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CLAUSE NOTES
Sentencing Amendment Bill 2016
Clause 1: Short title
Clause 1 cites the Bill as the Sentencing Amendment Act 2016.
Clause 2: Commencement
Clause 2 provides for the Act to commence on a day or days to be proclaimed.
Clause 3: Principal Act
Clause 3 provides that the Principal Act to which the amendments apply is the
Sentencing Act 1997.
Clause 4: Section 4 amended
Clause 4 inserts into section 4 of the Sentencing Act 1997 a definition of ‘pre-sentence
program’ for the purposes of a deferred sentence under Part 8, Division 1 of the
Sentencing Act 1997.
Clause 5: Section 7 amended
Clause 5 amends paragraph 7(ab) and inserts new paragraph 7(eb) into the Sentencing
Act 1997.
The objective of amending paragraph 7(ab) is to allow the Supreme Court and the
Court of Criminal Appeal to make a drug treatment order under Part 3A of the
Sentencing Act 1997.
The objective of inserting new paragraph 7(eb) is to allow a court to adjourn
proceedings, grant bail, and defer sentencing an offender until a specified date. New
paragraph 7(eb) should be read in conjunction with Part 8, Division 1 of the Sentencing
Act 1997.
Clause 6: Section 7A inserted
Clause 6 inserts new section 7A into the Sentencing Act 1997.
The objective of new subsection 7A(1) is to limit the time which sentencing can be
adjourned under new paragraph 7(eb). New section 7A(1) provides that proceedings
may not be adjourned for a period of more than 2 years. However, the 2 year period is
subject to new section 57C, which allows a court to defer sentencing, in certain
circumstances, for up to 30 months.
New subsection 7A(2) provides that new paragraph 7(eb) does not limit any existing
powers of a court to adjourn proceedings, grant bail in relation to a period of
adjournment, or defer sentencing an offender.
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Clause 7: Section 27A amended
Clause 7 amends the definition of court in section 27A of the Sentencing Act 1997.
Section 27A provides definitions for Part 3A of the Sentencing Act 1997. Part 3A of the
Act provides for drug treatment orders.
The objective of clause 7 is to include the Supreme Court and the Court of Criminal
Appeal as courts that can make drug treatment orders and exercise certain powers
under Part 3A.
Clause 8: Section 27AB inserted
Clause 8 inserts new section 27AB into the Sentencing Act 1997.
The objective of new section 27AB is to allow a different magistrate than the magistrate
who finds an offender guilty, to sentence an offender. This will allow a magistrate who is
of the opinion that a drug treatment order may be an appropriate sentence to refer an
offender to another magistrate for consideration as to whether to make the order.
Clause 9: Section 27B amended
Clause 9 amends section 27B of the Sentencing Act 1997.
Subclause 9(a) removes the requirement that in order to make a drug treatment order,
the offender not be subject to a sentencing order of the Supreme Court.
Subclause 9(b) inserts new paragraph 27B(3)(ba) into the Sentencing Act 1997. This
new paragraph will require a court to be satisfied, before making a drug treatment
order, as to the sufficiency of staffing and resources for the treatment and supervision of
an offender.
Clause 10: Section 27G amended
Clause 10 amends section 27G by replacing ‘the court’ with ‘a court’ in paragraphs (b),
(d), (g), (h) and subsection (5), and inserts a new subsection (6) into the Sentencing Act
1997.
The amendments to paragraphs (b), (d), (g), (h) and subsection (5) aim to ensure that
the Supreme Court and the Court of Criminal Appeal can exercise powers under
section 27G.
The objective of new subsection 27G(6) is to provide a power for a justice or a court
to remand an offender who has been arrested on a warrant issued under subsection
27G(5) of the Sentencing Act 1997.
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Clause 11: Section 27I amended
Clause 11 amends subsection 27I(1) of the Sentencing Act 1997.
Section 27I allows a magistrate to convene a case conference to assess the progress of
an offender who is subject to a drug treatment order.
