Sentencing Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:07): Obtained leave and introduced a bill for an act to make provision in relation to the sentencing of offenders in the criminal justice system; to repeal the Criminal Law (Sentencing) Act 1988; and for other purposes. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:08): I move:

That this bill be now read a second time.

When the Criminal Law (Sentencing) Act 1988 was passed in that year, the legal environment governing sentencing was very different to what it is now and what it will be. At the time, sentencing was very much the poor cousin of the criminal law so far as parliamentary attention and high judicial pronouncement was concerned.

The High Court had heard, in all the history of its existence, almost no sentencing cases at all. It had just decided Veen v The Queen (No. 2) 1988, perhaps one of the most difficult cases it ever had to decide on sentencing and marking the beginning of the current attitude of the High Court to sentencing appeals. By contrast, these days, sentencing appeals and pronouncements are a prolific part of the business of the High Court.

The provisions dealing with sentencing before 1987 were scattered about the statute book. A major objective of the Criminal Law (Sentencing) Act 1998 was then the consolidation of sentencing provisions for the convenient reference of practitioners, judges and the public.

Despite a great many amendments in the years since, the act is still a creature of the 1980s and the environment at that time in the development of public policy and sentencing doctrine and practice. Things have changed greatly in the decades since. Sentencing theory has developed, in general and in detail, under the guidance of many High Court pronouncements. The South Australian Court of Criminal Appeal has been even more active in decisions, too many to repeat here.

Not only has all that happened, but the parliament has also been active, more so in recent times, and there has been continual amendment and proposed amendment of the Criminal Law (Sentencing) Act annually—sometimes many times annually.

The changes since 1988 in every area of law—judicial, authority, legislation, public and parliamentary action—have been great and were not capable of being predicted then. The time has come to reassess and to start again. I seek leave to insert the remainder of my second reading explanation in Hansard without my reading it.

Leave granted.

The scope of this major reform means that the opportunity has been taken to review the entire Act and many have contributed to a re-assessment of many provisions. This reform will be a reform of the way in which the courts sentence offenders and the results of that process. To take a major example, in requiring that 'The primary consideration of a court in sentencing a defendant for an offence must be the protection of the safety of the community (whether as individuals or in general)', the legislation will require the court to de-emphasise the predominance of proportionality in fixing sentence (although it is still very relevant). To take another example, in introducing the sentencing option of intensive correction orders, the legislation de-emphasises immediate custodial orders in favour of community based correction for non-violent and non-dangerous offenders. The provision of a wider variety of sentencing options promotes alternatives to expensive and sometimes criminalising imprisonment.

Of course, the opportunity has been taken to tidy up the existing legislation by re-numbering clauses and placing them in a logical order and by updating the sometimes dated drafting. But the Bill proposes significant changes also.

The Reform of General Principles

The current Act contains a list of sentencing considerations. It is in s 10. It is just a huge list of everything that might be taken into account if possibly relevant (or not). It was an advance for its time. But it is not helpful, either to the courts or to the public. It is just a huge obscure shopping list. It is proposed that it be repealed.

The redevelopment of sentencing legislation has been the subject of many comprehensive reviews since 1988. The most recent, authoritative and comprehensive review was completed by the NSW Law Reform Commission in 2013 (Report 139). That authoritative review comprehensively discussed what are relevant sentencing considerations, what are not, what should be given emphasis and what should not.

The review of the general principles in the current Act therefore began with the detailed considerations of the NSW Law Reform Commission. But there are differences in the outcome. The most important of these can be found in clause 4 of the Bill. That says that 'The primary purpose for sentencing a defendant for an offence must be the protection of the safety of the community (whether as individuals or in general)'. Every sentencing purpose and principle in the Act and, therefore, in the sentencing process that it controls, must be subject to that overriding consideration. The provisions of the Bill emphasise the primacy of this purpose at every turn. Clause 10 provides the most obvious example.

The purposes secondary to this overriding purpose (but still relevant and operating as facts dictate) recommended are:

punishment and making the offender accountable;

denunciation;

recognition of harm done to victim and community;

deterrence, particularly by promoting the early and certain apprehension of offenders; and

promoting rehabilitation.

In addition, the Bill lists the technical general principles of sentencing:

proportionality;

parity;

totality;

the De Simoni principle (an offender may not be sentenced on the basis of having committed an offence with which he was not charged);

imprisonment as a last resort.

The next layer of the sentencing process is the relevant individual sentencing factors:

the nature, circumstances and seriousness of the offence;

the personal circumstances and vulnerability of the victim;

the extent of any injury, harm, loss or damage resulting from the offence or any significant risk or danger created by the offence, including risk to national security;

the defendant's offending history, age and physical and mental condition;

the likelihood of the defendant re-offending;

the extent of remorse for the offence having regard to evidence of acceptance of responsibility and acknowledgment of injury and damage caused and any reparation made; and

the prospects of the defendant's rehabilitation.

In none of these lists is the order in which the factor or principle appears in the list significant. The first is as important as the last in general terms. Individual significance in any given case will depend upon the singular facts of that case.

Guilty Plea Discount Reforms

The Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 commenced in March 2013. Its main objective was to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial; by encouraging offenders who are minded to plead guilty to do so in a timely way.

