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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes (Sentencing Procedure)
Amendment (Standard Minimum
Sentencing) Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Crimes (Sentencing Procedure) Act 1999
No 92 and other Acts 2
Schedules
1 Principal amendments to Crimes (Sentencing Procedure)
Act 1999 3
2 Amendment of Crimes Act 1900 No 40 relating to child
sexual assault 17
3 Consequential amendments 18
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Crimes (Sentencing Procedure)
Amendment (Standard Minimum
Sentencing) Bill 2002
Act No , 2002
An Act to amend the Crimes (Sentencing Procedure) Act 1999 to provide for
standard minimum sentencing and to constitute a New South Wales Sentencing
Council; to amend the Crimes Act 1900 with respect to sexual assaults on children;
and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes (Sentencing Procedure) Amendment (Standard Minimum
Sentencing) Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes (Sentencing Procedure) Amendment (Standard
Minimum Sentencing) Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92 and
other Acts
The Crimes (Sentencing Procedure) Act 1999 and other Acts specified
in Schedules 13 are amended as set out in those Schedules.
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Principal amendments to Crimes (Sentencing Procedure) Act 1999 Schedule 1
Schedule 1 Principal amendments to Crimes
(Sentencing Procedure) Act 1999
(Section 3)
[1] Section 3A
Insert after section 3:
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an
offender are as follows:
(a) to ensure that the offender is adequately punished for
the offence,
(b) to prevent crime by deterring the offender and other
persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime
and the community.
[2] Section 21A
Omit the section. Insert instead:
21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the
court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that
are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that
are relevant and known to the court,
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(c) any other objective or subjective factor that affects the
relative seriousness of the offence.
The matters referred to in this subsection are in addition to any
other matters that are required or permitted to be taken into
account by the court under any Act or rule of law.
(2) Aggravating factors
The aggravating factors to be taken into account in determining
the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services
worker, correctional officer, judicial officer, health
worker, teacher, community worker, or other public
official, exercising public or community functions and
the offence arose because of the victim's occupation,
(b) the offence involved the actual or threatened use of
violence,
(c) the offence involved the actual or threatened use of a
weapon,
(d) the offender has a record of previous convictions,
(e) the offence was committed in company,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by
the offence was substantial,
(h) the offence was motivated by hatred for or prejudice
against a group of people to which the offender
believed the victim belonged (such as people of a
particular religion, racial or ethnic origin, language,
sexual orientation or age, or having a particular
disability),
(i) the offence was committed without regard for public
safety,
(j) the offence was committed while the offender was on
conditional liberty in relation to an offence or alleged
offence,
(k) the offender abused a position of trust or authority in
relation to the victim,
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(l) the victim was vulnerable, for example, because the
victim was very young or very old or had a disability, or
because of the victim's occupation (such as a taxi
driver, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of
criminal acts,
(n) the offence was part of a planned or organised criminal
activity.
The court is not to have additional regard to any such
aggravating factor in sentencing if it is an element of the
offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining
the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by
the offence was not substantial,
(b) the offence was not part of a planned or organised
criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant
record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation,
whether by reason of the offender's age or otherwise,
(i) the offender has shown remorse for the offence by
making reparation for any injury, loss or damage or in
any other manner,
(j) the offender was not fully aware of the consequences of
his or her actions because of the offender's age or any
disability,
(k) a plea of guilty by the offender (as provided by
section 22),
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(l) the degree of pre-trial disclosure by the defence (as
provided by section 22A),
(m) assistance by the offender to law enforcement
authorities (as provided by section 23).
(4) The court is not to have regard to any such aggravating or
mitigating factor in sentencing if it would be contrary to any
Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is
relevant and known to the court does not require the court to
increase or reduce the sentence for the offence.
[3] Section 44
Omit the section. Insert instead:
44 Court to set non-parole period
(1) When sentencing an offender to imprisonment for an offence,
the court is first required to set a non-parole period for the
sentence (that is, the minimum period for which the offender
must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-
third of the non-parole period for the sentence, unless the court
decides that there are special circumstances for it being more
(in which case the court must make a record of its reasons for
that decision).
(3) The failure of a court to comply with subsection (2) does not
invalidate the sentence.
(4) Schedule 1 has effect in relation to existing life sentences
referred to in that Schedule.
