Crimes (Administration of Sentences) Amendment Act 2004 (NSW)
An Act to amend the Crimes (Administration of Sentences) Act 1999 with respect to mobile phone offences, inquiries and hearings for correctional centre offences, drug testing of inmates and other miscellaneous matters; and for other purposes.
This Act is the Crimes (Administration of Sentences) Amendment Act 2004.
This Act commences on a day or days to be appointed by proclamation, except as provided by this section.
The amendments made by Schedule 2 commence on the commencement of Schedule 1 [14] to the Crimes (Administration of Sentences) Further Amendment Act 2002.
The amendments made by Schedule 3.2 commence on the date of assent.
The Crimes (Administration of Sentences) Act 1999 is amended as set out in Schedules 1 and 2.
The Acts and instrument specified in Schedule 3 are amended as set out in that Schedule.
(Section 3)
Insert in alphabetical order in section 3 (1):
(a) a sample of breath, taken by breath test, breath analysis or otherwise,
(b) a sample of urine,
(c) a sample of faeces,
(d) a sample of saliva taken by buccal swab,
(e) a sample of nail,
(f) a sample of hair other than pubic hair,
(g) a sample of sweat taken by swab or washing from any external part of the body other than:
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female.
Omit the definitions of
Omit “minor offence” from section 53 (1), (2) and (3) wherever occurring.
Insert instead “correctional centre offence”.
Omit “28”. Insert instead “56”.
Omit “3”. Insert instead “7”.
Omit section 54 (1). Insert instead:
The governor may refer a correctional centre offence with which an inmate is charged to a Visiting Magistrate for hearing and determination if the governor considers that, because of the serious nature of the offence, it should be referred to a Visiting Magistrate.
Omit section 55 (5). Insert instead:
Any hearing in the proceedings is to be held:
(a) in the correctional centre at which the inmate is in custody, or
(b) if the Visiting Magistrate is satisfied that it is in the interests of the administration of justice for it to be held elsewhere—at any other place appointed by the Visiting Magistrate (an
appointed place ).
If a Visiting Magistrate appoints an appointed place for the holding of any hearing in the proceedings, the Visiting Magistrate may do any of the following:
(a) direct that the inmate must appear before the Visiting Magistrate by way of audio visual link from the correctional centre at which the inmate is in custody,
(b) direct that any other inmate who gives evidence or makes a submission in the hearing is to do so by way of audio visual link from the correctional centre at which that inmate is in custody,
(c) direct that any person other than an inmate who gives evidence or makes a submission is to do so by way of audio visual link from any place within New South Wales nominated by the Visiting Magistrate.
The Visiting Magistrate must not make a direction referred to in subsection (5A) if:
(a) the necessary audio visual facilities are unavailable or cannot reasonably be made available, or
(b) the Visiting Magistrate is satisfied that the direction would be unfair to a party to the proceedings.
Facilities are to be made available for private communication between an inmate appearing by way of audio visual link under this section and the inmate’s representative in the proceedings if the inmate’s representative attends the hearing at the appointed place.
Any place at which a person appears, gives evidence or makes a submission by way of audio visual link under this section is taken to be part of the appointed place.
Subsection (5D) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury.
Subsection (5D) also has the effect that any offence committed at the place at which a person appears, gives evidence or makes a submission under this section by way of audio visual link is to be taken to have been committed at the appointed place.
Sections 5D, 20A, 20B and 20D–20F of the Evidence (Audio and Audio Visual Links) Act 1998 apply, with such modifications as the Visiting Magistrate may direct, to proceedings in which a person appears, gives evidence or makes a submission by way of audio visual link under this section as they apply to the appearance, giving evidence or making of a submission by way of audio visual link in a proceeding before a NSW court under that Act.
Nothing in this section prevents a direction under section 5BB (1) of the Evidence (Audio and Audio Visual Links) Act 1998being made in the proceedings.
Omit “conducting an inquiry” from section 56 (1).
Insert instead “hearing the charge”.
Omit “the offence” wherever occurring.
Insert instead “the correctional centre offence”.
Omit “56”. Insert instead “90”.
Omit “28 days”. Insert instead “6 months”.
Insert after section 56 (1) (e):
imposition of a sentence of imprisonment for a period not exceeding 6 months.
