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Western Australia
Sentencing Legislation Amendment Bill 2016
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments about some
long-term prisoners
Division 1 -- Sentence Administration Act 2003
amended
3. Act amended 3
4. Section 4 amended 3
5. Section 11 amended 4
6. Section 12 amended 4
7. Section 12A amended 4
8. Section 12B inserted 6
12B. Combined reports may be given under
sections 12 and 12A 6
9. Section 13 amended 7
10. Section 14 amended 7
11. Section 25 amended 7
12. Section 27A amended 8
13. Section 27B amended 8
14. Part 11 inserted 9
Part 11 -- Transitional and validation provisions for
Sentencing Legislation Amendment
Act 2016 Part 2
123. Terms used 9
124. Reports during the transitional period:
pre-1996 prisoners 10
125. Participation in re-socialisation
programmes: pre-1996 prisoners 10
126. Release on parole: pre-1996 prisoners 11
205--1 page i
Sentencing Legislation Amendment Bill 2016
Contents
127. Validation of parole orders: pre-1996
prisoner 12
128. Inconsistency with former transitional
provisions 12
15. Schedule 3 inserted 12
Schedule 3 -- Reports and re-socialisation
programmes for certain prisoners
Division 1 -- Current sentence types
Division 2 -- Former sentence types
Division 2 -- The Criminal Code amended
16. Act amended 17
17. Schedule 1 clause 3 amended 17
Part 3 -- Amendments about parole
and post-sentencing supervision
Division 1 -- Sentencing Act 1995 amended
18. Act amended 18
19. Section 89 amended 18
20. Section 97A inserted 18
97A. Declaration of serious violent offence for
purposes of Sentence Administration
Act 2003 Part 5A 18
Division 2 -- Sentence Administration Act 2003
amended
21. Act amended 19
22. Section 4 amended 19
23. Section 22 amended 20
24. Section 24 deleted 20
25. Part 5A inserted 20
Part 5A -- Post-sentence supervision of
certain offenders
74A. Terms used 20
74B. PSSO considerations 21
74C. Reports by CEO to Board about prisoners 22
74D. Board may make PSSO 22
74E. Nature of PSSO 22
74F. Standard obligations of PSSO 23
74G. Additional requirements of PSSO 23
74H. CEO to ensure person subject to PSSO is
supervised 25
74I. Amendment of PSSO 25
74J. Cancellation of PSSO 25
page ii
Sentencing Legislation Amendment Bill 2016
Contents
74K. Subsequent PSSO after cancellation for
committing offence 25
74L. Offence for breach of PSSO 26
26. Section 75 amended 26
27. Section 77 amended 26
28. Section 78 amended 27
29. Section 83 amended 27
30. Section 94 amended 27
31. Section 107B amended 28
32. Section 107C amended 28
33. Section 109 amended 28
34. Section 111 amended 29
35. Section 112 amended 29
36. Section 114 amended 29
37. Section 115A amended 29
38. Part 11 heading amended 30
39. Part 11 Division 1 heading inserted 30
Division 1 -- Provisions for the Sentencing
Legislation Amendment Act 2016 Part 2
40. Section 123 amended 30
41. Section 127 amended 30
42. Section 128 amended 30
43. Part 11 Division 2 inserted 31
Division 2 -- Provisions for the Sentencing
Legislation Amendment Act 2016 Part 3
Division 2
129. Continued application of former Part 3
Division 4 31
44. Schedule 4 inserted 31
Schedule 4 -- Serious violent offences
Part 4 -- Other amendments to the
Sentencing Act 1995
Division 1 -- Preliminary
45. Act amended 34
Division 2 -- Amendments about circumstances
of aggravation
46. Section 145A inserted 34
145A. Existence of circumstances of aggravation
is question for judge to determine 34
page iii
Sentencing Legislation Amendment Bill 2016
Contents
47. Section 150AB inserted 35
150AB. Application of Sentencing Legislation
Amendment Act 2016 amendments about
circumstances of aggravation 35
Division 3 -- Amendments about suspended
fines
48. Section 14 amended 35
49. Section 39 amended 36
50. Section 40 amended 36
51. Section 44 amended 36
52. Part 8A inserted 37
Part 8A -- Suspended fine
60A. When fine may be suspended 37
60B. Effect of suspending fine 37
60C. Re-offender may be dealt with or
committed 38
60D. Alleging re-offending in court 39
60E. How re-offender to be dealt with 40
Division 4 -- Amendments about victim impact
statements
53. Section 23A inserted 41
23A. Terms used 41
54. Section 25 amended 43
55. Section 26 amended 43
Division 5 -- Amendments about CROs
56. Section 49 amended 44
57. Section 51 amended 45
58. Section 52 amended 45
59. Section 131 amended 46
60. Section 133 amended 46
Division 6 -- Miscellaneous amendments
61. Section 4 amended 46
62. Section 9G amended 47
63. Section 22 amended 47
64. Section 33A amended 48
65. Section 35 amended 48
66. Section 45 amended 48
67. Section 75 amended 48
68. Section 76 amended 48
69. Section 80 amended 48
70. Section 84F amended 49
page iv
Sentencing Legislation Amendment Bill 2016
Contents
71. Section 84L amended 49
72. Section 85 amended 49
73. Section 86 amended 50
74. Section 87 amended 50
75. Section 89 amended 51
76. Section 98 amended 51
77. Part 18 Division 6 inserted 51
Division 6 -- Functions of speciality courts
136A. Application of Division 51
136B. Term used: court 52
136C. Court may direct offender on community
order to appear 52
136D. Court to deal with re-offender 52
136E. Court to deal with application to amend or
cancel community order 53
136F. Court to deal with proceedings for
breaches 53
78. Part 18A inserted 53
Part 18A -- Review of conditional orders
136G. Terms used 53
136H. Application to review 54
136I. Court may confirm, amend or cancel 54
page v
Western Australia
LEGISLATIVE COUNCIL
Sentencing Legislation Amendment Bill 2016
A Bill for
An Act to amend the following Acts --
• the Sentence Administration Act 2003;
• the Sentencing Act 1995;
• The Criminal Code.
The Parliament of Western Australia enacts as follows:
page 1
Sentencing Legislation Amendment Bill 2016
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Sentencing Legislation Amendment Act 2016.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) Part 1 -- on the day on which this Act receives the
7 Royal Assent (assent day);
8 (b) Part 2 and Part 4 Divisions 1 and 2 -- on the day after
9 assent day;
10 (c) the rest of the Act -- on a day fixed by proclamation,
11 and different days may be fixed for different provisions.
page 2
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
Sentence Administration Act 2003 amended Division 1
s. 3
1 Part 2 -- Amendments about some
2 long-term prisoners
3 Division 1 -- Sentence Administration Act 2003 amended
4 3. Act amended
5 This Division amends the Sentence Administration Act 2003.
6 4. Section 4 amended
7 (1) In section 4(2) insert in alphabetical order:
8
9 Schedule 3 prisoner means a person described in
10 Schedule 3 column 2;
11
12 (2) In section 4(2) in the definition of Governor's pleasure
13 detainee:
14 (a) in paragraph (b) delete "Code;" and insert:
15
16 Code; or
17
18 (b) after paragraph (b) insert:
19
20 (c) a person subject to a direction or sentence
21 under repealed section 661 or 662 of The
22 Criminal Code;
23
24 (3) In section 4(2) in the definition of prisoner paragraph (b) delete
25 "a life" and insert:
26
27 life
28
page 3
Sentencing Legislation Amendment Bill 2016
Part 2 Amendments about some long-term prisoners
Division 1 Sentence Administration Act 2003 amended
s. 5
1 5. Section 11 amended
2 Delete section 11(3).
3 6. Section 12 amended
4 (1) Delete section 12(2)(b) and (c) and insert:
5
6 (b) whenever it considers it necessary to do so.