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Principal amendments to Crimes (Sentencing Procedure) Act 1999 Schedule 1
[4] Part 4, Division 1A
Insert after Division 1:
Division 1A Standard non-parole periods
54A What is the standard non-parole period?
(1) For the purposes of this Division, the standard non-parole
period for an offence is the non-parole period set out opposite
the offence in the Table to this Division.
(2) For the purposes of sentencing an offender, the standard non-
parole period represents the non-parole period for an offence in
the middle of the range of objective seriousness for offences in
the Table to this Division.
54B Sentencing procedure
(1) This section applies when a court imposes a sentence of
imprisonment for an offence set out in the Table to this
Division.
(2) When determining the sentence for the offence, the court is to
set the standard non-parole period as the non-parole period for
the offence unless the court determines that there are reasons
for setting a non-parole period that is longer or shorter than the
standard non-parole period.
(3) The reasons for which the court may set a non-parole period
that is longer or shorter than the standard non-parole period are
only those referred to in section 21A.
(4) The court must make a record of its reasons for increasing or
reducing the standard non-parole period. The court must
identify in the record of its reasons each factor that it took into
account.
(5) The failure of a court to comply with this section does not
invalidate the sentence.
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Schedule 1 Principal amendments to Crimes (Sentencing Procedure) Act 1999
54C Court to give reasons if non-custodial sentence imposed
(1) If the court imposes a non-custodial sentence for an offence set
out in the Table to this Division, the court must make a record
of its reasons for doing so. The court must identify in the record
of its reasons each mitigating factor that it took into account.
(2) The failure of a court to comply with this section does not
invalidate the sentence.
(3) In this section:
non-custodial sentence means a sentence referred to in
Division 3 of Part 2 or a fine.
54D Exclusions from Division
(1) This Division does not apply to the sentencing of an offender:
(a) to imprisonment for life or for any other indeterminate
period, or
(b) to detention under the Mental Health (Criminal
Procedure) Act 1990.
(2) This Division does not apply if the offence for which the
offender is sentenced is dealt with summarily.
Table Standard non-parole periods
Item Offence Standard
No non-parole
period
1A Murder--where the victim was a police officer, 25 years
emergency services worker, correctional officer,
judicial officer, health worker, teacher, community
worker, or other public official, exercising public or
community functions and the offence arose because of
the victim's occupation
1 Murder--in other cases 20 years
2 Section 26 of the Crimes Act 1900 (conspiracy to 10 years
murder)
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Item Offence Standard
No non-parole
period
3 Sections 27, 28, 29 or 30 of the Crimes Act 1900 10 years
(attempt to murder)
4 Section 33 of the Crimes Act 1900 (wounding etc with 7 years
intent to do bodily harm or resist arrest)
5 Section 60 (2) of the Crimes Act 1900 (assault of 3 years
police officer occasioning bodily harm)
6 Section 60 (3) of the Crimes Act 1900 (wounding or 5 years
inflicting grievous bodily harm on police officer)
7 Section 61I of the Crimes Act 1900 (sexual assault) 7 years
8 Section 61J of the Crimes Act 1900 (aggravated 10 years
sexual assault)
9 Section 61JA of the Crimes Act 1900 (aggravated 15 years
sexual assault in company)
9A Section 61M (1) of the Crimes Act 1900 (aggravated 5 years
indecent assault)
9B Section 61M (2) of the Crimes Act 1900 (aggravated 5 years
indecent assault--child under 10)
10 Section 66A of the Crimes Act 1900 (sexual 15 years
intercourse--child under 10)
11 Section 98 of the Crimes Act 1900 (robbery with arms 7 years
etc and wounding)
12 Section 112 (2) of the Crimes Act 1900 (breaking etc 5 years
into any house etc and committing serious indictable
offence in circumstances of aggravation)
13 Section 112 (3) of the Crimes Act 1900 (breaking etc 7 years
into any house etc and committing serious indictable
offence in circumstances of special aggravation)
14 Section 154C (1) of the Crimes Act 1900 (car-jacking) 3 years
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Schedule 1 Principal amendments to Crimes (Sentencing Procedure) Act 1999
Item Offence Standard
No non-parole
period
15 Section 154C (2) of the Crimes Act 1900 (car-jacking 5 years
in circumstances of aggravation)
15A Section 203E of the Crimes Act 1900 (bushfires) 5 years
16 Section 24 (2) of the Drug Misuse and Trafficking 10 years
Act 1985 (manufacture or production of commercial
quantity of prohibited drug), being an offence that:
(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the
prohibited drug concerned under that Act,