Insert after section 56 (3):
To avoid doubt, a Visiting Magistrate making an order referred to in subsection (1) (f) is a person exercising criminal jurisdiction for the purposes of the definition of
Insert after section 56:
The governor or Visiting Magistrate dealing with a charge relating to a correctional centre offence arising out of the possession of a mobile phone or any part of it, a mobile phone SIM card or any part of it, or a mobile phone charger or any part of it may order that an inmate be deprived, for up to 6 months, of such withdrawable privileges as the governor or Visiting Magistrate may determine if satisfied beyond reasonable doubt that the inmate is guilty of the offence.
Tor avoid doubt, if a penalty is imposed under this section in respect of a correctional centre offence, a governor or Visiting Magistrate must not also impose a penalty referred to in section 53 or 56, as the case may be, in respect of the same correctional centre offence.
Omit section 57 (1) (a). Insert instead:
the result of a test showing the presence of a drug in a non-invasive sample taken from or provided by an inmate, or
Omit “provide a sample of his or her urine”.
Insert instead “provide, or enable to be taken, from the inmate a non-invasive sample”.
Omit “$100” from section 59 (2). Insert instead “$500”.
Insert “or (f)” after “section 56 (1) (e)” in clause 62 (1).
Omit “an inmate’s breath, urine or faeces” from section 79 (v).
Insert instead “a non-invasive sample provided by, or taken from, an inmate”.
Omit the paragraph.
Omit “an offender’s breath, urine or faeces” from section 101 (f).
Insert instead “a non-invasive sample provided by, or taken from, an offender”.
Omit “an offender’s breath, urine or faeces” from section 117 (e).
Insert instead “a non-invasive sample provided by, or taken from, an offender”.
Omit section 163 (2) and (2A). Insert instead:
The Parole Board must revoke an offender’s periodic detention order on the application of the Commissioner if the Parole Board is satisfied that:
(a) the offender:
(i) has failed to report for 3 or more detention periods, whether during the same sentence of imprisonment or during different sentences of imprisonment being served consecutively (or partly consecutively) and whether any of the failures to report occurred before or after a reinstatement of the offender’s periodic detention order under section 164A or 168A, and
(ii) has not had a periodic detention order reinstated previously under section 164A or 168A following revocation for failure to report for 3 or more detention periods, whether under this subsection or any other law, or
(b) the offender:
(i) has failed to report for at least 1 detention period, and
(ii) has had a periodic detention order reinstated previously under section 164A or section 168A following revocation for failure to report for 3 or more detention periods, whether under this subsection or any other law,
and the Parole Board is satisfied that the failures to report occurred otherwise than on leave of absence and are not the subject of an exemption under section 90.
An application under subsection (2) must be made:
(a) if the Commissioner is satisfied that:
(i) an offender has failed to report for 3 or more consecutive detention periods, and
(ii) the offender has failed to apply for, or been refused, leave of absence with respect to each of the detention periods referred to in subparagraph (i), and
(iii) the offender’s periodic detention order has not previously been reinstated under section 164A or 168A following revocation for failure to report for 3 or more detention periods, whether under subsection (2) or any other law, or
(b) if the Commissioner is satisfied that:
(i) an offender has failed to report for at least 1 detention period, and
(ii) the offender has failed to apply for, or been refused, leave of absence with respect to the detention period referred to in subparagraph (i), and
(iii) the offender’s periodic detention order has previously been reinstated under section 164A or 168A following revocation for failure to report for 3 or more detention periods, whether under subsection (2) or any other law.
Insert at the end of the section:
For the removal of doubt,
(a) refused bail by an authorised officer as referred to in section 20 of the Bail Act 1978, or
(b) granted bail by an authorised officer but not released as referred to in section 20 of the Bail Act 1978, or
(c) arrested under section 50 (1) (a) of the Bail Act 1978, or
(d) apprehended under a warrant referred to in section 50 (1) (b) (i) of the Bail Act 1978.
Insert “, court” after “correctional centre” in section 250 (2) (a).
Insert “, or partly consecutively,” after “consecutively” in section 255 (2).
Insert “or before” after “at”.
Omit “at the expiry of the earlier sentence”.
Insert instead “at or before the expiry of the earlier sentence (but after the end of any non-parole period)”.
