Sentencing Legislation Amendment Act 2018 (ACT)

Case

Sentencing Legislation Amendment Act 2018

A2018-43

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Crimes (Sentence Administration) Act 2005

4            New section 48A  3

5            Cancellation of intensive correction order on further conviction etcSection 65 (2) and (3)  3

6            Cancellation of intensive correction order—offender may apply for order to be reinstatedSection 73 (2) (b) (ii)  4

7           New section 78A  4

8            Section 80  5

9            New section 93A  6

10          New section 212A  6

11          Section 316  7

12          Dictionary, new definition of intensive correction assessment               8

Part 3Crimes (Sentencing) Act 2005

13          Meaning of offenderSection 8, definition of offender, paragraph (b)  9

14          New section 39A  9

15          Pre-sentence reports—orderSection 41 (8)  9

16          New part 4.2A  10

17          Application—pt 5.2Section 64 (1)  14

18          New division 5.4.1A heading  15

19          Application—pt 5.4Section 76  15

20          Intensive correction orders—suitabilitySection 78 (1) and (2)  15

21          Section 78 (5)  15

22          Section 78 (9)  16

23          Intensive correction orders—intensive correction assessment mattersSection 79  16

24          Intensive correction order—community service— suitabilitySection 80D (1)  16

25          Intensive correction orders—rehabilitation programs— suitabilitySection 80J (1) (a)  16

26          Dictionary, note 2  16

27          Dictionary, definition of assessor  17

28          Dictionary, new definition of intensive correction assessment               17

Schedule 1 Other amendments  18

Part 1.1    Crimes Act 1900  18

Part 1.2    Road Transport (General) Act 1999  18

Sentencing Legislation Amendment Act 2018

A2018-43

An Act to amend legislation about sentencing, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Sentencing Legislation Amendment Act 2018.

  2. Commencement

    This Act commences on the day after its notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

  3. Legislation amended

    This Act amends the Crimes (Sentence Administration) Act 2005 and the Crimes (Sentencing) Act 2005.

    NoteThis Act also amends other legislation (see sch 1).

Part 2Crimes (Sentence Administration) Act 2005

  1. New section 48A

    insert

48AIntensive correction orders—community service work—therapy and education program limit

Participation in a program for therapy or education must not make up more than 25% of the total number of hours of community service work required to be performed by an offender subject to a community service condition under an intensive correction order.

  1. Cancellation of intensive correction order on further conviction etc
    Section 65 (2) and (3)

    substitute

    (2)The sentencing court must, as soon as practicable—

    (a)cancel the intensive correction order, unless cancellation is not in the interests of justice; and

    (b)if the court cancels the intensive correction order—order that the remainder of the offender’s sentence be served by full‑time detention.

    (3)If the court makes an order under subsection (2) (b), the court—

    (a)must state when the period of full‑time detention starts and ends; and

    (b)may set a nonparole period for the period of full-time detention if—

    (i)the sentence of imprisonment for which the intensive correction order was made is more than 12 months; and

    (ii)the period of full-time detention is more than 30 days.

    (4)To remove any doubt, the Crimes (Sentencing) Act 2005, part 5.2, applies to a nonparole period set under subsection (3) (b) as if the nonparole period had been set under that part.

    NoteThe Crimes (Sentencing) Act 2005, pt 5.2 deals with setting and review of nonparole periods.

    (5)If the court decides that it is not in the interests of justice to cancel the intensive correction order, the court must give reasons for the decision.

  2. Cancellation of intensive correction order—offender may apply for order to be reinstated
    Section 73 (2) (b) (ii)

    omit

    (an intensive correction assessment)

  3. New section 78A

    insert

78AIntensive correction order cancellation by court—official notice of sentence

(1)This section applies if a court makes an order under section 65 (a cancellation order) cancelling an offender’s intensive correction order.

(2)As soon as practicable (but no later than 10 working days) after the day the court makes the cancellation order, the court must ensure that written notice of the order, together with a copy of the order, is given to—

(a)the offender; and

(b)the director‑general; and

(c)if the court sets a nonparole period for any part of the remainder of the offender’s sentence—the secretary of the sentence administration board.

(3)The notice must include the following information:

(a)when the period of full‑time detention starts or is taken to have started;

(b)when the period of full‑time detention ends;

(c)if a nonparole period is set for the period of full-time detention—the nonparole period and when it starts and ends;

(d)the earliest day (on the basis of the information currently available to the court) that the offender will—

(i)become entitled to be released from full-time detention; and

(ii)if the offender’s sentence includes a nonparole period—be eligible to be released on parole.

(4)Failure to comply with this section does not invalidate the cancellation order.

  1. Section 80

    substitute

  2. Intensive correction orders—outstanding warrants

    (1)This section applies if a warrant is issued for an offender’s arrest under this chapter.

    (2)Any period for which the warrant is outstanding and the offender is not in custody does not count as part of the offender’s term of imprisonment by intensive correction.