involves less than the large commercial quantity
of that prohibited drug
17 Section 24 (2) of the Drug Misuse and Trafficking 15 years
Act 1985 (manufacture or production of commercial
quantity of prohibited drug), being an offence that:
(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the
prohibited drug concerned under that Act,
involves not less than the large commercial
quantity of that prohibited drug
18 Section 25 (2) of the Drug Misuse and Trafficking 10 years
Act 1985 (supplying commercial quantity of prohibited
drug), being an offence that:
(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the
prohibited drug concerned under that Act,
involves less than the large commercial quantity
of that prohibited drug
19 Section 25 (2) of the Drug Misuse and Trafficking 15 years
Act 1985 (supplying commercial quantity of
prohibited drug), being an offence that:
(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the
prohibited drug concerned under that Act,
involves not less than the large commercial
quantity of that prohibited drug
20 Section 7 of the Firearms Act 1996 (unauthorised 3 years
possession or use of firearms)
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Principal amendments to Crimes (Sentencing Procedure) Act 1999 Schedule 1
[5] Part 8B
Insert after Part 8A:
Part 8B New South Wales Sentencing Council
100I Constitution of New South Wales Sentencing Council
(1) There is constituted by this Act a New South Wales Sentencing
Council.
(2) The Sentencing Council is to consist of 10 members appointed
by the Minister, of whom:
(a) one is to be a retired judicial officer, and
(b) one is to have expertise or experience in law
enforcement, and
(c) three are to have expertise or experience in criminal law
or sentencing (of whom one is to have expertise or
experience in the area of prosecution and one is to have
expertise or experience in the area of defence), and
(d) one is to be a person who has expertise or experience in
Aboriginal justice matters, and
(e) four are to be persons representing the general
community, of whom two are to have expertise or
experience in matters associated with victims of crime.
(3) Schedule 1A has effect with respect to the members and
procedure of the Sentencing Council.
100J Functions of Sentencing Council
(1) The Sentencing Council has the following functions:
(a) to advise and consult with the Minister in relation to
offences suitable for standard non-parole periods and
their proposed length,
(b) to advise and consult with the Minister in relation to
offences suitable for guideline judgments and the
submissions to be made by the Minister on an
application for a guideline judgment,
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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(c) to monitor, and to report annually to the Minister on,
sentencing trends and practices, including the operation
of standard non-parole periods and guideline judgments,
(d) at the request of the Minister, to prepare research papers
or reports on particular subjects in connection with
sentencing.
(2) Any advice given to the Minister by the Sentencing Council
may be given either at the request of the Minister or without
any such request.
(3) The Sentencing Council has such other functions as are
conferred or imposed on it by or under this or any other Act.
(4) In the exercise of its functions, the Sentencing Council may
consult with, and may receive and consider information and
advice from, the Judicial Commission of New South Wales and
the Bureau of Crime Statistics and Research of the Attorney
General's Department (or any like agency that may replace
either of those agencies).
100K Committees of Sentencing Council
(1) The Sentencing Council may, with the approval of the Minister,
establish committees to assist it in connection with the exercise
of any of its functions.
(2) It does not matter that any or all of the members of a committee
are not members of the Sentencing Council.
(3) The procedure for the calling of meetings of a committee and
for the conduct of business at those meetings is to be as
determined by the Sentencing Council or (subject to any
determination of the Council) by the committee.
100L Staff of Sentencing Council
The Sentencing Council may, with the approval of the Minister,
arrange for the use of the services of any staff or facilities of a
government department or a public or local authority.
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Principal amendments to Crimes (Sentencing Procedure) Act 1999 Schedule 1
[6] Section 106
Insert after section 105:
106 Review of Crimes (Sentencing Procedure) Amendment
(Standard Minimum Sentencing) Act 2002
(1) In this section:
standard non-parole provisions means the provisions of
Division 1A of Part 4, as inserted by the Crimes (Sentencing
Procedure) Amendment (Standard Minimum Sentencing)
Act 2002.
(2) The Minister is to review the operation of the standard non-
parole provisions to determine the effect of those provisions.
