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1
Penalties and Sentences (Serious Violent Offences) Amendment
PENALTIES AND SENTENCES (SERIOUS
VIOLENT OFFENCES) AMENDMENT
BILL 1997
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The amendments give effect to the Queensland National Liberal Coalition
Policy on serious violent offences.
Reasons for the objectives and how they will be acheived
This legislation introduces into the Penalties and Sentences Act 1992,
Corrective Services Act 1988 and the Criminal Code 1899 separate
provisions for the punishment of serious violent offences. There are also
provisions setting out guidelines for courts faced with deciding whether to
order that a person serve the whole of a suspended term of imprisonment.
Finally, there are included reforms of the evidentiary provisions in Part 10
"Indefinite Sentences".
Administrative cost to Government of implementation
On the basis of the offences listed in the schedule of serious violent
offences, the Honourable the Minister for Police and Corrective Services
has been able to provide broad estimates of changes in prisoner numbers
which could result from this policy initiative.
As at 30 June 1996, a maximum of approximately 338 prisoners, out of
a total prison population of 3538 could, potentially, be regarded as serious
violent offenders. Just how many actually do become subjected to the new
80 % rule will depend on how many offenders convicted of the schedule
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Penalties and Sentences (Serious Violent Offences) Amendment
offences are sentenced to10 or more than 10 years imprisonment. The
figures provided for the last three years are as follows:
Sentence no. at no. at no. at % of all
(potential "serious 30/06/94 30/06/95 30/06/96 prisoners
violent offenders") for `96
5 to less than 10 years 450 616 583 16.5
10 years to less than life 237 282 338 9.5
TOTAL 687 898 921 26
ALL PRISONERS 2491 2870 3538 100
If all those 338 serving 10 years and more were treated as serious violent
offenders, the daily state would increase by approximately 130 with
additional annual recurrent costs of $5.0m. Capital costs would be absorbed
in normal infrastructure development.
All of these figures assume that prisoners are granted parole when
entitled to apply.
As the legislation will not be retrospective, the daily state would not
increase to these levels overnight. The full extent of capital costs would be
spread over about 15 years with the peak in about 10 years.
At the end of the day it unclear to what extent the policy will impact
financially because, as anecdotal evidence has it, many of these types of
prisoners are not granted parole when it would otherwise be available.
These estimates take into account also the discontinuation of remission
for serious violent offenders.
It was not possible to provide the number of prisoners for each offence
in the Schedule as the Queensland Corrective Services Commission
(QCSC) stores offence information using a modified Australian National
Classification of Offences (ANCO) coding system. These codes are used
by all Australian correctional institutions, and as such, do not directly match
specific Queensland offences.
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Penalties and Sentences (Serious Violent Offences) Amendment
The QCSC has matched Queensland offences with the ANCO codes to
the best extent possible and has erred on the side of including, rather than
excluding, ANCO offence types. The resulting data is thus more likely to
over-count offenders on current available figures.
Further, the estimates are based upon an assumption that the increased
time actually served by all serious violent offenders will increase from the
30% mark (when prisoners can generally gain access to community release
schemes) to the 80% mark. However, as a general rule, release to work and
other early release programs are not extended to the most violent offenders
in any event. Therefore, one can infer the actual cost increases will be due to
those prisoners serving, not the difference between 30% and 80% of their
sentences, but the difference between 50% (when prisoners can generally
become eligible to apply for parole) and 80%.
The proposal in respect of multiple murderers, if adopted, would have
little or no impact on prisoner numbers. Life sentenced prisoners serve
about 18 years on average before being granted parole. This is despite their
eligibility to apply for parole after 13 years. The Bill also increases the
eligibility date from 13 to 15 years.
Fundamental legislative principles
The only issue arising in relation to fundamental legislative principles
concerns the potential for application of the new sentencing regime
"retrospectively" to those prisoners who, before the commencement of this
Act, were sentenced in relation to an offence in the schedule and who, after
the commencement of this Act, are further sentenced to a cumulative term
for another schedule offence, where the total term of imprisonment is or
exceeds 10 years. It will also be irrelevant for the purposes of this Act
whether the offence for which the person is being sentenced was committed
before or after the commencement of this Act. Likewise, under section 206,
a recommendation made before the commencement of this Act that a
person be eligible to apply for parole earlier than is otherwise allowed by
statute will be of no further effect if the person is later convicted of a serious
violent offence.
These provisions are not retrospective in the true sense and their
application to prisoners is wholly dependant upon subsequent further
offending behaviour involving crimes of violence.
