2010
2010
2010-12-07
act
government
publicspecial
act.reprint
partuncommenced
2010-11-23
2010-12-02
1
2010
none
act-2010-136
ee91ef5c-41cd-41c8-9a30-3ca412f5b0a1
51c91ba5-b8c5-4f93-a3c1-e25a74386b93
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to amend the Crimes
(Sentencing Procedure) Act 1999 and various other Acts to
implement certain recommendations of the Sentencing Council; to amend the
Crimes (Sentencing Procedure) Act 1999
to provide for the aggregation of sentences; and for other
purposes.
1Name of
Act
This Act is the Crimes
(Sentencing Procedure) Amendment Act
2010.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by subsection
(2).
(2)
Schedule 1.3 commences on the date of assent to
this Act.
Schedule 1Amendments relating to
Sentencing Council recommendations
1.1Crimes
(Administration of Sentences) Act 1999 No
93
[1]Section 135 General duty of
Parole Authority
Insert after section 135 (2):
(2A)
Without limiting subsection (2) (k), if the
offender has provided post-sentence assistance, the Parole Authority may have
regard to the nature and extent of the assistance (including the reliability
and value of any information or evidence provided by the offender) and the
degree to which the offender’s willingness to provide such assistance
reflects the offender’s progress to
rehabilitation.
(2B)
In subsection (2A):
post-sentence assistance means
assistance in the prevention, detection or investigation of, or in proceedings
relating to, any offence, provided by an offender to law enforcement
authorities after the offender was sentenced and that was not taken into
account or considered by the sentencing court.
[2]Schedule 5 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Crimes
(Sentencing Procedure) Amendment Act 2010 (but only to the
extent that it amends this Act)
[3]Schedule 5, Part
18
Insert after Part 17:
Part 18Provision consequent on
enactment of Crimes (Sentencing Procedure)
Amendment Act 2010
109Proceedings pending before
Parole Authority
Any matter pending before the Parole Authority
before the commencement of the amendment made to section 135 by the Crimes (Sentencing Procedure) Amendment Act
2010 is to be continued and completed as if that section
had not been amended.
1.2Crimes
(Sentencing Procedure) Act 1999 No
92
[1]Section 22 Guilty plea to be
taken into account
Insert at the end of section 22 (1) (b):
and
(c)
the circumstances in which the offender indicated
an intention to plead guilty,
[2]Section 22
(1A)
Insert after section 22 (1):
(1A)
A lesser penalty imposed under this section must
not be unreasonably disproportionate to the nature and circumstances of the
offence.
[3]Section 22A Power to reduce
penalties for facilitating the administration of justice
Omit section 22A (1). Insert instead:
(1)
A court may impose a lesser penalty than it would
otherwise impose on an offender who was tried on indictment having regard to
the degree to which the administration of justice has been facilitated by the
defence (whether by disclosures made pre-trial or during the trial or
otherwise).
[4]Section 23 Power to reduce
penalties for assistance provided to law enforcement
authorities
Omit section 23 (2) (a).
[5]Section 23 (2)
(j)
Omit the paragraph.
[6]Section 23
(4)–(6)
Insert after section 23 (3):
(4)
A court that imposes a lesser penalty under this
section on an offender because the offender has assisted, or undertaken to
assist, law enforcement authorities must:
(a)
indicate to the offender, and make a record of
the fact, that the lesser penalty is being imposed for either or both of those
reasons, and
(b)
state the penalty that it would otherwise have
imposed, and
(c)
where the lesser penalty is being imposed for
both reasons—state the amount by which the penalty has been reduced for
each reason.
(5)
Subsection (4) does not limit any requirement
that a court has, apart from that subsection, to record the reasons for its
decisions.
(6)
The failure of a court to comply with the
requirements of subsection (4) with respect to any sentence does not
invalidate the sentence.