7
8 (2) In section 12(4)(b) delete "(2)(b) or (c)," and insert:
9
10 (2)(b),
11
12 (3) In section 12(5)(a) delete "offence" and insert:
13
14 offence, or offences,
15
16 (4) Delete section 12(6).
17 7. Section 12A amended
18 (1) Delete section 12A(1) and (2) and insert:
19
20 (1) A report must be given under this section about a
21 Schedule 3 prisoner regardless of whether or not a
22 report has been given about the prisoner under
23 section 12 (although reports may be combined under
24 section 12B).
25 (2) The Board must give the Minister a written report
26 about a Schedule 3 prisoner --
27 (a) described in Division 1 column 2 of that
28 Schedule -- at the times provided in columns 3
page 4
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
Sentence Administration Act 2003 amended Division 1
s. 7
1 and 4 of that Division for a prisoner of that
2 description; and
3 (b) described in Division 2 column 2 of that
4 Schedule -- at the times provided in column 4
5 of that Division for a prisoner of that
6 description.
7
8 (2) After section 12A(5) insert:
9
10 (6) For the purposes of determining under
11 subsection (2)(b) when a subsequent report is due for a
12 prisoner described in Schedule 3 Division 2
13 column 2 --
14 (a) it is immaterial whether the first report was
15 given under a provision of this Act, the
16 Sentence Administration Act 1995 or the
17 Offenders Community Corrections Act 1963
18 that applied (or was taken to have applied) to or
19 in respect of the prisoner, as long as the report
20 dealt with release considerations (however
21 described) relating to the prisoner; and
22 (b) if a first report was not given, or was not given
23 when it was due, then the first report is to be
24 taken to have been given at the time provided in
25 column 3 of that Division for a prisoner of that
26 description.
27
28 (3) In section 12A delete the Table.
29 Note: The heading to amended section 12A is to read:
30 Reports by Board to Minister about Schedule 3 prisoners
page 5
Sentencing Legislation Amendment Bill 2016
Part 2 Amendments about some long-term prisoners
Division 1 Sentence Administration Act 2003 amended
s. 8
1 8. Section 12B inserted
2 At the end of Part 2 Division 3 insert:
3
4 12B. Combined reports may be given under
5 sections 12 and 12A
6 (1) The Board may combine the following reports to form
7 one report (a combined report) --
8 (a) a report that is to be given about a prisoner
9 under section 12 (the first report) and a report
10 that is due to be given about the same prisoner
11 under section 12A within 3 months of the first
12 report; or
13 (b) a report that is due to be given about a prisoner
14 under section 12A at a time provided in one
15 item of Schedule 3 (the first report) and
16 another report, or reports, due to be given about
17 the same prisoner under section 12A at a time,
18 or times, provided in another item, or items, of
19 Schedule 3 that is, or are, within 3 years of the
20 first report.
21 (2) A combined report given in the circumstances
22 described in --
23 (a) subsection (1)(a) is to be taken to have been
24 given under section 12 and under section 12A;
25 (b) subsection (1)(b), and that specifies each item
26 of Schedule 3 in respect of which a report about
27 the prisoner is being combined, is to be taken to
28 satisfy the requirements of section 12A for a
29 report about that prisoner at the time provided
30 under each of those items.
31 (3) A report under section 12A referred to in
32 subsection (1)(a) may be a combined report given in
33 the circumstances described in subsection (1)(b).
34
page 6
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
Sentence Administration Act 2003 amended Division 1
s. 9
1 9. Section 13 amended
2 In section 13(1) delete the definition of prisoner and insert:
3
4 prisoner means a Schedule 3 prisoner.
5
6 Note: The heading to amended section 13 is to read:
7 Re-socialisation programmes for Schedule 3 prisoners
8 10. Section 14 amended
9 In section 14(1) in the definition of prisoner delete
10 paragraph (b) and insert:
11
12 (b) a Schedule 3 prisoner.
13
14 Note: The heading to amended section 14 is to read:
15 Re-socialisation programmes for certain other prisoners
16 11. Section 25 amended
17 Delete section 25(1) and (1A) and insert:
18
19 (1) In this section --
20 prisoner means any of the following prisoners --
21 (a) a prisoner serving life imprisonment for murder
22 where --
23 (i) a minimum period has been set under
24 section 90(1)(a) of the Sentencing
25 Act 1995 and the prisoner has served
26 that minimum period; or
27 (ii) the prisoner was sentenced before
28 4 November 1996;
page 7
Sentencing Legislation Amendment Bill 2016
Part 2 Amendments about some long-term prisoners
Division 1 Sentence Administration Act 2003 amended
s. 12
1 (b) a prisoner serving life imprisonment for an
2 offence other than murder where --
3 (i) the prisoner has served the period
4 required by section 96(1) of the
5 Sentencing Act 1995; or
6 (ii) the prisoner was sentenced before
7 4 November 1996.
8
9 (1A) The Governor may make a parole order in respect of a
10 prisoner but only if a report about the prisoner has been
11 given by the Board to the Minister under section 12
12 or 12A.
13
14 12. Section 27A amended
15 In section 27A delete "people who are in custody during the
16 Governor's pleasure." and insert:
17
18 a Governor's pleasure detainee.
19
20 13. Section 27B amended
21 (1) In section 27B(1) delete "person in, or regarded as being in,
22 strict or safe custody by virtue of an order made under
23 Chapter XXVIII of The Criminal Code" and insert:
24
25 person who is a Governor's pleasure detainee
26
27 (2) In section 27B(2) delete "12." and insert:
28
29 12 or 12A.
30
page 8
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
Sentence Administration Act 2003 amended Division 1
s. 14
1 14. Part 11 inserted
2 After section 122 insert:
3
4 Part 11 -- Transitional and validation
5 provisions for Sentencing Legislation
6 Amendment Act 2016 Part 2
7 123. Terms used
8 In this Part --
9 commencement means the day on which the
10 Sentencing Legislation Amendment Act 2016 Part 2
11 comes into operation;
12 former transitional provisions means --
13 (a) the Sentencing (Consequential Provisions)
14 Act 1995 section 83, 86, 87 or 91(1), as affected
15 by the Sentencing Legislation Amendment and
16 Repeal Act 2003 Schedule 1 clause 13; and
17 (b) the Offenders Community Corrections Act 1963
18 as continued in operation by any of those
19 provisions of the Sentencing (Consequential
20 Provisions) Act 1995;
21 pre-1996 prisoner means a prisoner --
22 (a) sentenced before 4 November 1996; and
23 (b) to whom the Sentencing (Consequential
24 Provisions) Act 1995 section 83, 86, 87
25 or 91(1) applied;
26 transitional period means the period --
27 (a) beginning on 4 November 1996; and
28 (b) ending immediately before commencement.
page 9
Sentencing Legislation Amendment Bill 2016
Part 2 Amendments about some long-term prisoners
Division 1 Sentence Administration Act 2003 amended
s. 14
1 124. Reports during the transitional period: pre-1996
2 prisoners
3 If a report given during the transitional period about a
4 pre-1996 prisoner was not given in accordance with a
5 former transitional provision that permitted or required
6 a person to give a report about the prisoner then --
7 (a) each provision of the Sentence Administration
8 Act 1995 that would have permitted or required
9 a person to give a report about the prisoner had
10 the prisoner been sentenced on or after
11 4 November 1996 and before 31 August 2003
12 is taken to have applied, and the former
13 transitional provision is taken not to have
14 applied, to and in respect of the prisoner during
15 that period; and
16 (b) each provision of this Act that would have
17 permitted or required a person to give a report
18 about the prisoner had the prisoner been
19 sentenced on or after 31 August 2003 and
20 before commencement is taken to have applied,
21 and the former transitional provision is taken
22 not to have applied, to and in respect of the
23 prisoner during that period.
