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SENTENCING ACT 1989 - SCHEDULE 2

This legislation has been repealed.

SENTENCING ACT 1989 - SCHEDULE 2

SCHEDULE 2 – Savings and transitional provisions

(Section 57)

Part 1 - Provisions consequent on the enactment of this Act

1 Definitions

(1) In this Schedule:

"former Act" means the Probation and Parole Act 1983 .
(2) In this Schedule, a reference:
(a) to the former Act includes a reference to that Act as applied by section 33B of the Children (Criminal Proceedings) Act 1987 , or
(b) to a sentence of detention is a reference to the period of detention under a control order as referred to in Part 4

2 Savings and transitional regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.
(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to this Act or a later day.
(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of any thing done or omitted to be done before the date of its publication.

3 Preservation of existing remission reducing "head sentence"

This Act does not affect the reduction of any sentence of imprisonment or detention by any remission to which a person was entitled, immediately before the repeal of the former Act, under:

(a) Part 11 of the Prisons Act 1952 , or
(b) section 29 of the Children (Detention Centres) Act 1987 , or
(c) section 19 of the Periodic Detention of Prisoners Act 1981 , or
(d) section 28 (6) (b) of the Prisoners (Interstate Transfer) Act 1982 , or
(e) the Royal prerogative of mercy.

4 Redetermination of non-parole or non-probation periods

(1) On the repeal of the former Act, a non-parole period or non-probation period (within the meaning of the former Act) applying to a prisoner immediately before that repeal shall be redetermined in accordance with this clause.
(2) The non-parole period or non-probation period, as last fixed for the prisoner by a court or the Parole Board, shall be redetermined by reducing the period by the total of:
(a) any existing remission to which the prisoner is entitled as referred to in clause 3, and
(b) all future remission that the prisoner might have become entitled to (as estimated in accordance with this clause) had the provisions in force immediately before that repeal relating to the grant of remission continued in force.
(3) A redetermination under this clause shall be made by the Board.
(4) The Board is to make a redetermination under this clause on the basis that the prisoner would have received the maximum remission possible:
(a) under section 64 (1) (a) and (b) of the Prisons Act 1952 (calculated as if the prisoner had served the remainder of any sentence in an open institution), or
(b) under clause 34 (1) (a) and (b) of the Children (Detention Centres) Regulation 1988 (calculated as if the prisoner had served the remainder of any detention as a Class B detainee),
but not under any other provision.
(5) A redetermination by the Board under this clause is final and is not liable to be challenged, appealed against, quashed or called into question by any court.
(6) This clause applies even though the prisoner is on probation or on parole under the former Act on its repeal.
(7) A reference in this clause to the Board is, in relation to a detainee within the meaning of Part 4, a reference to the Director-General of the Department of Family and Community Services.

5 Translation of existing sentences

(1) Each sentence of imprisonment or detention to which a person was subject immediately before the repeal of the former Act and in respect of which a non-parole or non-probation period then applied shall be taken to be a sentence consisting of:
(a) a minimum term determined under this clause, and
(b) an additional term determined under this clause.
(2) The minimum term of any such sentence is the period from the commencement of the sentence to the end of the non-parole or non-probation period as redetermined under clause 4.
(3) The additional term of any such sentence is the period from the end of the minimum term so determined to the end of the sentence, as reduced by any existing remission as referred to in clause 3.
(4) This clause applies even though the person concerned is on probation or parole under the former Act on its repeal.
(5) Each sentence of imprisonment or detention to which a person was subject immediately before the repeal of the former Act (being a sentence to which Part 2 applies) and in respect of which a non-parole or non-probation period did not then apply, is to be taken to be a fixed term.
(6) Minimum and additional terms, or fixed terms, determined under this clause are to be taken to have been set under Part 2.