Omit clause 3 (1). Insert instead:
The Commissioner may establish a list of officers of the Department eligible to be nominated as the deputy of an official member (
An official member may from time to time nominate an eligible officer to be the deputy of the official member.
The nomination of a deputy of an official member under this clause may be revoked at any time by the Commissioner or the official member that nominated the deputy.
The nomination of a deputy under this clause may be for a specified period or an indefinite period and, in respect of the period the nomination is in force, has effect according to its terms.
The nomination of a deputy of an official member under this clause is revoked on revocation of the appointment of the official member under clause 7.
Insert at the end of clause 1 (1):
Crimes (Administration of Sentences) Amendment Act 2004
Insert at the end of the Schedule with appropriate Part and clause numbers:
In this Part, the
Sections 51, 53 and 54, as in force before their amendment by the 2004 amending Act, continue to apply to any correctional centre offence committed before the commencement of those amendments, and such offences are to be dealt with in accordance with those sections as if they had not been so amended.
Section 55, as in force before its amendment by the 2004 amending Act, continues to apply to any proceedings on a charge referred to a Visiting Magistrate that had been referred but not concluded before the commencement of that amendment, and such proceedings are to be determined in accordance with that section as if it had not been so amended.
Section 59, as in force before its amendment by the 2004 amending Act, continues to apply to a correctional centre offence committed before the commencement of that amendment, and such an offence is to be dealt with in accordance with that section as if it had not been so amended.
Section 163 (2) and (2A), as substituted by the 2004 amending Act, apply to a failure to report for a detention period that occurred before the commencement of the relevant provision (being one of a series of detention periods occurring during consecutive, or partly consecutive, sentences of imprisonment) only if it is one of a series of failures to report of which the most recent occurred after the relevant commencement.
Section 255, as in force before its amendment by the 2004 amending Act, continues to apply to a sentence whose term or non-parole period was extended under this Act before the commencement of that amendment.
Any such sentence and the date of commencement of any other sentence that is to be served consecutively with the extended sentence are to operate in accordance with section 255 as if it had not been so amended.
Freedom of Information Act 1989A document that contains matter relating to functions in relation to which the office of Inspector-General of Corrective Services was, by virtue of section 9 of the Freedom of Information Act 1989, exempt from the operation of that Act immediately before 1 October 2003 is taken to be, and to always have been, an exempt document within the meaning of the Freedom of Information Act 1989.
(Section 3)
Omit “to provide a sample of the staff member’s urine or hair” from section 236F (1) (b).
Insert instead “to provide, or enable to be taken, a non-invasive sample from the staff member”.
Omit “to provide a sample of the member of staff’s urine or hair”.
Insert instead “to provide, or enable to be taken, a non-invasive sample from the staff member”.
Omit “provide a sample of the member of staff’s blood, urine or hair” from section 236G (1).
Insert instead “provide, or enable to be taken, a sample of blood or a non-invasive sample from the staff member”.
Omit “taking of a sample of blood, urine or hair”.
Insert instead “taking, or provision, of a sample of blood or a non-invasive sample”.
Omit “taking a sample of blood, urine or hair” from section 236H (1).
Insert instead “taking, or being provided with, a sample of blood or a non-invasive sample”.
Omit “take the sample of blood, urine or hair” wherever occurring.
Insert instead “take, or be provided with, the sample of blood or the non-invasive sample”.
Omit “samples of urine, hair or blood” from section 236I (c).
Insert instead “samples of blood or non-invasive samples”.
Omit “a sample of the staff member’s urine or hair”.
Insert instead “a non-invasive sample from the staff member”.
Omit “samples of urine, hair or blood”.
Insert instead “samples of blood or non-invasive samples”.
(Section 4)
Crimes (Administration of Sentences) Regulation 2001Insert after clause 113A:
An inmate must not have in his or her possession a mobile phone or any part of it, a mobile phone SIM card or any part of it, or a mobile phone charger or any part of it.
Omit “Part 1 or 2 of” from clause 116 (c).
Omit the clause.
Omit “and (if appropriate) a major offence”.