24 125. Participation in re-socialisation programmes:
25 pre-1996 prisoners
26 If a pre-1996 prisoner participated, or purported to
27 participate, in a re-socialisation programme on or after
28 28 January 2007 and before commencement, then each
29 provision of this Act that would have permitted the
30 prisoner to participate in the programme had the
31 prisoner been sentenced on or after 28 January 2007 is
32 taken to have applied to and in respect of that prisoner
33 during that period.
page 10
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
Sentence Administration Act 2003 amended Division 1
s. 14
1 126. Release on parole: pre-1996 prisoners
2 (1) If the release on parole of a pre-1996 prisoner during
3 the transitional period was not in accordance with a
4 former transitional provision relating to the release of
5 the prisoner on parole then --
6 (a) each provision of the Sentence Administration
7 Act 1995 that would have been about the
8 release of the prisoner on parole had the
9 prisoner been sentenced on or after
10 4 November 1996 and before 31 August 2003
11 is taken to have applied, and the former
12 transitional provision is taken not to have
13 applied, to and in respect of the prisoner during
14 that period; and
15 (b) each provision of this Act that would have been
16 about the release of the prisoner on parole had
17 the prisoner been sentenced on or after
18 31 August 2003 and before commencement is
19 taken to have applied, and the former
20 transitional provision is taken not to have
21 applied, to and in respect of the prisoner during
22 that period.
23 (2) In making a decision during the transitional period
24 about the release from custody of a pre-1996 prisoner
25 under a provision of the Sentence Administration
26 Act 1995 or this Act that applied by virtue of
27 subsection (1), any of the following, according to the
28 terms of the provision, may have been taken into
29 account --
30 (a) any report given about the prisoner under
31 provisions that apply to and in respect of the
32 prisoner by virtue of section 124;
33 (b) the participation by the prisoner in any
34 re-socialisation programme under provisions
page 11
Sentencing Legislation Amendment Bill 2016
Part 2 Amendments about some long-term prisoners
Division 1 Sentence Administration Act 2003 amended
s. 15
1 that apply to and in respect of the prisoner by
2 virtue of section 125.
3 127. Validation of parole orders: pre-1996 prisoner
4 A parole order made in relation to the release from
5 custody of a pre-1996 prisoner is, and is taken to have
6 always been, as valid as it would have been if this Part
7 had been if force when it was made.
8 128. Inconsistency with former transitional provisions
9 If a provision of this Act, or the Sentence
10 Administration Act 1995, that applies by virtue of this
11 Part is inconsistent with a provision of the former
12 transitional provisions, the provision of this Act, or the
13 Sentence Administration Act 1995, prevails.
14
15 15. Schedule 3 inserted
16 After Schedule 2 insert:
17
18 Schedule 3 -- Reports and re-socialisation
19 programmes for certain prisoners
20 [s. 12A and 13]
21 Division 1 -- Current sentence types
Item Description of prisoner First report Subsequent
No. due reports due
1. A person serving a sentence of 7 years after Every 3 years
life imprisonment for an offence the day on after that
other than murder which the
term began or
is taken to
have begun
page 12
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
Sentence Administration Act 2003 amended Division 1
s. 15
Item Description of prisoner First report Subsequent
No. due reports due
2. A person serving a sentence of At the end of Every 3 years
life imprisonment for murder the minimum after that
where a minimum period has period
been set under the Sentencing
Act 1995 section 90(1)(a)
3. A person serving a sentence of One year after Every 3 years
indefinite imprisonment the day on after that
which the
sentence
began
4. A Governor's pleasure detainee One year after Every year
subject to a sentence of the day on after that
detention imposed under The which the
Criminal Code section 279(5)(b) detention
began
1 Division 2 -- Former sentence types
Item Description of prisoner First report Subsequent
No. due reports due
5. A person serving a sentence of 20 years after Every 3 years
strict security life imprisonment the sentence after that
commuted from a sentence of was
death under The Criminal Code commuted
section 679 (repealed by the
Sentencing (Consequential
Provisions) Act 1995 section 26)
page 13
Sentencing Legislation Amendment Bill 2016
Part 2 Amendments about some long-term prisoners
Division 1 Sentence Administration Act 2003 amended
s. 15
Item Description of prisoner First report Subsequent
No. due reports due
6. A person serving a sentence of 10 years after Every 3 years
life imprisonment commuted the sentence after that
from a sentence of death under was
The Criminal Code section 679 commuted
(repealed by the Sentencing
(Consequential Provisions)
Act 1995 section 26)
7. A person serving a sentence of 20 years after Every 3 years
strict security life imprisonment the term after that
for wilful murder under The began
Criminal Code section 282(a)(i)
(repealed by the Criminal Law
Amendment (Homicide)
Act 2008 section 10) in respect
of which no minimum term was
set
8. A person serving a sentence of 12 years after Every 3 years
life imprisonment for wilful the day on after that
murder under The Criminal which the
Code section 282(a)(ii) term began
(repealed by the Criminal Law or is taken to
Amendment (Homicide) have begun
Act 2008 section 10) in respect
of which no minimum term was
set
9. A person serving a sentence of 7 years after Every 3 years
life imprisonment for murder the day on after that
under The Criminal Code which the
section 282(b) (repealed by the term began
Criminal Law Amendment or is taken to
(Homicide) Act 2008 section 10) have begun
in respect of which no minimum
term was set
page 14
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
Sentence Administration Act 2003 amended Division 1
s. 15
Item Description of prisoner First report Subsequent
No. due reports due
10. A person serving a sentence of At the end of Every 3 years
strict security life imprisonment the minimum after that
where a minimum period has period
been set under --
(a) the Sentencing Act 1995
section 91(1) (as it was
immediately before the
commencement of the
Criminal Law Amendment
(Homicide) Act 2008
section 19); or
(b) the Offenders Community
Corrections Act 1963
section 40D (repealed by
the Sentencing
(Consequential Provisions)
Act 1995 section 77)
11. A person serving a sentence of At the end of Every 3 years
life imprisonment for murder or the minimum after that
wilful murder where a minimum period
period has been set under --
(a) the Sentencing Act 1995
section 90(1) or (2) (as it
was immediately before the
commencement of the
Criminal Law Amendment
(Homicide) Act 2008
section 19); or
page 15
Sentencing Legislation Amendment Bill 2016
Part 2 Amendments about some long-term prisoners
Division 1 Sentence Administration Act 2003 amended
s. 15
Item Description of prisoner First report Subsequent
No. due reports due
(b) the Offenders Community
Corrections Act 1963
section 40D (repealed by
the Sentencing
(Consequential Provisions)
Act 1995 section 77)
12. A person serving a sentence of 5 years after Every 3 years
life imprisonment for an offence the day on after that
other than murder imposed which the
before the commencement of the term began
Acts Amendment (Imprisonment or is taken to
and Parole) Act 1987 section 6 have begun
13. A person serving a sentence of 7 years after Every 3 years
life imprisonment for an offence the day on after that
other than murder imposed on or which the
after the commencement of the term began
Acts Amendment (Imprisonment or is taken to
and Parole) Act 1987 section 6 have begun
14. A person subject to a direction For Every year
or sentence under The Criminal section 661 after that
Code section 661 or 662 -- 2 years
(repealed by the Sentencing after the day
(Consequential Provisions) on which the
Act 1995 section 26) detention
began
For
section 662
-- one year
after the day
on which the
detention
began
page 16
Sentencing Legislation Amendment Bill 2016
Amendments about some long-term prisoners Part 2
The Criminal Code amended Division 2
s. 16
Item Description of prisoner First report Subsequent
No. due reports due
15. A person in, or regarded as One year Every year
being in, strict or safe custody after the day after that
by virtue of an order under The on which the
Criminal Code section 282 detention
(repealed by the Criminal Law began
Amendment (Homicide)
Act 2008 section 10)
1
2 Division 2 -- The Criminal Code amended
3 16. Act amended
4 This Division amends The Criminal Code.
5 17. Schedule 1 clause 3 amended
6 Delete Schedule 1 clause 3(7).
page 17
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 1 Sentencing Act 1995 amended
s. 18
1 Part 3 -- Amendments about parole and
2 post-sentencing supervision
3 Division 1 -- Sentencing Act 1995 amended
4 18. Act amended
5 This Division amends the Sentencing Act 1995.
6 19. Section 89 amended
7 (1) In section 89(2) delete "12" (each occurrence) and insert:
8
9 6
10
11 (2) In section 89(4) delete "2" and insert:
12
13 one
14
15 20. Section 97A inserted
16 At the end of Part 13 Division 4 insert:
17
18 97A. Declaration of serious violent offence for purposes
19 of Sentence Administration Act 2003 Part 5A
20 (1) In this section --
21 family and domestic relationship has the meaning
22 given in the Restraining Orders Act 1997 section 4(1);
23 offence does not include an offence specified in the
24 Sentence Administration Act 2003 Schedule 4;
25 victim has the meaning given in section 13.