6 Saving of parole orders and probation orders

(1) A parole order or probation order made or deemed to have been made under the former Act is to be taken to be a parole order made under this Act.
(2) Terms and conditions of any such parole order or probation order that were prescribed by the regulations under the former Act are to be taken to be terms and conditions prescribed by the regulations under this Act.
(3) Anything done under a provision of the former Act in relation to such a parole order or probation order (including the issue of a warrant) is to be taken to have been done under the corresponding provision of this Act.

7 Saving of presumption in favour of parole for certain continuing prisoners

(1) This clause applies to a prisoner:
(a) for whom a minimum term has not been set after the repeal of the former Act, and
(b) to whom section 26 (1) of the former Act would have applied if that Act had not been repealed.
(2) Despite section 17 (1), the Board, when deciding whether to make a parole order for a prisoner to whom this clause applies, shall make the order unless the Board determines that it has sufficient reason to believe that the prisoner, if released from custody, would not be able to adapt to normal lawful community life.

8 Application of Part 2 (Sentencing)

(1) Part 2 applies to a sentence of imprisonment or detention imposed on a person after the commencement of that Part even if the person was found guilty or convicted of the offence concerned before that commencement.
(2) Part 2 does not apply to a sentence of imprisonment or detention imposed on a person after the commencement of that Part if the sentence is imposed in proceedings to correct a sentence imposed before that commencement.

9 Parole Board

(1) The members of the Parole Board constituted under the former Act who held office immediately before the repeal of the former Act cease to hold office on that repeal, but are eligible to be appointed to the Offenders Review Board constituted under this Act.
(2) Anything done by or in relation to the Parole Board constituted under the former Act is to be taken to have been done by or in relation to the Offenders Review Board constituted under this Act.
(3) A reference in any other Act, or in any instrument made under any Act or in any other document of any kind, to the Parole Board or a member of the Parole Board shall be read as a reference to the Offenders Review Board or a member of the Offenders Review Board.

10 Pending appeals against decisions of Visiting Justices preserved

Schedule 3 (4) does not affect any appeal against the decision of a Visiting Justice, being an appeal pending at the commencement of Schedule 3 (4).

Part 2 - Provisions relating to existing licences

11 Existing licences preserved

An existing licence continues in force despite the repeal of Part 10 of the Prisons Act 1952 ( "the former Part") by the Prisons (Amendment) Act 1993 , but subject to this Part.

12 Duration of existing licence

Unless revoked, an existing licence to which a person is subject expires when the sentence of imprisonment to which the licence relates expires.

13 Conditions of existing licence

(1) An existing licence is subject to:
(a) any conditions that were indorsed on the licence when the licence was granted (including the limits specified in the licence within which the licensee may be at large), and
(b) any variation of those conditions made under the former Part, this clause or any other Act, and
(c) any conditions prescribed by the regulations.
(2) The Board may, by order in writing served personally or by post on the licensee, vary the conditions, other than any prescribed conditions, to which the existing licence is subject.
(3) A condition of an existing licence imposed by the Board has no effect to the extent (if any) to which it is inconsistent with an applicable prescribed condition.
(4) A variation of the conditions of an existing licence may include conditions that:
(a) require that the licensee be subject to supervision prescribed by the regulations, during the period specified by or under the licence or the regulations, and
(b) provide for the revocation of the licence on a contravention by the person of a condition of the licence, or otherwise.
(5) Despite the conditions to which an existing licence is subject, the Board may, by notice in writing served personally or by post on the licensee, terminate any requirement made by any such condition requiring or relating to the person's being subject to supervision.

14 Effect of existing licence

A licensee who was lawfully released on an existing licence is taken to have been or to be serving the sentence of imprisonment to which the licence relates from the time of release until the sentence expires. However, if an existing licence is revoked, the person is (subject to clause 26) to be returned to prison and detained for the remainder of his or her sentence.