In 2015 the Honourable Brian Martin AO QC reviewed the operation of the Guilty Pleas Act. His report was tabled in the House of Assembly on 17 November 2015. He found that the Guilty Pleas Act had had a significant impact on the number of guilty pleas entered in respect of major indictable matters at an early stage of proceedings, and that the increase in early pleas was improving the operation and effectiveness of the criminal justice system. The statistics reported to the Honourable Mr Martin by the Office of Crime Statistics and Research support that conclusion. In the three years prior to the commencement of the Guilty Pleas Act, the percentage of guilty pleas occurring prior to committal to the District Court ranged between 38% to 52%. This figure increased to 62% in the 12 months after the commencement of the Guilty Pleas Act. There was an increase in the percentage of matters finalised within the first 4 weeks of the first appearance from as low as 4% to 6% in the three years preceding the commencement of the Guilty Pleas Act to 8.5% in the 12 months post commencement. There was a corresponding decrease in the number of matters finalised by guilty plea in the superior courts. For example, the percentage of major indictable matters finalised by guilty plea more than 12 weeks post arraignment ranged from 25% to 32.5% in the three years prior to the commencement of the Guilty Pleas Act. This decreased to 16% in the 12 months post the introduction of the discount scheme. These figures demonstrate the success of the reform in bringing forward those matters where a guilty plea is appropriate—shifting the timing from the 'doorstep of trial' to much earlier in the process.

Notwithstanding the success of that reform, the Hon Mr Martin recommended several small improvements in his report. The Government has considered those recommendations and, where appropriate, implemented them or responded to them in the Bill.

This Bill contains some reforms to the guilty plea sentence reductions regime, including:

amending the timing and quantum of sentencing reductions applicable in consequence of the reform package;

introducing a maximum 10% reduction as an incentive for complying with pre-trial disclosure and for cooperative conduct of the defence case;

ensuring that the court has regard to the timing of negotiations where those negotiations result in a different charge being laid to replace an earlier charge in respect of the same conduct; and

setting out the process for applying the available sentencing reductions.

One particular issue that the Hon Mr Martin raised for consideration was the interpretation of the current discount scheme provisions by the Court of Criminal Appeal (CCA) as demonstrated in R v Muldoon [2015] SASFC 69. The original intention of the Guilty Pleas Act was to limit the availability of the maximum 40% discount to an offender who pleads guilty to an offence within the first four weeks after their first appearance. However, where negotiations have taken place much later than 4 weeks after the first appearance, and result in a different offence being substituted for the original offence, the CCA has held that the time limits re-start upon the filing of the new offence.

It was never the intention of the scheme to permit a defendant who declines to negotiate until the doorstep of trial to merit a 40% reduction on sentence if those very late negotiations result in a different charge being laid. Those negotiations should be taking place much earlier. To address this, the Bill includes a new provision that requires the court to consider, when determining the appropriate percentage reduction to apply, whether the defendant was initially charged with a different offence in relation to the same conduct, and whether (and at what stage in the proceedings) negotiations occurred.

Where negotiations result in a guilty plea to a different charge within a few weeks after the first appearance, the defendant could, in the ordinary course, expect the court to apply a reduction towards the upper end of the 40% discount range. Where a defendant who does not attempt to negotiate until the week before trial and ultimately pleads guilty to a different charge following those negotiations, they will be eligible for the maximum 40%. However, when the court considers the appropriate discount to apply, that defendant should expect to receive a discount significantly less than 40% in the ordinary course, to reflect the very late timing of their negotiations. Conversely, if a defendant offers to plead to an alternative charge early in the proceedings, but the prosecution does not accept that offer until the last moment, the court would be entitled to take that into account in the defendant's favour when determining the appropriate discount.

Other changes to the timing of the relevant maximum discounts have been made to correlate to the process changes proposed in the Summary Procedure (Indictable Offences) Amendment Bill 2016. In addition, a maximum discount of 10% may apply where a defendant has not pleaded guilty, but is found guilty following trial, where the court is satisfied that the defendant complied with all the statutory or court ordered pre-trial disclosure and procedures, and has otherwise conducted their case in a cooperative and expeditious manner.

The provisions of this Bill in relation to sentencing discount reductions are identical to those which have been introduced in the Summary Procedure (Indictable Offences) Amendment Bill 2016. This has been done because there are likely to be differing implementation time-frames, principally because this Bill may not come into force before the Fine Enforcement provisions are replaced and a consequential amendments Bill is introduced and passed. Parliamentary time is best used if the sentence reduction amendments are debated in the context of the Summary Procedure (Indictable Offences) Amendment Bill and not this Bill. Officers and Parliamentary Counsel will ensure that the results match according to debate and amendments (if any).

New Sentencing Options

The Bill mostly repeats the core provisions of the recently passed Statutes Amendment (Home Detention) Act 2015, but proposes some changes that were suggested during the consultation process, in part arising from experience gained in the short time since the Act was proclaimed and came into operation. Those changes are:

It has been provided that a home detention order may not be made if it would lead to a lack of public confidence in the administration of justice;

The Bill now provides essentially that home detention is not an available sentencing option in any case where a suspended sentence would not be available. The provisions recently enacted to curtail access to a suspended sentence have been carried over to qualify the availability of home detention as well;

The conditions of a home detention order mandated by the Act have been changed so that liberty to attend remunerated employment, and attendance at a course of education, training or instruction are conditional on approval by a home detention officer;

The Bill now provides a mandatory condition of electronic monitoring;

It has been made clear that a sentence of home detention is to be treated as a custodial sentence;

The provisions have been changed so that a home detention sentence is not in the form of an otherwise suspended sentence;

The court must be satisfied that the site of the home detention is suitable and that adequate resources exist for the proper monitoring of the defendant; and

The Bill explicitly provides that if a person breaches a home detention order, time spent in compliance with the order must be taken into account in the term of any consequent custodial sentence.

In addition, the Bill includes new provisions providing for two new sentencing options; a community based order and an intensive correction order.

an intensive correction order will be available, at the discretion of the sentencing judge, in cases where a person is considering imposing a short custodial sentence, and would instead result in the offender serving their sentence of imprisonment in the community subject to certain strict conditions. The emphasis is explicitly on rehabilitative purposes and outcomes. Again, reference is made to the primacy of the safety of the community.

a community based order will be available, at the discretion of the sentencing judge, in cases where a person is not sentenced to imprisonment, but is ordered to be released into the community subject to strict conditions (not including home detention).

The intensive correction order has a maximum duration of two years but the term actually imposed should reflect the proposed term of imprisonment.