[7]Section 24A Mandatory
requirements for supervision of sex offenders and prohibitions against
child-related employment to be disregarded in sentencing
Insert at the end of section 24A (1) (b):
, or
(c)
as a consequence of being convicted of the
offence, is prohibited under the Commission for
Children and Young People Act 1998 from applying for or
attempting to obtain child-related employment or from undertaking or remaining
in child-related employment.
[8]Section
24B
Insert after section 24A:
24BConfiscation of assets and
forfeiture of proceeds of crime to be disregarded in
sentencing
(1)
In sentencing an offender, the court must not
take into account, as a mitigating factor in sentencing, the consequences for
the offender of any order of a court imposed because of the offence under
confiscation or forfeiture legislation.
(2)
In this section:
confiscation or forfeiture
legislation means the following:
(a)
the Confiscation of
Proceeds of Crime Act 1989,
(b)
the Criminal Assets
Recovery Act 1990,
(c)
the Proceeds of Crime Act
2002 of the Commonwealth,
(d)
any other law prescribed by the regulations for
the purposes of this definition.
[9]Section 32 Prosecutor may file
list of additional charges
Insert after section 32 (5):
(6)
A failure to comply with the requirements of this
section does not invalidate any sentence imposed by the court for the
principal offence.
[10]Section
35A
Insert after section 35:
35AConsultation with victim and
police in relation to charge negotiations
(1)
In this section:
charge
negotiations means negotiations between the prosecution and
an offender with respect to a plea of guilty in relation to an offence other
than the offence or offences with which the offender has been charged or
committed for trial.
prosecution guidelines means
prosecution guidelines in relation to charge negotiations issued by the
Director of Public Prosecutions.
requisite
consultation means consultation with the victim and the
police officer in charge of investigating an offence that complies with the
applicable prosecution guidelines.
victim has the same meaning as it
has in section 26.
(2)
A court must not take into account offences
specified in a list of additional charges under section 32 in relation to an
offence, or any statement of agreed facts, that was the subject of charge
negotiations unless the prosecutor has filed a certificate with the court
verifying that:
(a)
the requisite consultation has taken place or, if
consultation has not taken place, the reasons why it has not occurred,
and
(b)
any statement of agreed facts arising from the
negotiations tendered to the court constitutes a fair and accurate account of
the objective criminality of the offender having regard to the relevant and
provable facts or has otherwise been settled in accordance with the applicable
prosecution guidelines.
(3)
The certificate must be signed by or on behalf of
the Director of Public Prosecutions.
(4)
A certificate is taken to be signed on behalf of
the Director of Public Prosecutions if it is signed by a person:
(a)
who is authorised to do so by means of a written
order signed by the Director of Public Prosecutions or who belongs to a class
of persons so authorised, or
(b)
who is prescribed by the regulations or who
belongs to a class of persons so prescribed.
(5)
The court may require the prosecution to explain
the reason for a failure to file a certificate when it is required by this
section to do so.
[11]Section 57 Sentences for
offences involving escape by inmates
Insert after section 57 (1):
(1A)
A sentence of imprisonment to which this section
applies must be imposed after any other sentence of imprisonment that is
imposed in the same proceedings.
[12]Section 57
(2)
Insert “to which this section
applies” after “imprisonment” where firstly
occurring.
[13]Schedule 2 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Crimes
(Sentencing Procedure) Amendment Act 2010 (but only to the
extent that it amends this Act)
[14]Schedule 2, Part
21
Insert after Part 20:
Part 21Provision consequent on
enactment of Crimes (Sentencing Procedure)
Amendment Act 2010
62Application of
amendments
(1)
In this Part:
amending
Act means the Crimes
(Sentencing Procedure) Amendment Act
2010.
(2)
An amendment made by the amending Act applies to
the determination of a sentence for an offence whenever committed,
unless:
(a)
a court has convicted the person being sentenced
of the offence, or
(b)
a court has accepted a plea of guilty and the
plea has not been withdrawn,
before the commencement of the amendment
concerned.
