Statutes Amendment (Sentencing) Act 2017 (SA)

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South Australia

Statutes Amendment (Sentencing) Act 2017

An Act to amend various Acts to update obsolete references to the Criminal Law (Sentencing) Act 1988; and for various other purposes consequential on, or related to, the enactment of the Sentencing Act 2017.

The Parliament of South Australia enacts as follows:

Part 1Preliminary1Short title

This Act may be cited as the Statutes Amendment (Sentencing) Act 2017.

2Commencement
  1. (1)

    This Act will come into operation on a day to be fixed by proclamation.

  2. (2)

    Section 7(5) of the Acts Interpretation Act 1915 does not apply to this Act or a provision of this Act.

3Amendment provisions
  1. (1)

    In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

  2. (2)

    If an Act sought to be amended by this Act is, before the commencement of the relevant Part, amended in a manner that renders an amendment contained in that Part ineffective, that amendment will be taken to have been struck out from that Part.

Part 2Amendment of Bail Act 1985
4Amendment of section 10A – Presumption against bail in certain cases

Section 10A(2), definition of prescribed applicant, (e)—delete "Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988" and substitute:

Part 3 Division 3 of the Sentencing Act 2017

Part 3Amendment of Births, Deaths and Marriages Registration Act 19965Amendment of section 29B – Interpretation

Section 29B, definition of restricted person, (d)—delete "section 24 of the Criminal Law (Sentencing) Act 1988" and substitute:

the Sentencing Act 2017

Part 4Amendment of Child Sex Offenders Registration Act 20066Amendment of section 4 – Interpretation
  1. (1)

    Section 4(1), definition of good behaviour bond—delete "Part 5 of the Criminal Law (Sentencing) Act 1988" and substitute:

    the Sentencing Act 2017

  2. (2)

    Section 4(5)—delete "section 19A of the Criminal Law (Sentencing) Act 1988" and substitute:

    the Sentencing Act 2017

7Amendment of Schedule 1 – Class 1 and 2 offences
  1. (1)

    Schedule 1, clause 2(k)—delete "section 20B(1)(b) of the Criminal Law (Sentencing) Act 1988" and substitute:

    section 53(1)(c) of the Sentencing Act 2017

  2. (2)

    Schedule 1, clause 2(l)—delete "section 23 of the Criminal Law (Sentencing) Act 1988" and substitute:

    section 57 of the Sentencing Act 2017

Part 5Amendment of Community Based Sentences (Interstate Transfer) Act 20158Amendment of section 3 – Interpretation

Section 3, definition of community based sentence, (a) to (c)—delete paragraphs (a) to (c) (inclusive) and substitute:

  1. (a)

    any of the following sentences imposed under the Sentencing Act 2017:

    1. (i)

      a sentence to be served in the community while subject to intensive correction;

    2. (ii)

      a sentence of community service;

    3. (iii)

      a sentence of imprisonment suspended on entering into a bond under the Act;

    4. (iv)

      a bond to be of good behaviour; or

Part 6Amendment of Correctional Services Act 19829Amendment of section 4 – Interpretation

Section 4(1), definition of home detention order—delete "Part 3 Division 3A of the Criminal Law (Sentencing) Act 1988" and substitute:

the Sentencing Act 2017

10Amendment of section 37CA – Home detention officers

Section 37CA(1)—delete "Part 3 Division 3A of the Criminal Law (Sentencing) Act 1988" and substitute:

the Sentencing Act 2017

11Amendment of section 38 – Release of prisoner from prison or home detention

Section 38(4), definition of pecuniary sum—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

12Amendment of section 66 – Automatic release on parole for certain prisoners

Section 66(2)(aca)—delete "Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988" and substitute:

Part 3 Division 3 of the Sentencing Act 2017

Part 7Amendment of Criminal Assets Confiscation Act 2005
13Amendment of section 224 – Effect of confiscation scheme on sentencing

Section 224—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 8Amendment of Criminal Law Consolidation Act 193514Amendment of section 83GF – Sentencing

Section 83GF(1)(c) and (d)—delete paragraphs (c) and (d) and substitute:

  1. (c)

    section 25 of the Sentencing Act 2017 does not apply;

  2. (d)

    section 26 of the Sentencing Act 2017 does not apply (but nothing in this subsection affects the operation of that section in respect of other offences for which the person is being sentenced).

