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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Sentencing (Amendment) Act 2003
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Principal Act 2
PART 2--GUIDELINE JUDGMENTS 3
4. New Part 2AA inserted 3
PART 2AA--GUIDELINE JUDGMENTS 3
6AA. Definition 3
6AB. Power of Court of Appeal to give or review guideline
judgments 3
6AC. Content of guideline judgment 4
6AD. Procedural requirements 5
6AE. Matters to which Court of Appeal must have regard 5
6AF. Use of evidence in giving or reviewing guideline
judgment 6
6AG. Relationship between guideline judgments and other
sentencing matters 6
5. New section 128 inserted 6
128. Transitional provision--Sentencing (Amendment) Act
2003 6
PART 3--SENTENCING ADVISORY COUNCIL 8
6. New Part 9A inserted 8
PART 9A--SENTENCING ADVISORY COUNCIL 8
108A. Definitions 8
108B. Establishment of Sentencing Advisory Council 8
108C. Functions of the Council 9
108D. Powers of the Council 10
108E. Delegation 10
108F. Board of directors 11
108G. Chairperson 12
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Clause Page
108H. Terms and conditions of office of directors 12
108I. Vacancies and removal of directors from office 12
108J. Travelling and other allowances 13
108K. Validity of acts or decisions 13
108L. Meetings of the Board 13
108M. Staff 14
108N. Appointment of consultants 14
108O. Control on expenditure 15
108P. Parliamentary requirement for information 15
PART 4--STATUTE LAW REVISION 16
7. Amendment of Sentencing (Amendment) Act 2002 16
ENDNOTES 17
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551022B.I1-21/3/2003 BILL LA CIRCULATION 25-10-2004
PARLIAMENT OF VICTORIA
Initiated in Assembly 18 March 2003
A BILL
to amend the Sentencing Act 1991 so as to empower the Court of
Appeal to give guideline judgments and to establish a Sentencing
Advisory Council, to make a minor amendment to the Sentencing
(Amendment) Act 2002 and for other purposes.
Sentencing (Amendment) Act 2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to amend the
Sentencing Act 1991 so as to--
5 (a) empower the Court of Appeal to give
guideline judgments; and
(b) establish a Sentencing Advisory Council.
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Sentencing (Amendment) Act 2003
Act No.
Part 1--Preliminary
s. 2
2. Commencement
(1) Subject to sub-section (3), this Act (except Part 4)
comes into operation on a day or days to be
proclaimed.
5 (2) Part 4 is deemed to have come into operation on
17 February 2003.
(3) If a provision of this Act does not come into
operation before 1 July 2004, it comes into
operation on that day.
10 3. Principal Act
See: In this Act, the Sentencing Act 1991 is called the
Act No.
Principal Act.
49/1991.
Reprint No. 6
as at
1 August
2001 and
amending
Act Nos
45/2001,
61/2001,
80/2001,
1/2002,
2/2002 and
35/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
__________________
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Sentencing (Amendment) Act 2003
Act No.
Part 2--Guideline Judgments
s. 4
PART 2--GUIDELINE JUDGMENTS
4. New Part 2AA inserted
After Part 2 of the Principal Act insert--
'PART 2AA--GUIDELINE JUDGMENTS
5 6AA. Definition
In this Part--
"guideline judgment" means a judgment
that is expressed to contain guidelines
to be taken into account by courts in
10 sentencing offenders, being guidelines
that apply--
(a) generally; or
(b) to a particular court or class of
court; or
15 (c) to a particular offence or class of
offence; or
(d) to a particular penalty or class of
penalty; or
(e) to a particular class of offender.
20 6AB. Power of Court of Appeal to give or review
guideline judgments
(1) On hearing and considering an appeal
against sentence, the Court of Appeal may
(on its own initiative or on an application
25 made by a party to the appeal) consider
whether--
(a) to give a guideline judgment; or
(b) to review a guideline judgment given
by it in a previous proceeding.
