BAIL AMENDMENT (REPEAT OFFENDERS) BILL 2005

Northern Territory Bills

[Index] [Search] [Download] [Related Items] [Help]

This is a Bill, not an Act. For current law, see the Acts databases.

BAIL AMENDMENT (REPEAT OFFENDERS) BILL 2005

Bail Amendment (Repeat Offenders) Bill 2005
Dr Toyne

A BILL
for
AN ACT

to amend the Bail Act

NORTHERN TERRITORY OF AUSTRALIA

BAIL AMENDMENT (REPEAT OFFENdERS) ACT 2005

____________________

Act No. [ ] of 2005
____________________

TABLE OF PROVISIONS

Section

1. Short title
2. Principal Act amended
3. Amendment of section 3 (Interpretation)
4. Amendment of section 7A (Presumption against bail for certain offences)
5. Amendment of section 8 (Presumption in favour of bail for certain offences)
6. Amendment of section 36 (Provisions relating to review of bail decisions)
7. New section 36A

36A.

Immediate review and s

tay of decision to grant bail

8. Amendment of section 37 (Right of accused to apply for bail)
9. New Part IX

PART IX – TRANSITIONAL MATTERS FOR BAIL AMENDMENT (REPEAT OFFENDERS) ACT 2005

54. Application of sections 7A and 8 to pre-commencement offences

NORTHERN TERRITORY OF AUSTRALIA
____________________

Act No. [ ] of 2005
____________________

AN ACT

to amend the Bail Act

[Assented to [ ] 2005]
[Second reading [ ] 2005]

The Legislative Assembly of the Northern Territory enacts as follows:

1. Short title
This Act may be cited as the Bail Amendment (Repeat Offenders) Act 2005.

2. Principal Act amended
This Act amends the Bail Act.

3. Amendment of section 3 (Interpretation)
Section 3(1) –

insert (in alphabetical order)

"adult" means a person at least 18 years of age;

"serious offence" means an offence punishable by imprisonment for 5 or more years;

"serious violence offence" means an offence against any of the following provisions of the Criminal Code that is punishable by imprisonment

for 5 or more years:

(a) Part V, Division 2;

(b) Part VI, Divisions 3 to 6A (inclusive);

(d) another provision prescribed by the Regulations;

4. Amendment of section 7A (Presumption against bail for certain offences)
(1) After section 7A(1)(d) –

insert

(e) a serious violence offence, other than the offence of murder, (the "relevant offence") if –

(i) the person accused of the relevant offence is an adult who is charged with committing the relevant offence while on bail for a serious offence;

(ii) the person has been found guilty of another serious offence within the period specified in subsection (1A); and

(iii) one or both of the serious offences mentioned in subparagraphs (i) and (ii) are serious violence offences.

(1A) The following periods are specified for subsection (1)(e)(ii):

(a) if the serious offence mentioned in subsection (1)(e)(ii) is a serious violence offence – the period of 10 years immediately preceding the date of the relevant offence;

(b) if the serious offence mentioned in subsection (1)(e)(ii) is not a serious violence offence – the period of 2 years immediately preceding the date of the relevant offence.

(2) After section 7A(2) –

insert

(2A) However, subsection (2) does not apply to a person who –

(a) is accused of an offence to which this section applies; but

(b) is assessed to be suitable to participate in a program of rehabilitation that is prescribed by the Regulations.

5. Amendment of section 8 (Presumption in favour of bail for certain offences)
(1) Section 8(1) –

omit

all the words before paragraph (b)

substitute

(1) This section applies to all offences except the following:

(a) an offence mentioned in section 7A(1);

(aa) an offence against section 181, 192(3), (4), (6), (7) or (8) of the Criminal Code, or section 10 of the Domestic Violence Act, if the person accused of the offence has, within the period of 10 years immediately preceding the date of that offence, been found guilty of any of the following offences:

(i) the offence of murder;

(ii) an offence against section 181, 186, 188 or 192 of the Criminal Code;

(iii) an offence against a law of a State or other Territory or another country that is similar to an offence mentioned in subparagraph (i) or (ii);

(ab) a serious offence (the "relevant offence") if the person accused of the relevant offence –

(i) is an adult charged with committing the relevant offence while on bail for a serious offence; and

(ii) has been found guilty of another serious offence within the period specified in subsection (1A);

(2) After section 8(1) –

insert

(1A) The following periods are specified for subsection (1)(ab)(ii):

(a) if the serious offence mentioned in subsection (1)(ab)(ii) is a serious violence offence – the period of 10 years immediately preceding the date of the relevant offence;

(b) if the serious offence mentioned in subsection (1)(ab)(ii) is not a serious violence offence – the period of 2 years immediately preceding the date of the relevant offence.