The objective of clause 11 is to permit a magistrate to conduct a case conference with
an offender even where an offender is subject to a drug treatment order made by the
Supreme Court or the Court of Criminal Appeal.
Clause 12: Section 27J amended
Clause 12 amends section 27J of the Sentencing Act 1997.
The objective of clause 12 is to allow a magistrate to vary certain conditions of an
offender’s drug treatment order even where the order was made in the Supreme
Court or the Court of Criminal Appeal.
Clause 13: Section 27K amended
Clause 13 amends subsection 27K(1) of the Sentencing Act 1997.
The objective of clause 13 is to permit a magistrate to confer a compliance reward on
an offender who is subject to a drug treatment order made by the Supreme Court or
the Court of Criminal Appeal.
Compliance rewards allow a court to confer a reward on an offender on a drug
treatment order who is fully or substantially complying with the conditions of the order.
The rewards that can be conferred include varying conditions of an order, cancelling a
requirement to perform community work, and de-activating imprisonment.
Clause 14: Section 27L amended
Clause 14 amends subsection 27L(1) of the Sentencing Act 1997.
The objective of this clause is to permit a magistrate to confer a cancellation reward on
an offender who is subject to a drug treatment order made by the Supreme Court or
the Court of Criminal Appeal.
A court may cancel a drug treatment order as a reward where an offender has been
fully or substantially complying with conditions of an order, the continuation of the
order is no longer necessary to meet the purposes for which it was made, and the
period of imprisonment that the offender would have had to serve has expired.
Clause 15: Section 27M amended
Clause 15 amends subsection 27M(1) and paragraph 27M(2)(b) of the Sentencing Act
1997 and inserts new subsection 27M(3A).
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This clause allows a magistrate to deal with contraventions of drug treatment orders
even where those orders are made by the Supreme Court or the Court of Criminal
Appeal.
These amendments also change the order in which sanctions can be applied where an
offender has contravened a condition of a drug treatment order.
A further objective of these amendments is to change the standard of proof required
for the activation of the custodial part of a drug treatment order.
Clause 16: Section 27O amended
Clause 16 amends subsection 27O(1) and subparagraph 27O(1)(b)(ii) of the Sentencing
Act 1997 and inserts new subsection 27O(2A).
The objective of this clause is to provide guidance on what is to occur where an
offender on a drug treatment order breaches the order by committing an offence
punishable by imprisonment for a period exceeding 12 months’ imprisonment.
This clause amends the principal Act to provide that a magistrate can take certain
actions in relation to a drug treatment order made by the Supreme Court or Court of
Criminal Appeal. However, a magistrate will not be able to cancel an order made by
another court and resentence the offender under section 7 of the Sentencing Act 1997.
Clause 17: Section 27P amended
Clause 17 inserts subsection 27P(4) into the Sentencing Act 1997.
The objective of clause 17 is to prevent a magistrate from cancelling a drug treatment
order and resentencing an offender where the Supreme Court or the Court of Criminal
Appeal made the drug treatment order.
Clause 18: Section 27Q amended
Clause 18 amends section subsection 27Q(1) of the Sentencing Act 1997.
The objective of this clause is to ensure that the cancellation of a drug treatment order
under section 27 can only be done by the court that made the order.
A court may fix a non-parole period for a sentence of imprisonment under section 27.
As a non-parole period can be fixed, generally the most appropriate court to set the
non-parole period will be the court that made the drug treatment order.
Clause 19: Section 27QA inserted
Clause 19 inserts new section 27QA into the Sentencing Act 1997.
The new section 27QA provides a power for a court to refer an offender to another
court for the purposes of a drug treatment order. If an offender is before a court and it
is appropriate for the offender to be dealt with by another court, the offender can be
transferred between courts.
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Clause 20: Section 27R amended
Clause 20 amends section 27R of the Sentencing Act 1997.
The objective of this clause is to set out a court’s powers if an offender has been on a
drug treatment order for two years and the order has not been cancelled.