1.3Crimes
(Serious Sex Offenders) Act 2006 No
7
[1]Section 6 Application for
extended supervision order
Omit section 6 (1) (a). Insert instead:
(a)
while serving a sentence of imprisonment:
(i)
for a serious sex offence, or
(ii)
for an offence of a sexual nature,
or
(iii)
for another offence which is being served
concurrently or consecutively, or partly concurrently and partly
consecutively, with one or more sentences of imprisonment referred to in
subparagraph (i) or (ii),
whether the sentence is being served by way of full-time
detention, intensive correction in the community or home detention and whether
the offender is in custody or on release on parole,
or
[2]Section 14 Application for
continuing detention order
Omit section 14 (1) (a). Insert instead:
(a)
while serving a sentence of imprisonment by way
of full-time detention:
(i)
for a serious sex offence, or
(ii)
for an offence of a sexual nature,
or
(iii)
for another offence which is being served
concurrently or consecutively, or partly concurrently and partly
consecutively, with one or more sentences of imprisonment referred to in
subparagraph (i) or (ii), or
Schedule 2Amendments to Crimes (Sentencing Procedure) Act 1999 No
92 relating to aggregate sentencing
[1]Section 3
Interpretation
Insert in alphabetical order in section 3
(1):
aggregate
sentence of imprisonment—see section
53A.
[2]Section 17A Non-association
and place restriction orders
Insert “or to an aggregate sentence of
imprisonment in respect of 2 or more offences any one of which is an offence
to which this section applies” after “fine” in section 17A
(1).
[3]Section 44 Court to set
non-parole period
Omit “When” from section 44
(1).
Insert instead “Unless imposing an
aggregate sentence of imprisonment, when”.
[4]Section 44
(2A)–(2C)
Insert after section 44 (2):
(2A)
Without affecting the requirement to set a
non-parole period for a sentence, a court imposing an aggregate sentence of
imprisonment in respect of 2 or more offences on an offender may set one
non-parole period for all the offences to which the sentence relates after
setting the term of the sentence.
(2B)
The term of the sentence that will remain to be
served after the non-parole period set for the aggregate sentence of
imprisonment is served must not exceed one-third of the non-parole period,
unless the court decides that there are special circumstances for it being
more (in which case the court must make a record of its reasons for that
decision).
(2C)
The court need not indicate the non-parole period
that would have been imposed for each offence had separate sentences been
imposed instead of an aggregate sentence unless it is required to do so by
section 54B (4A).
[5]Section 44
(3)
Omit “subsection (2)”. Insert instead
“subsection (2), (2B) or (2C)”.
[6]Section 45 Court may decline
to set non-parole period
Omit section 45 (1). Insert instead:
(1)
When sentencing an offender to imprisonment for
an offence or, in the case of an aggregate sentence of imprisonment, for
offences (other than an offence or offences set out in the Table to Division
1A of this Part), a court may decline to set a non-parole period for the
offence or offences if it appears to the court that it is appropriate to do
so:
(a)
because of the nature of the offence to which the
sentence, or of each of the offences to which an aggregate sentence relates,
or the antecedent character of the offender, or
(b)
because of any other penalty previously imposed
on the offender, or
(c)
for any other reason that the court considers
sufficient.
[7]Section 45
(2)
Insert “or an aggregate sentence of
imprisonment” after “imprisonment”.
[8]Section 47 Commencement of
sentence
Insert “or, in the case of an aggregate
sentence of imprisonment, any of the offences” after
“offence” in section 47 (3).
[9]Section 47
(5)
Insert “(or an aggregate sentence of
imprisonment)” after “imprisonment” where firstly
occurring.
[10]Section 47
(6)
Insert “(or an aggregate sentence of
imprisonment)” after “imprisonment”.
[11]Section 48 Information about
release date
Insert “, or to an aggregate sentence of
imprisonment for 2 or more offences” after “for an offence”
in section 48 (1).
