CRIMES LEGISLATION AMENDMENT (POWERS, OFFENCES AND OTHER MEASURES) ACT 2015 (NO. 153, 2015) - SCHEDULE 7 Sentencing and parole
CRIMES LEGISLATION AMENDMENT (POWERS, OFFENCES AND OTHER MEASURES) ACT 2015 (NO. 153, 2015) - SCHEDULE 7
Sentencing and parole1 After paragraph 16A(2)(j)
Insert:
(ja) the deterrent effect that any sentence or order under consideration may have on other persons;
2 Application of amendments
The amendment made by this Part applies in relation to determining, on or after the commencement of this item, a sentence to be passed, or an order to be made, in respect of a person, whether the person is convicted before, at or after that commencement.
Part 2 -- Cooperation with law enforcement agencies
Commonwealth Places (Application of Laws) Act 1970
3 Clause 1 of the Schedule
Omit "sections 20C, 21B and 21E", substitute "sections 20C and 21B".
4 Subsection 3(1)
Insert:
"confiscation proceedings " has a meaning affected by subsection 16AC(5).
5 After section 16AB
Insert:
16AC Reduction for cooperation with law enforcement agencies
(1) This section applies if a court imposing a sentence, or making an order, for a federal offence:
(a) reduces the severity of the sentence or order; or
(b) reduces the non-parole period in relation to the sentence (if applicable);
because the offender has undertaken to cooperate with law enforcement agencies in proceedings (including confiscation proceedings) relating to any offence.
(2) The court must:
(a) state that the sentence, order or non-parole period is being reduced for that reason; and
(b) specify the sentence that would have been imposed, the order that would have been made or the non-parole period that would have been fixed but for that reduction.
Example: The court imposes a fine of $1,000 and specifies that, but for the offender undertaking to cooperate with law enforcement agencies, the court would have imposed a fine of $10,000.
Promised cooperation refused
(3) The Director of Public Prosecutions may appeal against the inadequacy of the reduced sentence, reduced order or reduced non-parole period if:
(a) after the imposing of the sentence or the making of the order, the offender, without reasonable excuse, does not cooperate in accordance with the undertaking; and
(b) the Director of Public Prosecutions is of the opinion that appealing is in the interests of the administration of justice.
(4) The court hearing the appeal:
(a) if it is satisfied that the person has failed entirely to cooperate in accordance with the undertaking--must substitute for the reduced sentence, reduced order or reduced non-parole period the sentence, order or non-parole period that would have been imposed, made or fixed but for that reduction; and
(b) if it is satisfied that the person has failed in part to cooperate in accordance with the undertaking--may substitute:
(i) for the reduced sentence or reduced order such a sentence or order, not exceeding in severity the sentence or order that could be imposed or made under paragraph (a), as the court thinks appropriate; or
(ii) for the reduced non-parole period such a non-parole period, not exceeding the parole period that could be fixed under paragraph (a), as the court thinks appropriate.
Meaning of confiscation proceedings
(5) In this Act:
"confiscation proceedings " includes:
(a) proceedings for freezing orders, forfeiture orders, pecuniary penalty orders, literary proceeds orders and restraining orders under the Proceeds of Crime Act 2002 ; and
(b) proceedings for forfeiture orders, pecuniary penalty orders and restraining orders under the Proceeds of Crime Act 1987 ; and
(c) proceedings for restraining orders and pecuniary penalty orders under Part XIII of the Customs Act 1901 .
6 After subsection 19AP(4)
Insert:
(4A) Without limiting the matters to which the Attorney-General may have regard for the purposes of subsection (4), the Attorney-General may have regard to:
(a) any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or
(b) any extensive cooperation by the person with law enforcement agencies after sentencing; or
(c) any serious medical condition the person has that cannot adequately be treated or managed within the prison system.
7 Section 21E
Repeal the section.
Part 3 -- Remissions and reductions of sentences
8 Subsection 19AA(1)
Repeal the subsection, substitute:
(1) A law of a State or Territory that provides for the remission or reduction of State or Territory sentences applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory.
(1A) However, the law does not remit or reduce the non-parole period or pre-release period in respect of the federal sentence (except as provided for by subsection (4)).
9 Application of amendments
The amendment made by this Part applies in relation to a federal sentence imposed on or after the commencement of this item.