Omit the Schedule. Insert instead:
(Clause 116)
Provision | Subject |
Clause 5 | Supply false or misleading particulars |
Clause 8 | Fail to surrender property on reception |
Clause 38 | Fail to clean yards |
Clause 39 | Fail to comply with correctional centre routine |
Clause 40 | Enter other cells |
Clause 41 | Fail to attend musters |
Clause 42 | Operate bell, hooter, siren or whistle |
Clause 43 | Avoid correctional centre routine |
Clause 44 | Unlawfully deliver or receive article to or from inmate |
Clause 45 | Possess or create prohibited goods |
Clause 46 | Resist or impede search |
Clause 47 | Fail to keep property in a tidy and orderly manner |
Clause 52 | Unlawfully purchase food |
Clause 52 | Possess unauthorised food |
Clause 52 | Unlawfully trade in food |
Clause 56 | Fail to maintain personal cleanliness |
Clause 57 | Wear improper clothing |
Clause 58 | Fail to keep clean cells and issued articles |
Clause 58 | Damage, destroy or deface cell |
Clause 58 | Fail to look after clothing, bedding and other issued articles |
Clause 59 | Unlawfully possess condom or dental dam |
Clause 59 | Unlawfully use condom or dental dam |
Clause 59 | Unlawfully dispose of condom or dental dam |
Clause 61 | Misbehave while attending services and programs |
Clause 68 | Desecrate or abuse religious items |
Clause 97 | Convey or deliver to, or receive from, visitors unauthorised articles |
Clause 107 | Send or receive unauthorised letters or parcels |
Clause 108 | Send prohibited letters, parcels or articles |
Clause 112 | Unlawfully use telephone or facsimile |
Clause 113A | Possess camera or video or audio recording equipment |
Clause 113B | Possess mobile phone, mobile phone SIM card or mobile phone charger |
Clause 120 | Disobey direction |
Clause 124 | Contravene condition of local or interstate leave permit |
Clause 125 | Conceal for purpose of escape |
Clause 126 | Conceal article for use in escape or other offence |
Clause 126A | Possess offensive weapon or instrument |
Clause 127 | Intimidation |
Clause 128 | Indecency |
Clause 129 | Participate, or inciting other inmates to participate, in riot |
Clause 130 | Assaults |
Clause 130 | Fight or engage in other physical combat |
Clause 130 | Throw article |
Clause 131 | Steal |
Clause 131 | Damage or destroy property |
Clause 131 | Tamper with food or drink |
Clause 132 | Hinder or obstruct dog |
Clause 133 | Cause harm to animal, bird or reptile |
Clause 134 | Interfere with correctional centre property |
Clause 135 | Tattoo |
Clause 136 | Gamble |
Clause 137 | Possess or consume alcohol |
Clause 137 | Prepare or manufacture alcohol |
Clause 138 | Possess drug |
Clause 139 | Administer drug |
Clause 140 | Possess drug implement |
Clause 141 | Self-intoxication |
Clause 142 | Fail prescribed urine test |
Clause 143 | Smoke in non-smoking area |
Clause 143 | Alter, damage or remove non-smoking sign or smoking sign |
Clause 144 | Bribery |
Clause 145 | Obstruct correctional officer |
Clause 146 | Refuse breath testing |
Clause 148 | Refuse or fail to supply urine sample |
Clause 149 | Refuse or fail to supply urine sample |
Clause 160 | Make mischievous complaint |
Clause 172 | Give false or misleading information |
Omit the definitions of
Insert after section 25A (5):
In this section,
Insert after section 28:
This section applies if, under section 18 or 25A, any period does not count as part of any term of imprisonment under an appellant’s sentence.
The court may make any order that it thinks fit to give effect to section 18 or 25A (including an order specifying the date of the commencement or re-commencement of the sentence).
If the court does not make such an order, the sentence commences or re-commences on the appropriate date required for the operation of section 18 or 25A.
This section extends to apply in respect of the following appeals:
(a) an appeal made, but not determined, before the commencement of this section,
(b) an appeal in respect of which notice of intention to appeal or to apply for leave to appeal or application for leave (or for special leave) to appeal was made before the commencement of this section.
Omit the matter relating to the office of Inspector-General of Corrective Services.
Summary Offences Act 1988 No 25Insert after section 27D:
An inmate must not, without reasonable excuse (proof of which lies on the inmate), have in his or her possession in a place of detention a mobile phone or any part of it, a mobile phone SIM card or any part of it, or a mobile phone charger or any part of it.
Maximum penalty: imprisonment for 2 years or 50 penalty units, or both.
In this section,
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