26 (2) This section applies if a court is sentencing an offender
27 to imprisonment for an indictable offence.
page 18
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 21
1 (3) The court may, for the purposes of the Sentence
2 Administration Act 2003 Part 5A, declare the offence to
3 be a serious violent offence if the offence --
4 (a) involved the use of, or counselling or procuring
5 the use of, or conspiring or attempting to use,
6 serious violence against another person; or
7 (b) resulted in serious harm to, or the death of,
8 another person.
9 (4) The court must regard the existence of any of the
10 following circumstances as an aggravating factor when
11 deciding whether to make a declaration --
12 (a) the offender has a history of violent offending;
13 (b) the offender was in a family and domestic
14 relationship with a victim of the offence when
15 the offence was committed;
16 (c) a victim of the offence was under 12 years of
17 age when the offence was committed.
18 (5) A declaration may be made by the court on its own
19 initiative or on an application by the prosecutor.
20
21 Division 2 -- Sentence Administration Act 2003 amended
22 21. Act amended
23 This Division amends the Sentence Administration Act 2003.
24 22. Section 4 amended
25 (1) In section 4(2) insert in alphabetical order:
26
27 post-sentence supervision order means a post-sentence
28 supervision order made under Part 5A;
29 supervised offender has the meaning given in
30 section 74E(1);
31
page 19
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 2 Sentence Administration Act 2003 amended
s. 23
1 (2) In section 4(3) insert in alphabetical order:
2
3 PSSO for post-sentence supervision order;
4
5 23. Section 22 amended
6 In section 22(1)(a) and (b) delete "12" and insert:
7
8 6
9
10 24. Section 24 deleted
11 Delete section 24.
12 25. Part 5A inserted
13 After section 74 insert:
14
15 Part 5A -- Post-sentence supervision of
16 certain offenders
17 74A. Terms used
18 In this Part --
19 breach, in relation to a PSSO, means to contravene any
20 obligation or requirement of the order;
21 cancelled PSSO has the meaning given in
22 section 74K(1);
23 prisoner means a prisoner who is serving a fixed term
24 for a serious violent offence;
25 PSSO considerations has the meaning given in
26 section 74B;
27 PSSO period has the meaning given in section 74E(2);
page 20
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 25
1 serious violent offence means --
2 (a) an offence specified in Schedule 4; or
3 (b) an offence declared under the Sentencing
4 Act 1995 section 97A(3) to be a serious violent
5 offence.
6 74B. PSSO considerations
7 In this Part a reference to the PSSO considerations is a
8 reference to these considerations --
9 (a) issues for any victim of a serious violent
10 offence for which the prisoner is in custody,
11 including any matter raised in a victim's
12 submission;
13 (b) the behaviour of the prisoner when in custody
14 insofar as it may be relevant to determining
15 how the prisoner is likely to behave if released;
16 (c) whether the prisoner has participated in
17 programmes available to the prisoner when in
18 custody, and if not the reasons for not doing so;
19 (d) the prisoner's performance when participating
20 in a programme mentioned in paragraph (c);
21 (e) the behaviour of the prisoner when subject to
22 any PSSO made previously;
23 (f) the likelihood of the prisoner committing a
24 serious violent offence when subject to a PSSO;
25 (g) the likelihood of the prisoner complying with
26 the standard obligations and any additional
27 requirements of any PSSO;
28 (h) any other matter that is or may be relevant to
29 whether the prisoner should be subject to a
30 PSSO after the prisoner's release.
page 21
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 2 Sentence Administration Act 2003 amended
s. 25
1 74C. Reports by CEO to Board about prisoners
2 (1) The CEO must give the Board a written report about
3 every prisoner that addresses the PSSO considerations
4 relating to the prisoner.
5 (2) The report must be given to the Board no later than
6 3 months before the end of the prisoner's term.
7 (3) This section applies whether or not the prisoner is
8 subject to an early release order.
9 74D. Board may make PSSO
10 (1) Before the end of a prisoner's term, the Board must
11 consider whether a post-sentence supervision order
12 should be made in respect of the prisoner.
13 (2) Subsection (1) applies whether or not the prisoner is
14 subject to an early release order.
15 (3) If the Board, having regard to --
16 (a) the PSSO considerations relating to the
17 prisoner; and
18 (b) the report made by the CEO under section 74C;
19 and
20 (c) any other information about the prisoner
21 brought to its attention,
22 decides that it is appropriate to make a post-sentence
23 supervision order in respect of the prisoner, the Board
24 must do so.
25 74E. Nature of PSSO
26 (1) A PSSO is an order that the person specified in the
27 order (the supervised offender) must during the PSSO
28 period comply with --
29 (a) the standard obligations in section 74F; and
page 22
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 25
1 (b) any of the additional requirements in
2 section 74G that are specified in the PSSO.
3 (2) Subject to section 74K(2), the PSSO period is the
4 period of 2 years beginning on --
5 (a) if the supervised offender is not released on
6 parole -- the day on which the offender is
7 released after serving the offender's term; or
8 (b) if the supervised offender is released on
9 parole -- the day after the day on which the
10 offender's term ends.
11 74F. Standard obligations of PSSO
12 The standard obligations of a PSSO are that the
13 supervised offender --
14 (a) must report to a community corrections centre
15 within 72 hours after being released, or as
16 otherwise directed by a CCO; and
17 (b) must notify a CCO of any change of address or
18 place of employment within 2 clear working
19 days after the change; and
20 (c) must comply with section 76.
21 74G. Additional requirements of PSSO
22 A PSSO may contain any of these additional
23 requirements as the Board thinks fit --
24 (a) a requirement relating to where the supervised
25 offender must reside;
26 (b) requirements relating to the protection of any
27 victim of an offence committed by the
28 supervised offender from coming into contact
29 with the offender;
30 (c) a requirement that the supervised offender must
31 wear any device for monitoring purposes;
page 23
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 2 Sentence Administration Act 2003 amended
s. 25
1 (d) a requirement that the supervised offender
2 permit the installation of any device or
3 equipment at the place where the offender
4 resides for monitoring purposes;
5 (e) a requirement that, if the CEO so directs, the
6 supervised offender --
7 (i) wear any device for monitoring
8 purposes;
9 (ii) permit the installation of any device or
10 equipment at the place where the
11 offender resides for monitoring
12 purposes;
13 (f) a requirement that the supervised offender must
14 not leave Western Australia except with and in
15 accordance with the written permission of the
16 CEO;
17 (g) requirements to facilitate the supervised
18 offender's rehabilitation;
19 (h) a requirement that the supervised offender
20 must, in each period of 7 days, do the
21 prescribed number of hours of community
22 corrections activities;
23 (i) a requirement that the supervised offender
24 must --
25 (i) seek or engage in gainful employment
26 or in vocational training; or
27 (ii) engage in gratuitous work for an
28 organisation approved by the CEO;
29 (j) prescribed requirements.
page 24
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 25
1 74H. CEO to ensure person subject to PSSO is
2 supervised
3 The CEO must ensure that a CCO is assigned to
4 supervise a supervised offender for the duration of the
5 PSSO period.
6 74I. Amendment of PSSO
7 (1) The Board may amend a PSSO at any time before the
8 end of the PSSO period.
