Crimes (Interstate Transfer of
Community Based Sentences)
Bill 2004

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to establish a scheme for the formal transfer and
enforcement of community based sentences between Australian jurisdictions.

Under the scheme, an offender with a community based sentence in New South
Wales will be able to transfer the supervision and administration of the sentence
to a new jurisdiction on a voluntary basis, provided the requirements of the
proposed Act are satisfied. The offender will then be managed in the new
jurisdiction as if a court of the new jurisdiction had imposed the sentence, except
for purposes of appeal or review, which remains the responsibility of the
originating jurisdiction.

The sentences currently available in New South Wales that may be transferred
under the scheme are:

(a) community service orders, and

(b) home detention orders, and

(c) periodic detention orders, and

(d) good behaviour bonds.

Parole orders, fines and reparation orders are excluded from the scope of the
proposed Act.

The Bill provides that the Commissioner of Corrective Services is to be the local
authority, who will process requests for transfer into and out of the local
jurisdiction. Details of the transferred orders will be recorded and maintained on
a register. The local authority will make decisions on the basis of information
sent by the interstate equivalent of the local authority (the interstate authority)
regarding the offender and the sentence, provided specific criteria are satisfied.

The criteria that the local authority will apply when deciding whether to accept
a request for transfer are as follows:

(a) the offender has consented to the order and has not withdrawn that
consent,

(b) there is a sentence in the local jurisdiction that corresponds to the sentence
imposed in the interstate jurisdiction,

(c) the offender can comply with the sentence in the local jurisdiction,

(d) the sentence can be safely, efficiently and effectively administered in the
local jurisdiction.

The local authority will be able to refuse a request for transfer if the criteria are
not met, or otherwise at the local authority’s discretion. This will be particularly
relevant in a case where the local authority becomes aware of concerns
expressed by an individual for his or her safety if the offender were to reside in
the local jurisdiction.

The authority’s discretion may also be exercised in a case where the offender
poses an unacceptable administrative burden to the local jurisdiction because the
offender has a history of not complying with directions issued by a supervising
officer.

If the local authority decides to accept a request for transfer, the offender will be
supervised and administered by the local authority as though the sentence had
been made in the local jurisdiction. The administration of the sentence includes
administering a breach of the sentence. Therefore, if the offender does not
comply with the conditions of the transfer order, he or she will be re-sentenced
by a court of the local jurisdiction according to the laws of the local jurisdiction.

The court may, however, refer to the penalty range and type that would have
been applicable in the original jurisdiction, so as to ensure that the transfer does
not serve to avoid the sentencing intentions of the original jurisdiction.

If, however, the offender seeks an appeal or review of the conviction or the
sentence relating to the conviction, the appeal will be made to the original
jurisdiction and not to the jurisdiction supervising and administering the
transferred sentence. In the case that the appeal or request for review is
successful, the amended sentence will be administered and supervised in the
jurisdiction supervising and administering the transferred sentence as though the
appeal or review had been made by a court of the local jurisdiction.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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