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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Code Amendment Bill (No. 2) 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Criminal Code amended 2
Part 2 -- Amendments about wilful
murder and murder
4. Section 278 repealed 3
5. Section 279 amended 3
6. Section 282 replaced 3
7. Consequential amendments to the Code 4
8. Sentencing Act 1995 consequentially amended 5
9. Other Acts consequentially amended 7
10. Transitional and savings 7
Schedule 1 -- Amendments
consequential on Part 2 8
1. Adoption Act 1994 amended 8
2. Bail Act 1982 amended 8
3. Criminal Code Act 1913 amended 8
4. Criminal Investigation (Identifying People) Act 2002
amended 8
5. Criminal Law (Mentally Impaired Defendants) Act
1996 amended 9
6. District Court of Western Australia Act 1969 amended 9
7. Evidence Act 1906 amended 9
8. Juries Act 1957 amended 10
9. Prisons Act 1981 amended 10
231--2 page i
Criminal Code Amendment Bill (No. 2) 2003
Contents
10. Sentence Administration Act 2003 amended 12
11. Sentencing Act 1995 amended 15
12. Young Offenders Act 1994 amended 15
Schedule 2 -- Transitional and savings
provisions consequential on Part 2 16
1. Interpretation 16
2. Wilful murder trials in progress at commencement 16
3. Wilful murders committed before commencement 16
4. Offenders serving life term at commencement 16
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As divided by the Assembly)
(As amended during consideration in detail)
Criminal Code Amendment Bill (No. 2) 2003
A Bill for
An Act to amend the The Criminal Code and to consequentially
amend various other Acts.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Code Amendment Bill (No. 2) 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Code Amendment Act
(No. 2) 2003.
5 2. Commencement
Subject to this section, this Act comes into operation on the 28th
day after the day on which it receives the Royal Assent.
3. The Criminal Code amended
The amendments in this Act are to The Criminal Code* unless
10 otherwise indicated.
[* Reprint 10 as at 7 February 2003 (see the Schedule to the
Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Act Compilation Act 1913).]
page 2
Criminal Code Amendment Bill (No. 2) 2003
Amendments about Part 2
wilful murder and murder
s. 4
Part 2 -- Amendments about wilful murder and
murder
4. Section 278 repealed
Section 278 is repealed.
5 5. Section 279 amended
Section 279 is amended as follows:
(a) by deleting paragraph (1) and inserting the following
paragraph instead --
"
10 (1) If the person intends to cause the death of, or to
do grievous bodily harm to, the person killed or
some other person;
";
(b) by deleting paragraphs (3), (4) and (5);
15 (c) by deleting the paragraph beginning with "In the last 3
cases" and ending with "result.".
6. Section 282 replaced
Section 282 is repealed and the following section is inserted
instead --
20 "
282. Penalty for murder
(1) A person, other than a child, who commits the crime of
murder is liable to the mandatory penalty of life
imprisonment.
25 (2) A child who commits the crime of murder is liable to
the penalty of either --
(a) life imprisonment; or
page 3
Criminal Code Amendment Bill (No. 2) 2003
Part 2 Amendments about
wilful murder and murder
s. 7
(b) detention in a place determined by the
Governor from time to time until released by
order of the Governor.
".
5 7. Consequential amendments to the Code
(1) Section 31(4) is amended by deleting "an offence punishable
with strict security life imprisonment," and inserting instead --
" murder, manslaughter, ".
(2) Section 47(1) is amended by deleting "commit any crime
10 punishable with strict security life imprisonment" and inserting
instead --
" kill any person ".
(3) Section 48(1)(b) is deleted and the following paragraph is
inserted instead --
15 "
(b) To commit any indictable offence other than
one entailing the killing of a person;
".
(4) Section 125 is amended by deleting "with strict security life
20 imprisonment, or".
(5) Section 134 is amended by deleting "to strict security life
imprisonment or".