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Sentencing (Amendment) Act 2003
Act No.
Part 2--Guideline Judgments
s. 4
(2) On a review of a guideline judgment, the
Court of Appeal may--
(a) confirm the guideline judgment; or
(b) vary the guideline judgment; or
5 (c) revoke the guideline judgment; or
(d) substitute the guideline judgment with a
new guideline judgment.
(3) The Court of Appeal may give or review a
guideline judgment even if it is not necessary
10 for the purpose of determining any appeal in
which the judgment is given or reviewed.
(4) A decision of the Court of Appeal to give or
review a guideline judgment must be a
unanimous decision of the Judges
15 constituting the Court.
(5) A guideline judgment may be given
separately to, or included in, the Court of
Appeal's judgment in an appeal.
(6) Nothing in this Part requires the Court of
20 Appeal to give or review a guideline
judgment if it considers it inappropriate to do
so.
6AC. Content of guideline judgment
A guideline judgment may set out--
25 (a) criteria to be applied in selecting among
various sentencing alternatives;
(b) the weight to be given to the various
purposes specified in section 5(1) for
which a sentence may be imposed;
30 (c) the criteria by which a sentencing court
is to determine the gravity of an
offence;
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Sentencing (Amendment) Act 2003
Act No.
Part 2--Guideline Judgments
s. 4
(d) the criteria which a sentencing court
may use to reduce the sentence for an
offence;
(e) the weighting to be given to relevant
5 criteria;
(f) any other matter consistent with the
principles contained in this Act.
6AD. Procedural requirements
If the Court of Appeal decides to give or
10 review a guideline judgment it must--
(a) cause the Sentencing Advisory Council
to be notified and consider any views
stated in writing, within the period
specified in the notification, by that
15 Council; and
(b) give--
(i) the Director of Public
Prosecutions or a legal practitioner
representing the Director; and
20 (ii) a legal practitioner representing
Victoria Legal Aid, whether or not
employed by Victoria Legal Aid,
or a legal practitioner arranged by
Victoria Legal Aid--
25 an opportunity to appear before the
Court and make a submission on the
matter.
6AE. Matters to which Court of Appeal must
have regard
30 In considering the giving of, or in reviewing,
a guideline judgment the Court of Appeal
must have regard to--
(a) the need to promote consistency of
approach in sentencing offenders; and
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Sentencing (Amendment) Act 2003
Act No.
Part 2--Guideline Judgments
s. 5
(b) the need to promote public confidence
in the criminal justice system; and
(c) any views stated by the Sentencing
Advisory Council and any submissions
5 made by the Director of Public
Prosecutions or a legal practitioner
under section 6AD.
6AF. Use of evidence in giving or reviewing
guideline judgment
10 Nothing in Part VI of the Crimes Act 1958
limits the evidence or other matters that the
Court of Appeal may take into consideration
in giving or reviewing a guideline judgment
and the Court may inform itself as it sees fit.
15 6AG. Relationship between guideline judgments
and other sentencing matters
A guideline in a guideline judgment--
(a) is additional to any other matter that is
required to be taken into account under
20 Part 2; and
(b) does not limit or take away from any
such requirement.'.
5. New section 128 inserted
At the end of Part 12 of the Principal Act insert--
25 "128. Transitional provision--Sentencing
(Amendment) Act 2003
Part 2AA applies in relation to appeals heard
by the Court of Appeal on or after the
commencement of section 4 of the
30 Sentencing (Amendment) Act 2003
irrespective of when--
(a) the notice of appeal or notice of
application for leave to appeal was
given; or
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Sentencing (Amendment) Act 2003
Act No.
Part 2--Guideline Judgments
s. 5
(b) the offence is alleged to have been
committed.".