(3) Section 8, at the end –

insert

(5) To avoid doubt, if an offence mentioned in subsection (1)(a), (aa), (ab) or (b) is also mentioned in section 7A(1), section 7A applies to that offence.

6. Amendment of section 36 (Provisions relating to review of bail decisions)
Section 36(1) –

omit

this Division

insert

section 34 or 35

7. New section 36A
After section 36 –

insert

36A. Immediate review and stay of decision to grant bail

(1) This section applies if –

(a) a magistrate or justice decides to release an accused person on bail; and

(b) a police officer or legal practitioner appearing for the Crown immediately informs the magistrate or justice that a request for review of the decision is to be made to the Supreme Court under this section.

(2) The decision of the magistrate or justice is stayed.

(3) The accused person must not be released while the stay of the decision has effect under this section.

(4) The stay of the decision has effect until the earliest of the following:

(a) the Court affirms or varies the decision or substitutes another decision for the decision of the magistrate or justice;

(b) a police officer or legal practitioner appearing for the Crown files in the Court a notice that the Crown does not desire to proceed with the review;

(5) The request for the review of the decision must be dealt with as expeditiously as possible.

(6) The review is by way of rehearing.

(7) Evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review.

(8) A decision as varied or substituted under subsection (4)(a) must conform with this Act.

(9) If the person is released because of subsection (4)(b) or (c), the conditions of bail are those that would have applied had the decision not been stayed.

(10) In this section –

"business day" means a day other than a Saturday, Sunday or public holiday.

8. Amendment of section 37 (Right of accused to apply for bail)
Section 37 –

omit

Nothing in this Part limits

insert

Subject to section 36A, this Part does not limit

9. New Part IX
After section 53 –

insert

PART IX – TRANSITIONAL MATTERS FOR BAIL AMENDMENT (REPEAT OFFENDERS) ACT 2005

54. Application of sections 7A and 8 to pre-commencement offences

Sections 7A and 8, as amended by the Bail Amendment (Repeat Offenders) Act 2005, apply in relation to the granting of bail to accused persons for offences committed before the commencement of that Act.

____________________________
__________________

EXPLANATORY STATEMENT

GENERAL OUTLINE

The purpose of the Bail Amendment (Repeat Offenders) Bill 2005 (“the Bill”) is to give effect to the Government’s commitment to safer communities by removing the entitlement to bail for adult persons with a history of serious offending. The Bill achieves this by removing the presumption in favour of bail where persons with a particular criminal history of serious offending are charged with committing a further serious offence whilst already on bail for a serious offence. A presumption against bail will exist for persons in similar circumstances of prior offending who are charged with committing a serious violence offence whilst on bail for a serious offence or a serious violence offence. The Bill also provides for a stay of the grant of bail for up to 3 business days where a court is immediately informed that a request for review of the decision to grant bail is to be made to the Supreme Court.

NOTES ON CLAUSES

Clause 1 Short Title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Bail Amendment (Repeat Offenders) Act 2005

Clause 2 Principal Act amended

Clause 2 of the Bill clarifies that the Act amends the Bail Act (“the Act”).

Clause 3 Amendment of section 3 (Interpretation)

Clause 3 of the Bill inserts into the interpretation section of the Act a definition of the following:

� “Adult”, which means a person at least 18 years of age.
� “serious offence”, which means an offence punishable by imprisonment for 5 or more years, and
� “serious violence offence” which means an offence against any of the following provisions of the Criminal Code, that is punishable by imprisonment for 5 or more years. or any provision prescribed by the Regulations:

Part V, Division 2

Part VI, Divisions 3 to 6 A;

Section 211 or 212;

These provisions cover acts injurious to the public, offences against the person, robbery and assault with intent to steal

As a result of these definitions, offences that are “serious violence offences” are where the context permits, also included as a category of ‘serious offence[s]”.