The intensive correction order cannot be made if the court decides to suspend the sentence of imprisonment. The court is directed to assess the likelihood of the offender re-offending balanced against the prospects for rehabilitation in and out of a custodial environment.

The intensive correction order has the following mandatory conditions:

the offender must be subject to a good behaviour condition;

the offender must report to community corrections within 2 days of the order being made;

the offender is under the supervision of a community corrections officer;

the offender must not possess a firearm, parts of a firearm or ammunition, and must, on direction, submit to testing for gunshot residue;

the offender must tell his or her assigned community corrections officer of any change of address or employment within 2 days after the change;

the offender must not leave the State except with the permission of a community corrections officer;

the offender must comply with:

regulations made for the purpose of this provision; and

all lawful directions of the CE and a community corrections officer;

if a court has not ordered the offender to reside at a specified place or wear a monitoring device, the CE may, by written notice given to the offender, require the offender to reside at a specified place or wear a monitoring device for a period (but only for a period not exceeding 28 days);

the offender must undergo assessment and treatment for misuse of alcohol or drugs or submit to medical, psychological or psychiatric assessment and treatment;

the offender must undertake treatment programs as directed;

if the offender is unemployed, then the offender must undertake specified hours of community work.

The Bill contains a list of optional conditions which include:

that the offender to reside at a specified place or wear a monitoring device;

that the offender undertake an intervention programme;

that the offender submit to drug or alcohol testing;

that the offender not consume or purchase alcohol;

that the offender not consume or purchase a drug other than for therapeutic purposes.

The consumption of a drug is to be regarded as therapeutic if:

the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner or dentist; or

the drug:

is a drug of a kind available, without prescription, from registered pharmacists; and

is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions.

The consequence for breaching an intensive correction order is that a court may confirm or vary (including extend) the order for minor or trivial breaches, but, in the case of the offender committing further offences, revoke the order and order the offender to serve a term of imprisonment. The offender will be under the supervision of DCS and therefore breaches are to be reported to the police, to be then dealt with by the court.

The new community based order has very similar mandatory conditions as the intensive correction order. It is designed to give courts the maximum flexibility to tailor orders suiting the needs and circumstances of these comparatively minor offenders.

Other changes

In summary, the major changes contained within the Bill are as follows.

1. The statement of general sentencing factors, principles and considerations previously the subject of extensive consultation has been included, as modified by the results of extensive public consultation (outlined in more detail above).

2. The provisions on sentencing guidelines have not been retained (they have never been used).

3. The provisions dealing with victim impact statements have been amended to ensure that consideration may be given to the statement without the need for it to be read out in court.

4. The special provision dealing with the sentencing of Aboriginal and Torres Strait Islanders now contains a sub-clause stating that the court is given discretion to order a sentencing conference.

5. The set of provisions dealing with life prisoners thought to be 'dangerous offenders' has been deleted. They have never been used.

6. Provisions dealing with the enforcement of orders for the payment of pecuniary sums have been omitted as irrelevant to sentence. They will find a new home somewhere else. This will be a separate exercise.

7. Similarly, the provision dealing with the limits to the jurisdiction of the Magistrates Court will be relocated in the Magistrates Court Act 1991;

8. Provisions dealing with the addition or substitution of certain penalties have been modernised.

9. New sentencing options for intensive correction orders and community based orders have been added (outlined in more detail above).

10. Reform to the guilty plea discount provisions was dealt with in a separate exercise and has been included here. The details of this are discussed above.

11. A new (optional) system for the taking into account of other offences at sentence has been added. It is the current NSW 'Form 1' provisions with the addition that the schedule of offences to be taken into account should be provided by the prosecution.

12. The recently enacted home detention provisions have been inserted with some minor non-substantive changes to fit into the style of the new Bill and some major substantive changes suggested during consultation, particularly in light of experience in implementing the new option. These are outlined in more detail above.

13. Numerous other, more minor changes have been made, including:

(a) the serious repeat offenders provisions now contain a reference to repeat terrorism offences;

(b) the serious repeat offenders provisions have been amended so that on conviction of the triggering offence, the offender will be taken to be a serious repeat offender (without any need for a declaration process) and should be sentenced as such, unless the offender can satisfy the court, by evidence given on oath, that there is good reason not to impose a particularly severe sentence in order to protect the community.

(c) References to the ERD court will be moved to the ERD legislation in a separate exercise.

(d) A change to the bond provisions has been made in accordance with a request from the DPP.

(e) The existing discharge without penalty provision has been changed in accordance with a request from the Magistrates Court to remove an anomaly.

(f) The provisions dealing with serious firearm offenders have been amended at the urging of a recent Supreme Court judgment to remove an anomaly (Coulthard [2016] SASCFC 47).

(g) The definition of serious repeat offender contains a transitional provision.

(h) The provisions dealing with the presence of an offender at sentence have been modified to include current practice of presence by audio-visual link.

(i) The provisions dealing with treatment of mentally ill offenders have been modified to ensure reference is made to suitable treatment.

(j) A number of consequential and editing changes to the current Act have been made including changes to references to gender in accordance with a recent request by the Premier.

Legislative Policy

There is a tension in this area of law, perhaps more than most, between general principles of legislation and unfettered judicial discretion to decide the particular case. Principles of legislation can be stated by saying the criminal law and its close relative, sentencing, should be easy to find, easy to understand, cheap to buy and democratically made and amended.

Being easy to find means that the basic rules can be published in a book. The public can buy the book and read it. A good and simple commentary will soon become possible. But more than just that is involved. Society expects all of its citizens to know the law. How can we expect the citizen (and the multitude of commentators in the media) to know the law, let alone try to understand it, debate it and contribute to its change or defence if it is scattered all over the statute book and hidden in hundreds of volumes of law reports?

The criminal law should be accessible so that it is written in language that is capable of being understood by citizens of reasonable literacy. That means that it must address not only an audience of lawyers, but also an audience of average citizens.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

Division 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Division 2—Sentencing purposes

3—Primary sentencing purpose

The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).