__________________
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
PART 3--SENTENCING ADVISORY COUNCIL
6. New Part 9A inserted
After Part 9 of the Principal Act insert--
'PART 9A--SENTENCING ADVISORY
5 COUNCIL
108A. Definitions
In this Part--
"Board" means board of directors of the
Council;
10 "chairperson" means chairperson of the
Board;
"Council" means Sentencing Advisory
Council established under
section 108B;
15 "director" means chairperson or other
director of the Council;
"guideline judgment" has the same
meaning as in Part 2AA.
108B. Establishment of Sentencing Advisory
20 Council
(1) The Sentencing Advisory Council is
established.
(2) The Council--
(a) is a body corporate with perpetual
25 succession;
(b) has an official seal;
(c) may sue and be sued in its corporate
name;
(d) subject to section 108D, may acquire,
30 hold and dispose of personal property;
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
(e) subject to section 108D, may do and
suffer all acts and things that a body
corporate may by law do and suffer.
(3) All courts must take judicial notice of the
5 official seal of the Council affixed to a
document and, until the contrary is proved,
must presume that it was duly affixed.
(4) The official seal of the Council must be kept
in such custody as the Council directs and
10 must not be used except as authorised by it.
108C. Functions of the Council
(1) The functions of the Council are--
(a) to state in writing to the Court of
Appeal its views in relation to the
15 giving, or review, of a guideline
judgment;
(b) to provide statistical information on
sentencing, including information on
current sentencing practices, to
20 members of the judiciary and other
interested persons;
(c) to conduct research, and disseminate
information to members of the judiciary
and other interested persons, on
25 sentencing matters;
(d) to gauge public opinion on sentencing
matters;
(e) to consult, on sentencing matters, with
government departments and other
30 interested persons and bodies as well as
the general public;
(f) to advise the Attorney-General on
sentencing matters.
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
(2) The Council may perform its functions, and
exercise its powers, within or outside
Victoria.
108D. Powers of the Council
5 (1) Subject to sub-sections (2) and (3), the
Council has power to do all things necessary
or convenient to be done for, or in
connection with, performing its functions.
(2) The Council does not have power to acquire,
10 hold or dispose of real property.
(3) The Council must not, without the prior
written approval of the Attorney-General--
(a) acquire any personal property, right or
privilege for a consideration of more
15 than $50 000 or any higher amount
prescribed for the purposes of this
paragraph; or
(b) dispose of any personal property, right
or privilege that has a value, or for a
20 consideration, of more than $50 000 or
any higher amount prescribed for the
purposes of this paragraph.
108E. Delegation
The Council, by instrument under its official
25 seal, may delegate to--
(a) a director; or
(b) the chief executive officer of the
Council; or
(c) an employee referred to in section
30 108M(2)--
any function or power of the Council, other
than the function under section 108C(1)(a) or
this power of delegation.
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
108F. Board of directors
(1) There shall be a board of directors of the
Council consisting of not less than 9, and not
more than 12, directors of whom--
5 (a) two must be people who have, in the
opinion of the Attorney-General, broad
experience in community issues
affecting courts;
(b) one must have experience as a senior
10 member of the academic staff of a
tertiary institution;
(c) one must be a person who is a member
of a victim of crime support or
advocacy group;
15 (d) one must be a person who, in the
opinion of the Attorney-General, is a
highly experienced prosecution lawyer;
(e) one must be a person who, in the
opinion of the Attorney-General, is a
20 highly experienced defence lawyer;
(f) the remainder must have experience in
the operation of the criminal justice
system.
(2) Directors are appointed by the Governor in
25 Council on the nomination of the Attorney-
General.
(3) The Board--
(a) is responsible for the management of
the affairs of the Council; and
30 (b) may exercise the powers of the
Council.
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
108G. Chairperson
(1) The Governor in Council may, on the
recommendation of the Attorney-General,
appoint a director to be chairperson of the
5 Board.
(2) The chairperson may resign that office by
notice in writing signed by the chairperson
and delivered to the Attorney-General.