9 (2) If a PSSO is amended, the amended PSSO applies
10 accordingly.
11 74J. Cancellation of PSSO
12 (1) The Board may cancel a PSSO at any time before the
13 commencement of the PSSO period.
14 (2) If a supervised offender, during the PSSO period,
15 commits an offence (in this State or elsewhere) and is
16 sentenced to imprisonment for that offence, the PSSO
17 applicable to the supervised offender is cancelled by
18 operation of this section.
19 74K. Subsequent PSSO after cancellation for committing
20 offence
21 (1) If a PSSO is cancelled under section 74J(2) (the
22 cancelled PSSO), the Board may subsequently make
23 another PSSO in respect of the prisoner.
24 (2) The PSSO period in the subsequent PSSO is to be set
25 by the Board but --
26 (a) must begin on the day when the prisoner is
27 released; and
28 (b) must not be longer than the remaining PSSO
29 period of the cancelled PSSO.
page 25
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 2 Sentence Administration Act 2003 amended
s. 26
1 (3) Subsection (2) does not apply if the offence by virtue
2 of which the PSSO is cancelled under section 74J(2) is
3 a serious violent offence.
4 74L. Offence for breach of PSSO
5 A supervised offender who breaches a PSSO, without
6 reasonable excuse (proof of which is on the offender),
7 commits a crime.
8 Penalty: imprisonment for 3 years.
9 Summary conviction penalty: a fine of $18 000 and
10 imprisonment for 18 months.
11
12 26. Section 75 amended
13 In section 75 in the definition of community corrections order
14 delete "RRO" and insert:
15
16 RRO, a PSSO
17
18 27. Section 77 amended
19 After section 77(c) insert:
20
21 (ca) if the offender is subject to a PSSO, report the
22 matter to the CEO and recommend that the
23 offender be charged with an offence under
24 section 74L; or
25
page 26
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 28
1 28. Section 78 amended
2 (1) In section 78(1) in the definition of minimum hours
3 requirement paragraph (b) delete "order or an RRO --" and
4 insert:
5
6 order, an RRO or a PSSO --
7
8 (2) In section 78(2)(c) delete "order --" and insert:
9
10 order or a PSSO --
11
12 (3) In section 78(3) delete "order." and insert:
13
14 order or a PSSO.
15
16 29. Section 83 amended
17 In section 83 in the definition of community corrections order
18 delete "RRO" and insert:
19
20 RRO, a PSSO
21
22 30. Section 94 amended
23 In section 94(1)(a) delete "RROs" and insert:
24
25 RROs, PSSOs
26
page 27
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 2 Sentence Administration Act 2003 amended
s. 31
1 31. Section 107B amended
2 (1) In section 107B(1) and (2) after "prisoner" insert:
3
4 or supervised offender
5
6 (2) After section 107B(3)(c) insert:
7
8 (ca) to a decision by the Board to make, amend or
9 cancel a PSSO; and
10
11 32. Section 107C amended
12 In section 107C(2) after "prisoner" insert:
13
14 or the supervised offender
15
16 33. Section 109 amended
17 (1) In section 109(1) delete "prisoner is subject to a parole order
18 (other than a parole order (unsupervised)) or an RRO," and
19 insert:
20
21 person is subject to a parole order (other than a parole order
22 (unsupervised)), an RRO or a PSSO,
23
24 (2) In section 109(2) delete "prisoner" and insert:
25
26 person
27
28 Note: The heading to amended section 109 is to read:
29 Board may require person to appear before it
page 28
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 34
1 34. Section 111 amended
2 In section 111(2) delete "RRO" and insert:
3
4 RRO, a PSSO
5
6 35. Section 112 amended
7 In section 112:
8 (a) after paragraph (g) insert:
9
10 (ga) the number of prisoners who were the subject
11 of a report under section 74C during the
12 previous financial year;
13 (gb) the number of persons released subject to
14 PSSOs during the previous financial year;
15
16 (b) in paragraph (j) after "orders" (1st occurrence) insert:
17
18 and PSSOs
19
20 36. Section 114 amended
21 In section 114(2) after "prisoner" (each occurrence) insert:
22
23 or supervised offender
24
25 37. Section 115A amended
26 After section 115A(2)(d) insert:
27
28 (da) by the Board to make a PSSO; or
29
page 29
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 2 Sentence Administration Act 2003 amended
s. 38
1 38. Part 11 heading amended
2 In the heading to Part 11 (as inserted by section 14 of this Act)
3 delete "for Sentencing Legislation Amendment
4 Act 2016 Part 2".
5 39. Part 11 Division 1 heading inserted
6 After the heading to Part 11 (as inserted by section 14 of this
7 Act) insert:
8
9 Division 1 -- Provisions for the Sentencing Legislation
10 Amendment Act 2016 Part 2
11
12 40. Section 123 amended
13 In section 123 (as inserted by section 14 of this Act) delete
14 "Part" and insert:
15
16 Division
17
18 41. Section 127 amended
19 In section 127 (as inserted by section 14 of this Act) delete
20 "Part" and insert:
21
22 Division
23
24 42. Section 128 amended
25 In section 128 (as inserted by section 14 of this Act) delete
26 "Part" and insert:
27
28 Division
29
page 30
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 43
1 43. Part 11 Division 2 inserted
2 After section 128 (as inserted by section 14 of this Act) insert:
3
4 Division 2 -- Provisions for the Sentencing Legislation
5 Amendment Act 2016 Part 3 Division 2
6 129. Continued application of former Part 3 Division 4
7 (1) In this section --
8 commencement day means the day on which the
9 Sentencing Legislation Amendment Act 2016 section 23
10 comes into operation;
11 former Division means Part 3 Division 4 as in force
12 immediately before commencement day.
13 (2) If the former Division applied to a prisoner
14 immediately before commencement day then on and
15 after that day the former Division continues to apply to
16 and in relation to the prisoner as if the Sentencing
17 Legislation Amendment Act 2016 section 23 had not
18 come into operation.
19
20 44. Schedule 4 inserted
21 After Schedule 3 (as inserted by section 15 of this Act) insert:
22
23 Schedule 4 -- Serious violent offences
24 [s. 74A]
Enactment Description of offence
1. The Criminal Code
s. 279 Murder
s. 280 Manslaughter
page 31
Sentencing Legislation Amendment Bill 2016
Part 3 Amendments about parole and post-sentencing supervision
Division 2 Sentence Administration Act 2003 amended
s. 44
Enactment Description of offence
s. 281 Unlawful assault causing death
s. 283 Attempt to unlawfully kill
s. 294 Act intended to cause grievous
bodily harm or prevent arrest
s. 297 Grievous bodily harm
s. 320 Sexual offences against child
under 13
s. 321 Sexual offences against child of
or over 13 and under 16
s. 324 Aggravated indecent assault
s. 325 Sexual penetration without
consent
s. 326 Aggravated sexual penetration
without consent
s. 327 Sexual coercion
s. 328 Aggravated sexual coercion
s. 330 Sexual offences against
incapable person
s. 392 Robbery, if the offence is
committed in circumstances
described in s. 392(c) or in
circumstances of aggravation
s. 444(1) Criminal damage, if the offence
is committed in circumstances
described in s. 444(1)(a)
page 32
Sentencing Legislation Amendment Bill 2016
Amendments about parole and post-sentencing supervision Part 3
Sentence Administration Act 2003 amended Division 2
s. 44
Enactment Description of offence
s. 445A Breach of s. 444A duty
2. Bush Fires Act 1954
s. 32(2) Offences of lighting or
attempting to light fire likely to
injure
3. Road Traffic Act 1974
s. 59 Dangerous driving causing
death or grievous bodily harm
1
page 33
Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 1 Preliminary
s. 45
1 Part 4 -- Other amendments to the Sentencing
2 Act 1995
3 Division 1 -- Preliminary
4 45. Act amended
5 This Part amends the Sentencing Act 1995.
6 Division 2 -- Amendments about circumstances of aggravation
7 46. Section 145A inserted
8 After section 145 insert:
9
10 145A. Existence of circumstances of aggravation is
11 question for judge to determine
12 (1) In this section --
13 circumstances of aggravation means circumstances in
14 which an offence is committed that --
15 (a) are not elements of the offence; and
16 (b) increase the statutory penalty for the offence.