Where a magistrate made the drug treatment order, a magistrate can review the order,
cancel the treatment and supervision part of the order, and either activate some or all
of the custodial part of the order, or otherwise sentence the offender.
Where the drug treatment order is made in the Supreme Court or the Court of
Criminal Appeal, a magistrate will still review the order. On completion of the review,
the magistrate will then provide the court that made the order with a report in relation
to the review. The court that made the order will then cancel the treatment and
supervision part of the order and either activate some or all of the custodial part of the
order, or otherwise sentence the offender.
Clause 21: Section 27S amended
Clause 21 amends section 27S of the Sentencing Act 1997.
Section 27S deals with motions to review a drug treatment order.
A motion to review allows a person aggrieved by a decision made by a magistrate to
request the Supreme Court to review the decision.
The objective of this clause is to permit the Supreme Court to make a drug treatment
order following a motion to review. At present, the Sentencing Act 1997 does not allow
the Supreme Court to make a drug treatment order following a motion to review.
Clause 22: Section 27W amended
Clause 22 amends subsection 27W(1) of the Sentencing Act 1997.
Section 27W provides protection to people who disclose compliance information
relating to an offender on a drug treatment order. A person involved in the offender’s
treatment or supervision can be asked to disclose information about the offender’s
compliance with a drug treatment order.
The objective of this clause is to ensure that where a judge asks for compliance
information, existing protections will apply to the person disclosing the compliance
information.
Clause 23: Part 8: Heading amended
Clause 23 amends the heading in Part 8 of the Sentencing Act 1997.
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Clause 24: Part 8, Division 1 inserted
Clause 24 inserts a new Division 1 of Part 8 into the Sentencing Act 1997.
The aim of this clause is to allow courts to defer sentencing under the Sentencing Act
1997.
New section 57A sets out the circumstances in which a court can defer sentencing.
New subsection 57A(5) requires a court to give reasons for deferring sentencing.
New section 57B provides a power for a court to grant bail during the period of
deferral of sentencing. It will allow a court to require an offender to appear back before
the court prior to the date of sentence to check the offender’s compliance with bail
conditions.
New section 57B will also allow a court to amend any bail conditions when an offender
appears before a court. In determining whether to amend any conditions of bail the
court may take into account a report on the offender in relation to their participation in
a pre-sentence program, and the extent and manner of the offender’s compliance with
conditions of bail.
New section 57C will allow a court to alter the date to which the sentencing is
deferred. A court will be able to alter the date to which sentencing is deferred on an
application from either the offender or the prosecution, or on its own motion.
New section 57C further provides that sentencing can be deferred to a later date than
the date specified in the order for various reasons. The section provides that an order
cannot be extended beyond 30 months.
New section 57C provides that if an offender does not attend court for a hearing of an
application to alter the date of sentence, a warrant for the offender’s arrest can be
issued.
New section 57C provides that a court may remand an offender on bail or in custody
to appear before another court.
New section 57D allows a court to revoke an order deferring sentencing. A court can
revoke the order deferring sentencing and proceed to sentence either on the court’s
own motion, or on an application from either the offender or prosecutor.
New section 57D provides that if an offender does not attend court for a hearing of an
application to alter the date of sentencing, a warrant for the offender’s arrest can be
issued.
New section 57E provides for the referral of offenders subject to a deferred sentencing
order of the Supreme Court and the Court of Criminal Appeal from the Magistrates
Court to the Supreme Court. The offender can be remanded on bail or in custody.
Once the offender is before the Supreme Court, the Supreme Court can decide
whether to deal with the offender under sections 57C or 57D, or the Supreme Court
can refer the offender back to the Magistrates Court.
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Clause 25: Part 8, Division 2: Heading inserted
Clause 25 inserts a new heading before section 58.
Clause 26: Repeal of Act
Clause 26 inserts a standard repeal provision to remove the empty shell of the Bill after
all its provisions have been transferred and have come into effect in the Principal Act.
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