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Penalties and Sentences (Serious Violent Offences) Amendment
Consultation
There has been extensive consultation and cooperation with the
Honourable the Minister for Police and Corrective Services.
NOTES ON PROVISIONS
Short Title: Penalties and Sentences (Serious Violent Offences)
Amendment Bill 1997
Part 1--Preliminary
Clause 1 sets out the Act's short title.
Clause 2 provides for the commencement of the Act on a day to fixed by
proclamation.
Part 2--Amendment of Penalties and Sentences Act 1992
Clause 3 provides that the Penalties and Sentences Act 1992 is amended
by this part.
Clause 4 amends section 3 (Purposes) by adding that the purposes of the
Act include providing for a sufficient range of sentences for the appropriate
punishment and rehabilitation of offenders and, in appropriate
circumstances, ensuring that protection of the Queensland community is a
paramount consideration.
Clause 5 amends section 4 (Definitions) by flagging the definition of
"serious violent offence" at section 161A (When an offender is convicted
of a serious violent offence).
Clause 6 amends section 9 (Sentencing guidelines) by omitting
subsections (3) and (4) and providing that the principles mentioned in
subsection (2)(a) (about imprisonment as a last resort) do not apply to the
sentencing of an offender for any offence that involved use, counselling or
procuring use of, or attempting or conspiring to use, violence against
another person or that resulted in physical harm.
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Penalties and Sentences (Serious Violent Offences) Amendment
In sentencing such an offender, the court must have regard primarily to
the risk of physical harm to any members of the community if a custodial
sentence were not imposed, the need to protect any members of the
community from that risk and a number of other specified factors.
Clause 7 amends section 147 (Power of court mentioned in s.146) by
providing that, in deciding whether it would be unjust to order the offender
to serve the whole of the suspended sentence, the court must have regard to
whether the subsequent offence is trivial having regard to a number of
specified factors, the seriousness of the original offence (including any
physical or emotional harm done to a victim and any damage, injury or loss
caused by the offender) and any special circumstance arising since the
original sentence was imposed that makes it unjust to impose the whole of
the suspended term of imprisonment.
Clause 8 inserts a new section 156A (Cumulative order of imprisonment
must be made in particular circumstances). It will provide that, if an
offender is convicted of a serious violent offence committed while a
prisoner was serving a term of imprisonment, or on parole under the
Corrective Services Act 1988, or on leave of absence or while serving a
period of home detention, or while at large after escaping from lawful
custody under a sentence of imprisonment, then a sentence of
imprisonment imposed for the serious violent offence must be ordered to
be served cumulatively with any other term of imprisonment the offender is
liable to serve.
Clause 9 amends section 157 (Eligibility for parole) by providing that if
an offender is convicted of a serious violent offence then the court that
sentences the offender for that offence cannot make a recommendation
under section 157 that reduces the period of imprisonment the offender
must serve before being eligible for release on parole under the Corrective
Services Act 1988, section 166(1)(c). Further the section will provide that no
recommendation made under the section by any court can reduce the period
of imprisonment that the offender must serve before being eligible for
release on parole under the Corrective Services Act 1988, section 166(1)(c).
When read together with clause 16, prisoners serving a period of 10 or
more years for a serious violent offence must serve a minimum of 80 % of
the period before being eligible for release on parole whether or not a
recommendation under the section had been made in relation to a previous
sentence which subsequently becomes part of the total period to be served
for the offences.
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Penalties and Sentences (Serious Violent Offences) Amendment
Clause 10 inserts a new part after section 161: "Part 9A--Convictions
For Serious Violent Offences". The new sections will be sections 161A to
161D.
Section 161A (When an offender is convicted of a serious violent
offence) will provide that an offender is `convicted of a serious violent
offence' if the offender is convicted on indictment and sentenced to 10 or
more years imprisonment, as calculated under section 161C, for an offence
under a provision mentioned in the schedule or for an offence of
counselling or procuring the commission of, or attempting or conspiring to
commit, an offence under a provision mentioned in the schedule or if the
offender is declared by the sentencing court to be convicted of a serious
violent offence under section 161B(3) or (4).
Section 161B (Declaration of conviction of serious violent offence) will
provide that if an offender is convicted of a serious violent offence under
section 161A(a), the sentencing court must declare the conviction to be a
conviction of a serious violent offence as part of the sentence. This will
assist the QCSC to identify prisoners who are to serve 80 % of their term or
period of imprisonment before being eligible to apply for parole or
community release. However, the failure of the sentencing court to make a
declaration as required under the section does not affect the fact that the
offender has been convicted of a serious violent offence.