Part 4 -- Non-parole periods and recognizance release orders
10 Section 19AB
Repeal the section, substitute:
19AB When court must fix non-parole period
(1) Subject to subsection (3), a court must fix a single non-parole period in respect of a federal sentence or federal sentences if:
(a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b) the court imposes the sentence or sentences on the person; and
(c) either or both of the following subparagraphs apply:
(i) any of the sentences is a federal life sentence;
(ii) the sentences, in the aggregate, exceed 3 years; and
(d) when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence.
(2) Subject to subsection (3), a court must fix a single non-parole period in respect of all federal sentences a person is to serve or complete if:
(a) while the person is in prison and is serving or subject to a federal sentence, the court imposes a further federal sentence on the person; and
(b) the result is that the person is to serve or to complete:
(i) a federal life sentence; or
(ii) federal sentences the unserved portions of which, in the aggregate, exceed 3 years; and
(c) when the court imposes the further federal sentence, the person is not already subject to a non-parole period or recognizance release order in respect of a federal sentence.
Non-parole period not appropriate
(3) A court may decline to fix a non-parole period under this section if:
(a) the court is satisfied that a non-parole period is not appropriate, having regard to:
(i) the nature and circumstances of the offence or offences; and
(ii) the antecedents of the person; or
(b) the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.
(4) If the court declines to fix a non-parole period, the court must:
(a) state its reasons for so declining; and
(b) cause the reasons to be entered in the records of the court.
11 Subsections 19AC(1) and (2)
After "must make a", insert "single".
12 Subsections 19AC(4) and (5)
Repeal the subsections, substitute:
(4) A court may decline to make a recognizance release order in respect of a person if:
(a) the court is satisfied that such an order is not appropriate, having regard to:
(i) the nature and circumstances of the offence or offences concerned; and
(ii) the antecedents of the person; or
(b) the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.
(5) If the court declines to make a recognizance release order, the court must:
(a) state its reasons for so declining; and
(b) cause the reasons to be entered in the records of the court.
13 Subsection 19AG(5) (paragraph (a) of the note)
Repeal the paragraph.
14 Subsection 19AG(5) (after paragraph (c) of the note)
Insert:
(ca) making a recognizance release order under paragraph 19AE(2)(e) or 19AR(2)(e); or
15 Subsection 20(6)
Omit "19AB,".
16 Application of amendments
The amendments made by this Part apply in relation to a federal sentence imposed on or after the commencement of this item.
Part 5 -- Rectification of errors in sentences, non-parole periods and recognizance release orders
17 After section 19AH
Insert:
19AHA Rectification of errors etc. in sentences, non-parole periods and recognizance release orders
(1) This section applies if a sentencing order made by a court under this Part in relation to a person:
(a) reflects an error of a technical nature made by the court; or
(b) has a defect of form; or
(c) contains an ambiguity.
Note: For paragraph (a), the following are examples of errors of a technical nature: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter.
(2) An error, defect or ambiguity mentioned in subsection (1) does not affect the validity of any sentence imposed on the person.
(3) The court may, on its own initiative, at any time, by order, amend the sentencing order to rectify the error, defect or ambiguity.
(4) The court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, amend the sentencing order to rectify the error, defect or ambiguity.
(5) The court may amend the sentencing order whether or not the court is constituted in the way in which it was constituted when the person was sentenced.
(6) An amendment of a sentencing order under this section does not affect any right of appeal against a sentence.
(7) Unless the court orders otherwise, an amendment of a sentencing order under this section is taken to have had effect from the date of effect of the sentencing order.
(8) In this section:
"sentencing order " means any of the following:
(a) an order imposing, or purporting to impose, a sentence;
(b) an order fixing a non-parole period;
(c) a recognizance release order.
18 Application of amendments
The amendment made by this Part applies to a sentencing order made before, on or after the commencement of this item.
19 Before section 19AL
Insert:
Subdivision A -- Release on parole or licence
The purposes of parole are the following:
(a) the protection of the community;
(b) the rehabilitation of the offender;
(c) the reintegration of the offender into the community.