Clause 4 Amendment of section 7A (Presumption against bail for certain offences)

Section 7A of the Act currently identifies certain offences in respect of which there is a presumption against bail. A person is to be refused bail on one of these offences unless he or she can satisfy the Court that bail should not be refused. This is a heavy onus to discharge and one not usually overcome because the applicant must point to special matters that show that bail should be allowed; the ordinary factors will not be enough. The current offences are murder, treason, an offence against the Misuse of Drugs Act punishable by a term of imprisonment for more than seven years, and certain Commonwealth offences relating to narcotics. This clause in the Bill enlarges the existing list of offences for which there is a presumption against bail by adding a provision that deals with reoffending whilst on bail. There is to be a presumption against bail for a “serious violence” offence if the person accused of the serious violence offence has been charged with committing that offence while on bail for a serious offence and also has, within a specified period, been found guilty of a serious offence. If the prior offending was for a serious violence offence then the period is 10 years immediately prior to the date of the offence alleged to have been committed whilst on bail, or 2 years in the case of a serious offence. This clause has a proviso that either the offence for which the accused is currently on bail or the prior offending offence or both of them must be a serious violence offence. This proviso ensures that the provision is aimed at persons with a pattern of repeat violence offences and not just repeat offending.

Murder is excluded in the provision because there is already a presumption against murder without any repeat offending pattern.

Clause 4(2) preserves the ability of the court to grant bail to an accused where that person has been assessed as suitable to participate in a prescribed offender rehabilitation programme.

Clause 5 Amendment of section 8 (Presumption in favour of bail for certain offences)

A person is presumed to be entitled to a grant of bail in respect of all offences with certain existing exclusions. These include section 181 of the Criminal Code, causing grievous harm, section 192 of the Criminal Code, sexual intercourse without consent and section 10 of the Domestic Violence Act, failure to comply with a restraining order. The presumption in favour of bail is excluded for these offence where the accused has been found guilty in the preceding ten years of murder, or an offence against section 181, 186 (bodily harm), 188 (assault) or 192 of the Criminal Code, or an offence against a law of a State or another Territory of the Commonwealth which is similar to those offences, or where the accused is on a suspended sentence unless the alleged offence is so minor that it is unlikely to be regarded as a breach.

This clause of the Bill expands these exceptions to a presumption in favour of bail to include another example of repeat offending. Where a person is charged with a serious offence alleged to have been committed while already on bail for a serious offence, and has, within the 2 years immediately preceding the date of the serious offence allegedly committed whilst on bail, has been found guilty of a serious offence, or in the previous 10 years been found guilty of a serious violence offence the presumption in favour of bail is removed.

The combinations of serious offences and serious violence offences available under the new provisions mean that in some cases the combination available under the “neutral” presumption provision could consist of two or more serious violence offences. Clause 5(5) makes it clear that where there is a combination of serious offending which includes two serious violence offences, one of which is the offence charged whilst the accused is on bail, the matter must be dealt with under 7A as a presumption against bail. This is to ensure that the presumption against bail applies to repeat serious violence offenders.

Clause 6 Amendment of section 36 (Provisions relating to review of bail decisions)

Clause 6 amends section 36(1) to make appropriate reference to the new section 36A.

Clause 7 New section 36A

Clause 7 inserts a new provision allowing for a stay of a decision to grant bail. This clause provides for a police officer or legal practitioner appearing for the Crown to, upon a magistrate or justice deciding to release an accused person on bail, advise the court that a request for review is to be made to the Supreme Court. The decision of the court is then immediately stayed and the person is not bailed while the stay of decision has effect. The stay is effective for a maximum of 3 business days after the decision is made, but there is a requirement that the review be dealt with as expeditiously as possible. This gives the Crown or the police officer an opportunity to provide the Supreme Court with further evidence or information regarding the decision.

Clause 8 Amendment of section 37 (Right of accused to apply for bail)

Clause 8 makes a minor amendment to section 37 to take section 36A into account.

Clause 9 New Part IX Transitional Matters for Bail Amendment (Repeat Offenders) Act 2005

Clause 9 inserts a new part after section 53 –– 54 Application of sections 7A and 8 to pre-commencement offences, to clarify that these sections as amended by this Act apply in relation to the granting of bail to accused persons for offences committed before the commencement of the Act.

[Index] [Search] [Download] [Related Items] [Help]