SENTENCING (CRIME OF MURDER) AND PAROLE REFORM ACT - SECT 19 Application to extend or exclude non-parole period

SENTENCING (CRIME OF MURDER) AND PAROLE REFORM ACT - SECT 19

    (1)     Subject to this section, the Supreme Court may, on the application of the Director of Public Prosecutions –

        (a)     revoke the non-parole period fixed by section 18 in respect of the prisoner and do one of the following:

            (i)     fix a longer non-parole period in accordance with subsection (3) or (4);

            (ii)     refuse to fix a non-parole period in accordance with subsection (5); or

        (b)     dismiss the application.

    (2)     The Director of Public Prosecutions must make the application –

        (a)     not earlier than 12 months before the first 20 years of the prisoner's sentence is due to expire; or

        (b)     if, at the commencement of this Act, that period has expired – within 6 months after that commencement.

    (3)     Subject to subsections (4) and (5), the Supreme Court must fix a non-parole period of 25 years if any of the following circumstances (the prescribed circumstances of aggravation ) apply in relation to the crime of murder for which the prisoner is imprisoned:

        (a)     the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker or other occupation involving the performance of a public function or the provision of a community service and the act or omission that caused the victim's death occurred while the victim was carrying out the duties of his or her occupation or for a reason otherwise connected with his or her occupation;

        (b)     the act or omission that caused the victim's death was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim;

        (c)     the victim was under 18 years of age at the time of the act or omission that caused the victim's death;

        (d)     at the time the prisoner was convicted of the offence, the prisoner had one or more previous convictions for the crime of murder or manslaughter.

    (4)     The Supreme Court may fix a non-parole period that is longer than a non-parole period referred to in section 18 or subsection (3) if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non-parole period is warranted.

    (5)     The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.

    (6)     The Director of Public Prosecutions:

        (a)     must make an application under this section in the case of a particular prisoner if of the opinion that one or more of the prescribed circumstances of aggravation can be established; and

        (b)     may make an application under this section in the case of any other prisoner to whom this Division applies.

    (7)     If any of the prescribed circumstances of aggravation is established on an application under this section:

        (a)     the Supreme Court's power to dismiss the application under subsection (1)(b) is excluded; and

        (b)     the Court must exercise its power under subsection (1)(a) to revoke the non-parole period fixed by section 18; and

        (c)     the Court must exercise one of the following powers:

            (i)     fix a non-parole period of 25 years in accordance with subsection (3);

            (ii)     fix a longer non-parole period in accordance with subsection (4);

            (iii)     refuse to fix a non-parole period in accordance with subsection (5).

    (8)     However, if no prescribed circumstance of aggravation is established on an application under this section, the Supreme Court may (as formerly):

        (a)     dismiss the application under subsection (1)(b); or

        (b)     exercise its power under subsection (1)(a) to revoke the

non-parole period fixed by section 18 and:

            (i)     fix a longer non-parole period in accordance with subsection (4); or

            (ii)     refuse to fix a non-parole period in accordance with subsection (5).

    (9)     If, before the commencement of this subsection, an application under this section had been dismissed in a case in which a prescribed circumstance of aggravation was, or could have been, established, a further application may be made under this section within 6 months after that commencement.

    (10)     The further application may be made either by the Director of Public Prosecutions or by the Attorney-General and, if made by the Attorney-General, references in this Division to the Director of Public Prosecutions will, in relation to that application, be read as references to the Attorney-General.