SENTENCING AMENDMENT BILL (NO 3) 1998

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This is a Bill, not an Act. For current law, see the Acts databases.

SENTENCING AMENDMENT BILL (NO 3) 1998

Serial 132
Sentencing Amendment (No. 3)
Mr Stone

NORTHERN TERRITORY OF AUSTRALIA

SENTENCING Amendment BILL (NO. 3) 1999

TABLE OF PROVISIONS

Clause

1. Short title
2. Commencement
3. Principal Act
4. Interpretation
5. New section:

"4A. DEFINITION"

6. Sentencing guidelines
7. New section:

"6A. FACTORS TO BE CONSIDERED IN DETERMINING VULNERABILITY OF VICTIM"

8. Suspended sentence of imprisonment
9. New section:

"49A. INCREASE IN TERM OF IMPRISONMENT WHERE VULNERABLE VICTIM"

10. Aggregate sentences of imprisonment
11. Non-parole period for sexual offences involving children
12. Disposal of other pending charges
13. Application

NORTHERN TERRITORY OF AUSTRALIA

A BILL
for
AN ACT

to amend the Sentencing Act

_B
E it enacted by the Legislative Assembly of the Northern Territory of Australia, with the assent as provided by the Northern Territory (Self-Government) Act 1978 of the Commonwealth, as follows:

1. SHORT TITLE
This Act may be cited as the Sentencing Amendment Act (No. 3) 1999.

2. commencement
The provisions of this Act come into operation on the date, or respective dates, fixed by the Administrator by notice in the Gazette.

3. pRINCIPAL ACT
The Sentencing Act is in this Act referred to as the Principal Act.

4. interpretation
Section 3 of the Principal Act is amended by inserting in the definition of "mandatory period" in subsection (1) "and includes a mandatory period that is increased under section 49A" after "section 78A".

5. new section
The Principal Act is amended by inserting before section 5 in Part 2 the following:

"4A. DEFINITION

"In this Part, 'victim' has the meaning given in section 106A.".

6. sentencing guidelines
Section 5 of the Principal Act is amended by inserting after subsection (2)(b) the following:

"(ba) the vulnerability of a victim;".

7. new section
The Principal Act is amended by inserting after section 6 in Part 2 the following:

"6A. FACTORS TO BE CONSIDERED IN DETERMINING VULNERABILITY OF VICTIM

"In determining the vulnerability of a victim, a court may consider, among other things, the matters specified in section 49A(4) but must not consider the matters specified in section 49A(5).".

8. suspended sentence of imprisonment
Section 40 of the Principal Act is amended by inserting after subsection (1) the following:

"(1A) A court must not make an order under subsection (1) if —

(a) the court sentences an offender to a term of imprisonment of not more than 5 years; and

(b) in pursuance of section 49A(3), the court then increases the term of imprisonment so that it exceeds 5 years.".

9. new section
The Principal Act is amended by inserting after section 49 the following:

"49A. INCREASE IN TERM OF IMPRISONMENT WHERE VULNERABLE VICTIM

"(1) In this section —

'term of imprisonment' does not include life imprisonment or an indefinite term of imprisonment;

'victim' has the meaning given in section 106A.

"(2) Where a court sentences an offender to a term of imprisonment, of its own motion or on the application of the prosecutor, the court may determine that a victim of the offence is a vulnerable victim for the purposes of this section.

"(3) Where a court makes a determination under subsection (2), the court must increase by 25% the term of imprisonment that but for the determination the court would have imposed on the offender.

"(4) In determining whether a victim of an offence is a vulnerable victim for the purposes of this section, subject to subsection (5), the matters that a court may consider include —

(a) the personal circumstances of the victim;

(b) the relative ages of the victim and the offender (but not if the age of the victim is an element of the offence);

(d) the relative physical and mental capacities of the victim and the offender; and

(e) the relationship (if any) between the victim and the offender.

"(5) For the purposes of this section, the following matters are irrelevant:

(a) that the offender did not know the circumstances of a victim;

(b) that the offender did not come into contact with a victim at any time during the commission of the offence.

"(6) Subsection (3) applies despite the following:

(a) that the term of imprisonment that but for the determination under subsection (2) the court would have imposed was the maximum penalty prescribed for the offence;

(b) that because of subsection (3) the term of imprisonment to be served by the offender is greater than the maximum penalty prescribed for the offence.