17 (2) If, on a plea of guilty by the accused, a superior court is
18 required to determine in proceedings under this Act
19 whether the offence was committed in circumstances of
20 aggravation, that determination is the determination of
21 a question of fact for the purposes of section 146.
22
page 34
Sentencing Legislation Amendment Bill 2016
Other amendments to the Sentencing Act 1995 Part 4
Amendments about suspended fines Division 3
s. 47
1 47. Section 150AB inserted
2 After section 150A insert:
3
4 150AB. Application of Sentencing Legislation Amendment
5 Act 2016 amendments about circumstances of
6 aggravation
7 (1) In this section --
8 commencement means the coming into operation of
9 the Sentencing Legislation Amendment Act 2016 Part 4
10 Division 2.
11 (2) This Act, as amended by the Sentencing Legislation
12 Amendment Act 2016 Part 4 Division 2, applies to the
13 determination under section 146 of whether an offence
14 was committed in circumstances of aggravation --
15 (a) even if the offence was committed before
16 commencement; and
17 (b) even if the offender pleaded guilty before
18 commencement; and
19 (c) even if the determination has arisen as a result
20 of an appeal against a sentence imposed before
21 commencement.
22
23 Division 3 -- Amendments about suspended fines
24 48. Section 14 amended
25 In section 14(2):
26 (a) in paragraph (b) delete "fine," and insert:
27
28 fine; or
29
page 35
Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 3 Amendments about suspended fines
s. 49
1 (b) after paragraph (b) insert:
2
3 (c) under Part 8A impose a suspended fine,
4
5 49. Section 39 amended
6 After section 39(2)(c) insert:
7
8 (ca) with or without making a spent conviction
9 order, under Part 8A impose a suspended fine;
10 or
11
12 50. Section 40 amended
13 In section 40(2):
14 (a) in paragraph (b) delete "fine." and insert:
15
16 fine; or
17
18 (b) after paragraph (b) insert:
19
20 (c) under Part 8A impose a suspended fine.
21
22 51. Section 44 amended
23 In section 44(1):
24 (a) in paragraph (a)(i) delete "(b) and (c); or" and insert:
25
26 (b), (c) and (ca); or
27
28 (b) in paragraph (a)(ii) delete "(c)" and insert:
29
30 (c), (ca)
31
page 36
Sentencing Legislation Amendment Bill 2016
Other amendments to the Sentencing Act 1995 Part 4
Amendments about suspended fines Division 3
s. 52
1 52. Part 8A inserted
2 After section 60 insert:
3
4 Part 8A -- Suspended fine
5 60A. When fine may be suspended
6 (1) A court that sentences an offender to a fine may order
7 that the fine be suspended for a period set by the court
8 that is not to be more than 24 months.
9 (2) A suspended fine is not to be imposed unless a fine
10 equal to that suspended would, if it were not possible to
11 suspend the fine, be appropriate in all the
12 circumstances.
13 60B. Effect of suspending fine
14 (1) An offender sentenced to a suspended fine is not to pay
15 any part of the fine that is suspended unless --
16 (a) during the suspension period the offender
17 commits an offence (in this State or elsewhere);
18 and
19 (b) a court makes an order under section 60E.
20 (2) The suspension period begins on the day on which the
21 sentence is imposed.
22 (3) An offender who is sentenced to a suspended fine is to
23 be taken to be discharged from the sentence at the end
24 of the suspension period.
25 (4) Subsection (3) does not affect the operation of
26 subsection (1) or section 60C or 60E.
page 37
Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 3 Amendments about suspended fines
s. 52
1 60C. Re-offender may be dealt with or committed
2 (1) If a court convicts a person of an offence and that
3 offence was committed during the suspension period of
4 a suspended fine imposed on the person in relation to
5 another offence, the court --
6 (a) if it is the Magistrates Court or the Children's
7 Court, must deal with the person under
8 section 60E unless the suspended fine was
9 imposed --
10 (i) by the Magistrates Court or the
11 Children's Court for an indictable
12 offence; or
13 (ii) by a superior court,
14 in which case the court must commit the person
15 to the court that imposed the suspended fine
16 and that court must deal with the person under
17 section 60E; or
18 (b) if it is the District Court, must deal with the
19 person under section 60E unless the suspended
20 fine was imposed by the Children's Court or
21 the Supreme Court for an offence which the
22 District Court would not have jurisdiction to
23 deal with if it were committed by an adult, in
24 which case the court must commit the person to
25 the court that imposed the suspended fine and
26 that court must deal with the person under
27 section 60E; or
28 (c) if it is the Supreme Court, must deal with the
29 person under section 60E.
30 (2) The powers in subsection (1) may be exercised by a
31 court at any time, even if the suspension period has
32 ended.
33 (3) Subsection (1) does not affect the powers of the court
34 that convicts the person of the offence committed
page 38
Sentencing Legislation Amendment Bill 2016
Other amendments to the Sentencing Act 1995 Part 4
Amendments about suspended fines Division 3
s. 52
1 during the suspension period to deal with the person for
2 that offence.
3 (4) A court that under subsection (1) commits a person to
4 another court must certify that the person has been
5 convicted of an offence committed during the
6 suspension period.
7 (5) A certificate by a court under subsection (4) is, in the
8 absence of evidence to the contrary, evidence of its
9 contents.
10 60D. Alleging re-offending in court
11 (1) If --
12 (a) a person (the offender) has been convicted and
13 dealt with (in this State or elsewhere) for an
14 offence; and
15 (b) that offence was committed during the
16 suspension period of a suspended fine imposed
17 on the offender in relation to another offence,
18 a written notice alleging those matters may be lodged
19 in a court in accordance with this section.
20 (2) The notice may be lodged at any time up until 2 years
21 after the last day of the suspension period.
22 (3) The notice may be signed by a police officer or another
23 person referred to in the Criminal Procedure Act 2004
24 section 20(3).
25 (4) The notice must be in a prescribed form and be signed
26 in the presence of a JP or a prescribed court officer (as
27 defined in the Criminal Procedure Act 2004
28 section 3(1)) who may issue a summons to the
29 offender.
page 39
Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 3 Amendments about suspended fines
s. 52
1 (5) The notice must be lodged with, and the summons
2 must direct the offender to appear before, the court that
3 imposed the suspended fine.
4 (6) The Criminal Procedure Act 2004 section 32, with any
5 necessary changes, applies to and in respect of a
6 summons issued under this section.
7 (7) An offender who appears before a court as a result of a
8 summons issued under this section must be dealt with
9 by the court under section 60E.
10 60E. How re-offender to be dealt with
11 (1) If satisfied that a person has been convicted (in this
12 State or elsewhere) of an offence and that the offence
13 was committed during the suspension period of a
14 suspended fine, a court that must deal with the person
15 under this section must deal with the person by one of
16 these methods --
17 (a) unless an order under this paragraph or
18 paragraph (b) has already been made, it may
19 order the person to pay the fine that was
20 suspended;
21 (b) unless an order under paragraph (a) has already
22 been made, it may order the person to pay part
23 of the fine that was suspended;
24 (c) unless the suspension period has ended, it may
25 substitute another suspension period of not
26 more than 24 months for the suspension period
27 originally set, and the new suspension period is
28 to begin on the day it is substituted;
29 (d) it may make no order in respect of the
30 suspended fine.
