CRIMES (SENTENCING PROCEDURE) ACT 1999 - SCHEDULE 1
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SCHEDULE 1
SCHEDULE 1 – Existing life sentences
1 Definitions
In this Schedule--
"existing life sentence" means a sentence of imprisonment for life imposed
before, on or after 12 January 1990 (the date on which the Crimes (Life
Sentences) Amendment Act 1989 commenced), but does not include a sentence for
the term of a person's natural life under section 19A, 61JA or 66A (2) of the
Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985 .
"non-release recommendation" , in relation to an offender serving an existing
life sentence, means a recommendation or observation, or an expression of
opinion, by the sentencing court that (or to the effect that) the offender
should never be released from imprisonment, and includes any such
recommendation, observation or expression of opinion that (before, on or after
the date of assent to the Crimes (Sentencing Procedure) Amendment (Existing
Life Sentences) Act 2005 ) has been quashed, set aside or called into
question.
"Review Council" means the Serious Offenders Review Council constituted by
section 195 of the Crimes (Administration of Sentences) Act 1999 .
"sentencing court" , in relation to an offender who has been resentenced as a
result of a re-trial or other appeal proceedings, includes both the court by
which a penalty was originally imposed for the offence and the court (whether
the same court or a different court) by which a penalty was finally imposed
for the offence.
2 Applications for determination of non-parole periods
(1) Subject to clauses 6 and 6A (2), an offender serving an existing life sentence may apply to the Supreme Court for the determination of a term and a non-parole period for the sentence.
(2) An offender is not eligible to make such an application unless the offender has served--(a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or(b) at least 30 years of the sentence concerned, if the offender is the subject of a non-release recommendation.
(3) An offender who is the subject of a non-release recommendation is not eligible for a determination referred to in subclause (1) unless the Supreme Court, when considering the offender's application, is satisfied that special reasons exist that justify the making of such a determination.
2A Restriction on number of further applications by offender for determination of non-parole periods
(1) This clause applies only in relation to an application referred to in clause 2 (1) made by an offender on or after 17 June 2008. It does not apply in relation to any such application made by an offender before that date (including an application that was made but not finally disposed of before that date).
(2) An offender may not make more than one application referred to in clause 2 (1).
(3) If, in disposing under clause 4 of an application referred to in clause 2 (1), the Supreme Court declines to set a specified term for an existing life sentence or to set a non-parole period for the sentence, the offender who made the application is to serve the existing life sentence for the term of his or her natural life.
(4) An application referred to in clause 2 (1) that is made by an offender and duly withdrawn is not to be counted as an application made by the offender for the purposes of subclause (2).
(5) This clause has effect despite any other provision of this Schedule.
3 Matters for consideration by Supreme Court
(1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to--(a) all of the circumstances surrounding the offence for which the sentence was imposed, and(b) all offences, wherever and whenever committed, of which the offender has been convicted,so far as this information is reasonably available to the Supreme Court.
(2) The reference in subclause (1) (b) to an offence of which an offender has been convicted--(a) includes--(i) any offence in respect of which a court has found the offender guilty but has not proceeded to conviction, and(ii) any offence taken into account when the offender was sentenced, but(b) does not include--(i) an offence for which a conviction or finding of guilt has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991 , or(ii) an offence of a class or description prescribed by the regulations.
4 Determination of application
(1) The Supreme Court may dispose of an application in relation to an existing life sentence--(a) by setting a specified term for the sentence together with a non-parole period for the sentence, or(b) by declining to set a specified term for the sentence but setting a non-parole period for the sentence, or(c) by declining to set a specified term for the sentence and declining to set a non-parole period for the sentence.
(2) The Supreme Court may set a specified term and a non-parole period for an existing life sentence even though the Court was not the sentencing court.
(3) In the case of an offender who is the subject of a non-release recommendation, the Supreme Court may dispose of an application in relation to an existing life sentence--(a) by setting a non-parole period for the sentence, or(b) by declining to set a non-parole period for the sentence,but does not have jurisdiction to set a specified term for the sentence.
5 Effect of determination to set a non-parole period
(1) A non-parole period arising from a determination referred to in clause 4 (1) or (3) is taken to have commenced on the date on which the sentence commenced or, if the offender was remanded in custody for the offence, the date on which the first such remand commenced.
(2) If the Supreme Court sets a specified term for an existing life sentence, the existing life sentence is taken to have been replaced by a sentence of imprisonment for the term so specified.
