Sentencing (Amendment) Act 2003 (Vic)
Sentencing (Amendment) Act 2003
Act No. 13/2003
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purpose 1 2. Commencement 2 3. Principal Act 2
PART 2—GUIDELINE JUDGMENTS 3
4. New Part 2AA inserted 3 PART 2AA—GUIDELINE JUDGMENTS 3
6AA. Definition 3 6AB. Power of Court of Appeal to give or review guideline judgments 3 6AC. Content of guideline judgment 4 6AD. Procedural requirements 5 6AE. Matters to which Court of Appeal must have regard 5 6AF. Use of evidence in giving or reviewing guideline judgment 6 6AG. Relationship between guideline judgments and other sentencing matters 6
5. New section 128 inserted 6 128. Transitional provision—Sentencing (Amendment) Act
2003 6
PART 3—SENTENCING ADVISORY COUNCIL 8
6. New Part 9A inserted 8 PART 9A—SENTENCING ADVISORY COUNCIL 8
108A. Definitions 8 108B. Establishment of Sentencing Advisory Council 8 108C. Functions of the Council 9 108D. Powers of the Council 10 108E. Delegation 10 108F. Board of directors 11 108G. Chairperson 12
i
Section Page
108H. Terms and conditions of office of directors 12 108I. Vacancies and removal of directors from office 12 108J. Travelling and other allowances 13 108K. Validity of acts or decisions 13 108L. Meetings of the Board 13
108M. Staff 14
108N. Appointment of consultants 14 108O. Control on expenditure 15 108P. Parliamentary requirement for information 15
PART 4—STATUTE LAW REVISION 16
7. Amendment of Sentencing (Amendment) Act 2002 16
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ENDNOTES 17
ii
Victoria
No. 13 of 2003
Sentencing (Amendment) Act 2003†
[Assented to 6 May 2003]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The main purpose of this Act is to amend the
Sentencing Act 1991 so as to—
(a)
empower the Court of Appeal to give guideline judgments; and
(b) establish a Sentencing Advisory Council.
Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 2 | Part 1—Preliminary |
2. Commencement
(1) Subject to sub-section (3), this Act (except Part 4)
comes into operation on a day or days to be
proclaimed.
(2) Part 4 is deemed to have come into operation on
17 February 2003.
(3) If a provision of this Act does not come into
operation before 1 July 2004, it comes into
operation on that day.
3. Principal Act
See:
| Act No. | In this Act, the Sentencing Act 1991 is called the |
| 49/1991. | Principal Act. |
| Reprint No. 6 as at 1 August | |
| 2001 and | |
| amending | |
| Act Nos 45/2001, 61/2001, 80/2001, 1/2002, 2/2002 and | |
| 35/2002. LawToday: dpc.vic. gov.au |
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Sentencing (Amendment) Act 2003
Act No. 13/2003
Part 2—Guideline Judgments s. 4
PART 2—GUIDELINE JUDGMENTS
4. New Part 2AA inserted
After Part 2 of the Principal Act insert—
'PART 2AA—GUIDELINE JUDGMENTS
6AA. Definition
In this Part—
"guideline judgment" means a judgment
that is expressed to contain guidelines
to be taken into account by courts in
sentencing offenders, being guidelinesthat apply—
(a) generally; or
(b)
to a particular court or class of court; or
(c)
to a particular offence or class of offence; or
(d)
to a particular penalty or class of penalty; or
(e) to a particular class of offender.
6AB. Power of Court of Appeal to give or review guideline judgments
(1) On hearing and considering an appeal
against sentence, the Court of Appeal may
(on its own initiative or on an application
made by a party to the appeal) considerwhether—
(a) to give a guideline judgment; or
(b)
to review a guideline judgment given by it in a previous proceeding.
Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 4 | Part 2—Guideline Judgments |
(2) On a review of a guideline judgment, the
Court of Appeal may—
(a) confirm the guideline judgment; or
(b) vary the guideline judgment; or
(c) revoke the guideline judgment; or
(d)
substitute the guideline judgment with a new guideline judgment.
(3) The Court of Appeal may give or review a
guideline judgment even if it is not necessary for the purpose of determining any appeal in which the judgment is given or reviewed.
(4) A decision of the Court of Appeal to give or
review a guideline judgment must be a
unanimous decision of the Judges
constituting the Court.
(5) A guideline judgment may be given
separately to, or included in, the Court of
Appeal's judgment in an appeal.
(6) Nothing in this Part requires the Court of
Appeal to give or review a guideline judgment if it considers it inappropriate to do so.
6AC. Content of guideline judgment
A guideline judgment may set out—
(a)
criteria to be applied in selecting among various sentencing alternatives;
(b)
the weight to be given to the various purposes specified in section 5(1) for which a sentence may be imposed;
(c)
the criteria by which a sentencing court is to determine the gravity of an offence;
Sentencing (Amendment) Act 2003
Act No. 13/2003
Part 2—Guideline Judgments s. 4 (d)
the criteria which a sentencing court may use to reduce the sentence for an offence;
(e)
the weighting to be given to relevant criteria;
(f)
any other matter consistent with the principles contained in this Act.