4—Secondary sentencing purposes

The secondary purposes for sentencing a defendant for an offence are:

to ensure that the defendant—

is punished for the offending behaviour; and

is held accountable to the community for the offending behaviour;

to publicly denounce the offending behaviour;

to publicly recognise the harm done to the community and to any victim of the offending behaviour;

to deter the defendant and others in the community from committing offences;

to promote the rehabilitation of the defendant.

Nothing about the order in which the secondary purposes are listed implies that any 1 of those secondary purposes is to be given greater weight than any other secondary purpose.

Division 3—Interpretation and application of Act

5—Interpretation

This clause defines words and expressions used in, and for the purposes of, this measure. Many of the defined terms contained in this clause are taken from the Criminal Law (Sentencing) Act 1988 (the repealed Act) which is to be repealed by this measure (see Schedule 1).

6—Application of Act to youths

This clause makes provision in relation to the application of this measure to the sentencing of youths and the enforcement of a sentence against a youth in substantially the same terms as section 3A of the repealed Act.

7—Powers conferred by this Act are additional

This clause combines sections 4 and 5 of the repealed Act. The clause provides that, subject to this measure, the powers conferred on a court by this measure are in addition to, and do not derogate from, the powers conferred by another Act or law to impose a penalty on, or make an order or give a direction in relation to, a person found guilty of an offence and that nothing in this measure affects the powers of a court to punish a person for contempt of that court.

8—Court may not impose bond except under this Act

This clause provides that a defendant may not enter into a bond except under this measure and is substantially in the same terms as section 36 of the repealed Act.

Part 2—Sentencing purposes, principles and factors

Division 1—Purposes, principles and factors

9—Primary purpose to be considered

This clause reiterates the principle that the primary purpose for sentencing a defendant for an offence must be the paramount consideration of a court when determining and imposing the sentence.

10—General principles of sentencing

This clause provides that, subject to this measure or any other Act—

in determining a sentence for an offence, a court must apply (although not to the exclusion of any other relevant principle) the common law concepts reflected in the following principles:

proportionality;

parity;

totality;

the rule that a defendant may not be sentenced on the basis of having committed an offence in respect of which the defendant was not convicted; and

a court must not impose a sentence of imprisonment on a defendant unless the court decides that—

the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or

it is required for the purpose of protecting the safety of the community (whether as individuals or in general).

11—Individual sentencing factors

This clause provides that a court must take into account, when determining the sentence for an offence, such of the listed or other factors as are known to the court relating to various matters as may be relevant. This clause may be compared with section 10 of the repealed Act.

Division 2—General sentencing provisions

Subdivision 1—Procedural provisions

12—Determination of sentence

This clause provides that, for the purposes of determining sentence, a court—

is not bound by the rules of evidence; and

may inform itself on matters relevant to the determination as it thinks fit; and

must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

This clause is substantially the same as section 6 of the repealed Act.

13—Prosecutor to provide particulars of victim's injury etc

14—Victim impact statements

15—Community impact statements

16—Statements to be provided in accordance with rules

17—Pre-sentence reports

Clauses 13 to 17 substantially restate sections 7 to 8 of the repealed Act.

18—Expert evidence

This is a new idea and provides for a scheme that governs how expert evidence must be dealt with if a defendant is to be sentenced for an indictable offence and expert evidence is to be presented to the court by the defence.

19—Court to inform defendant of reasons etc for sentence

20—Rectification of sentencing errors

Clauses19 and 20 substantially re-state what is provided for in sections 9 and 9A of the repealed Act.

21—Presence of defendant during sentencing proceedings

While substantially restating section 9B of the repealed Act, this clause also makes provision for the presence of a defendant during sentencing proceedings by an audio visual link or audio link.

22—Sentencing of Aboriginal and Torres Strait Islander defendants

This clause sets out the procedure for convening a sentencing conference in relation to the sentencing of an Aboriginal or Torres Strait Islander defendant that is substantially the same as in section 9C of the repealed Act but with the addition of a subclause giving the sentencing court discretion about whether or not to convene such a conference.

Subdivision 2—General sentencing powers

23—Discharge without penalty

This clause provides that if a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose a penalty, the court may—

dismiss the charge without recording a conviction; or

on recording a conviction, discharge the defendant without penalty.

If a court finds a person guilty of an offence in respect of which the only penalty prescribed is a fine and the defendant has already spent time in custody in respect of the offence, the court may, if satisfied that there is good reason not to impose any further penalty—

dismiss the charge without recording a conviction; or

on recording a conviction, discharge the defendant without further penalty.

A court may exercise the powers conferred by this clause despite any minimum penalty fixed by an Act or statutory instrument.

24—Imposition of penalty without conviction

This clause provides that, if a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—

that the defendant is unlikely to commit such an offence again; and

that, having regard to various matters, good reason exists for not recording a conviction

the court may impose the penalty without recording a conviction. This clause is substantially the same as section 16 of the repealed Act.

25—Court may reduce, add or substitute certain penalties

This clause combines sections 17 and 18 of the repealed Act while updating the language and penalties to reflect the language of and penalties included in this measure.

26—Sentencing for multiple offences

This clause makes provision for the sentencing of a defendant for multiple offences and is substantially the same as section 18A of the repealed Act.

27—Non-association or place restriction orders may be issued on sentence

28—Intervention orders may be issued on finding of guilt or sentencing

29—Deferral of sentence for rehabilitation and other purposes

30—Mental impairment

Clauses 27, 28, 29 and 30 substantially re-state what is provided for in sections 19AA, 19A, 19B and 19C of the repealed Act.

Subdivision 3—Taking further offences into account

31—Definitions

This clause sets out the definitions necessary for the purposes of this Subdivision which provides for a new, optional system for the sentencing court to take into account other offences when sentencing a defendant.