31 (2) The powers in subsection (1) may be exercised as often
32 as is necessary.
page 40
Sentencing Legislation Amendment Bill 2016
Other amendments to the Sentencing Act 1995 Part 4
Amendments about victim impact statements Division 4
s. 53
1 (3) A court must make an order under subsection (1)(a)
2 unless it decides that it would be unjust to do so in
3 view of all the circumstances that have arisen, or have
4 become known, since the suspended fine was imposed.
5 (4) If a court does not make an order under
6 subsection (1)(a), it must give written reasons for not
7 doing so.
8 (5) If a court deals with a person under subsection (1)(d),
9 then, unless the suspension period has ended, the
10 sentence of a suspended fine remains in effect and the
11 suspension period continues to elapse.
12 (6) An order by a superior court under subsection (1) in a
13 case where the sentence of a suspended fine was
14 imposed for an offence for which the person had not
15 been convicted on indictment is to be taken, for the
16 purposes of an appeal against the sentence, as being
17 made following a conviction on indictment.
18
19 Division 4 -- Amendments about victim impact statements
20 53. Section 23A inserted
21 At the beginning of Part 3 Division 4 insert:
22
23 23A. Terms used
24 In this Division --
25 family victim, in relation to an offence, means a person
26 who was, at the time the offence was committed, a
27 member of the primary victim's immediate family, and
28 includes such a person whether or not the person has
29 suffered personal harm as a result of the offence;
page 41
Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 4 Amendments about victim impact statements
s. 53
1 member of the primary victim's immediate family
2 means --
3 (a) the primary victim's spouse; or
4 (b) the primary victim's de facto partner; or
5 (c) a person to whom the primary victim is
6 engaged to be married; or
7 (d) a parent, grandparent, guardian, step-parent or
8 step-grandparent of the primary victim; or
9 (e) a child, grandchild, step-child or
10 step-grandchild of the primary victim or some
11 other child for whom the primary victim is the
12 guardian; or
13 (f) a brother, sister, half-brother, half-sister,
14 step-brother or step-sister of the primary
15 victim; or
16 (g) if, at the time of the offence, the primary victim
17 was an Aboriginal person or a Torres Strait
18 Islander requiring care, a person who, in the
19 opinion of the court, is regarded under the
20 customary law or tradition of the primary
21 victim's community as the equivalent of the
22 primary victim's guardian or carer;
23 personal harm means bodily harm or psychological or
24 psychiatric harm;
25 primary victim, in relation to an offence, means --
26 (a) a person against whom the offence was
27 committed; or
28 (b) a person who was a witness to the offence if it
29 included any of the following --
30 (i) actual or threatened violence;
31 (ii) sexual assault;
32 (iii) bodily harm;
33 (iv) death;
page 42
Sentencing Legislation Amendment Bill 2016
Other amendments to the Sentencing Act 1995 Part 4
Amendments about victim impact statements Division 4
s. 54
1 requiring care, in relation to a person, means a person
2 who --
3 (a) is under 18 years of age; or
4 (b) in the absence of positive evidence as to age,
5 appears to be under 18 years of age; or
6 (c) because of a mental or physical impairment, is
7 unable to give a victim impact statement;
8 victim means a primary victim or a family victim;
9 victim impact statement means a statement containing
10 particulars of --
11 (a) in the case of a primary victim, any personal
12 harm suffered by the victim as a direct result of
13 the offence; or
14 (b) in the case of a family victim, the impact of the
15 primary victim's personal harm on the
16 members of the primary victim's immediate
17 family.
18
19 54. Section 25 amended
20 Delete section 25(1).
21 55. Section 26 amended
22 After section 26(2) insert:
23
24 (3) A court must, after imposing a sentence of
25 imprisonment on an offender, make available to the
26 Prisoners Review Board a copy of any victim impact
27 statement given to the court under section 24.
28
29 Note: The heading to amended section 26 is to read:
30 Court's functions in relation to victim impact statement
page 43
Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 5 Amendments about CROs
s. 56
1 Division 5 -- Amendments about CROs
2 56. Section 49 amended
3 Delete section 49(1) and insert:
4
5 (1) In this section --
6 CEO (DOTAG) means the chief executive officer of
7 the Public Sector agency principally assisting the
8 Minister in the administration of this Part.
9 (1A) A court making a CRO may impose any requirements
10 on the offender it decides are necessary to secure the
11 good behaviour of the offender.
12 (1B) Without limiting subsection (1A), the court may
13 impose a requirement that the offender participate in an
14 activity approved by the CEO (DOTAG).
15 (1C) For the purposes of a requirement imposed by a court
16 under subsection (1B), the CEO (DOTAG) may
17 approve --
18 (a) any educational, vocational or personal
19 development programme; or
20 (b) any unpaid work; or
21 (c) any other activity the CEO (DOTAG) considers
22 appropriate.
23 (1D) The number of hours set by a court for a requirement
24 imposed by it under subsection (1B) must be at least
25 10 and not more than 60.
26 (1E) As part of a requirement imposed by a court under
27 subsection (1B), the court may require an offender to
28 record the offender's compliance with the requirement
29 in a log book approved by the court.
30
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Sentencing Legislation Amendment Bill 2016
Other amendments to the Sentencing Act 1995 Part 4
Amendments about CROs Division 5
s. 57
1 57. Section 51 amended
2 (1) In section 51(1) delete "or a surety for the offender or both
3 have --" and insert:
4
5 has --
6
7 (2) Delete section 51(3), (4) and (5).
8 58. Section 52 amended
9 (1) In section 52(2):
10 (a) delete "If" and insert:
11
12 Subject to subsections (3) and (7), if
13
14 (b) delete the passage that begins with "State --" and
15 continues to the end of the subsection and insert:
16
17 State, must order that the full amount agreed to be paid
18 or deposited by the offender be paid or forfeited (as the
19 case may be) to the State.
20
21 (2) Delete section 52(4).
22 (3) After section 52(6) insert:
23
24 (7) Despite subsection (2), the court may order that only
25 part of the amount agreed to be paid or deposited by
26 the offender be paid or forfeited (as the case may be) to
27 the State if --
28 (a) the breach of the CRO relates to a failure to
29 complete a requirement under section 49(1B);
30 and
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Part 4 Other amendments to the Sentencing Act 1995
Division 6 Miscellaneous amendments
s. 59
1 (b) the court is satisfied that --
2 (i) the offender has completed part of the
3 requirement; and
4 (ii) it would be unjust to order the payment
5 or forfeiture of the full amount.
6 (8) The part of the amount ordered to be paid or forfeited
7 under subsection (7) is to be a sum the court considers
8 appropriate in the circumstances.
9
10 59. Section 131 amended
11 After section 131(1) insert:
12
13 (1A) Subsection (1) does not apply to the breach of a CRO if
14 the breach relates to a failure to complete a requirement
15 referred to in section 49(1B).
16
17 60. Section 133 amended
18 In section 133(2) delete "section 52(2)." and insert:
19
20 section 52(2) or (7).
21
22 Division 6 -- Miscellaneous amendments
23 61. Section 4 amended
24 (1) In section 4(1) insert in alphabetical order:
25
26 parole eligibility order has the meaning given in
27 section 89(1);
28 prescribed means prescribed in the regulations;
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Sentencing Legislation Amendment Bill 2016
Other amendments to the Sentencing Act 1995 Part 4
Miscellaneous amendments Division 6
s. 62
1 Prisoners Review Board means the Prisoners Review
2 Board established under the Sentence Administration
3 Act 2003;
4 written reasons includes reasons that are --
5 (a) given orally and subsequently transcribed; and
6 (b) given orally but also recorded electronically in
7 a format that enables them to be subsequently
8 transcribed.