Also, in subsection (3), if an offender is convicted on indictment of an
offence mentioned in the schedule, or for an offence of counselling or
procuring the commission of, or attempting or conspiring to commit, an
offence under a provision mentioned in the schedule, and the offender is
sentenced to 5 or more than 5 but less than 10 years imprisonment, then the
sentencing court will have a specific discretion to declare the offender to be
`convicted of a serious violent offence' as part of the sentence.
Finally, in subsection (4), if an offender is convicted on indictment of an
offence that involved the use of, counselling or procuring the use of, or
conspiring or attempting to use, serious violence against another person, or
that resulted in serious harm to another person and is sentenced to a term of
imprisonment for the offence, then the sentencing court will have a general
discretion to declare the offender to be convicted of a serious violent offence
as part of the sentence even if the offence is not in the schedule and
regardless of the sentence imposed.
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Penalties and Sentences (Serious Violent Offences) Amendment
Section 161C (Calculation of number of years of imprisonment) will
provide in effect that an offender will be taken to be sentenced to 10 or more
years imprisonment, or 5 or more but less than 10 years, whichever is the
relevant specified period, if the offender is sentenced to the specified term
for an offence in the schedule, or if the term of imprisonment to which the
offender is sentenced is part of a period of imprisonment of 10 or more
years or 5 or more years as the case may be. Also, whether the offender has
been sentenced to the relevant specified period must be calculated as at the
day of sentence.
For example, where a person has previously been convicted of an
offence in the schedule and sentenced to a term of less than 10 years
imprisonment and the person is subsequently convicted and sentenced for
another offence in the schedule and the sentence is made cumulative so that
the total period of imprisonment for schedule offences is 10 years or more,
the person is to be taken to be convicted of a serious violent offence.
Section 161D (Sentence for serious violent offence cannot be remitted)
will provide that the sentence of an offender convicted of a serious violent
offence cannot be remitted under the Corrective Services Act 1988.
Clause 11 amends section 162 (Definitions) in Part 10 "Indefinite
Sentences" by replacing the words "use, or attempted use, of" in the
definition of "violent offence" with the words "use of, counselling or
procuring the use of, or attempting or conspiring to use," consistently with
the definition of serious violent offence.
Clause 12 amends section 164 (Counsel for prosecution to inform court)
in subsection (2) by increasing, from 7 to 15 business days, the time within
which the prosecution is to inform the court of an application under section
163 to impose an indefinite sentence.
Clause 13 replaces section 167(3) (Evidence) by providing that in
deciding whether the offender is a serious danger to the community, the
court may have regard to anything relevant to the issue contained in the
certified transcript of, or any medical or other report tendered in, any
proceeding against the offender for a violent offence.
Clause 14 inserts three new sections into Part 10 "Indefinite Sentences".
The new sections will be sections 172A to 172C.
Section 172A (Distribution of reports) will provide that the court must, a
reasonable time before the review is to take place, cause a copy of a report
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Penalties and Sentences (Serious Violent Offences) Amendment
ordered by it under section 176 (Registrar of court to give report) to be
provided to the Director of Public Prosecutions, the offender's legal
representative and to the offender, if the court has so directed. If the
prosecution or the defence has caused a report about the offender to be
prepared for the review, it must, a reasonable time before the review is to
take place, file the report with the court and provide a copy of the report to
the Director of Public Prosecutions or the offender's legal representative.
Section 172B (Disputed report) will provide that the Director of Public
Prosecutions or the offender may file with the court a notice of intention to
dispute the whole or any part of a report provided under section 172A. If
such a notice is filed before the review is to take place, the court must not
take the report or the part in dispute into consideration on the hearing of the
review unless the party that filed the notice has been given the opportunity
to lead evidence on the disputed matters and to cross-examine the author of
the report on its contents.
Section 172C (Review hearing) will provide that on the hearing of a
review under section 171 (Review - periodic) or 172 (Review - application
by offender imprisoned), a court must give both the Director of Public
Prosecutions and the offender the opportunity to lead admissible evidence
on any relevant matter and, subject to section 172B (Disputed report), take
into consideration any report in respect of the offender that is filed with the
court and must have regard to any submissions made to it on the review.
Clause 15 amends section 176 (Registrar of court to give report) by
omitting subsection (6) because the subject matter will now be dealt with in
the new section 172B.
Clause 16 inserts a new section 206 (Transitional provisions for
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997) at
the end of the Act. The section will provide that section 157(7)(b) applies to
a recommendation made under section 157 (Eligibility for parole) even if
the recommendation was made before the commencement of section
157(7).