32—Prosecutor may file list of additional charges

This clause provides for a formal scheme whereby the prosecutor may file in court a document that lists additional charges with which the defendant has been charged but not convicted, being offences that the defendant has indicated should be taken into account when sentencing the defendant for the principal offence before the court.

33—Outstanding charges may be taken into account

If the court considers it appropriate to do so and the defendant wants the court to take outstanding charges into account in dealing with the defendant for the principal offence, the court may take into account such further offences. The clause sets out some limitations on the court's power in respect of certain offences or as a consequence of jurisdictional restrictions.

34—Ancillary orders relating to offences taken into account

The court may make such ancillary orders as could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.

35—Consequences of taking offences into account

This clause sets out the consequences of taking any further offence into account under this Subdivision. If a further offence is taken into account under this Subdivision—

the court is to certify, on the list of additional charges, that the further offence has been taken into account, and

no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.

This clause would not prevent a court that has taken a further offence into account when dealing with a defendant for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the defendant for the principal offence.

An admission of guilt made for the purposes of this Subdivision is not admissible in evidence in any proceedings relating to—

the further offence in respect of which the admission was made; or

any other offence specified in the list of additional charges.

An offence taken into account under this Subdivision is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which a defendant has been convicted.

In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Subdivision in imposing a penalty for a principal offence of which a defendant has been found guilty if, in or in relation to those proceedings—

reference may lawfully be made to, or evidence may lawfully be given of, the fact that the defendant was found guilty or convicted of the principal offence; and

had the defendant been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the defendant had been found guilty or convicted of that further offence.

The fact that a further offence has been taken into account under this Subdivision may be proved in the same manner as the conviction for the principal offence.

Subdivision 4—Sentencing reductions

36—Reduction of sentences for cooperation etc with law enforcement agency

37—Reduction of sentences for cooperation with procedural requirements etc

38—Reduction of sentences for guilty plea in Magistrates Court etc

39—Reduction of sentences for guilty pleas in other cases

40—Application of sentencing reductions

41—Re-sentencing for failure to cooperate in accordance with undertaking under section 36

42—Re-sentencing for subsequent cooperation with law enforcement agency

These clauses reproduce in this measure the amendments made to the repealed Act by the Summary Procedure (Indictable Offences) Amendment Act 2016.

Part 3—Custodial sentences

Division 1—Imprisonment

43—Commencement of sentences and non-parole periods

44—Cumulative sentences

Clause 43 and this clause are substantially the same as current sections 30 and 31 of the repealed Act.

Division 2—Non-parole periods

45—Application of Division to youths

46—Duty of court to fix or extend non-parole periods

47—Mandatory minimum non-parole periods and proportionality

This Division (comprising clauses 45 to 47) is substantially the same as Part 3 Division 2 (comprising sections 31A, 32 and 32A) of the repealed Act, but with a consequential amendment to clause 46 relating to intensive correction orders.

Division 3—Serious firearm offenders

48—Interpretation

49—Serious firearm offenders

50—Sentence of imprisonment not to be suspended

This Division (comprising clauses 48, 49 and 50) is substantially the same as Part 2 Division 2AA (comprising sections 20AA, 20AAB and 20AAC) of the repealed Act.

Division 4—Serious repeat adult offenders and recidivist young offenders

51—Interpretation and application

52—Serious repeat offenders

53—Sentencing of serious repeat offenders

54—Declaration that youth is recidivist young offender

This Division (comprising clauses 51, 52, 53 and 54) is substantially the same as Part 2 Division 2A (comprising sections 20A, 20B, 20BA and 20C) of the repealed Act.

Division 5—Offenders incapable of controlling, or unwilling to control, sexual instincts

55—Application of this Division

56—Offenders incapable of controlling, or unwilling to control, sexual instincts

57—Discharge of detention order under section 56

58—Release on licence

59—Appropriate board may direct person to surrender firearm etc

60—Court may obtain reports

61—Inquiries by medical practitioners

62—Parties

63—Service on guardian

64—Appeals

65—Proclamations

66—Regulations

This Division (comprising clauses 55 to 66) is substantially the same as Part 2 Division 3 (comprising sections 21 to 29) of the repealed Act.

Division 6—Sentencing standards for offences involving paedophilia

67—Sentencing standards for offences involving paedophilia

This Division is substantially the same as Part 2 Division 5 (comprising section 29D) of the repealed Act.

Division 7—Community based custodial sentences

Subdivision 1—Home detention

68—Purpose of home detention

This clause sets out the purpose of a home detention order, which is to allow a court to impose a custodial sentence but direct that the sentence be served on home detention. The paramount consideration of the court when determining whether to make a home detention order must be to protect the safety of the community (whether as individuals or in general).

69—Home detention not available for certain offences

This clause makes it clear that the powers vested in a court by this Division are exercisable despite the fact that an Act (or statutory instrument) prescribes a minimum penalty but are not exercisable in relation to—

murder or treason; or

any other offence in respect of which an Act (or statutory instrument) expressly prohibits the reduction, mitigation or substitution of penalties or sentences.

70—Home detention orders

This clause provides that, subject to this clause, if—

a court has imposed a sentence of imprisonment on a defendant; and

the court considers that the sentence should not be suspended under Part 4 Division 2; and

the court considers that the defendant is a suitable person to serve the 35 sentence on home detention,

the court may order that the defendant serve the sentence on home detention (a home detention order).

The following provisions apply to a home detention order:

a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice;

a home detention order must not be made if the defendant is being sentenced—

as an adult to a period of imprisonment with a non-parole period of 2 years or more for a prescribed designated offence; or

as an adult for a serious and organised crime offence or specified offence against police; or

as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has sentenced the defendant to home detention for a designated offence; or

a home detention order must not be made unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place;

a home detention order must not be made if the home detention is to be served concurrently with a term of imprisonment then being served, or about to be served, by the defendant;

a home detention order should not be made unless the court is satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.