    (3)In this section:

    in custody means:

    (a)remanded in custody under a territory law or a law of the Commonwealth or a State; or

    (b)detained at a place under the Mental Health Act 2015.

    NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).

  3. New section 93A

    insert

93AGood behaviour orders—community service work—therapy and education program limit

Participation in a program for therapy or education must not make up more than 25% of the total number of hours of community service work required to be performed by an offender subject to a community service condition under a good behaviour order.

  1. New section 212A

    in part 9.2, insert

212ABoard hearing—outstanding warrants

(1)This section applies if a warrant is issued under section 206 (2) for the arrest of an offender, because—

(a)the offender failed to appear before the board in accordance with a notice under section 63 (Notice of inquiry—breach of intensive correction order obligations); or

(b)a judicial member of the board considers that an offender will not appear before the board in accordance with a notice under section 63.

(2)Any period for which the warrant is outstanding and the offender is not in custody does not count as part of the offender’s term of imprisonment by intensive correction.

(3)In this section:

in custody means:

(a)remanded in custody under a territory law or a law of the Commonwealth or a State; or

(b)detained at a place under the Mental Health Act 2015.

NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).

  1. Section 316

    substitute

  2. Meaning of community service work

    (1)Community service work includes any of the following prescribed by regulation:

    (a)work;

    (b)community service programs.

    NotePower to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

    (2)If an offender who is subject to a community service order attends a program for therapy or education in accordance with the directions of the director-general, the attendance at the program is taken to be community service work.

    NoteThe number of hours of attendance at a program for therapy or education which may count toward the performance of a community service condition is limited under—

    (a)if the condition forms part of an intensive correction order—s 48A; or

    (b)if the condition forms part of a good behaviour order—s 93A.

  3. Dictionary, new definition of intensive correction assessment

    insert

    intensive correction assessment, for chapter 5 (Intensive correction orders)—see section 40.

Part 3Crimes (Sentencing) Act 2005

  1. Meaning of offender
    Section 8, definition of offender, paragraph (b)

    substitute

    (b)for—

    (i)part 4.2 (Pre‑sentence reports)—see section 40; and

    (ii)part 4.2A (Intensive correction assessments)—see section 46B.

  2. New section 39A

    in part 4.2, insert

39AMeaning of assessor—pt 4.2

In this part:

assessor means—

(a)a public servant whose functions include preparing pre‑sentence reports; or

(b)a person with similar functions under the law of a State.

NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).

  1. Pre-sentence reports—order
    Section 41 (8)

    omit

  2. New part 4.2A

    insert

Part 4.2AIntensive correction assessments

46AMeaning of assessor—pt 4.2A

In this part:

assessor means—

(a)a public servant whose functions include preparing intensive correction assessments; or

(b)a person with similar functions under the law of a State.

NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).

46BApplication—pt 4.2A

This part applies if either of the following applies to a person (the offender):

(a)a court finds the offender guilty of an offence;

(b)the offender indicates to a court an intention to plead guilty to an offence.

46CIntensive correction assessments—order

(1)This section applies if—

(a)the Magistrates Court—

(i)finds an offender guilty of an offence in a proceeding before the court; or

(ii)accepts an offender’s guilty plea for an offence; or

(b)the Magistrates Court commits an offender to the Supreme Court for sentence; or

NoteThe Magistrates Court may commit a person to the Supreme Court for sentence under the Magistrates Court Act 1930, s 92A.

(c)the Supreme Court—

(i)finds an offender guilty of an offence in a proceeding before the court; or

(ii)accepts an offender’s guilty plea for an offence.

(2)If subsection (1) (b) applies, the Magistrates Court may—

(a)order an intensive correction assessment in relation to the offender; and

(b)order the director-general to provide a copy of the assessment to the Supreme Court or any other person.

(3)If subsection (1) (a) or (c) applies, the court may—

(a)order an intensive correction assessment in relation to the offender; and

(b)adjourn the proceeding for the assessment to be prepared; and

(c)order the director-general to provide a copy of the assessment to the court or any other person.

(4)However, the court must order the director-general to prepare an intensive correction assessment before sentencing the offender to a sentence of imprisonment by intensive correction.

(5)The director-general must arrange for an assessor to prepare an intensive correction assessment ordered by the court.

(6)The intensive correction assessment must address the matters mentioned in section 46D.

46DIntensive correction orders—intensive correction assessment matters

For section 46C (6), the matters for assessing the offender’s suitability to serve a sentence by intensive correction order are the matters mentioned in table 46D, column 2.