(3) The term of the sentence, and any non-parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4.
6 Supreme Court may prohibit further applications
(1A) This clause applies only in relation to an application referred to in clause 2 (1) that was made by an offender but not finally disposed of before 17 June 2008. It does not apply in relation to an application referred to in clause 2 (1) that was made by an offender on or after that date.
(1) If the Supreme Court declines to set a specified term for an existing life sentence or to set a non-parole period for the sentence, the Court may (when making that decision) direct that the offender who made the application--(a) may never re-apply to the Court, or(b) may not re-apply to the Court for a specified period of time.
(2) If the Court gives a direction under this clause that an offender may never re-apply to the Court, the offender is to serve the existing life sentence for the term of the person's natural life.
(3) If the Court does not give a direction under this clause, the offender may not re-apply to the Court within the period of 3 years from the date of the Court's decision not to give the direction.
(4) A direction under this clause that an offender may never re-apply to the Court or may not re-apply to the Court for a period exceeding 3 years may be given only if--(a) the offender was sentenced for the crime of murder, and(b) it is a most serious case of murder and it is in the public interest that such a direction be made.
6A Leave required for withdrawal of application and re-application
(1) An application referred to in clause 2 (1) may be withdrawn by the offender who made the application, but only with the leave of the Supreme Court.
(2) If the Supreme Court grants leave to withdraw an application referred to in clause 2 (1)--(a) the offender who made the application may not make a further application referred to in clause 2 (1) without the leave of the Court, and(b) if the Court so directs, the offender may not make the further application for a specified period of time.
(3) In considering whether to grant leave to withdraw an application, or to make a further application, referred to in clause 2 (1), the Supreme Court must have regard to and give substantial weight to the number of times the offender has previously withdrawn any application referred to in clause 2 (1).
(4) Subclause (3) does not limit the matters to which the Supreme Court may have regard in deciding whether or not to grant leave to withdraw an application, or to make a further application, referred to in clause 2 (1).
(5) No appeal lies against the decision of the Supreme Court on an application for leave under subclause (1).
(6) An application referred to in clause 2 (1) that is withdrawn cannot be restored.
(7) If the Supreme Court declines to grant an application for leave under subclause (2) (a), the offender is to serve the existing life sentence the subject of the application for the term of his or her natural life.
7 Matters relating to exercise of Supreme Court's functions
(1) In considering an application referred to in clause 2 (1), the Supreme Court is to have regard to--(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and(b) the need to preserve the safety of the community, and(c) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and(d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989 ), the fact that the sentencing court--(i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 , and(ii) would have been aware of the practice relating to the issue of such licences, and(e) any other relevant matter.
(2) The regulations may make provision for or with respect to reports referred to in subclause (1), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court.
(3) In considering an application referred to in clause 2 (1), the Supreme Court--(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court when imposing the sentence concerned, and(b) must give consideration to adopting or giving effect to the substance of any such recommendations, observations and comments and the intention of the sentencing court when making them, and(c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must make a record of its reasons for doing so.
(4) Subclause (3) (c) does not limit any other requirement that the Supreme Court has, apart from that paragraph, to record the reasons for its decisions.
(5) In considering an application referred to in clause 2 (1) that is made on or after 17 June 2008, or that was made before that date but not finally disposed of before the commencement of the Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008 , the Supreme Court must have regard to and give substantial weight to the following--(a) the level of culpability of the offender in the commission of the offence for which the sentence was imposed,(b) the heinousness of the offence.
8 Appeal from Supreme Court's decision
(1) An appeal lies to the Court of Criminal Appeal in relation to--(a) a determination by the Supreme Court under clause 4 (1) or (3), or(b) a direction by the Supreme Court under clause 6 (1) or 6A (2) (b), or(c) a decision of the Supreme Court on an application for leave under clause 6A (2) (a).
(2) The Criminal Appeal Act 1912 applies--(a) to an appeal referred to in subclause (1) (a) or (b), in the same way as it applies to an appeal against a sentence, and(b) to an appeal referred to in subclause (1) (c), in the same way as it applies to an appeal against an interlocutory judgment or order.
(3) If the Court of Criminal Appeal allows an appeal against the decision of the Supreme Court to refuse an application for leave under clause 6A (2) (a), the Court of Criminal Appeal may exercise the jurisdiction of the Supreme Court to determine the further application referred to in clause 2 (1).