The court must take the following matters into consideration when determining whether to make a home detention order:

the impact that the home detention order is likely to have on—

any victim of the offence for which the defendant is being sentenced; and

any spouse or domestic partner of the defendant; and

any person residing at the residence at which the prisoner would, if released, be required to reside;

the pre-sentence report (if any) ordered by the court;

any other matter the court thinks relevant.

The definitions of terms used in this section match the definitions used in clause 95 for the purposes of suspended sentences.

71—Conditions of home detention order

This clause provides that each home detention order is subject to the following conditions:

a condition requiring the person subject to the order to remain at the residence specified by the court throughout the period of the home detention order and not to leave that residence at any time during that period except for the following purposes:

attendance at such remunerated employment at such times and places as approved from time to time by the home detention officer to whom the person is assigned during the period of the home detention order;

urgent medical or dental treatment for the defendant;

attendance at a course of education, training or instruction or any other activity as approved or directed by the home detention officer to whom the defendant is assigned;

any other purposes as approved or directed by the home detention officer to whom the defendant is assigned;

a condition requiring the person to be of good behaviour;

a condition requiring the person to be under the supervision of a home detention officer;

a condition requiring the person to obey the lawful directions of the home detention officer to whom the person is assigned;

a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;

a condition relating to the use of drugs by the person other than for therapeutic purposes; and

a condition requiring the person to submit to such tests (including testing without notice)—

for gunshot residue; or

relating to drug use,

as a home detention officer may reasonably require;

a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982; and

such other conditions as the court thinks appropriate and specifies in the order.

72—Orders that court may make on breach of condition of home detention order etc

This clause is similar to section 33BD of the repealed Act. However, if a court revokes a home detention order and orders that the balance of the sentence be served in custody, the court—

must direct that the following periods be taken into account:

the period of compliance by the person with the conditions of the home detention order;

the period spent by the person on home detention or otherwise in custody pending determination of the proceedings under this section; and

may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the sentence of imprisonment; and

may direct that the sentence be cumulative on any other sentence, or sentences, of imprisonment then being served, or to be served, by the person.

73—Court to provide CE with copy of home detention order

This clause provides that if a home detention order is made in respect of a person, or the order or conditions of the order are varied or revoked, or a further order is made in respect of the person, the court must notify the chief executive of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Correctional Services Act 1982 (the CE) of the terms of the order, variation, revocation or further order, as the case may require.

74—CE must assign home detention officer

The CE must, on receiving a copy of a home detention order (and may after then from time to time) assign the person to whom the order relates to a home detention officer and ensure that the person is so notified. It is the duty of a home detention officer to endeavour to ensure that any person assigned to the officer complies with the conditions of the order.

75—Powers of home detention officers

This clause provides that a home detention officer may, at any time, for the purpose of ascertaining whether or not a person to whom the officer has been assigned is complying with the home detention order and conditions—

enter or telephone the person's residence; or

telephone the person's place of employment or any other place at which the person is permitted or required to attend; or

question any person who is at that residence or place as to the whereabouts of the person.

76—Apprehension and detention of person subject to home detention order without warrant

This clause is substantially the same as section 33BE of the repealed Act.

77—Offence to contravene or fail to comply with condition of home detention order

This clause is substantially the same as section 33BF of the repealed Act.

Subdivision 2—Intensive correction

78—Purpose of intensive correction order

This clause provides that the purpose of an intensive correction order is to provide a court with an alternative sentencing option for a defendant where the court—

is considering imposing a short custodial sentence of 12 months or less; and

considers there is a genuine risk that the defendant will re-offend if not provided with a suitable intervention program for rehabilitation purposes; and

The court should not impose an intensive correction order on a defendant unless the court considers that, given the short custodial sentence that the court would otherwise have imposed, rehabilitation of the defendant is more likely to be achieved by allowing the defendant to serve the sentence in the community while subject to strict conditions of intensive correction.

Despite the preceding subsections, the paramount consideration of the court when determining whether to make an intensive correction order must be to protect the safety of the community (whether as individuals or in general).

79—Intensive correction not available for certain offences

This clause provides that the powers vested in a court by this Division—

are exercisable despite the fact that an Act (or statutory instrument) prescribes a minimum penalty; but

are not exercisable in relation to any offence in respect of which an Act (or statutory instrument) expressly prohibits the reduction, mitigation or substitution of penalties or sentences.

80—Intensive correction orders

This clause provides that, subject to this clause, if—

a court has imposed a sentence of imprisonment on a defendant of a term that is 2 years or less; and

the court considers that the sentence should not be suspended under Part 4Division 2; and

the court determines that there is good reason for the defendant to serve the sentence in the community while subject to intensive correction,

the court may order that the defendant serve the sentence in the community while subject to intensive correction (an intensive correction order).

The court may determine that, even though a custodial sentence is warranted and there is a moderate to high risk of the defendant re-offending, any rehabilitation achieved during the period that would be spent in prison is likely to be limited compared to the likely rehabilitative effect if the defendant were to spend that period in the community instead while subject to intensive correction.

The clause sets out the provisions that apply to an intensive correction order and the matters that a court must take into consideration when determining whether to make an intensive correction order.

81—Conditions of intensive correction order

This clause provides that each intensive correction order is subject to the following conditions:

a condition requiring the person to be of good behaviour;

a condition requiring the person to be under the supervision of a community corrections order;

a condition requiring the person to obey the lawful directions of the community corrections officer to whom the person is assigned;

a condition requiring the person to report to a specified place not later than 2 working days after the date of the order unless, within that period, the defendant receives a notice from the CE to the contrary;

a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;

a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as a community corrections officer may reasonably require;

a condition that the person undergo assessment or treatment (or both) relating to the person's mental or physical condition;

a condition requiring the person to report to the community corrections offence to whom the person is assigned any change of address or employment, not later than 2 working days after the date of the change;

a condition that the person must not leave the State for any reason except in accordance with the written permission of the CE;

if the defendant is unemployed—a condition requiring the person to perform a specified number of hours of community work;

a condition requiring the person to comply with the following:

(i) regulations made for the purposes of this clause;

(ii) the lawful directions of the CE;

such other conditions as the court thinks appropriate and specifies in the order.

