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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to amend the Criminal
Law (Sentencing) Act 1988.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Criminal Law
(Sentencing) Act 1988
4Insertion of heading to Part 5 Division
1
5Insertion of heading to Part 5 Division 2 and
section 37A
Division 2—Suspension of imprisonment on
defendant entering into bond
37AInterpretation
6Amendment of section
38—Suspension of imprisonment on defendant entering into bond
7Insertion of heading to Part 5 Division
3
8Insertion of heading to Part 5 Division
4
9Insertion of heading to Part 5 Division
5
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Sentencing) (Abolition of
Suspended Sentences for Subsequent Serious Offences) Amendment
Act 2012.
This Act will come into operation 1 month after the day on which it is
assented to by the Governor.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law (Sentencing)
Act 1988
4—Insertion
of heading to Part 5 Division 1
Before section 36 insert:
Division 1—Application of Part
5—Insertion
of heading to Part 5 Division 2 and section 37A
After section 37 insert:
Division 2—Suspension of imprisonment on defendant
entering into bond
37A—Interpretation
(1) In this Division—
drug offence means—
(a) an offence against Part 5 Division 2 or 3 of the Controlled
Substances Act 1984 or a substantially similar offence against a
corresponding previous enactment; or
(b) a conspiracy to commit, or an attempt to commit, such an
offence;
home invasion means a criminal trespass committed in a place
of residence while a person is lawfully present in the place and the trespasser
knows of the person's presence or is reckless about whether anyone is in the
place;
offence against the person means—
(a) an offence that
results in the death of the victim or the victim suffering total incapacity;
or
(b) a conspiracy to commit an offence referred to in
paragraph (a);
or
(c) aiding, abetting, counselling or procuring the commission of an
offence referred to in
paragraph (a);
previous serious offence—see
subsection (2)(b);
serious offence means—
(a) a drug offence; or
(b) a sexual offence; or
(c) an offence against the person; or
(d) 1 of the
following offences:
(i) an offence of robbery or aggravated robbery;
(iii) an offence of damage to property by fire or explosives;
(iv) an offence of causing a bushfire;
(v) an offence against a corresponding previous enactment substantially
similar to an offence referred to in any of the preceding
subparagraphs;
(vi) a conspiracy to commit, or an attempt to commit, an offence referred
to in any of the preceding subparagraphs; or
(e) an offence that is committed in circumstances in which the offender
uses violence or a threat of violence for the purpose of committing the offence,
in the course of committing the offence, or for the purpose of escaping from the
scene of the offence;
sexual offence means—
(a) an offence
against section 48, 49, 50, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72
of the Criminal
Law Consolidation Act 1935; or
(b) an offence against a corresponding previous enactment substantially
similar to an offence referred to in
paragraph (a);
or
(c) an attempt to commit or an assault with intent to commit an offence
referred to in a preceding paragraph;
total incapacity—a victim suffers total incapacity if
the victim is permanently physically or mentally incapable of independent
function.
(2) For the
purposes of this Division—
(a) an offence will not be regarded as a serious offence
unless the maximum penalty prescribed for the offence is, or includes,
imprisonment for at least 5 years; and
(b) a serious
offence of which a defendant has been convicted will not be regarded as a
subsequent serious offence unless—
(i) the defendant has committed, on at least 1 other separate
occasion within a 10 year period of the date on which the serious offence
occurs, a serious offence (whether or not the same serious offence on each
occasion); and
(ii) the defendant has been convicted of that offence,
(a previous serious offence).
6—Amendment
of section 38—Suspension of imprisonment on defendant entering into
bond
Section 38(2), (2a) and (2b)—delete subsections (2)
to (2b) (inclusive) and substitute:
(2) A sentence of
imprisonment may not be suspended under this section in the following
circumstances:
(a) the sentence is to be served cumulatively on another term of
imprisonment;
(b) the sentence is to be served concurrently with another term of
imprisonment then being served or about to be served by the defendant;
(c) the sentence is
imposed for a subsequent serious offence.
(2a)
Subsection (2) is
subject to the following qualifications:
(a) if the period of imprisonment to which a defendant is liable under
1 or more sentences is more than 3 months but less than 1 year,
the sentencing court may, by order—
(i) direct that the defendant serve a specified period (being not less
than 1 month) of the imprisonment in prison; and
(ii) suspend the remainder on condition that the defendant enter into a
bond of a kind described in subsection (1) (the term of which cannot extend
beyond the period of suspended imprisonment) that will have effect on the
defendant's release from prison;
(b) if a sentence is being imposed for a subsequent serious
offence—
(i) where the defendant is a youth—
paragraph (c) of
that subsection does not apply to, or in relation to, the sentence;
and
(ii) where the sentence for any previous serious offence committed by the
defendant was not suspended—the sentencing court may, if it thinks that
good reason exists for doing so, suspend the sentence for the subsequent serious
offence under this section.
7—Insertion
of heading to Part 5 Division 3
Before section 39 insert:
Division 3—Discharge without sentence on defendant
entering into bond
8—Insertion
of heading to Part 5 Division 4
Before section 40 insert:
Division 4—Term and conditions of
bond
9—Insertion
of heading to Part 5 Division 5
Before section 43 insert:
Division 5—Miscellaneous