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SENTENCING ACT 1991 - SCHEDULE 3

Schedule 3—Transitional provisions—Sentencing Amendment (Community Correction Reform) Act 2011

Part 1—Definitions

        1     Definitions

In this Schedule—

"old combined custody and treatment order" means a combined custody and treatment order within the meaning of section 3(1) as in force before the commencement of section 12 of the Sentencing Amendment (Community Correction Reform) Act 2011 , being an order in force immediately before that commencement;

"old community-based order" means a community‑based order within the meaning of section 3(1) as in force before the commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011 , being an order in force immediately before that commencement;

"old intensive correction order" means an intensive correction order within the meaning of section 3(1) as in force before the commencement of section 15 of the Sentencing Amendment (Community Correction Reform) Act 2011 , being an order in force immediately before that commencement.

Part 2—Sentencing Amendment (Community Correction Reform) Act 2011

        2     Combined custody and treatment orders

Subject to clause 7 and despite the commencement of section 12 of the Sentencing Amendment (Community Correction Reform) Act 2011 , an old combined custody and treatment order is taken to continue in force on and from that commencement as if this Act, as in force before that commencement, continued to apply to it.

        3     Intensive correction orders

Subject to clause 9 and despite the commencement of section 15 of the Sentencing Amendment (Community Correction Reform) Act 2011 , an old intensive correction order is taken to continue in force on and from that commencement as if this Act, as in force before that commencement, continued to apply to it.

        4     Community-based orders

Subject to clause 10 and despite the commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011 , an old community-based order is taken to continue in force on and from that commencement as if this Act, as in force before that commencement, continued to apply to it.

Sch. 3 cl. 5 amended by No. 45/2012 s. 12.

        5     Community correction orders

Section 37 as inserted by section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011 applies to a sentence imposed on or after the commencement of section 21 of that Act, irrespective of when the offence was committed or the finding of guilt was made.

        6     Contravention—Suspended sentences

Sch. 3 cl. 6(1) amended by No. 32/2013 s. 38(1).

    (1)     Divisions 1 and 2 of Part 3C apply to a suspended sentence order that is made on or after the commencement of section 18 of the Sentencing Amendment (Community Correction Reform) Act 2011 .

Sch. 3 cl. 6(2) amended by No. 32/2013 s. 38(2).

    (2)     Divisions 1 and 2 of Part 3C apply to a contravention of a pre‑existing suspended sentence order that occurs on or after the commencement of section 18 of the Sentencing Amendment (Community Correction Reform) Act 2011 .

    (3)     In this clause—

pre‑existing suspended sentence order means a suspended sentence order made before the commencement of section 18 of the Sentencing Amendment (Community Correction Reform) Act 2011 ;

"suspended sentence order" means an order made under section 27.

        7     Contravention—Old combined custody and treatment orders

    (1)     An offender who is subject to an old combined custody and treatment order must not, unless that person has a reasonable excuse, contravene that order.

Penalty:     3 months imprisonment.

Sch. 3 cl. 7(2) amended by No. 43/2012 s. 3(Sch. item 46.3).

    (2)     Subclause (1) does not apply to a contravention of an old combined custody and treatment order that occurs before the commencement of section 12 of the Sentencing Amendment (Community Correction Reform) Act 2011 .

Sch. 3 cl. 7(3) amended by No. 32/2013 s. 39.

    (3)     Subject to subclause (4), Divisions 1 and 2 of Part 3C apply to an offence under subclause (1) as if any reference in Divisions 1 and 2 of that Part to an offence under section 83AD were a reference to an offence under subclause (1).

    (4)     If in a proceeding for an offence under subclause (1) for a contravention of an old combined custody and treatment order, the court finds the person guilty of the offence the court, in addition to sentencing the offender for that offence, must—

Sch. 3 cl. 7(4)(a) substituted by No. 26/2012 s. 67.

        (a)     whether or not the order has expired, confirm the order that was contravened and if necessary to enable the offender to perform the remaining period and conditions of the order, vary the duration and dates of the order; or

        (b)     whether or not the offender has served any part of the sentence in the community, order the offender to serve in custody the whole or part of the sentence that was to be served in the community.

    (5)     The court must make an order under subclause (4)(b), unless the court is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order that was contravened was made.

    (6)     If the court decides not to exercise the power under subclause (4)(b) it must state its reasons for doing so in writing.

    (7)     If the court makes an order under subclause (4)(b), the term of imprisonment which the offender must serve in custody must be served—

        (a)     immediately or, if the offender is still serving the original custodial part of the sentence, immediately on completion of service of that part of the sentence; and

        (b)     unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.

        8     Contravention—pre-existing home detention orders

    (1)     An offender who is subject to a pre-existing home detention order must not, unless that person has a reasonable excuse, commit a serious contravention of that order.