(6) Section 144 is repealed and the following section is inserted
instead --
25 "
144. Forcibly freeing certain offenders from custody
Any person who forcibly frees, or attempts to free,
from lawful custody any person serving a sentence for,
or charged with, an offence that is punishable with
page 4
Criminal Code Amendment Bill (No. 2) 2003
Amendments about Part 2
wilful murder and murder
s. 8
imprisonment for life, or for 20 years or more, is guilty
of a crime and is liable to imprisonment for 20 years.
".
(7) Section 277 is amended by deleting "wilful murder,".
5 (8) Section 280 is amended by deleting "wilful murder or".
(9) Section 281 is amended by deleting "wilful murder or".
(10) Section 281A is amended by deleting "wilful murder or".
(11) Section 595 is amended as follows:
(a) by deleting "wilful murder,";
10 (b) in the Table to the section by deleting the entry relating
to "wilful murder";
(c) in the Table to the section, in the entry relating to
"murder", by inserting in the second column after
"under section" --
15 " 283, ".
(12) Section 720 is amended by deleting "not punishable with strict
security life imprisonment" and inserting instead --
" other than murder ".
8. Sentencing Act 1995 consequentially amended
20 (1) The amendments in this section are to the Sentencing Act 1995*.
[* Reprinted as at 4 May 2001.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 339-40 and Acts Nos. 24 of
2001 and 7 of 2002.]
25 (2) Section 85(1) is amended as follows:
(a) in the definition of "fixed term" by deleting "a life term"
and inserting instead --
" life imprisonment ";
page 5
Criminal Code Amendment Bill (No. 2) 2003
Part 2 Amendments about
wilful murder and murder
s. 8
(b) in the definition of "term" by deleting "a life term" and
inserting instead --
" life imprisonment ";
(c) by deleting the semicolon after the definition of "term"
5 and inserting instead a full stop;
(d) by deleting the definition of "life term".
(3) Section 88(5) is amended by deleting "a life term is to serve that
term" and inserting instead --
" life imprisonment is to serve that sentence ".
10 (4) Section 90 is repealed and the following section is inserted
instead --
"
90. Imposing life imprisonment for murder
(1) A court that sentences an offender to life imprisonment
15 for murder must either --
(a) set a minimum period of at least 10 and not
more than 30 years that the offender must serve
before being eligible for release on parole; or
(b) order that the offender must never be released.
20 (2) Any minimum period so set begins to run when the
sentence of life imprisonment begins.
(3) A court must make an order under subsection (1)(b) if
it is necessary to do so in order to meet the
community's interest in punishment and deterrence.
25 (4) In determining whether an offence is one for which an
order under subsection (1)(b) is necessary, the only
matters relating to the offence that are to be taken into
account are --
(a) the circumstances of the commission of the
30 offence; and
page 6
Criminal Code Amendment Bill (No. 2) 2003
Amendments about Part 2
wilful murder and murder
s. 9
(b) any aggravating factors.
".
(5) Section 91 is repealed.
(6) Section 96 is repealed and the following section is inserted
5 instead --
"
96. Release from life term
(1) A prisoner serving a sentence of life imprisonment for
an offence other than murder is not to be released
10 before he or she has served 7 years of the sentence.
(2) A prisoner serving a sentence of life imprisonment for
murder in respect of which a minimum period has been
set under section 90(1)(a) is not to be released before
he or she has served the minimum period.
15 (3) A prisoner serving a sentence of life imprisonment for
murder in respect of which an order has been made
under section 90(1)(b) is not to be released.
(4) Any order for the release of a prisoner referred to in
this section must be made in accordance with Part 3 of
20 the Sentence Administration Act 2003.
".
(7) Section 142 is amended by deleting "sentenced to strict security
life imprisonment" and inserting instead --
"
25 serving a sentence of life imprisonment in respect of
which an order has been made under section 90(1)(b)
".
9. Other Acts consequentially amended
Schedule 1 has effect.
30 10. Transitional and savings
Schedule 2 has effect.
page 7
Criminal Code Amendment Bill (No. 2) 2003
Schedule 1 Amendments consequential on Part 2
Schedule 1 -- Amendments consequential on Part 2
[s. 9]
1. Adoption Act 1994 amended
(1) The amendment in this clause is to the Adoption Act 1994*.