An intensive correction order may also be subject to any number of other conditions that the sentencing court thinks fit. A person subject to an intensive correction order will, unless the order is earlier revoked, remain subject to intensive correction in the community until the order expires.

82—Orders that court may make on breach of condition of intensive correction order etc

This clause makes provision in similar terms as those in clause 72 in relation to home detention orders, with necessary modifications relating to intensive correction orders.

83—Court to provide CE with copy of intensive correction order

This clause (which mirrors clause 73) provides that if an intensive correction order is made in respect of a person, or the order or conditions of the order are varied or revoked, or a further order is made in respect of the person, the court must notify the CE of the terms of the order, variation, revocation or further order, as the case may require.

84—CE must assign community corrections officer

This clause mirrors clause 74 and provides that the CE must, on receiving a copy of an intensive correction order (and may after then from time to time) assign the person to whom the order relates to a community corrections officer and ensure that the person is so notified. It is the duty of a community corrections officer to endeavour to ensure that any person assigned to the officer complies with the conditions of the order.

85—Provisions relating to community service

The following provisions apply to an intensive correction order that includes a condition requiring the performance of community service:

the court must specify the number of hours of community service to be performed by the person to whom the sentence relates, being not less than 15 or more than 300;

the court must not specify a number of hours of community service to be performed by a person who is already performing, or is liable to perform, community service, where the aggregate of that number and the number of hours previously specified would exceed 300;

the court must specify a period, not exceeding 18 months, within which the community service is to be performed;

the person is required to report to a specified place not later than 2 working days after the date of the order unless, within that period, the person receives a notice from the CE to the contrary;

the person is required to perform community service for not less than 4 hours each week and on such day, or days, as the community corrections officer to whom the person is assigned may direct;

the person may not, except in circumstances approved by the Minister for Correctional Services, be required to perform community service for a continuous period exceeding 7.5 hours;

if on any day a period of community service is to exceed 4 continuous hours, the next hour must be a meal break;

the person may not be required to perform community service at a time that would interfere with the person's remunerated employment or with a course of training or instruction relating to, or likely to assist the person to obtain, remunerated employment, or that would cause unreasonable disruption of the person's commitments in caring for the person's dependants;

the person may not be required to perform community service at a time that would cause the person to offend against a rule of a religion that the person practises;

the attendance of the person at any educational or recreational course of instruction approved by the Minister for Correctional Services will be taken to be performance of community service;

the person will not be remunerated for the performance of community service under the order;

the person must obey the lawful directions of the community corrections officer to whom the person is assigned.

This clause does not apply in relation to the performance of community service by a youth (which is governed by the Young Offenders Act 1993) and is substantially the same as section 47 of the repealed Act.

86—Court to be notified if suitable community service placement not available

This clause (which has a similar effect as section 45 of the repealed Act) provides that if the CE, on being notified that a court has included in an intensive correction order a condition requiring the performance of community service, is of the opinion that suitable community service work cannot be found for the defendant because of the defendant's physical or mental disability, the CE must give the court written notice of that fact, on receipt of which the court may revoke the condition or discharge the intensive correction order (as the case may be) and require the defendant to appear before the court for further order.

87—Community corrections officer to give reasonable directions

This clause is substantially the same as section 50 of the repealed Act in respect of persons required to perform community service.

88—Power of Minister in relation to default in performance of community service

If the Minister for Correctional Services is satisfied that a person who is required to perform community service has failed to obey a direction given by the community corrections officer to whom the person is assigned, the Minister, instead of commencing proceedings for breach of order, may, by notice in writing served personally, increase the number of hours of community service that the person is required to perform. If the Minister does so increase the hours of community service to be performed, the intensive correction order will be taken to have been amended accordingly. The number of hours of community service may not be increased by the Minister by more than 24 in aggregate, but such an increase may be made despite the fact that its effect is to increase the total number of hours to be performed beyond the normal limit.

If the Minister for Correctional Services is satisfied that a person has failed to comply with a condition of an intensive correction order requiring performance of community service, the Minister may, by notice in writing served personally or by post, suspend the operation of the order until proceedings for breach of the intensive correction order have been determined.

89—Apprehension and detention of person subject to intensive correction order without warrant

This clause mirrors clause 76 and provides that if the CE suspects on reasonable grounds that a person subject to an intensive correction order has breached a condition of the order, the person may be apprehended, without warrant, by a police officer or community corrections officer and detained in custody for the purposes of proceedings relating to the suspected breach under clause 82 before the court that imposed the order.

90—Offence to contravene or fail to comply with condition of intensive correction order

This clause mirrors clause 77 and provides that it is an offence for a person subject to an intensive correction order to contravene or fail to comply with a condition of the order, punishable by a fine of $2,500 or imprisonment for 6 months.

Subdivision 3—General

91—Court may direct person to surrender firearm etc

A court may, when imposing a sentence on a person to whom this section applies, direct the person to immediately surrender at a police station specified by the court any firearm, ammunition or part of a firearm owned or possessed by the person. This provision applies to the following persons:

a person subject to a home detention order under Part 3Division 7Subdivision 1;

a person subject to an intensive correction order under Part 3Division 7Subdivision 2.

Division 8—Effect of imprisonment for contempt

92—Effect of imprisonment for contempt

This clause is substantially the same as section 33C of the repealed Act.

Part 4—Other community based sentences

Division 1—Purpose, interpretation and application

93—Purpose of Part

The purpose of this Part is to provide a court with an option to impose a non-custodial community based sentence on a defendant.