Penalty:     3 months imprisonment.

    (2)     This clause does not apply to a contravention of a pre-existing home detention order—

        (a)     that occurs before the commencement of section 43 of the Sentencing Amendment (Community Correction Reform) Act 2011 ; or

        (b)     a contravention of a home detention order that is not a serious contravention.

Sch. 3 cl. 8(3) amended by No. 32/2013 s. 40.

    (3)     Subject to this clause, Divisions 1 and 2 of Part 3C apply to an offence under this clause as if any reference in Divisions 1 and 2 of that Part to an offence under section 83AD were a reference to an offence under this clause.

    (4)     If in a proceeding for an offence under this clause, the court finds the person guilty of the offence the court must (in addition to sentencing the offender for the offence)—

Sch. 3 cl. 8(4)(a) substituted by No. 26/2012 s. 68.

        (a)     whether or not the order has expired, confirm the order that was contravened and if necessary to enable the offender to perform the remaining period and conditions of the order, vary the duration and dates of the order; or

        (b)     cancel the order (if it is still in force) and, whether or not it is still in force, commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date on which the contravention occurred.

    (5)     The court must make an order under subclause (4)(b), unless the court is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order that was contravened was made.

    (6)     If the court decides not to exercise the power under subclause (4)(b) it must state its reasons for doing so in writing.

    (7)     If the court, under subclause (4)(b), orders the offender to serve in prison the unexpired portion of the term of imprisonment, the offender must serve the term of imprisonment—

        (a)     immediately; and

        (b)     unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.

    (8)     In this clause—

pre‑existing home detention order means a home detention order made before the commencement of section 43 of the Sentencing Amendment (Community Correction Reform) Act 2011 ;

"serious contravention "means—

        (a)     a contravention that compromises the safety and security of the community, any person residing with the offender or the offender's family; or

        (b)     a contravention that involves the commission of an offence; or

        (c)     a contravention that involves non‑compliance with an order made under section 84 or 86(1); or

        (d)     a contravention that occurs after repeated failure to comply with the conditions of the order; or

        (e)     a contravention of a core condition of the home detention order set out in section 26U(d) or (e) (as in force before their repeal by the Sentencing Legislation Amendment (Abolition of Home Detention) Act 2011 ).

        9     Contravention—Old intensive correction orders

    (1)     An offender who is subject to an old intensive correction order must not, unless that person has a reasonable excuse, contravene that order.

Penalty:     3 months imprisonment.

Sch. 3 cl. 9(2) amended by No. 43/2012 s. 3(Sch. item 46.4).

    (2)     Subclause (1) does not apply to a contravention of an old intensive correction order that occurs before the commencement of section 15 of the Sentencing Amendment (Community Correction Reform) Act 2011 .

Sch. 3 cl. 9(3) amended by No. 32/2013 s. 41.

    (3)     Subject to subclause (4), Divisions 1 and 2 of Part 3C apply to an offence under subclause (1) as if any reference in Divisions 1 and 2 of that Part to an offence under section 83AD were a reference to an offence under subclause (1).

    (4)     If in a proceeding for an offence under subclause (1) for a contravention of an old intensive correction order, the court finds the person guilty of the offence the court must (in addition to sentencing the offender for the offence)—

Sch. 3 cl. 9(4)(a) substituted by No. 26/2012 s. 69.

        (a)     whether or not the order has expired, confirm the order that was contravened and if necessary to enable the offender to perform the remaining period and conditions of the order, vary the duration and dates of the order; or

        (b)     cancel the order (if it is still in force) and, whether or not it is still in force, commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date of the offence.

    (5)     If the person has been found guilty of a contravention of the old intensive correction order that was constituted, in whole or in part, by another offence punishable by imprisonment, the court must make an order under subclause (4)(b), unless the court is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order that was contravened was made.

    (6)     If the court decides not to exercise the power under subclause (4)(b) it must state its reasons for doing so in writing.

    (7)     If the court, under subclause (4)(b), orders the offender to serve in prison the unexpired portion of the term of imprisonment, the offender must serve the term of imprisonment—

        (a)     immediately; and

        (b)     unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.

        10     Contravention—Old community-based orders

    (1)     An offender who is subject to an old community‑based order must not, unless that person has a reasonable excuse, contravene that order.

Penalty:     3 months imprisonment.

Sch. 3 cl. 10(1A) inserted by No. 26/2012 s. 70(1).

    (1A)     An offender who is subject to an old community‑based order (fines) must not, unless that person has a reasonable excuse, contravene that order.

Penalty:     Level 10 fine.

Sch. 3 cl. 10(2) amended by No. 43/2012 s. 3(Sch. item 46.5).