6AD. Procedural requirements
If the Court of Appeal decides to give or review a guideline judgment it must—
(a)
cause the Sentencing Advisory Council to be notified and consider any views stated in writing, within the period specified in the notification, by that Council; and
(b) give—
(i) the Director of Public
Prosecutions or a legal practitioner
representing the Director; and(ii) Victoria Legal Aid, whether or not
employed by Victoria Legal Aid,a legal practitioner representing Victoria Legal Aid—
an opportunity to appear before the matter.
6AE. Matters to which Court of Appeal must
have regard
In considering the giving of, or in reviewing, a guideline judgment the Court of Appeal must have regard to—
(a)
the need to promote consistency of approach in sentencing offenders; and
Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 5 | Part 2—Guideline Judgments | |||
|
any views stated by the Sentencing under section 6AD.
6AF. Use of evidence in giving or reviewing
guideline judgment
Nothing in Part VI of the Crimes Act 1958 limits the evidence or other matters that the Court of Appeal may take into consideration
in giving or reviewing a guideline judgment and the Court may inform itself as it sees fit.
6AG. Relationship between guideline judgments and other sentencing matters
A guideline in a guideline judgment—
(a)
is additional to any other matter that is required to be taken into account under Part 2; and
(b)
does not limit or take away from any such requirement.'.
5. New section 128 inserted
At the end of Part 12 of the Principal Act insert—
"128. Transitional provision—Sentencing
(Amendment) Act 2003
Part 2AA applies in relation to appeals heard by the Court of Appeal on or after the commencement of section 4 of the Sentencing (Amendment) Act 2003 irrespective of when—
(a)
the notice of appeal or notice of application for leave to appeal was given; or
Sentencing (Amendment) Act 2003
Act No. 13/2003
Part 2—Guideline Judgments s. 5 (b)
the offence is alleged to have been committed.".
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Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 6 | Part 3—Sentencing Advisory Council |
PART 3—SENTENCING ADVISORY COUNCIL
6. New Part 9A inserted
After Part 9 of the Principal Act insert—
'PART 9A—SENTENCING ADVISORY
COUNCIL
108A. Definitions
In this Part—
"Board" means board of directors of the
Council;
"chairperson" means chairperson of the
Board;
"Council" means Sentencing Advisory
Council established under
section 108B;
"director" means chairperson or other director of the Council;
"guideline judgment" has the same
meaning as in Part 2AA.
108B. Establishment of Sentencing Advisory
Council
(1) The Sentencing Advisory Council is
established.
(2) The Council—
(a)
is a body corporate with perpetual succession;
(b) has an official seal;
(c)
may sue and be sued in its corporate name;
(d)
subject to section 108D, may acquire, hold and dispose of personal property;
Sentencing (Amendment) Act 2003
Act No. 13/2003
Part 3—Sentencing Advisory Council s. 6 (e)
subject to section 108D, may do and suffer all acts and things that a body corporate may by law do and suffer.
(3) All courts must take judicial notice of the
official seal of the Council affixed to a
document and, until the contrary is proved,
must presume that it was duly affixed.(4) The official seal of the Council must be kept
in such custody as the Council directs and
must not be used except as authorised by it.
108C. Functions of the Council
(1) The functions of the Council are—
(a) to state in writing to the Court of Appeal its views in relation to the giving, or review, of a guideline judgment;
(b) sentencing, including information on
current sentencing practices, toto provide statistical information on interested persons;
(c) information to members of the judiciary
to conduct research, and disseminate sentencing matters;
(d) to gauge public opinion on sentencing matters; (e) government departments and other
to consult, on sentencing matters, with the general public;
(f)
to advise the Attorney-General on sentencing matters.
Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 6 | Part 3—Sentencing Advisory Council |
(2) The Council may perform its functions, and
exercise its powers, within or outside
Victoria.
108D. Powers of the Council
(1) Subject to sub-sections (2) and (3), the
Council has power to do all things necessary or convenient to be done for, or in connection with, performing its functions.
(2) The Council does not have power to acquire, hold or dispose of real property.
(3) The Council must not, without the prior
written approval of the Attorney-General—
(a)
acquire any personal property, right or privilege for a consideration of more than $50 000 or any higher amount prescribed for the purposes of this paragraph; or
(b)
dispose of any personal property, right or privilege that has a value, or for a consideration, of more than $50 000 or any higher amount prescribed for the purposes of this paragraph.
108E. Delegation
The Council, by instrument under its official seal, may delegate to—
(a) a director; or
(b)
the chief executive officer of the Council; or
(c)
an employee referred to in section 108M(2)—
any function or power of the Council, other
than the function under section 108C(1)(a) or
this power of delegation.