15 Powers of Board if breach suspected

(1) If the Board has reasonable cause to believe that a licensee has contravened a condition of an existing licence for the contravention of which the licence may be revoked, the Board may, whether or not the licence has expired:
(a) by written notice served personally or by post on the licensee, require the licensee to appear before the Board at a specified time and place for the purpose of an inquiry into whether the licence should be revoked, or
(b) where, in the opinion of the Board, the circumstances of the particular case so require, without revoking the licence, decide that a warrant should be issued under clause 19.
(2) If a licensee fails to comply with the requirements of a notice served on the person under this clause, the Board may:
(a) without revoking the existing licence, decide that a warrant should be issued under clause 19, or
(b) by an order made under clause 17, revoke the existing licence.

16 Inquiry into suspected breach

(1) If a licensee attends before the Board pursuant to:
(a) the requirements of a notice served under clause 15, or
(b) a warrant issued under clause 19,
the Board must immediately inquire into whether any of the conditions of the licence have been contravened.
(2) The licensee may make submissions to the Board against the revocation of the licence.

17 Revocation of existing licence by Board

(1) The Board may, by order in writing, revoke at any time an existing licence or direct that it be taken to have been revoked.
(2) The circumstances in which the Board may revoke an existing licence or direct that it be taken to have been revoked include any of the following:
(a) if the conditions of the existing licence provide that the licence may be revoked because of a contravention of any of those conditions by the licensee and that person has contravened any such term or condition,
(b) if the conditions of the existing licence provide that the licence may be revoked otherwise than because of a contravention of any of those conditions and the licence is revoked in accordance with any such provision,
(c) if the Board is satisfied that the licensee has been sentenced by a court to imprisonment for an offence committed while the licence was in force,
(d) if the Board is authorised by clause 15 to revoke the existing licence.
(3) The Board may revoke an existing licence or direct that it is to be taken to have been revoked whether or not:
(a) a notice has been served under clause 15, or
(b) an inquiry has been held under clause 16.
(4) Where the Board makes an order under this clause, the Board must, in the order, state the reason for the revocation.
(5) The Board may, in an order made under this clause, direct that an existing licence be taken to have been revoked:
(a) where the existing licence is revoked because of a contravention of a condition of the licence, on such day occurring not earlier than the day on which the contravention occurred, or
(b) where the existing licence is revoked because of the imposition of a sentence of imprisonment, on such day occurring not earlier than the day on which the offence to which the sentence relates was committed,
as the Board specifies in the order made under this clause.
(6) A direction under this clause has effect even if the existing licence concerned has expired and even if the person concerned is consequently required to serve a period of a sentence of imprisonment which would otherwise have expired.
(7) For the purposes of this clause, the day on which a contravention of a condition of an existing licence occurred is to be such day as is determined by the Board.

18 Revocation of existing licence by court

(1) In sentencing a licensee to imprisonment for another offence, a court may:
(a) revoke the existing licence, or
(b) direct that the existing licence be taken to have been revoked on such day, occurring while the existing licence was in force but not earlier than the day on which the offence to which the sentence relates was committed, as is specified by the court in the direction.
(2) A direction under this clause has effect even if the existing licence concerned has expired and even if the person concerned is consequently required to serve a period of a sentence of imprisonment which would otherwise have expired.

19 Warrants

(1) If:
(a) an existing licence that was granted to a person is revoked, or
(b) the Board makes a decision under clause 15 that a warrant should be issued for the arrest of the person to whom an existing licence was granted,
the Board may, by warrant signed by the Chairperson, Alternate Chairperson or Deputy Chairperson of the Board, authorise any police officer to arrest the person to whom the existing licence related or relates.
(2) If a warrant is issued under this clause because of the revocation of an existing licence granted to a person, the warrant also authorises any police officer to return the person to a prison for the purpose of serving the person's sentence of imprisonment.
(3) If a warrant is issued under this clause because of a decision made under clause 15, the warrant also authorises any police officer:
(a) to return the person to a prison, or
(b) if the terms of the warrant so require, to remove the person to a place of custody or to a court, or both, as specified in the warrant,
there to remain until the revocation of the warrant by the Board or the court or until the expiration of the period of 7 days commencing with the day on which the person was returned to prison or removed to a place of custody, or to court, pursuant to the warrant, whichever first occurs, for the purpose of conducting an inquiry under clause 16 to determine whether the conditions of the existing licence have been contravened.
(4) A warrant issued under this clause is sufficient authority for the arrest of the person to whom it relates by a police officer and the removal to and detention in prison or at another place, as the warrant may require, of the person.