(3) The review required by this section is to be undertaken as soon
as possible after the period of 2 years from the commencement
of the standard non-parole provisions.
(4) A report on the outcome of the review required by this section
is to be tabled in each House of Parliament within 12 months
after the end of the period of 2 years.
[7] Schedule 1A
Insert after Schedule 1:
Schedule 1A Provisions relating to membership and
procedure of New South Wales
Sentencing Council
(Section 100I)
1 Definition
In this Schedule:
member means any member of the Sentencing Council.
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Schedule 1 Principal amendments to Crimes (Sentencing Procedure) Act 1999
2 Chairperson and Deputy Chairperson
(1) The member appointed under section 100I (2) (a) is to be the
Chairperson of the Sentencing Council.
(2) The Minister may, from time to time, appoint another member
of the Sentencing Council as the Deputy Chairperson of the
Council.
3 Terms of office of members
Subject to this Schedule, a member holds office for such period
(not exceeding 3 years) as may be specified in the member's
instrument of appointment but is eligible (if otherwise
qualified) for re-appointment.
4 Remuneration
A member (other than a member who is employed in the public
sector) is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the Minister may
from time to time determine in respect of the member.
5 Deputies of members
(1) The Minister may, from time to time, appoint a person to be the
deputy of a member, and the Minister may revoke any such
appointment.
(2) In the absence of a member, the member's deputy may, if
available, act in the place of the member.
(3) For the purposes of this clause, a vacancy in the office of a
member is taken to be an absence of the member.
6 Vacancy in office of member
(1) The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to
the Minister, or
(d) is removed from office by the Minister under this
clause, or
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Principal amendments to Crimes (Sentencing Procedure) Act 1999 Schedule 1
(e) is absent from 4 consecutive meetings of the Sentencing
Council of which reasonable notice has been given to
the member personally or by post, except on leave
granted by the Minister or unless the member is excused
by the Minister for having been absent from those
meetings, or
(f) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an
assignment of his or her remuneration for their benefit,
or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or
is convicted elsewhere than in New South Wales of an
offence that, if committed in New South Wales, would
be an offence so punishable.
(2) The Minister may at any time remove a member from office.
7 Filling of vacancy in office of member
If the office of any member becomes vacant, a person is,
subject to this Act, to be appointed to fill the vacancy.
8 Effect of certain other Acts
(1) Chapter 2 of the Public Sector Employment and Management
Act 2002 does not apply to or in respect of the appointment of
a member.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office
to devote the whole of his or her time to the duties of
that office, or
(b) prohibiting the person from engaging in employment
outside the duties of that office,
the provision does not operate to disqualify the person from
holding that office and also the office of a member or from
accepting and retaining any remuneration payable to the person
under this Act as a member.
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9 General procedure
The procedure for the calling of meetings of the Sentencing
Council and for the conduct of business at those meetings is,
subject to this Act and the regulations, to be as determined by
the Sentencing Council.
10 Quorum
The quorum for a meeting of the Sentencing Council is 6
members.
11 Presiding member
(1) The Chairperson (or, in the absence of the Chairperson, the
Deputy Chairperson, or, in the absence of both, a member
elected to chair the meeting by the members present) is to
preside at a meeting of the Sentencing Council.
(2) The presiding member has a deliberative vote and, in the event
of an equality of votes, has a second or casting vote.
12 Voting
A decision supported by a majority of the votes cast at a
meeting of the Sentencing Council at which a quorum is
present is the decision of the Sentencing Council.
13 First meeting
The Minister may call the first meeting of the Sentencing
Council in such manner as the Minister thinks fit.
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Amendment of Crimes Act 1900 No 40 relating to child sexual assault Schedule 2
Schedule 2 Amendment of Crimes Act 1900 No 40
relating to child sexual assault
(Section 3)
[1] Section 66A Sexual intercourse--child under 10
Omit "imprisonment for 20 years" from the section.
Insert instead "imprisonment for 25 years".
[2] Section 66B Attempting, or assaulting with intent, to have sexual
intercourse with child under 10
Omit "imprisonment for 20 years" from the section.
Insert instead "imprisonment for 25 years".
[3] Sections 78H and 78I
Omit the sections.