20 After section 19AL
Insert:
19ALA Matters that may be considered in decisions about parole orders
(1) In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision:
(a) the risk to the community of releasing the person on parole;
(b) the person's conduct while serving his or her sentence;
(c) whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;
(d) the likely effect on the victim, or victim's family, of releasing the person on parole;
(e) the nature and circumstances of the offence to which the person's sentence relates;
(f) any comments made by the sentencing court;
(g) the person's criminal history;
(h) any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;
(i) the behaviour of the person when subject to any previous parole order or licence;
(j) the likelihood that the person will comply with the conditions of the parole order;
(k) whether releasing the person on parole is likely to assist the person to adjust to lawful community life;
(l) whether the length of the parole period is sufficient to achieve the purposes of parole;
(m) any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.
(2) Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL.
21 Before section 19AQ
Insert:
19APB Effect of parole order and licence on sentence
(1) If a parole order is made, or a licence is granted, in relation to a person:
(a) the person is taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period, until:
(i) the parole period or licence period ends without the parole order or licence being revoked; or
(ii) the person is otherwise discharged from imprisonment; and
(b) the person is taken:
(i) to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period; and
(ii) to have been discharged from imprisonment;
if the parole period or licence period ends without the parole order or licence being revoked.
(2) Subsection (1) has effect as if the parole period or the licence period had not ended without the parole order or the licence being revoked, if the parole order or licence is, under subsection 19AQ(2) or (4), taken to have been revoked as from the time just before the end of the parole period or licence period.
Subdivision B -- Revocation of parole order or license
22 Section 19AZC
Repeal the section.
23 Before section 19AZD
Insert:
Subdivision C -- State and Territory laws providing for leave of absence, pre-release etc.
24 Before section 19B
Insert:
Subdivision D -- Discharge without conviction, conditional release and sentencing alternatives
25 Application of amendments
The amendments made by this Part apply to a decision under section 19AL made on or after the commencement of this item.
Part 7 -- Effect of State and Territory sentences on making of parole orders
26 Subsection 19AL(1) (notes 1, 2 and 3)
Repeal the notes, substitute:
Note: See subsection (5) if the person is subject to a State or Territory sentence.
27 At the end of paragraph 19AL(2)(b)
Add:
Note: See subsection (5) if the person is subject to a State or Territory sentence.
28 At the end of subsection 19AL(3)
Add:
Note 1: For when a person is released on parole in accordance with a parole order, see section 19AM.
Note 2: A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AMA, 19AN and 19AU).
29 Subsection 19AL(4)
Repeal the subsection, substitute:
Person subject to State or Territory sentence
(4) Subsections (5) and (6) apply if the person is subject to a State or Territory sentence.
(5) The Attorney-General is not required to make, or to refuse to make, a parole order under subsection (1) or paragraph (2)(b) if:
(a) the State or Territory sentence is a life sentence for which a non-parole period has not been fixed; or
(b) the State or Territory sentence ends after the end of the last of the federal sentences to end; or
(c) the non-parole period for the State or Territory sentence ends after the end of the federal non-parole period; or
(d) the State or Territory sentence ends after the end of the federal non-parole period.
(6) However, the Attorney-General must either make, or refuse to make, a parole order before:
(a) if paragraph (5)(c) applies (and paragraphs (5)(a) and (b) do not)--the end of the non-parole period for the State or Territory sentence; or
(b) if paragraph (5)(d) applies (and paragraphs (5)(a), (b) and (c) do not)--the person's expected release from prison for the State or Territory offence.
Note: The effect of subsections (4) to (6) and subsection 19AM(2) is that a parole order may sometimes still be made for a person while the person is serving a State or Territory sentence, but the person will not be released in accordance with the parole order until the person is released from prison for the State or Territory sentence.
30 Application of amendments
The amendments made by this Part apply in relation to a federal sentence if the non-parole period for the sentence ends on or after the commencement of this item, whether the sentence was passed before, on or after that commencement.
31 Savings provision
(1) A parole order:
(a) made under section 19AL of the Crimes Act 1914 ; and
(b) in force just before the commencement of this item;
has effect, from that commencement, as if it had been made under that section as amended by this Part.
(2) A decision:
(a) made by the Attorney-General under section 19AL of the Crimes Act 1914 before the commencement of this item; and
(b) not revoked before that commencement;
has effect, from that commencement, as if it had been made under that section as amended by this Part.
Part 8 -- Early release on parole
32 After subsection 19AL(3)
Insert:
(3A) If the Attorney-General considers that in all the circumstances it is appropriate to do so, the Attorney-General may specify in a parole order that a person is to be released from prison on a day that is before the end of the non-parole period, but is not earlier than 30 days before the end of the non-parole period .