    (2)     Subclause (1) does not apply to a contravention of an old community-based order that occurs before the commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011 .

Sch. 3 cl. 10(2A) inserted by No. 26/2012 s. 70(2).

    (2A)     Subclause (1A) does not apply to a contravention of an old community-based order (fines) that occurs before the commencement of section 70 of the Courts and Sentencing Legislation Amendment Act 2012 .

Sch. 3 cl. 10(3) amended by Nos 26/2012 s. 70(3), 32/2013 s. 42(1)(2), 77/2013 s. 47(1).

    (3)     Subject to subclause (4), Divisions 1 and 2 of Part 3C apply to an offence under subclause (1) as if any reference in Divisions 1 and 2 of that Part to an offence under section 83AD were a reference to an offence under subclause (1).

Sch. 3 cl. 10(3A) inserted by No. 26/2012 s. 70(4), amended by No. 32/2013 s. 42(3), substituted by No. 77/2013 s. 47(2).

    (3A)     Subject to subclause (4) in respect of an offence under subclause (1A)—

        (a)     if the offence was committed before the commencement of section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013

              (i)     Divisions 1 and 2 of Part 3C apply to the offence as if any reference in Divisions 1 and 2 of that Part to an offence against section 83AD were a reference to an offence under subclause (1A); and

              (ii)     section 63A(3), as in force immediately before its repeal, applies to the offence as if in that section a reference to a "fine conversion order or a fine default unpaid community work order" were a reference to an "old community-based order (fines)"; and

        (b)     if the offence was committed on or after the commencement of section 50 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 , Divisions 1 and 2 of Part 3C apply to the offence as if any reference in Divisions 1 and 2 of that Part to an offence under section 83ADA or 83ADB were a reference to an offence under subclause (1A).

Sch. 3 cl. 10(4) amended by No. 26/2012 s. 70(5).

    (4)     If in a proceeding for an offence under subclause (1) or (1A) for a contravention of an old community-based order, the court finds the person guilty of the offence the court must (in addition to sentencing the offender for the offence)—

Sch. 3 cl. 10(4)(a) substituted by No. 26/2012 s. 70(6).

        (a)     whether or not the order has expired, confirm the order that was contravened and if necessary to enable the offender to perform the remaining period and conditions of the order, vary the duration and dates of the order; or

        (b)     cancel the order (if it is still in force) and, whether or not it is still in force, deal with the offender for the offence or offences with respect to which the order was made as if the court has just found him or her guilty of that offence or those offences.

    (5)     In determining how to deal with an offender following the cancellation by it of an old community-based order, the court—

        (a)     must take into account the extent to which the offender complied with the order before its cancellation; and

        (b)     in imposing any new sentencing order on the offender, must have regard to the conditions of the old community-based order.

Sch. 3 cl. 10(6) inserted by No. 26/2012 s. 70(7).

    (6)     In this clause, "old community-based order (fines)" means an old community-based order made under Division 4 of Part 3 before the commencement of section 70 of the Courts and Sentencing Legislation Amendment Act 2012 .

        11     Presumption of concurrency, old orders and community correction orders

    (1)     The conditions of a community correction order made in respect of an offender are concurrent with the conditions of any old sentencing order made in respect of the offender, unless the court orders otherwise.

    (2)     In this clause "old sentencing order" means—

        (a)     an old combined custody and treatment order;

        (b)     an old community-based order;

        (c)     an old intensive correction order.

        12     Offences occurring on more than one date

    (1)     An offence under clause 7(1), 8(1) or (2), 9(1) or 10 is taken not to have been committed if the conduct that would be the subject of any alleged offence has occurred between two dates, one of which is before the commencement of the clause and the other of which is after the commencement of the clause.

    (2)     The provisions of this Act as in force before the commencement of section 12 of the Sentencing Amendment (Community Correction Reform) Act 2011 in relation to an offence under this Act for the breach of an old combined custody and treatment order, are taken to continue to apply in respect of a breach of such an order which is alleged to have been committed between two dates, one of which occurs before that commencement and the other of which occurs after that commencement, and for that purpose the breach is taken to have been committed before that commencement.

    (3)     The provisions of this Act as in force before the commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011 in relation to an offence under this Act for the breach of an old community-based order, are taken to continue to apply in respect of a breach of such an order which is alleged to have been committed between two dates, one of which occurs before that commencement and the other of which occurs after that commencement, and for that purpose the breach is taken to have been committed before that commencement.

    (4)     The provisions of this Act as in force before the commencement of section 15 of the Sentencing Amendment (Community Correction Reform) Act 2011 in relation to an offence under this Act for the breach of an old intensive correction order, are taken to continue to apply in respect of a breach of such an order which is alleged to have been committed between two dates, one of which occurs before that commencement and the other of which occurs after that commencement, and for that purpose the breach is taken to have been committed before that commencement.