108H. Terms and conditions of office of directors
10 (1) A director holds office--
(a) subject to section 108I, for the term
(not exceeding 3 years) that is specified
in his or her instrument of appointment,
and is eligible for re-appointment; and
15 (b) on any other terms and conditions, not
inconsistent with this Part, that are
specified in his or her instrument of
appointment.
(2) The Public Sector Management and
20 Employment Act 1998 does not apply to a
director in respect of the office of director.
108I. Vacancies and removal of directors from
office
(1) A director's office becomes vacant--
25 (a) on the expiry of his or her term of
office; or
(b) if he or she resigns from office under
sub-section (2); or
(c) if he or she is removed from office
30 under sub-section (3); or
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
(d) if he or she is convicted of an indictable
offence or an offence that, if committed
in Victoria, would be an indictable
offence.
5 (2) A director may resign from office by notice
in writing signed by him or her and delivered
to the Attorney-General.
(3) The Governor in Council may remove a
director from office if of the opinion that the
10 director has failed to comply with any term
or condition of appointment.
108J. Travelling and other allowances
A director is entitled to be paid the travelling
and other allowances that are fixed from time
15 to time in respect of him or her by the
Governor in Council.
108K. Validity of acts or decisions
An act or decision of the Board is not invalid
merely because of--
20 (a) a defect or irregularity in, or in
connection with, the appointment of a
director; or
(b) a vacancy in the membership of the
Board.
25 108L. Meetings of the Board
(1) The chairperson must convene as many
meetings of the Board as he or she considers
necessary for the efficient conduct of its
affairs.
30 (2) The chairperson must preside at any meeting
of the Board at which he or she is present.
(3) If the chairperson is absent, a director elected
by the directors present must preside.
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
(4) The quorum for a meeting of the Board at
any time is 3 less than the total appointed
membership of the Board at that time.
(5) A question arising at a meeting of the Board
5 is determined by a majority of the votes of
the members present and voting on the
question.
(6) The person presiding has a deliberative vote
and, in the event of an equality of votes on
10 any question, a second or casting vote.
(7) Subject to this Part, the Board may regulate
its own procedure.
108M. Staff
(1) A chief executive officer of the Council must
15 be employed under Part 3 of the Public
Sector Management and Employment Act
1998.
(2) Subject to the Council's budget, as many
other employees as are necessary to enable
20 the Council to perform its functions may be
employed under Part 3 of the Public Sector
Management and Employment Act 1998.
108N. Appointment of consultants
(1) The Council may engage persons with
25 suitable qualifications and experience as
consultants to the Council either in an
honorary capacity or for remuneration.
(2) The remuneration of consultants shall be
determined by the Council having regard to
30 its budget.
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Sentencing (Amendment) Act 2003
Act No.
Part 3--Sentencing Advisory Council
s. 6
108O. Control on expenditure
Money must only be spent by the Council in
defraying expenses incurred by it in
performing its functions, including paying
5 any remuneration, salaries or allowances
payable to directors, staff or consultants.
108P. Parliamentary requirement for information
(1) The Council must comply with any
information requirement lawfully made of it
10 by a House of the Parliament or a
Parliamentary Committee within the
meaning of the Parliamentary Committees
Act 1968.
(2) In this section "information requirement"
15 means a requirement to give information of a
specified kind within a specified period
relating to--
(a) the performance by the Council of its
functions; or
20 (b) the exercise by the Council of its
powers; or
(c) the Council's expenditure or proposed
expenditure.'.
__________________
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Sentencing (Amendment) Act 2003
Act No.
Part 4--Statute Law Revision
s. 7
PART 4--STATUTE LAW REVISION
7. Amendment of Sentencing (Amendment) Act 2002
See: In section 11 of the Sentencing (Amendment)
Act No.
Act 2002, for "Before section 5" substitute "After
2/2002.
5 Statute Book: section 4B".
www.dms.
dpc.vic.
gov.au
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Sentencing (Amendment) Act 2003
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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