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Schedule 3 Consequential amendments
Schedule 3 Consequential amendments
(Section 3)
3.1 Children (Criminal Proceedings) Act 1987 No 55
[1] Section 33 Penalties
Insert "the non-parole period and the balance of" after "the extent to which
it deals with setting" in section 33 (1B).
[2] Section 41A Provisions applicable where control order suspended
subject to good behaviour bond
Insert "the non-parole period and the balance of" after "in relation to
setting" in section 41A (3) (b).
[3] Schedule 2 Savings and transitional provisions
Insert after clause 11:
Part 9 Provisions consequent on enactment of
Crimes (Sentencing Procedure) Amendment
(Standard Minimum Sentencing) Act 2002
12 Offences to which amending Act applies
(1) The amendments made to this Act by the Crimes (Sentencing
Procedure) Amendment (Standard Minimum Sentencing)
Act 2002 do not apply to offences committed before the
commencement of the amendments.
(2) Part 7 of Schedule 2 to the Crimes (Sentencing Procedure)
Act 1999 also has effect for the purposes of the application of
the Crimes (Sentencing Procedure) Act 1999 to offences dealt
with under Division 4 of Part 3 of this Act.
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Consequential amendments Schedule 3
3.2 Crimes (Sentencing Procedure) Act 1999 No 92
[1] Section 3 Interpretation
Omit "section 44 (1) (b)" from the definition of non-parole period in
section 3 (1).
Insert instead "section 44 (1)".
[2] Section 3 (1)
Insert in alphabetical order:
Sentencing Council means the New South Wales Sentencing
Council constituted under Part 8B.
[3] Section 12 Suspended sentences
Insert "the non-parole period and the balance of" after "the extent to which
it deals with setting" in section 12 (3).
[4] Section 12 (4)
Omit "In that case, any non-parole period set for the sentence ceases to have
effect when the order under this section is made.".
[5] Section 45 Court may decline to set non-parole period
Insert "(other than an offence set out in the Table to Division 1A of this
Part)" after "imprisonment for an offence" in section 45 (1).
[6] Section 99 Consequences of revocation of good behaviour bond
Insert "the non-parole period and the balance of" after "in relation to
setting" in section 99 (1) (c) (ii).
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Schedule 3 Consequential amendments
[7] Section 101A
Insert after section 101:
101A Effect of failure to comply with Act
A failure to comply with a provision of this Act may be
considered by an appeal court in any appeal against sentence
even if this Act declares that the failure to comply does not
invalidate the sentence.
[8] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Crimes (Sentencing Procedure) Amendment (Standard
Minimum Sentencing) Act 2002
[9] Schedule 2, Part 7
Insert after Part 6:
Part 7 Provisions consequent on enactment of
Crimes (Sentencing Procedure) Amendment
(Standard Minimum Sentencing) Act 2002
45 Offences to which amending Act applies
(1) Except as provided by subclause (2), the amendments made to
this Act by the Crimes (Sentencing Procedure) Amendment
(Standard Minimum Sentencing) Act 2002 do not apply to
offences committed before the commencement of the
amendments.
(2) Sections 3A and 21A of this Act, as inserted by the Crimes
(Sentencing Procedure) Amendment (Standard Minimum
Sentencing) Act 2002, apply to the determination of a sentence
for an offence whenever committed, unless:
(a) a court has convicted the person being sentenced of the
offence, or
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Crimes (Sentencing Procedure) Amendment (Standard Minimum
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Consequential amendments Schedule 3
(b) a court has accepted a plea of guilty to the offence and
the plea has not been withdrawn,
before the commencement of the section concerned.
(3) Section 21A of this Act, as in force immediately before its
repeal by the Crimes (Sentencing Procedure) Amendment
(Standard Minimum Sentencing) Act 2002, continues to apply
as if it had not been repealed to the determination of a sentence
for an offence in respect of which:
(a) a court has convicted the person being sentenced of the
offence, or
(b) a court has accepted a plea of guilty to the offence and
the plea has not been withdrawn,
before that repeal.
(4) In this clause:
convict includes make a finding of guilt.
46 Application of existing guideline judgments
A guideline judgment made before the commencement of any
amendment to this Act made by the Crimes (Sentencing
Procedure) Amendment (Standard Minimum Sentencing)
Act 2002 continues to have effect, except to the extent to which
it is inconsistent with this Act, as so amended.
Page 21
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