(1) In this section
—
conviction —
(a)
includes a finding or admission of guilt despite a conviction not being
recorded under the Young Offenders Act 1994 section 55; and
(b) does
not include a conviction that has been set aside or quashed;
relevant offence means —
(a) an
offence under section 61(1), (1A) or (2a); or
(b) an
offence under The Criminal Code section 338E committed in the circumstances of
aggravation in which the conduct of the offender in committing the offence
constituted the breach of an order, other than an order under Part 1C, made or
registered under this Act or to which this Act applies.
(2) This section
applies if a person —
(a) is
convicted of a relevant offence (the qualifying relevant offence ); and
(b) has
committed, and been convicted of, at least 2 offences that are also relevant
offences (the previous relevant offences ) within the period of 2 years before
the person’s conviction of the qualifying relevant offence.
(2A) For the purposes
of subsection (2)(b) each of the previous relevant offences is to be counted,
regardless of whether the convictions for them —
(a) were
recorded before or after the date on which the qualifying relevant offence, or
any of the previous relevant offences, was committed; or
(b) have
been counted in sentencing under this section for a different relevant
offence.
(2B) For the purposes
of subsection (2)(b), convictions for 2 or more previous relevant offences
committed on the same day are to be treated as a single conviction.
(3) This section
applies despite the Sentencing Act 1995 and the Young Offenders Act 1994 .
(4) Except as provided
in subsection (6), if the person is a child a penalty must be imposed on the
person for the qualifying relevant offence that is or includes —
(a)
imprisonment under the Young Offenders Act 1994 section 118(1)(a); or
(b)
detention under the Young Offenders Act 1994 section 118(1)(b).
(5) Except as provided
in subsection (6), if the person is not a child a penalty must be imposed on
the person for the qualifying relevant offence that is or includes
imprisonment.
(6) A court may decide
not to impose a penalty on the person that is or includes imprisonment or
detention, as the case requires, if —
(a)
imprisonment or detention would be clearly unjust given the circumstances of
the offence and the person; and
(b) the
person is unlikely to be a threat to the safety of a person protected or the
community generally.
(7) A court that does
not, because of subsection (6), impose a penalty on a person that is or
includes imprisonment or detention must give written reasons why imprisonment
or detention was not imposed.
(8) In subsection (7)
—
written reasons includes reasons that are —
(a)
given orally and subsequently transcribed; or
(b)
given orally but also recorded electronically in a format that enables them to
be subsequently transcribed.
[Section 61A inserted: No. 32 of 2011 s. 15;
amended: No. 20 of 2013 s. 118; No. 49 of 2016 s. 60; No. 30 of 2020 s. 74.]