For subsection 161C (2)(b), sentences of imprisonment imposed on the
offender for offences mentioned in section 161C (1)(c) or (d) must be taken
into account even if the sentences were imposed before the commencement
of the new Part 9A.
In other words, when read together with clause 9 above, prisoners
serving a period of 10 or more than 10 years imprisonment for a serious
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Penalties and Sentences (Serious Violent Offences) Amendment
violent offence must serve a minimum of 80 % of the period before being
eligible for release on parole whether or not a recommendation under the
section had been made in relation to a previous sentence which
subsequently becomes part of the total period to be served for the serious
violent offence or offences.
Clause 17 inserts a schedule of `serious violent offences'. It is in 4
portions--Criminal Code, Criminal Code (Provisions repealed by Criminal
Law Amendment Act 1997), Corrective Services Act 1988, and Drugs
Misuse Act 1986--each listing the offences under those Acts which will
constitute serious violent offences if a prisoner is sentenced to serve, for
example, 10 or more than 10 years imprisonment for such an offence.
Part 3--Amendment of Criminal Code
Clause 18 provides that the Criminal Code 1899 is amended by this part.
Clause 19 amends section 305 (Punishment of murder) by providing
that, if an offender is being sentenced on more than 1 conviction of murder,
or on 1 conviction of murder and another offence of murder is taken into
account, or on a conviction of murder and the person has on a previous
occasion been sentenced for another offence of murder, then the court
sentencing the offender must make an order that the offender must not be
released from imprisonment until he or she has served a minimum of 20 or
more specified years of imprisonment, unless released sooner under the
Corrective Services Act 1988, section 166(4) because of special
circumstances. This rule will apply whether the crime for which the person
is being sentenced was committed before or after the conviction for the
other offence of murder mentioned in the paragraph.
Part 4--Amendment of the Corrective Services Act 1988
Clause 20 provides that the Corrective Services Act 1988 is amended by
this part.
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Penalties and Sentences (Serious Violent Offences) Amendment
Clause 21 amends section 10 (Definitions) by inserting a definition of
serious violent offence by cross-reference to section 4 of the Penalties and
Sentences Act 1992.
Clause 22 amends section 61 (Leave of absence) by providing that the
Queensland Corrective Service Commission (QCSC) must not grant leave
of absence to a prisoner serving a term of life imprisonment on conviction
of a serious violent offence unless the prisoner has served at least 15 years
of that sentence. Other prisoners serving a term of imprisonment on
conviction of a serious violent offence must have served at least 80% of the
sentence imposed. An exception is provided for if the prisoner is released
for medical or compassionate purposes and, in any case, is released under
the control of a custodial correctional officer. In deciding whether or not to
grant leave of absence to a prisoner, the commission must consider any
recommendation of the court that sentenced the prisoner that the prisoner
should not be released from imprisonment unless the prisoner has served a
period of the sentence longer than that otherwise required by this section.
Clause 23 amends section 86 (Release of prisoner to home detention) by
providing that the QCSC must not release a prisoner serving a term of life
imprisonment on conviction of a serious violent offence unless the prisoner
has served at least 15 years of that sentence. Other prisoners serving a term
of imprisonment on conviction of a serious violent offence must have
served at least 80% of the sentence imposed. As in clause 19, an exception
is provided for if the prisoner is released for medical or compassionate
purposes and, in any case, is released under the control of a custodial
correctional officer. Again, in deciding whether or not to grant leave of
absence to a prisoner, the commission must consider any recommendation
of the court that sentenced the prisoner that the prisoner should not be
released from imprisonment unless the prisoner has served a period of the
sentence longer than that otherwise required by this section.
Clause 24 amends section 166 (Eligibility for parole) by providing that a
prisoner is not eligible for parole--
(a) if the prisoner is serving a term of life imprisonment and the
Criminal Code, section 305(2) applied to the prisoner on
sentence--until the prisoner has served the period required under
an order under the subsection, or, if no order was made, 20 years;
or
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Penalties and Sentences (Serious Violent Offences) Amendment
(b) if the prisoner is serving a term of life imprisonment and the
Criminal Code, section 305(2) did not apply to the prisoner on
sentence--until the prisoner has served a period of 15 years; or
(c) if the prisoner is serving a term of imprisonment for a serious
violent offence--until the prisoner has served the lesser of the
following--
(i) 80% of the term of imprisonment to which the prisoner was
sentenced; or
(ii) 15 years; or
(d) otherwise--until the prisoner has served half of the term of
imprisonment to which the prisoner was sentenced.
© The State of Queensland 1997