Sentencing (Amendment) Act 2003
Act No. 13/2003
Part 3—Sentencing Advisory Council s. 6 108F. Board of directors
(1) There shall be a board of directors of the
Council consisting of not less than 9, and not more than 12, directors of whom—
(a) opinion of the Attorney-General, broad
two must be people who have, in the affecting courts;
(b) one must have experience as a senior member of the academic staff of a tertiary institution; (c) one must be a person who is a member of a victim of crime support or advocacy group; (d) one must be a person who, in the opinion of the Attorney-General, is a highly experienced prosecution lawyer; (e) one must be a person who, in the opinion of the Attorney-General, is a highly experienced defence lawyer; (f) the remainder must have experience in the operation of the criminal justice system. (2) Directors are appointed by the Governor in Council on the nomination of the Attorney- General.
(3) The Board—
(a)
is responsible for the management of the affairs of the Council; and
(b)
may exercise the powers of the Council.
Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 6 | Part 3—Sentencing Advisory Council |
108G. Chairperson
(1) The Governor in Council may, on the
recommendation of the Attorney-General, appoint a director to be chairperson of the Board.
(2) The chairperson may resign that office by notice in writing signed by the chairperson and delivered to the Attorney-General.
108H. Terms and conditions of office of directors
(1) A director holds office—
(a) subject to section 108I, for the term in his or her instrument of appointment, and is eligible for re-appointment; and
(b)
on any other terms and conditions, not inconsistent with this Part, that are specified in his or her instrument of appointment.
(2) The Public Sector Management and
Employment Act 1998 does not apply to a director in respect of the office of director.
108I. Vacancies and removal of directors from
office
(1) A director's office becomes vacant—
(a)
on the expiry of his or her term of office; or
(b)
if he or she resigns from office under sub-section (2); or
(c)
if he or she is removed from office under sub-section (3); or
Sentencing (Amendment) Act 2003
Act No. 13/2003
Part 3—Sentencing Advisory Council s. 6 (d) if he or she is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence.
(2) A director may resign from office by notice
in writing signed by him or her and delivered
to the Attorney-General.
(3) The Governor in Council may remove a
director from office if of the opinion that the
director has failed to comply with any termor condition of appointment.
108J. Travelling and other allowances
A director is entitled to be paid the travelling and other allowances that are fixed from time to time in respect of him or her by the
Governor in Council.
108K. Validity of acts or decisions
An act or decision of the Board is not invalid merely because of—
(a)
a defect or irregularity in, or in connection with, the appointment of a director; or
(b)
a vacancy in the membership of the Board.
108L. Meetings of the Board
(1) The chairperson must convene as many
meetings of the Board as he or she considers
necessary for the efficient conduct of its
affairs.(2) The chairperson must preside at any meeting of the Board at which he or she is present.
(3) If the chairperson is absent, a director elected by the directors present must preside.
Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 6 | Part 3—Sentencing Advisory Council |
(4) The quorum for a meeting of the Board at any time is 3 less than the total appointed membership of the Board at that time.
(5) A question arising at a meeting of the Board
is determined by a majority of the votes of
the members present and voting on the
question.
(6) The person presiding has a deliberative vote
and, in the event of an equality of votes on
any question, a second or casting vote.
(7) Subject to this Part, the Board may regulate its own procedure.
108M. Staff
(1) A chief executive officer of the Council must
be employed under Part 3 of the Public
Sector Management and Employment Act
1998.
(2) Subject to the Council's budget, as many
other employees as are necessary to enable the Council to perform its functions may be employed under Part 3 of the Public Sector Management and Employment Act 1998.
108N. Appointment of consultants
(1) The Council may engage persons with
suitable qualifications and experience as
consultants to the Council either in anhonorary capacity or for remuneration.
(2) The remuneration of consultants shall be
determined by the Council having regard to
its budget.
Sentencing (Amendment) Act 2003
Act No. 13/2003
Part 3—Sentencing Advisory Council s. 6 108O. Control on expenditure
Money must only be spent by the Council in defraying expenses incurred by it in performing its functions, including paying any remuneration, salaries or allowances payable to directors, staff or consultants.
108P. Parliamentary requirement for information
(1) The Council must comply with any
information requirement lawfully made of it
by a House of the Parliament or a
Parliamentary Committee within the
meaning of the Parliamentary Committees
Act 1968.(2) In this section "information requirement" means a requirement to give information of a specified kind within a specified period
relating to—
(a)
the performance by the Council of its functions; or
(b)
the exercise by the Council of its powers; or
(c)
the Council's expenditure or proposed expenditure.'.
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Sentencing (Amendment) Act 2003
Act No. 13/2003
| s. 7 | Part 4—Statute Law Revision |
PART 4—STATUTE LAW REVISION
7. Amendment of Sentencing (Amendment) Act 2002
See:
| Act No. | In section 11 of the Sentencing (Amendment) |
| 2/2002. | Act 2002, for "Before section 5" substitute "After |
| Statute Book: | |
| section 4B". | |
dpc.vic. gov.au |
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Sentencing (Amendment) Act 2003
Act No. 13/2003
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 20 March 2003
Legislative Council: 10 April 2003
The long title for the Bill for this Act was "to amend the Sentencing Act 1991 so as to empower the Court of Appeal to give guideline judgments and to establish a Sentencing Advisory Council, to make a minor
amendment to the Sentencing (Amendment) Act 2002 and for other
purposes."
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