5 [* Reprinted as at 2 January 2001.
For subsequent amendments see Act No. 3 of 2002.]
(2) Section 40(2)(e)(ii) is amended by deleting ", strict security life
imprisonment".
2. Bail Act 1982 amended
10 (1) The amendments in this clause are to the Bail Act 1982*.
[* Reprinted as at 27 August 1999.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 27 and Acts Nos. 6 and 27 of 2002.]
(2) Section 15(1) is amended by deleting "wilful murder or".
15 (3) Schedule 2 item 1 is amended by deleting the entry relating to
section 278 of The Criminal Code.
3. Criminal Code Act 1913 amended
(1) The amendment in this clause is to the Criminal Code Act 1913*.
[* Reprint 10 as at 7 February 2003 (see Appendix B to the Criminal
20 Code Act Compilation Act 1913).]
(2) Section 3(2) is repealed.
4. Criminal Investigation (Identifying People) Act 2002 amended
(1) The amendments in this clause are to the Criminal Investigation
(Identifying People) Act 2002*.
25 [* Act No. 6 of 2002.]
page 8
Criminal Code Amendment Bill (No. 2) 2003
Amendments consequential on Part 2 Schedule 1
(2) Section 3(1) is amended in the definition of "serious offence" by
deleting "strict security life imprisonment," and inserting instead --
" or includes ".
5. Criminal Law (Mentally Impaired Defendants) Act 1996 amended
5 (1) The amendment in this clause is to the Criminal Law (Mentally
Impaired Defendants) Act 1996*.
[* Reprinted as at 21 June 2002.
For subsequent amendments see Act No. 27 of 2002.]
(2) Schedule 1 item 1 is amended by deleting the entry relating to
10 section 278 of The Criminal Code.
6. District Court of Western Australia Act 1969 amended
(1) The amendment in this clause is to the District Court of Western
Australia Act 1969*.
[* Reprinted as at 19 January 2001.
15 For subsequent amendments see Act No. 23 of 2002.]
(2) Section 42(2) is amended by deleting "or strict security life
imprisonment".
7. Evidence Act 1906 amended
(1) The amendments in this clause are to the Evidence Act 1906*.
20 [* Reprinted as at 4 January 2001.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 121 and Acts Nos. 3 and 27 of 2002.]
(2) The Second Schedule Part 1 is amended as follows:
(a) in the entry relating to an offence under section 144 of The
25 Criminal Code by deleting "Using force to rescue a person
undergoing, or liable to, strict security life imprisonment" and
inserting instead --
" Forcibly freeing certain offenders from custody ";
(b) by deleting the entry relating to an offence under section 278
30 of The Criminal Code.
page 9
Criminal Code Amendment Bill (No. 2) 2003
Schedule 1 Amendments consequential on Part 2
8. Juries Act 1957 amended
(1) The amendment in this clause is to the Juries Act 1957*.
[* Reprinted as at 3 July 2000.]
(2) Section 41 is amended by deleting "an offence punishable with strict
5 security life imprisonment or for".
9. Prisons Act 1981 amended
(1) The amendments in this clause are to the Prisons Act 1981*.
[* Reprinted as at 22 December 2000.
For subsequent amendments see Act No. 10 of 2002.]
10 (2) Section 16(6) is repealed and the following subsection is inserted
instead --
"
(6) Subsection (5) does not apply in respect of a prisoner
who --
15 (a) is serving a sentence that requires him or her to
spend --
(i) 20 years or more in custody before
being eligible for parole; or
(ii) his or her whole life in custody;
20 or
(b) is subject to an order made under section 282 of
The Criminal Code and whose release is to be
determined by the Governor.
".