94—Interpretation and application of Part

This clause defines a reference to a bond under this Act (that is a bond under section 95 or 96, as the case requires. The powers vested in a court by this Part—

are exercisable despite the fact that an Act (or statutory instrument under an Act) prescribes a minimum penalty; but

are not exercisable in relation to—

murder or treason; or

any other offence in respect of which an Act (or statutory instrument under an Act) expressly prohibits the reduction, mitigation or substitution of penalties or sentences.

Division 2—Bonds, community service and supervision in community

95—Suspension of imprisonment on defendant entering into bond

This clause is substantially the same as section 38 of the repealed Act, with the addition of the statement set out in section 42(a1) of the repealed Act which directly relates to bonds under this clause.

96—Discharge of other defendants on entering into good behaviour bond

This clause mirrors section 39 of the repealed Act.

97—Conditions of bonds under this Act

This clause is similar to section 42 of the repealed Act, however, with the exception of subsection (a1) which has been relocated appropriately into clause 95, and the addition of 2 other conditions.

98—Term of bond

This clause provides that, subject to this measure, a bond under this Act is effective for the term that is specified in the bond.

99—Guarantors etc

This clause mirrors section 41 of the repealed Act.

100—Court may direct person to surrender firearm etc

This clause is substantially the same as section 42A of the repealed Act.

101—Court to provide CE with copy of court order

102—Variation or discharge of bond

Clause 101 and this clause are substantially the same as sections 43 and 44 of the repealed Act.

103—Court to be notified if suitable community service placement not available

104—Provisions relating to community service

105—Provisions relating to supervision in the community

106—CE must assign community corrections officer

107—Community corrections officer to give reasonable directions

108—Powers of community corrections officer relating to probationers on home detention

109—Variation of community service order

110—Power of Minister to cancel unperformed hours of community service

111—Power of Minister in relation to default in performance of community service

Clauses 103 to 111 have the same substantive effect as Part 6 of the repealed Act.

Division 3—Enforcement of bonds, community service orders and other orders of a non-pecuniary nature

Subdivision 1—Bonds

112—Non-compliance with bond

113—Orders that court may make on breach of bond

Clause 112 and this clause mirror sections 57 and 58 of the repealed Act.

Subdivision 2—Community service orders and other orders of a non-pecuniary nature

114—Community service orders may be enforced by imprisonment

115—Other non-pecuniary orders may be enforced by imprisonment

116—Registrar may exercise jurisdiction under this Division

117—Detention in prison

Clauses 114 to 117 mirror sections 71 to 71B of the repealed Act.

Part 5—Financial penalties

118—Maximum fine if no other maximum provided

This clause substantially reflects section 34 of the repealed Act.

119—Order for payment of pecuniary sum not to be made in certain circumstances

120—Preference must be given to compensation for victims

121—Court not to fix time for payment of pecuniary sums

Clauses 119, 120 and 121 reflect sections 13, 14 and 14A respectively of the repealed Act.

Part 6—Restitution and compensation

Division 1—Restitution and compensation generally

122—Restitution of property

This clause provides that if the offence of which the defendant has been found guilty, or any other offence that is to be taken into account by the court in determining sentence, involves the misappropriation of property, the court may order the defendant, or any other person in possession of the property, to restore the property to any person who appears to be entitled to possession of the property. Any such order does not prejudice any person's title to the property.

123—Compensation

This clause provides that, subject to this clause, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence—

either on application by the prosecutor or on the court's own initiative; and

instead of, or in addition to, dealing with the defendant in any other way.

If a court finds a defendant guilty of an offence, or takes an offence into account in determining sentence, and the circumstances of the offence are such as to suggest that a right to compensation has arisen, or may have arisen, under this clause, the court must, if it does not make an order for compensation, give its reasons for not doing so.

Compensation under this section will be of such amount as the court considers appropriate having regard to any evidence before the court and to any representations made by or on behalf of the prosecutor or the defendant.

If any property of which a person was dispossessed as a result of the offence is recovered, any damage to the property while it was out of the person's possession is to be treated for the purposes of this clause as having resulted from the offence.

The power of a court to award compensation under this clause is subject to the following qualifications:

no compensation may be awarded for injury, loss or damage caused by, or arising out of the use of, a motor vehicle except damage to property;

no compensation may be awarded against an employer in favour of an employee or former employee if—

the offence arises from breach of a statutory duty related to employment; and

the injury, loss or damage is compensable under the Return to Work Act 2014;

the Magistrates Court may not award more than $20,000 (or if a greater amount is prescribed—the prescribed amount) by way of compensation.

Compensation may be ordered under this clause in relation to an offence despite the fact that compensation may be ordered under some other statutory provision that relates more specifically to the offence or proceedings in respect of the offence. Any amount paid to a person pursuant to an order under this clause for compensation for injury, loss or damage must be taken into consideration by a court or any other body in awarding compensation for that injury, loss or damage under any other Act or law.

124—Certificate for victims of identity theft

This clause provides that a court that finds a person guilty of an offence involving the assumption of another person's identity, or the use of another person's personal identification information, may, on application by a victim of the offence, issue a certificate that gives details of—

the offence; and

the name of the victim; and

any other matters considered by the court to be relevant.

Division 2—Enforcement of restitution orders

125—Non-compliance with order for restitution of property

This clause provides an authorised officer with the necessary powers to take action under this clause where an order requiring property to be restored to a person has been made but not complied with.

Part 7—Miscellaneous

126—Power of delegation—intervention program manager

This clause provides the intervention program manager with a power of delegation in accordance with the provisions of the clause.

127—Regulations

This clause provides the Governor with the power to make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this measure.

Schedule 1—Repeal and transitional provisions

Part 1—Repeal of Criminal Law (Sentencing) Act 1988

This clause repeals the Criminal Law (Sentencing) Act 1988.

Part 2—Transitional provisions

This clause makes provision for transitional arrangements consequential on the enactment of this measure.

Debate adjourned on motion of Mr Treloar.