[12]Section 49 Restriction on term
of sentence
Insert “(other than an aggregate sentence
of imprisonment)” after “sentence of
imprisonment”.
[13]Section 49
(2)
Insert at the end of section 49:
(2)
The term of an aggregate sentence of
imprisonment:
(a)
must not be more than the sum of the maximum
periods of imprisonment that could have been imposed if separate sentences of
imprisonment had been imposed in respect of each offence to which the sentence
relates, and
(b)
must not be less than the shortest term of
imprisonment (if any) that must be imposed for any separate offence or, if the
sentence relates to more than one such offence, must not be less than the
shortest term of imprisonment that must be imposed for any of the
offences.
[14]Sections 53 and
53A
Omit section 53. Insert instead:
53Multiple sentences of
imprisonment
(1)
When a court imposes a sentence of imprisonment
on an offender in relation to more than one offence, the court must (unless
imposing an aggregate sentence of imprisonment in accordance with section 53A)
comply with the requirements of this Division by imposing a separate sentence
in relation to each offence.
(2)
The term, and any non-parole period, set under
this Division in relation to a sentence of imprisonment is not revoked or
varied by a later sentence of imprisonment that the same or some other court
subsequently imposes in relation to another offence.
53AAggregate sentences of
imprisonment
(1)
A court may, in sentencing an offender for more
than one offence, impose an aggregate sentence of imprisonment with respect to
all or any 2 or more of those offences instead of imposing a separate sentence
of imprisonment for each.
(2)
A court that imposes an aggregate sentence of
imprisonment under this section on an offender must indicate to the offender,
and make a record of, the following:
(a)
the fact that an aggregate sentence is being
imposed,
(b)
the sentence that would have been imposed for
each offence (after taking into account such matters as are relevant under
Part 3 or any other provision of this Act) had separate sentences been imposed
instead of an aggregate sentence.
(3)
Subsection (2) does not limit any requirement
that a court has, apart from that subsection, to record the reasons for its
decisions.
(4)
The term, and any non-parole period, set under
this Division in relation to an aggregate sentence of imprisonment is not
revoked or varied by a later sentence of imprisonment that the same or some
other court subsequently imposes in relation to another
offence.
(5)
An aggregate sentence of imprisonment is not
invalidated by a failure to comply with this section.
[15]Section 54B Sentencing
procedure
Insert “, or an aggregate sentence of
imprisonment with respect to one or more offences,” after
“offence” in section 54B (1).
[16]Section 54B
(2)
Insert “(not being an aggregate
sentence)” after “offence” where firstly
occurring.
[17]Section 54B (4A) and
(4B)
Insert after section 54B (4):
(4A)
When determining an aggregate sentence of
imprisonment for one or more offences, the court is to indicate, for those
offences to which a standard non-parole period applies, the standard
non-parole period (or a longer or shorter non-parole period) that it would
have set in accordance with subsections (2) and (3) for each such offence to
which the aggregate sentence relates had it set a separate sentence of
imprisonment for that offence.
(4B)
If the court indicates that it would have set a
longer or shorter non-parole period for an offence under subsection (4A), it
must make a record of the reasons why it would have increased or reduced the
standard non-parole period. The court must identify in the record each factor
that it would have taken into account.
[18]Section 66 Intensive
correction not available for certain sexual offences
Insert “or with respect to an aggregate
sentence of imprisonment with respect to 2 or more offences, any one of which
is a prescribed sexual offence” after “offence” in section
66 (1).
[19]Section 76 Home detention not
available for certain offences
Insert “or with respect to an aggregate
sentence of imprisonment with respect to 2 or more offences, any one of which
is one of the following offences” after “offences” where
firstly occurring.
Historical
notes
Table of amending
instruments
Crimes
(Sentencing Procedure) Amendment Act 2010 No 136. Assented
to 7.12.2010. Date of commencement, Sch 1.3 excepted: not in force; date of
commencement of Sch 1.3, assent, sec 2 (2).