25 (3) Section 26(2) is amended by inserting after "life imprisonment" --
"
or a sentence of life imprisonment in respect of which
an order has been made under section 90(1)(b) of the
Sentencing Act 1995
30 ".
page 10
Criminal Code Amendment Bill (No. 2) 2003
Amendments consequential on Part 2 Schedule 1
(4) Section 27(6) is repealed and the following subsection is inserted
instead --
"
(6) If a prisoner who --
5 (a) is serving a sentence that requires him or her to
spend --
(i) 20 years or more in custody before
being eligible for parole; or
(ii) his or her whole life in custody;
10 or
(b) is subject to an order made under section 282 of
The Criminal Code and whose release is to be
determined by the Governor,
is removed from or returned to a prison under an order
15 made under this section, the superintendent of the
prison shall notify the chief executive officer
accordingly.
".
(5) Section 86 is amended by inserting after paragraph (c) the following
20 paragraph --
"
(ca) subject to an order made under section 282 of
The Criminal Code and whose release is to be
determined by the Governor;
25 ".
(6) Section 89(a) is amended by inserting after subparagraph (iii) the
following subparagraph --
"
(iiia) subject to an order made under
30 section 282 of The Criminal Code and
whose release is to be determined by the
Governor;
".
page 11
Criminal Code Amendment Bill (No. 2) 2003
Schedule 1 Amendments consequential on Part 2
(7) Section 94(7) is amended by inserting after paragraph (c) the
following paragraph --
"
(ca) subject to an order made under section 282 of
5 The Criminal Code and whose release is to be
determined by the Governor;
".
10. Sentence Administration Act 2003 amended
(1) The amendments in this clause are to the Sentence Administration
10 Act 2003.
(2) Section 12(1) is amended in the definition of "person in custody" as
follows:
(a) in paragraph (b) by deleting "life term" and inserting
instead --
15 " life imprisonment ";
(b) by deleting paragraph (d) and inserting the following
paragraph instead --
"
(d) a person in custody by virtue of an order
20 made under section 282 of The Criminal
Code whose release is to be determined by
the Governor.
".
(3) Section 14(1) is repealed and the following subsection is inserted
25 instead --
"
(1) The release by the Governor of a person in custody by
virtue of an order made under section 282 of The
Criminal Code whose release is to be determined by
30 the Governor may, if the Governor thinks fit, be by
means of a parole order made by the Governor.
".
page 12
Criminal Code Amendment Bill (No. 2) 2003
Amendments consequential on Part 2 Schedule 1
(4) The Table to section 18 is deleted and the following Table is inserted
instead --
"
Table
Type of sentence When report due When subsequent
reports are due
Life imprisonment for 7 years after the Every 3 years after
an offence other than sentence was that
murder imposed
Life imprisonment for At the end of the Every 3 years after
murder where a minimum period that
minimum period has
been set under
section 90(1)(a) of the
Sentencing Act 1995
Indefinite One year after the Every 3 years after
imprisonment day on which the that
sentence began
5 ".
(5) Section 25(1) is repealed and the following subsections are inserted
instead --
"
(1) The Governor may make a parole order in respect of a
10 prisoner serving life imprisonment for murder but only
if --
(a) a minimum period has been set under
section 90(1)(a) of the Sentencing Act 1995;
(b) the prisoner has served the minimum period;
15 and
page 13
Criminal Code Amendment Bill (No. 2) 2003
Schedule 1 Amendments consequential on Part 2
(c) a report has been given by the Board to the
Minister under section 12 or 18.
(1a) The Governor may make a parole order in respect of a
prisoner serving life imprisonment for an offence other
5 than murder but only if --
(a) the prisoner has served the period required by
section 96(1) of the Sentencing Act 1995; and
(b) a report has been given by the Board to the
Minister under section 12 or 18.
10 ".
(6) Section 26 is repealed.
(7) Section 50(b) is amended by deleting "a life term" and inserting
instead --
" life imprisonment ".
15 (8) Section 68(2) is repealed and the following subsection is inserted
instead --
"
(2) If a parole order in respect of a prisoner serving life
imprisonment is suspended, the prisoner is then liable
20 to resume serving the sentence in custody.
".
(9) Section 69(2) is repealed and the following subsection is inserted
instead --
"
25 (2) If a parole order in respect of a prisoner serving life
imprisonment is cancelled after the prisoner is released
under the order, the prisoner is then liable to resume
serving the sentence in custody.