15Amendment of section 83K – Enforcement of order for compensation etc
  1. (1)

    Section 83K(a)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

    Sentencing Act 2017

  2. (2)

    Section 83K(b)—delete "section 53" and substitute:

    section 124

16Amendment of section 269R – Reports and statements to be provided to court
  1. (1)

    Section 269R(3)—delete "section 7A of the Criminal Law (Sentencing) Act 1988" and substitute:

    section 14 of the Sentencing Act 2017

  2. (2)

    Section 269R(4)—delete "section 7A(3b) and (3c) of the Criminal Law (Sentencing) Act 1988" and substitute:

    section 14(4) and (5) of the Sentencing Act 2017

  3. (3)

    Section 269R(5)—delete "section 7B of the Criminal Law (Sentencing) Act 1988" and substitute:

    section 15 of the Sentencing Act 2017

  4. (4)

    Section 269R(6), definition of prescribed summary offence—delete "section 7A of the Criminal Law (Sentencing) Act 1988" and substitute:

    section 14 of the Sentencing Act 2017

Part 9Amendment of Criminal Law (High Risk Offenders) Act 201517Amendment of section 4 – Interpretation

Section 4, definition of serious sexual offence—delete the definition and substitute:

serious sexual offence means any of the following offences where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:

  1. (a)

    —

    1. (i)

      an offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935;

    2. (ii)

      an offence against a corresponding previous enactment substantially similar to an offence referred to in subparagraph (i);

    3. (iii)

      an attempt to commit or an assault with intent to commit any of the offences referred to in either of the preceding subparagraphs;

  2. (b)

    an offence against the law of another State or a Territory corresponding to an offence referred to in paragraph (a);

Part 10Amendment of District Court Act 1991
18Amendment of section 54 – Accessibility to Court records

Section 54(2)(fa)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 11Amendment of Environment, Resources and Development Court Act 199319Insertion of sections 28D and 28E

After section 28C insert:

28D—Sentencing conferences

  1. (1)

    Before sentencing a defendant in criminal proceedings, the Court may, if the defendant expresses contrition for the offence and consents to the convening of a sentencing conference, convene a sentencing conference.

  2. (2)

    A sentencing conference is to comprise—

    1. (a)

      the defendant; and

    2. (b)

      the defendant's legal representative (if any); and

    3. (c)

      the prosecutor; and

    4. (d)

      such representatives of persons affected by the commission of the offence as the Court thinks appropriate; and

    5. (e)

      such other persons as the Court thinks may contribute usefully to the sentencing process.

  3. (3)

    The primary purpose of a sentencing conference is to negotiate action that the defendant is to take to make reparation for any injury, loss or damage resulting from the offence, or to otherwise show contrition for the offence.

28E—Deferral of sentence following sentencing conference

  1. (1)

    The Court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date for the purpose of allowing the defendant to take action as agreed at a sentencing conference convened by the Court.

  2. (2)

    As a general rule, proceedings should not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 3 months from the date of the agreement reached at the sentencing conference.

  3. (3)

    This section does not limit any power that the Court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.

20Amendment of section 47 – Accessibility of evidence

Section 47(2)(c)—delete "furnished under section 7 of the Criminal Law (Sentencing) Act 1988" and substitute:

provided under section 13 of the Sentencing Act 2017

Part 12Amendment of Firearms Act 2015
21Amendment of section 57 – Power to inspect or seize firearms etc
  1. (1)

    Section 57(5)(c)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

    Sentencing Act 2017

  2. (2)

    Section 57(5)(d)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

    Sentencing Act 2017

Part 13Amendment of Intervention Orders (Prevention of Abuse) Act 2009
22Amendment of section 31 – Contravention of intervention order

Section 31(4)—delete "Section 10(5) of the Criminal Law (Sentencing) Act 1988" and substitute:

Section 11(7) of the Sentencing Act 2017

Part 14Amendment of Magistrates Court Act 199123Amendment of section 9 – Criminal jurisdiction
  1. (1)

    Section 9—delete "Summary Procedure Act 1921" and substitute:

    Criminal Procedure Act 1921

  2. (2)

    Section 9—after its present contents as amended by this section (now to be designated as subsection (1)) insert:

    1. (2)

      The Court does not, unless it is constituted of a Magistrate, have the power to impose a sentence of imprisonment.