"(7) Subsection (3) applies despite that a term of imprisonment consists in whole or in part of a mandatory period imposed under section 78A.

"(8) Subject to subsections (9) and (10), the term of imprisonment to be served by an offender because of subsection (3) is to be calculated in accordance with the following:

(a) the term of imprisonment that but for the determination under subsection (2) the court would have imposed is to be expressed as a number of days;

(b) that number is to be multiplied by 125%;

"(9) Where a term of imprisonment that but for the determination under subsection (2) the court would have imposed consists wholly of a mandatory period imposed under section 78A, the mandatory period to be served by an offender because of subsection (3) is to be calculated in accordance with the following:

(a) the mandatory period that but for the determination under subsection (2) the court would have imposed is to be expressed as a number of days;

(b) that number is to be multiplied by 125%;

"(10) Where a term of imprisonment that but for the determination under subsection (2) the court would have imposed consists in part of a mandatory period imposed under section 78A, the term of imprisonment to be served by an offender because of subsection (3) is to be calculated in accordance with the following:

(a) the term of imprisonment that but for the determination under subsection (2) the court would have imposed is to be expressed as a number of days;

(b) that number is to be multiplied by 125%;

(d) the mandatory period that but for the determination under subsection (2) the court would have imposed is to be expressed as a number of days;

(e) that number is to be multiplied by 125%;

(f) if the result contains a fraction of a day, that fraction is to be disregarded;

(g) the remainder of the term of imprisonment to be served by the offender is the difference between the term of imprisonment calculated in accordance with paragraphs (a), (b) and (c) and the mandatory period calculated in accordance with paragraphs (d), (e) and (f).".

10. aggregate sentences of imprisonment
Section 52 of the Principal Act is amended —

(a) by omitting from subsection (2) "an offence against section 192(3) of the Criminal Code" and substituting "a prescribed sexual offence"; and

(b) by adding at the end the following:

"(4) In subsection (2), 'prescribed sexual offence' means an offence against —

(a) section 127 of the Criminal Code, where the circumstance of aggravation specified in section 127(2) exists;

(b) section 134 of the Criminal Code, where the offence is committed in respect of a female who is under the age of 16 years;

(c) section 135 of the Criminal Code, where the offence is committed in respect of a male who is under the age of 16 years; or

(d) section 128, 129, 130, 131, 131A, 132, 192(3) or (6) or 201 of the Criminal Code.".

11. non-parole period for sexual offences involving children
Section 55 of the Principal Act is amended —

(a) by omitting from subsection (1) "an offence against section 192(3) of the Criminal Code" and substituting "a prescribed sexual offence"; and

(b) by adding at the end the following:

"(3) In subsection (1), 'prescribed sexual offence' means an offence against —

(a) section 127 of the Criminal Code, where the circumstance of aggravation specified in section 127(2) exists;

(b) section 134 of the Criminal Code, where the offence is committed in respect of a female who is under the age of 16 years;

(c) section 135 of the Criminal Code, where the offence is committed in respect of a male who is under the age of 16 years; or

(d) section 128, 129, 130, 131, 131A, 132, 192(3) or (6) or 201 of the Criminal Code.".

12. disposal of other pending charges
Section 107 of the Principal Act is amended —

(a) by inserting before subsection (1) the following:

"(1A) In subsection (1), 'prescribed sexual offence' means an offence against —

(a) section 127 of the Criminal Code, where the circumstance of aggravation specified in section 127(2) exists;

(b) section 134 of the Criminal Code, where the offence is committed in respect of a female who is under the age of 16 years;

(c) section 135 of the Criminal Code, where the offence is committed in respect of a male who is under the age of 16 years; or

(d) section 128, 129, 130, 131, 131A, 132, 192(3) or (6) or 201 of the Criminal Code.";

(b) by omitting from subsection (1) "treason or murder" (first occurring) and substituting "treason, murder or a prescribed sexual offence"; and

(c) by omitting from subsection (1)(a) "treason or murder" and substituting "treason, murder or a prescribed sexual offence".

13. application
(1) The amendments effected by sections 4, 5, 6, 7, 8 and 9 do not apply in respect of an offence committed before the commencement of this Act.

(2) The amendments effected by sections 10, 11 and 12 apply in respect of a sentence imposed after the commencement of this Act irrespective of when the offence was committed.

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