9
10 (2) In section 4(1) in the definition of superior court delete
11 "Court." and insert:
12
13 Court;
14
15 (3) After section 4(3) insert:
16
17 (4) In this Act a reference to the suspension of a term or
18 terms of imprisonment is a reference to a suspension
19 of --
20 (a) the whole of the term or terms; or
21 (b) part of the term or terms.
22
23 62. Section 9G amended
24 In section 9G(1) delete "under section 89".
25 63. Section 22 amended
26 In section 22(1)(b) delete "21 days after being ordered." and
27 insert:
28
29 14 days before the sentencing day.
30
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Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 6 Miscellaneous amendments
s. 64
1 64. Section 33A amended
2 Delete section 33A(7).
3 65. Section 35 amended
4 Delete section 35(4).
5 66. Section 45 amended
6 After section 45(1) insert:
7
8 (1A) In addition to subsection (1), under section 39(2), a
9 court sentencing an offender is not to make a spent
10 conviction order in respect of an offender who is
11 subject to a PSO unless --
12 (a) the offence to which the PSO applies is a
13 simple offence; and
14 (b) the court is satisfied that the offender has
15 complied with any programme requirements
16 imposed as part of the PSO.
17
18 67. Section 75 amended
19 After section 75(8)(a) insert:
20
21 (aa) for the purpose of the paid employment of the
22 offender; or
23
24 68. Section 76 amended
25 In section 76(1) delete "the whole of".
26 69. Section 80 amended
27 (1) Delete section 80(5A).
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Miscellaneous amendments Division 6
s. 70
1 (2) In section 80(5)(b) delete "order under section 89," and insert:
2
3 order,
4
5 (3) After section 80(7) insert:
6
7 (7A) If an order is made under subsection (1)(c) or (d) under
8 which a sentence of suspended imprisonment remains
9 in effect and continues to elapse, the court must make
10 the order subject to a supervision requirement in
11 accordance with section 71 as if the sentence were
12 an ISO.
13
14 70. Section 84F amended
15 (1) Delete section 84F(5A).
16 (2) In section 84F(5)(b) delete "order under section 89," and insert:
17
18 order,
19
20 71. Section 84L amended
21 In section 84L(3)(b) delete "order under section 89," and insert:
22
23 order,
24
25 72. Section 85 amended
26 In section 85(1) delete the definition of parole eligibility order.
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Sentencing Legislation Amendment Bill 2016
Part 4 Other amendments to the Sentencing Act 1995
Division 6 Miscellaneous amendments
s. 73
1 73. Section 86 amended
2 In section 86:
3 (a) delete "of 6 months" and insert:
4
5 of 3 months
6
7 (b) in paragraph (a) delete "6 months; or" and insert:
8
9 3 months; or
10
11 Note: The heading to amended section 86 is to read:
12 Term of 3 months or less not to be imposed
13 74. Section 87 amended
14 (1) In section 87:
15 (a) delete "If" and insert:
16
17 (1) If
18
19 (b) delete paragraph (a) and insert:
20
21 (a) the offender has previously spent time --
22 (i) in custody in respect of the offence for
23 which the offender is being sentenced;
24 or
25 (ii) in custody in respect of another offence,
26 while on bail for the offence for which
27 the offender is being sentenced;
28 and
29
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Other amendments to the Sentencing Act 1995 Part 4
Miscellaneous amendments Division 6
s. 75
1 (2) At the end of section 87 insert:
2
3 (2) Subsection (1)(a)(i) does not apply if the time in
4 custody has already been taken into account in
5 sentencing for another offence under
6 subsection (1)(a)(ii).
7
8 75. Section 89 amended
9 Delete section 89(1) and insert:
10
11 (1) A court sentencing an offender to a fixed term of
12 imprisonment may make an order (a parole eligibility
13 order) that the offender be eligible to be considered for
14 parole in respect of that term by the Prisoners Review
15 Board.
16
17 76. Section 98 amended
18 In section 98(1)(c) delete "under Part 13".
19 77. Part 18 Division 6 inserted
20 At the end of Part 18 insert:
21
22 Division 6 -- Functions of speciality courts
23 136A. Application of Division
24 This Division applies if --
25 (a) the court that imposes a community order on an
26 offender is a speciality court; or
27 (b) an offender is committed for trial or sentence
28 for an offence to a superior court by a speciality
29 court and a community order is imposed on the
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Part 4 Other amendments to the Sentencing Act 1995
Division 6 Miscellaneous amendments
s. 77
1 offender by the superior court and the superior
2 court orders that this Division is to apply.
3 136B. Term used: court
4 In this Division --
5 court means a speciality court and includes a superior
6 court referred to in section 136A(b).
7 136C. Court may direct offender on community order to
8 appear
9 (1) The court may order that the offender appear or
10 reappear before the court after the imposition of the
11 community order --
12 (a) at a time and place fixed by the court; or
13 (b) if and when summonsed by the court,
14 so that the court can ascertain whether the offender is
15 complying with the sentence.
16 (2) An order may be made under subsection (1) on any
17 reappearance of the offender pursuant to a previous
18 order made under subsection (1).
19 (3) If an offender does not reappear before the court at the
20 time and place fixed or in response to a summons
21 issued by the court, the court may issue a warrant to
22 have the offender arrested and brought before the court.
23 (4) On a reappearance ordered under subsection (1), or
24 compelled under subsection (1) or (3), the court may
25 amend a community order.
26 136D. Court to deal with re-offender
27 (1) If this Division applies and a court other than the court
28 convicts the offender of an offence as referred to in
29 section 128, that court must commit the offender to the
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Miscellaneous amendments Division 6
s. 78
1 court and the court must deal with the offender under
2 section 130.
3 (2) Section 128(2) to (4) apply for the purposes of
4 subsection (1).
5 (3) If this Division applies, a notice under section 129(1)
6 must be lodged with the court and a summons or
7 warrant issued under section 129 must direct the
8 offender to appear or be brought before the court.
9 136E. Court to deal with application to amend or cancel
10 community order
11 If this Division applies, an application under
12 section 126 is to be made to the court.
13 136F. Court to deal with proceedings for breaches
14 If this Division applies, a prosecution for an offence
15 against section 131(1) is to be commenced in, and
16 heard and determined by, the court and, if the offender
17 is convicted, the court must deal with the offender
18 under sections 132 and 133.
19
20 78. Part 18A inserted
21 Before Part 19 insert:
22
23 Part 18A -- Review of conditional orders
24 136G. Terms used
25 In this Part --
26 CEO means --
27 (a) in relation to a CRO -- the CEO (DOTAG);
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Part 4 Other amendments to the Sentencing Act 1995
Division 6 Miscellaneous amendments
s. 78
1 (b) in relation to a CSI, ISO or PSO -- the CEO
2 (corrections);
3 conditional order means any of the following --
4 (a) a CRO;
5 (b) a CSI;
6 (c) an ISO;
7 (d) a PSO.
8 136H. Application to review
9 (1) The CEO may apply to a court to review a conditional
10 order if the CEO is of the opinion that the offender
11 subject to the order might not be able to comply with
12 its requirements.
13 (2) The application must be made to the court that imposed
14 the conditional order.
15 (3) The application must be made in accordance with the
16 regulations.
17 136I. Court may confirm, amend or cancel
18 (1) If on an application under section 136H a court is
19 satisfied that an offender subject to a conditional order
20 might not be able to comply with its requirements, the
21 court may make an order under subsection (2) but
22 otherwise it must confirm the conditional order.
23 (2) If a court may make an order under this subsection, it
24 may either --
25 (a) amend the conditional order so as to change the
26 requirement; or
27 (b) if the court thinks that the circumstances of the
28 offender have so altered since the court passed
29 sentence that it is necessary and just to do so,
30 cancel the conditional order and sentence the
31 person for the offence for which the conditional
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Other amendments to the Sentencing Act 1995 Part 4
Miscellaneous amendments Division 6
s. 78
1 order was imposed in any manner the court
2 could if it had just convicted the person of that
3 offence.
4
5
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