    2. (3)

      If the Court, constituted otherwise than by a Magistrate, is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the defendant to appear for sentence before the Court constituted of a Magistrate.

    3. (4)

      The Court does not have the power to impose—

      1. (a)

        a sentence of imprisonment that exceeds—

        1. (i)

          if the penalty is for 1 offence—5 years; and

        2. (ii)

          if the penalty is for more than 1 offence—10 years; or

      2. (b)

        a fine that exceeds—

        1. (i)

          in the case of an offence under the Work Health and Safety Act 2012 being heard by an industrial magistrate—$300 000; or

        2. (ii)

          in any other case—$150 000.

    4. (5)

      The limits imposed by subsection (4)(b) apply regardless of whether the relevant offence was committed before or after the commencement of that paragraph.

    5. (6)

      Subsection (4) applies whether the offence to which the sentence relates is a summary offence or an indictable offence.

    6. (7)

      If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the Court may remand the defendant to appear for sentence before a superior court.

24Amendment of section 51 – Accessibility to Court records

Section 51(2)(fa)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 15Amendment of Parliamentary Committees Act 1991
25Amendment of section 15O – Functions of Committee
  1. (1)

    Section 15O(1)(b)(iii)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

    Sentencing Act 2017

  2. (2)

    Section 15O(1)(b)(iii)—delete "Summary Procedure Act 1921" and substitute:

    Criminal Procedure Act 1921

Part 16Amendment of Prisoners (Interstate Transfer) Act 1982
26Amendment of section 28 – Ancillary provisions relating to translated sentences

Section 28(4)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 17Amendment of Road Traffic Act 196127Amendment of 44B – Misuse of motor vehicle

Section 44B(6)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 18Amendment of Shop Theft (Alternative Enforcement) Act 200028Amendment of section 3 – Interpretation

Section 3(1), definition of community corrections officer—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

29Amendment of Schedule 3 – Provisions relating to community service

Schedule 3, clause 1, definitions of Chief Executive and Minister—delete the definitions and substitute:

Chief Executive means the CE within the meaning of the Sentencing Act 2017;

Minister means the Minister performing functions under Part 4 of the Sentencing Act 2017.

Part 19Amendment of Spent Convictions Act 200930Amendment of section 3 – Preliminary

Section 3(3)(c)—delete "section 23 of the Criminal Law (Sentencing) Act 1988" and substitute:

section 57 of the Sentencing Act 2017

Part 20Amendment of Summary Offences Act 1953
31Amendment of section 17AA – Misuse of a motor vehicle on private land

Section 17AA(5)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 21Amendment of Supreme Court Act 1935
32Amendment of section 131 – Accessibility to court records

Section 131(2)(fa)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 22Amendment of Victims of Crime Act 2001
33Amendment of section 10 – Victim entitled to have impact of offence considered by sentencing court and to make submissions on parole

Section 10, Note 1—delete Note 1 and substitute:

  1. 1

    The Sentencing Act 2017 provides a mechanism for exercising this right. See also that, under that Act, the prosecutor is obliged to place before the sentencing court details of injury, loss or damage resulting from the offence.

34Amendment of section 32 – Imposition of levy

Section 32(7)(c)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

35Amendment of section 32A – Victim may exercise rights through an appropriate representative

Section 32A(1), Note—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

Part 23Amendment of Young Offenders Act 199336Amendment of section 4 – Interpretation
  1. (1)

    Section 4(1), definition of recidivist young offender—delete "Part 2 Division 2A of the Criminal Law (Sentencing) Act 1988" and substitute:

    Part 3 Division 4 of the Sentencing Act 2017

  2. (2)

    Section 4(1), definition of serious firearm offender—delete "section 20AAB of the Criminal Law (Sentencing) Act 1988" and substitute:

    Part 3 Division 3 of the Sentencing Act 2017

37Amendment of section 22 – Power to sentence

Section 22(2)—delete "Criminal Law (Sentencing) Act 1988" and substitute:

Sentencing Act 2017

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