Table 46DAssessment of suitability—intensive correction order

column 1

item

column 2

matter

column 3

indication of unsuitability
1 degree of dependence on alcohol or a controlled drug major problem with alcohol or a controlled drug
2 psychiatric or psychological condition major psychiatric or psychological disorder
3 medical condition potential unfitness to comply with an intensive correction order
4 criminal record and response to previous court orders serious criminal record or substantial noncompliance with previous court orders
5 employment and personal circumstances potential impracticability of compliance with intensive correction order
6 participation and degree of compliance with intensive correction assessment substantial noncompliance with assessment
7 living circumstances of the offender

member of offender’s household does not consent to living with the offender while the offender is serving intensive correction

someone with parental responsibility or guardianship for a person who is a member of the offender’s household does not consent to the person living with the offender while the offender is serving intensive correction

46EIntensive correction assessments—powers of assessors

(1)In preparing the intensive correction assessment for the offender, the assessor may—

(a)conduct any investigation the assessor considers appropriate; and

(b)ask any of the following to provide information:

(i)an administrative unit;

(ii)a territory authority;

(iii)a statutory office-holder;

(iv)for an assessment for an offender to be sentenced for a family violence offence—an approved crisis support organisation under the Domestic Violence Agencies Act 1986;

(v)a victim of the offence;

(vi)any other entity.

(2)If an entity mentioned in subsection (1) (b) (i), (ii) or (iii) is asked to provide information, the entity must promptly comply with the request.

(3)If an entity gives information honestly and with reasonable care in response to a request under subsection (1), the giving of the information is not—

(a)a breach of confidence, professional etiquette, ethics or a rule of professional misconduct; or

(b)a ground for a civil proceeding for defamation, malicious prosecution or conspiracy.

(4)This section does not limit any other power of the assessor to obtain information for the purpose of the intensive correction assessment.

(5)A regulation may make provision in relation to the preparation and provision of intensive correction assessments.

(6)In this section:

information includes a document.

46FIntensive correction assessments—provision to court

The intensive correction assessment may be given to the court either orally or in writing.

46GIntensive correction assessments—cross-examination

(1)The prosecutor and the defence may cross-examine the assessor on the intensive correction assessment given to the court by the assessor.

(2)In this section:

defence means—

(a)any lawyer representing the offender; or

(b)if the offender is not legally represented—the offender.

  1. Application—pt 5.2
    Section 64 (1)

    substitute

    (1)This part applies to the following:

    (a)a sentence of imprisonment imposed by a court on an offender for an offence, other than an excluded sentence of imprisonment;

    (b)full‑time detention ordered under the Crimes (Sentence Administration) Act 2005, section 65 (2) (b).

    NoteUnder the Crimes (Sentence Administration) Act 2005, s 65 (2), an offender’s intensive correction order may be cancelled, and a court may order any remaining sentence of the offender to be served by full-time detention.

  2. New division 5.4.1A heading

    before division 5.4.1, insert

Division 5.4.1A        General

  1. Application—pt 5.4
    Section 76

    relocate to division 5.4.1A

  2. Intensive correction orders—suitability
    Section 78 (1) and (2)

    substitute

    (1)The court must not make an intensive correction order for the offender unless the court has considered—

    (a)a pre-sentence report, if any, prepared for the offender in the proceeding and is satisfied, having considered possible alternatives, that only a term of imprisonment of not more than 4 years is appropriate for the offender; and

    (b)an intensive correction assessment for the offender.

    NoteThe court cannot make an intensive correction order if the court sentences the offender to a term of imprisonment of more than 4 years (see s 11).

  3. Section 78 (5)

    omit

    table 79

    substitute

    table 46D

  4. Section 78 (9)

    omit

  5. Intensive correction orders—intensive correction assessment matters
    Section 79

    omit

  6. Intensive correction order—community service— suitability
    Section 80D (1)

    substitute

    (1)The court must not include a community service condition in the intensive correction order unless an intensive correction assessment that addresses whether a community service condition is suitable for the offender is given to the court.

  7. Intensive correction orders—rehabilitation programs— suitability
    Section 80J (1) (a)

    substitute

    (a)an intensive correction assessment that addresses whether a rehabilitation program condition is suitable for the offender is given to the court; or

  8. Dictionary, note 2

    insert

    ·     Magistrates Court

    ·     Supreme Court

  9. Dictionary, definition of assessor

    substitute

    assessor—

    (a)for part 4.2 (Pre-sentence reports)—see section 39A; and

    (b)for part 4.2A (Intensive correction assessments)—see section 46A.

  10. Dictionary, new definition of intensive correction assessment

    insert

    intensive correction assessment means an assessment prepared under part 4.2A by the director-general about whether an intensive correction order is suitable for an offender.


Schedule 1Other amendments

(see s 3)

Part 1.1Crimes Act 1900

[1.1]Dictionary, definition of lawful custody

omit

Part 1.2Road Transport (General) Act 1999

[1.2]Section 61A, definition of automatic disqualification provision, new paragraph (i)

insert

(i)Road Transport (Driver Licensing) Act 1999, section 32 (6) (which is about automatic disqualification for an offence of either driving while suspended, or applying for a driver licence while suspended and omitting disclosure of the suspension).

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 20 September 2018.

  2. Notification

    Notified under the Legislation Act on 8 November 2018.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Sentencing Legislation Amendment Bill 2018, which was passed by the Legislative Assembly on 1 November 2018.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2018

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