        13     Time for bringing proceeding

    (1)     A proceeding for an offence under clause 7(1), 8(1) or (2), 9(1) or 10(1) must be commenced—

        (a)     if the contravention is constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 6 months after the person is convicted or found guilty of the later offence, subject to subclause (2); or

        (b)     if the contravention is not constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 1 year after the order ceases to be in force.

    (2)     A proceeding to which subclause (1)(a) applies must not be commenced more than 2 years after the order ceases to be in force.

Sch. 3 Pt 3 (Heading and cls 14–17) inserted by No. 65/2011 s. 70.

Part 3—Sentencing Amendment (Community Correction Reform)
Act 2011—Further amendments

Sch. 3 cl. 14 inserted by No. 65/2011 s. 70.

        14     Community correction orders—bond condition

Section 48JA as inserted by section 58 of the Sentencing Amendment (Community Correction Reform) Act 2011 applies to a sentence imposed on or after the commencement of section 58 that Act, irrespective of when the offence was committed or the finding of guilt was made.

Sch. 3 cl. 15 inserted by No. 65/2011 s. 70.

        15     Direction of certain conditions on failure to comply with a community correction order

    (1)     The amendment of this Act by section 60 of the Sentencing Amendment (Community Correction Reform) Act 2011 apply to a failure by an offender to comply with a community correction order that is alleged to have been committed on or after that commencement.

    (2)     For the purposes of subclause (1), if a failure to comply with a community correction order is alleged to have been committed between two dates, one before and one after the commencement of section 60 of the Sentencing Amendment (Community Correction Reform) Act 2011 , the failure to comply with the community correction order is alleged to have been committed before that commencement.

Sch. 3
cls 16, 17 inserted by No. 65/2011 s. 70, repealed by No. 56/2013 s. 38.

    *     *     *     *     *

Sch. 3 Pt 4 (Heading and cl. 18) inserted by No. 45/2012 s. 13.

Part 4—Road Safety and Sentencing Acts Amendment Act 2012—Validations

Sch. 3 cl. 18 inserted by No. 45/2012 s. 13.

        18     Validation of certain community correction orders

    (1)     A community correction order made or purported to have been made on or after 16 January 2012 and before the day on which the Road Safety and Sentencing Acts Amendment Act 2012 receives the Royal Assent has, and is taken always to have had, the same force and effect as it would have had if section 12 of that Act had been in operation when the order was made or purported to have been made.

    (2)     For the avoidance of doubt, a community correction order may be made in respect of an offender sentenced on or after 16 January 2012, irrespective of when the offence was committed or the finding of guilt was made.

    (3)     A community correction order referred to in subclause (1) and a sentence of imprisonment (irrespective of the period of imprisonment and whether or not the sentence is suspended in whole or in part) that are imposed on an offender in exercise, or purported exercise, of a power under section 44 (as then in force) are not invalid by reason only of failure to comply with section 44.

    (4)     Any act or thing done or omitted to be done, whether under a power conferred by or under an enactment or otherwise, before or after the commencement of section 13 of the Road Safety and Sentencing Acts Amendment Act 2012 in reliance on or in relation to—

        (a)     a community correction order that is validated by subclause (1) or (3) or a sentence of imprisonment that is validated by subclause (3); or

        (b)     a contravention or alleged contravention of an order or sentence referred to in paragraph (a)—

including any penalty imposed, has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences, as if section 12 of the Road Safety and Sentencing Acts Amendment Act 2012 had been in operation and section 44 of this Act (as then in force) had been complied with.

    (5)     A right or liability conferred or imposed in relation to, or affected by—

        (a)     a community correction order that is validated by subclause (1) or (3) or a sentence of imprisonment that is validated by subclause (3); or

        (b)     a contravention or alleged contravention of an order or sentence referred to in paragraph (a)—

including any penalty imposed, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable, as if section 12 of the Road Safety and Sentencing Acts Amendment Act 2012 had been in operation and section 44 of this Act (as then in force) had been complied with.

    (6)     Without limiting subclause (5), the rights and liabilities conferred or imposed in relation to a community correction order include rights of appeal.

    (7)     This clause does not affect the right of any person to appeal against a sentence that includes a community correction order on any other ground.

    (8)     This clause and the amendment of clause 5 of this Schedule by section 12 of the Road Safety and Sentencing Acts Amendment Act 2012 do not affect the rights of the parties in the proceedings known as DPP v Tyson Jason Leys; DPP v Dillon Thomas Leys (No. S APCR 2012 0054 and No. S APCR 2012 0055).

Sch. 3A (Heading and cl. 1) inserted by No. 27/2018 s. 351(Sch. 4 cl. 21).



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