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| Mr Deputy Speaker, I move that the bill be now read a second time. The purpose of this bill is to ensure the Northern Territory sentencing provisions are clear, concise and meet the expectations of the community in promoting fair and just sentences for those found guilty of a criminal offence. The bill includes amendments to both the Sentencing Act and the Youth Justice Act to address an ambiguity identified by His Honour Justice Hiley in the Northern Territory Supreme Court in the decision of Waters and James 2014 Northern Territory Supreme Court 37. In that case His Honour noted that the wording of section 57(1)(b) of the Sentencing Act when read together with Section 53(1) is ambiguous and may lead to inconsistent applications of Section 57(1) of the Sentencing Act by the courts. The ambiguity identified by Justice Hiley concerns the use of the words “in respect of which it proposes to fix a non-parole period” in section 57(1)(b) of the Sentencing Act. Those words allow section 57(1)(b) when read in conjunction with section 53 to be interpreted in two different ways. First, which I will refer to as interpretation 1, that section 57(1) applies to the subsequent sentence only. Under this interpretation for section 57(1)(b) to apply the subsequent sentence must be able to have a non-parole period fixed, that is, it must be a sentence of 12 months imprisonment or more and the sentencing judge or magistrate must propose to set a non-parole period for that subsequent sentence or, secondly, which I will refer to as interpretation 2, that section 57(1) applies where an offender is serving a sentence where a non-parole period has been fixed and is subsequently sentenced on other matters to additional term of actual imprisonment before the end of the non-parole period. On being sentenced to a further term of imprisonment, the court is then required to fix a new single non-parole period in respect of all the sentences regardless of the length of the subsequent sentence. The intent of section 57 is to enable a court to fix a new single non-parole period that takes into account both the current and prior offending of an offender and hence enable the court to set an appropriate and just total sentence. Limiting the operation of section 57(1)(b) to subsequent sentences of 12 months imprisonment or more deprives the court of an opportunity to fix a single non-parole period without any apparent reason and differentiates between sentences of less and more than 12 months imprisonment. In Walters v James Justice Hiley found it appropriate, given the current wording of section 57, to follow the 2006 Victorian Court of Appeal decision in Queen v Bortolli which supports the application of interpretation one. However, His Honour recommended that consideration be given to amending section 57(1B) by removing the words, ‘in respect of which it proposes to fix a non-parole period’ so that the second interpretation is applicable. Unless the Sentencing Act is amended the continued application of interpretation one will impede the ability of a court in ensuring a just and appropriate sentence is handed down. This could lead to manifestly excessive sentences as a person sentenced to less than 12 months’ imprisonment, while already serving a non-parole period for other offences, may spend longer in prison than somebody in the same circumstances that has committed a more serious offence and has therefore received a lengthier sentence to which the non-parole period may be fixed. The bill will amend the Sentencing Act and the Youth Justice Act to ensure that the interpretation two is applicable here in the Northern Territory. This bill will also address an additional ambiguity concerning the wording of section 53 of the Sentencing Act and the interpretation of that section by the courts. The courts have interpreted section 53 as precluding the fixing of a non-parole period for sentences of less than 12 months. However, the provision itself simply states that the circumstances where a court must set a non-parole period and does not expressly prohibit the courts from setting a non-parole period for sentences of less than 12 months or sentences that are suspended in whole or in part. This bill amends the Sentencing Act to expressly prohibit a court from fixing a non-parole period in such circumstances. The bill further amends the Sentencing Act to provide an exemption to that prohibition in circumstances where an offender who is serving a term of imprisonment for which a non-parole period has been fixed is sentenced to a further term of imprisonment before the end of the original non-parole period. In such circumstances the court will be required to fix a new single non-parole period for all the sentences the offender is to serve or complete. This will permit the application of the totality principle in sentencing and promote a fair and just total sentence. This is constant with interpretation two as I previously mentioned. The bill also amends the Youth Justice Act to address similar issues to those in the Sentencing Act. The bill will also repeal the definition of ‘a non-parole period at section 85(3) of the Youth Justice Act and inserts an amended definition of the same term at section 5(1) of the Youth Justice Act. I will now explain the substantive clauses of the bill in greater detail. Clause 4 amends section 53 of the new Sentencing Act by inserting a new subsection 53(1A) - subject to section 57, prohibit a court from fixing a non-parole period where it imposes a sentence of imprisonment of less than 12 months of a term that is suspended in whole or in part. Clause 5 amends section 57 of the Sentencing Act by repealing section 57(1) and inserting a new clause that is consistent with modern drafting practices and terminology and omits the words ‘in respect of which it proposes to fix a non-parole period’. Clause 5 also inserts a new subsection 1A which states that the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete. Clause 6 amends section 59 of the Sentencing Act by repealing section 59(2). Section 59(2) provides for the suspension of one term of imprisonment so that the subsequent sentence of imprisonment may be served in the order prescribed in section 59(1). The amendments to section 57 prevent the occurrence of circumstances triggering the application of section 59(2) and that subsection is repealed. Clause 7 amends section 108(4) of the Sentencing Act by substituting the word ‘centre’ and the bracketed words following the word ‘centre’ in the section for the word ‘facility’. This amendment ensures that the wording of the Sentencing Act is consistent with the wording of the Correctional Services Act. Clause 10 inserts a definition of ‘non-parole period’ in Section 5(1) of the Youth Justice Act. Clause 11 amends Section 55 of the Youth Justice Act by repealing Section 85(3) and inserting a new clause that states:
Clause 12 amends Section 87 of the Youth Justice Act by repealing Section 87(1), and inserting a new clause that is consistent with modern drafting practices and terminology and omits the words ‘in respect to which it proposes to fix a non-parole period’. Clause 11 also inserts a new Section 87(1)(a) which states that:
Clause 13 amends Section 130 of the Youth Justice Act by repealing Section 130(2), and Section 130(2) provides for the suspension of one term of detention for imprisonment so that a subsequent term of detention or imprisonment may be served in order to be prescribed by Section 131. The amendments to Section 87 prevent the occurrence of circumstances that trigger the application of Section 130(2), and the sub-section should be repealed. Finally, transitional provisions for this bill in relation to the Sentencing Act and Youth Justice Act are provided for in clauses 8 and 14. Mr Deputy Speaker, I now commend the bill to the honourable members and I table a copy of the explanatory statement. |