".
page 14
Criminal Code Amendment Bill (No. 2) 2003
Amendments consequential on Part 2 Schedule 1
11. Sentencing Act 1995 amended
(1) The amendments in this clause are to the Sentencing Act 1995 as
amended by section 8 of this Act.
(2) Section 96(4) is amended by deleting "Sentence Administration
5 Act 1995" and inserting instead --
" Sentence Administration Act 2003 ".
12. Young Offenders Act 1994 amended
(1) The amendments in this clause are to the Young Offenders Act 1994*.
[* Reprinted as at 8 December 2000.
10 For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 423.]
(2) Section 179(6) is amended as follows:
(a) by deleting "or" after paragraph (b);
(b) by inserting after paragraph (b) the following paragraph --
15 "
(ba) is subject to an order made under section 282 of
The Criminal Code and whose release is to be
determined by the Governor; or
".
20 (3) Schedule 1 item 1 is amended as follows:
(a) in the entry relating to section 125 of The Criminal Code, by
deleting "with strict security life imprisonment, or";
(b) in the entry relating to section 134 of The Criminal Code, by
deleting "to strict security life imprisonment or";
25 (c) in the entry relating to section 144 of The Criminal Code by
deleting "Forcibly rescuing offenders sentenced or liable to
strict security life imprisonment" and inserting instead --
" Forcibly freeing certain offenders from custody ".
(4) Schedule 2 item 1 is amended by deleting the entry relating to
30 section 278 of The Criminal Code.
page 15
Criminal Code Amendment Bill (No. 2) 2003
Schedule 2 Transitional and savings provisions consequential on Part 2
Schedule 2 -- Transitional and savings provisions
consequential on Part 2
[s. 10]
1. Interpretation
5 In this Schedule --
"commencement" means the commencement of Part 2.
2. Wilful murder trials in progress at commencement
If before commencement a person is charged on indictment with
wilful murder and on commencement the person's trial has begun but
10 not concluded, then the trial may continue as if Part 2 had not been
enacted.
3. Wilful murders committed before commencement
If before commencement a person commits wilful murder and is not
charged on indictment before commencement, then the person may, in
15 respect of the act or omission constituting the offence, be charged
under section 279 of The Criminal Code as amended in Part 2 and be
tried and sentenced as if, at the time of doing the act or making the
omission, Part 2 had commenced.
4. Offenders serving life term at commencement
20 (1) If immediately before commencement a person is serving a sentence
of life imprisonment for an offence other than murder or wilful
murder, the person is eligible to be released on parole when he or she
has served 7 years of the sentence.
(2) If immediately before commencement a person is serving a sentence
25 of life imprisonment for murder or wilful murder in respect of which a
minimum period was set under section 90 of the Sentencing Act 1995
as it was before commencement, the person is not to be released
before he or she has served that minimum period.
(3) If immediately before commencement a person is serving a sentence
30 of strict security life imprisonment in respect of which a minimum
period was set under section 91(1) of the Sentencing Act 1995 as it
page 16
Criminal Code Amendment Bill (No. 2) 2003
Transitional and savings provisions consequential on Part 2 Schedule 2
was before commencement, the person is not to be released before he
or she has served that minimum period.
(4) If immediately before commencement a person is serving a sentence
of strict security life imprisonment in respect of which an order was
5 made under section 91(3) of the Sentencing Act 1995 as it was before
commencement, the person is not to be released on parole.
(5) Any order for the release of a person to whom this clause applies must
be made in accordance with Part 3 of the Sentence Administration
Act 2003.
10 (6) If immediately before commencement a person is serving a sentence
of strict security life imprisonment, any order made after
commencement in relation to the person in the exercise of the Royal
Prerogative of Mercy is subject to section 142 of the Sentencing
Act 1995 as it was immediately before commencement.
15 (7) If immediately before commencement a person is serving a sentence
of --
(a) life imprisonment imposed for murder or wilful murder; or
(b) strict security life imprisonment imposed for wilful murder,
then sections 18, 25 and 26 of the Sentence Administration Act 2003
20 as they were immediately before commencement continue to apply to
and in respect of the person.
page 17
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