33 Subparagraph 19AM(1)(a)(ii)
Omit "for the purposes of this subparagraph (not being earlier than 30 days before the end of the non-parole period)", substitute "under subsection 19AL(3A)".
34 Application of amendments
The amendments made by this Part apply to a parole order made on or after the commencement of this item.
Part 9 -- Amendments of parole orders and licences
35 Subsection 19AN(1)
Omit "(1) A parole order under section 19AL:", substitute "A parole order:".
36 Subsections 19AN(2) and (3)
Repeal the subsections.
37 Subsections 19AP(8) and (9)
Repeal the subsections.
38 After section 19AP
Insert:
19APA Amendment of parole orders and licences
Amendment of conditions
(1) The Attorney-General may, at any time before the end of:
(a) a parole period for a person for whom a parole order has been made; or
(b) a licence period for a person who is released on licence for a federal sentence;
by order in writing, amend the parole order or licence by doing any or all of the following:
(c) imposing additional conditions on the parole order or licence;
(d) varying or revoking a condition of the parole order or licence specified under paragraph 19AN(1)(c) or 19AP(7)(c) or imposed under paragraph (a);
(e) if the supervision period has not ended--changing the day on which the supervision period ends.
Amendments to rectify errors etc.
(2) If a parole order or licence:
(a) contains an error of a technical nature; or
(b) has a defect of form; or
(c) contains an ambiguity;
the Attorney-General may, at any time, by order in writing, amend the parole order or licence to rectify the error, defect or ambiguity.
Note: For paragraph (a), the following are examples of errors of a technical nature: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter.
When amendments take effect
(3) An amendment of a parole order or licence under subsection (1) takes effect when notice in writing of the amendment is given to the offender.
(4) An amendment of a parole order or licence under subsection (2) is taken to have had effect from the date of effect of the parole order or licence.
39 Application of amendments
The amendments made by this Part apply to a parole order or licence made or granted before, on or after the commencement of this item.
Part 10 -- Conditional release
40 Subparagraph 20(1)(a)(iii)
Omit "and".
41 Subparagraph 20(1)(a)(iv)
Omit ", which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed".
42 At the end of paragraph 20(1)(a)
Add:
Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.
43 After subsection 20(1)
Insert:
(1A) If the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period:
(a) be subject to the supervision of a probation officer appointed in accordance with the order; and
(b) obey all reasonable directions of the probation officer;
the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer.
Part 11 -- Alternative sentencing options
44 Subsection 3(1)
Insert:
"participating State " has the meaning given by subsection 3B(2).
"participating Territory " has the meaning given by subsection 3B(2).
45 Subsection 3B(2)
Omit "section 20AB", substitute "this Act".
46 Subsection 20AB(1)
Repeal the subsection, substitute:
(1) A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:
(a) subsection (1AA) applies to the sentence or order; and
(b) under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and
(c) the first-mentioned court is:
(i) empowered as mentioned in paragraph (b); or
(ii) a federal court.
(1AA) This subsection applies to a sentence or order that is:
(a) known as any of the following:
(i) an attendance centre order or attendance order;
(ii) a community based order;
(iii) a community correction order;
(iv) a community custody order;
(v) a community service order;
(vi) a community work order;
(vii) a drug or alcohol treatment order or rehabilitation order;
(viii) a good behaviour order;
(ix) an intensive correction order;
(x) an intensive supervision order;
(xi) a sentence of periodic detention or a periodic detention order;
(xii) a sentence of weekend detention or a weekend detention order;
(xiii) a work order; or
(b) similar to a sentence or order to which paragraph (a) applies; or
(c) prescribed for the purposes of this subsection.
47 Subsection 20AB(1A)
Omit "subsection (1)", substitute "paragraph (1)(b)".
48 Application of amendments
The amendments made by this Part apply in relation to determining, on or after the commencement of this item, a sentence to be passed, or an order to be made, in respect of a person, whether the person is convicted before, at or after that commencement.
49 Savings provision--regulation
A regulation:
(a) made for the purposes of section 20AB of the Crimes Act 1914 ; and
(b) in force just before the commencement of this item;
has effect, from that commencement, as if it had been made for the purposes of subsection 20AB(1AA) of that Act, as amended by this Part.