20 Judicial notice of warrants

All courts and persons acting judicially are to take judicial notice of an instrument that purports to be a warrant signed in accordance with clause 19 until it is proved that the instrument is not such a warrant.

21 Notice of revocation

(1) As soon as practicable after the Board revokes an existing licence, the Board must cause a notice under this clause to be served on the prisoner to whom the licence related.
(2) The notice must:
(a) set a date, occurring not earlier than 14, nor later than 28, days after the date on which it is served, on which the Board is to meet for the purpose of:
(i) reconsidering the revocation of the existing licence, and
(ii) if the existing licence is taken to have been revoked on an earlier day than the day on which the Board decided to revoke the existing licence--determining whether the specification of the earlier day should be revoked or varied, and
(b) require the prisoner to notify the Secretary of the Board, not later than 7 days before the date so set, if the prisoner intends to make representations to the Board in relation to the revocation of the licence or the specification of the earlier day, or both, and
(c) be in the form prescribed by the regulations, and
(d) except as provided by clause 25, be accompanied by:
(i) a copy of the order which revoked the existing licence, and
(ii) copies of the reports and other documents used by the Board in making the decision to revoke the existing licence and, if appropriate, to specify the earlier day.

22 Review of revocation

(1) Where a notice has been served on a prisoner under clause 21 and the prisoner has duly notified the Secretary of the Board that the prisoner intends to make representations to the Board, the Chairperson of the Board is to convene a meeting of the Board, on the date set by the notice, for the purpose of:
(a) reconsidering the revocation of the existing licence, or
(b) determining whether the specification of the earlier day should be revoked or varied,
or both, as the case requires.
(2) At the meeting of the Board convened pursuant to the notice, or at a subsequent meeting to which that meeting is adjourned or postponed, the prisoner may make submissions to the Board with respect to the revocation of the existing licence and, if appropriate, the specification of the earlier day.

23 Decision after review

(1) The Board is, after reviewing all the reports, documents and other information placed before it, to decide whether or not it should:
(a) rescind the revocation of the existing licence concerned, or
(b) revoke or vary the specification of the earlier day.
(2) A decision under this clause has effect according to its tenor even if the existing licence concerned has expired.

24 Application to Court of Criminal Appeal

(1) Where:
(a) the Board has revoked an existing licence, and
(b) the person to whom the existing licence related alleges that the existing licence was revoked as a consequence of a decision made on information that was false, misleading or irrelevant,
the person may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit.
(2) An application under this clause is not to be considered by the Court of Criminal Appeal unless it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.
(3) At the hearing or determination of an application under this clause, the applicant is not entitled to appear in person, except by leave of the Court of Criminal Appeal.
(4) The power of the Court of Criminal Appeal to grant the applicant leave to appear in person at the hearing or determination of an application under this clause may be exercised by any Judge of that Court, but no appeal lies to that Court against the refusal of a Judge of that Court to grant leave to so appear.

25 Security of certain information

Section 49 applies to clause 21 in the same way as it applies to sections 20 and 38.

26 Application for determination under section 13A

A person who is returned to prison following the revocation of his or her licence may, if subject to an existing life sentence, apply to the Supreme Court under section 13A for the determination of a minimum term and an additional term for the life sentence.

27 Licences granted etc before repeal of section 463 of Crimes Act 1900--validation

Any act, matter or thing done or purporting to be done by the Governor in relation to the granting or variation of an existing licence or the revocation of a former licence that:

(a) was done solely on the advice of a Minister before the repeal of section 463 of the Crimes Act 1900 , and
(b) would have been done validly if done on the advice of the Executive Council,
is validated.

28 Regulations

The regulations may prescribe conditions for existing licences.