) (f). Schedule 1 [13] makes
an amendment consequential on this amendment.

Schedule 1 [7] amends section 55 to make certain provision for a Visiting
Magistrate to hear a charge on a correctional centre offence by way of audio
visual link.

Schedule 1 [8] makes an amendment in the nature of statute law revision.

Schedule 1 [14] inserts proposed section 56A to provide for a governor or
Visiting Magistrate dealing with a charge relating to the new correctional centre
offence in respect of an inmate found with a mobile phone to order an inmate
guilty of the offence to be deprived, for up to 6 months, of such withdrawable
privileges as the governor or Visiting Magistrate may determine. Possession of
a mobile phone or associated articles is made a correctional centre offence by
Schedule 3.1 [5].

Schedule 1 [17] makes an amendment to section 59 to increase, from $100 to
$500, the maximum amount of compensation that the governor of a correctional
centre may order an inmate to pay for loss of or damage to property as a result
of the inmate committing a correctional centre offence.

Schedule 1 [23] makes an amendment to section 163 to require the revocation
of an offender’s periodic detention order for failing to report for a single
detention period if the same offender has already had a periodic detention order
reinstated previously following revocation for failure to report for 3 or more
detention periods. It also makes it clear that, for the purposes of section 163 (2)
(a), it is immaterial whether a relevant failure to report occurred before or after
a reinstatement of the relevant periodic detention order.

Schedule 1 [24] inserts proposed section 249 (2) to make it clear that the
definition of a person in custody includes persons refused bail or granted bail
but not released under section 20 of the Bail Act 1978 and persons arrested or
apprehended under section 50 of the Bail Act 1978.

Schedule 1 [25] makes an amendment to section 250 to make it clear that a
correctional officer into whose keeping a person in custody has been given can
convey the person in custody to a court.

Schedule 1 [26]–[28] make amendments to section 255 to provide for the effect
of the extension of a sentence on a sentence to be served partly consecutively
with the extended sentence. Schedule 1 [26] makes an amendment to make it
clear that section 255 applies in respect of a partly consecutive sentence.

Schedule 1 [27] provides that on the extension of the non-parole period of a
sentence, the date of commencement of a partly consecutive sentence (that
would otherwise commence before the end of the non-parole period of the
extended sentence) is extended by the period the non-parole period is extended.

Schedule 1 [28] makes a corresponding amendment to provide that a partly
consecutive sentence (that would otherwise commence after the end of the nonparole
period of an extended sentence) is extended by the period for which the
term is extended.

Schedule 1 [29] makes an amendment to clause 3 of Schedule 2 to provide that
the nomination of the deputy of an official member of the Serious Offenders
Review Council may be for a specified period or an indefinite period and, in
respect of the period the nomination is in force, has effect according to its terms
(subject to any revocation). Provision is also made for a list of officers of the
Department eligible to be nominated as the deputy of an official member to be
established and for such a deputy only to be chosen from the list of eligible
officers. A provision is also included to make it clear that the revocation of the
appointment of an official member automatically results in the revocation of the
nomination of a deputy of the official member.

Schedule 1 [30] and [31] contain amendments to Schedule 5 in relation to
savings and transitional provisions consequent on the enactment of the proposed
Act.

Schedule 2 Further amendments to Crimes
(Administration of Sentences) Act 1999
Schedule 2 makes amendments to provisions to be inserted in the Crimes
(Administration of Sentences) Act 1999 by Schedule 1 [14] to the Crimes
(Administration of Sentences) Further Amendment Act 2002 to replace
references to particular biological materials with the defined term non-invasive
sample (to be inserted by Schedule 1 [1]).

Schedule 3 Amendment of other Acts and instrument
Schedule 3.1 makes amendments to the Crimes (Administration of Sentences)
Regulation 2001.

Schedule 3.1 [1] makes it an offence against the Crimes (Administration of
Sentences) Regulation 2001 for an inmate to have in his or her possession a
mobile phone or any part of it, a mobile phone SIM card or any part of it, or a
mobile phone charger or any part of it. Schedule 3.1 [5] makes an amendment
to specify the new offence as a correctional centre offence by including it in
Schedule 2 to the Regulation. An amendment made by Schedule 3.4 includes a
related offence in the Summary Offences Act 1988, enabling such conduct to be
dealt with as an offence against that Act (with a maximum penalty of
imprisonment for 2 years or 50 penalty units (currently $5,500), or both) rather
than as a correctional centre offence. Schedule 3.1 [5] also amends Schedule 2
to reflect the abolition of the distinction between a correctional centre offence
treated as a major offence and a correctional centre offence treated as a minor
offence.

Schedule 3.1 [2]–[4] and [6] make consequential amendments to reflect the
abolition of the distinction between a correctional centre offence treated as a
major offence and a correctional centre offence treated as a minor offence.

Schedule 3.2 makes amendments to the Criminal Appeal Act 1912 to give effect
to provisions with respect to certain time not being counted as part of a term of
imprisonment under a person’s sentence.

Schedule 3.3 makes an amendment to the Freedom of Information Act 1989 to
omit the matter relating to the office of Inspector-General of Corrective Services
from Schedule 2, following the expiry of the position of Inspector-General of
Corrective Services on 1 October 2003.

Schedule 3.4 makes an amendment to the Summary Offences Act 1988 to make
it an offence against the Summary Offences Act 1988 for an inmate, without
reasonable excuse (proof of which lies on the inmate), to have in his or her
possession in a place of detention a mobile phone or any part of it, a mobile
phone SIM card or any part of it, or a mobile phone charger or any part of it. The
maximum penalty for this offence is imprisonment for 2 years or 50 penalty units
(currently $5,500), or both.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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