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Western Australia
Criminal Law Amendment (Home Burglary and
Other Offences) Bill 2014
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- The Criminal Code
amended
Division 1 -- Preliminary
3. Act amended 3
Division 2 -- Amendments relating to offences
committed in the course of aggravated
home burglary
4. Section 1 amended 3
5. Section 279 amended 4
6. Section 280 amended 5
7. Section 281 amended 6
8. Section 283 amended 7
9. Section 294 amended 8
10. Section 297 amended 10
11. Section 320 amended 12
12. Section 321 amended 13
13. Section 324 amended 14
14. Section 325 amended 15
15. Section 326 amended 16
16. Section 327 amended 17
17. Section 328 amended 18
18. Section 330 amended 19
61--1 page i
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Contents
Division 3 -- Amendments relating to home
burglary repeat offenders
19. Section 400 amended 20
20. Sections 401A and 401B inserted 20
401A. Term used: relevant conviction 20
401B. Term used: repeat offender 25
21. Section 401 amended 25
Division 4 -- Other amendments
22. Section 740B inserted 28
740B. Review of certain amendments relating to
home burglary 28
Part 3 -- Sentencing Act 1995
amended
23. Act amended 30
24. Section 90 amended 30
page ii
Western Australia
LEGISLATIVE ASSEMBLY
Criminal Law Amendment (Home Burglary and
Other Offences) Bill 2014
A Bill for
An Act to amend The Criminal Code and the Sentencing Act 1995.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Criminal Law Amendment (Home Burglary and
4 Other Offences) Act 2014.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) Part 1 -- on the day on which this Act receives the
8 Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
page 2
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Preliminary Division 1
s. 3
1 Part 2 -- The Criminal Code amended
2 Division 1 -- Preliminary
3 3. Act amended
4 This Part amends The Criminal Code.
5 Division 2 -- Amendments relating to offences committed in the
6 course of aggravated home burglary
7 4. Section 1 amended
8 In section 1(1) insert in alphabetical order:
9
10 The term adult offender means, with respect to a
11 person convicted of an offence, a person who had
12 reached 18 years of age when the offence was
13 committed;
14 The term aggravated home burglary means a home
15 burglary committed in circumstances of aggravation
16 (within the meaning given in section 400(1));
17 The term home burglary means an offence against any
18 provision of Chapter XXXIX (as enacted at any time)
19 other than section 407 committed in respect of a place
20 (within the meaning given in section 400(1)) ordinarily
21 used for human habitation;
22 The term juvenile offender means, with respect to a
23 person convicted of an offence, a person who had
24 reached 16 but not 18 years of age when the offence
25 was committed;
26
page 3
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 5
1 5. Section 279 amended
2 (1) In section 279(4) delete "case" and insert:
3
4 case, subject to subsection (5A),
5
6 (2) After section 279(4) insert:
7
8 (5A) If the offence is committed by an adult offender in the
9 course of conduct that constitutes an aggravated home
10 burglary, the court sentencing the offender, if it does
11 not impose a term of life imprisonment must,
12 notwithstanding any other written law, impose a term
13 of imprisonment of at least 15 years.
14
15 (3) After section 279(5) insert:
16
17 (6A) If the offence is committed by a juvenile offender in
18 the course of conduct that constitutes an aggravated
19 home burglary and the court sentences the offender
20 under subsection (5)(a) but does not impose a term of
21 life imprisonment, it --
22 (a) must, notwithstanding the Young Offenders
23 Act 1994 section 46(5a), impose either --
24 (i) a term of imprisonment of at least
25 3 years; or
26 (ii) a term of detention under the Young
27 Offenders Act 1994 of at least 3 years,
28 as the court thinks fit; and
29 (b) must not suspend any term of imprisonment
30 imposed; and
31 (c) must record a conviction against the offender.
page 4
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 6
1 (6B) Subsection (6A) does not prevent a court from --
2 (a) making a direction under the Young Offenders
3 Act 1994 section 118(4); or
4 (b) making a special order under Part 7 Division 9
5 of that Act.
6
7 6. Section 280 amended
8 (1) In section 280 delete "If " and insert:
9
10 (1) If
11
12 (2) At the end of section 280 insert:
13
14 (2) If the offence is committed by an adult offender in the
15 course of conduct that constitutes an aggravated home
16 burglary, the court sentencing the offender, if it does
17 not impose a term of imprisonment for life must,
18 notwithstanding any other written law, impose a term
19 of imprisonment of at least 15 years.
20 (3) If the offence is committed by a juvenile offender in
21 the course of conduct that constitutes an aggravated
22 home burglary, the court sentencing the offender --
23 (a) if it does not impose a term of imprisonment for
24 life must, notwithstanding the Young Offenders
25 Act 1994 section 46(5a), impose either --
26 (i) a term of imprisonment of at least
27 3 years; or
28 (ii) a term of detention under the Young
29 Offenders Act 1994 of at least 3 years,
30 as the court thinks fit; and
page 5
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 7
1 (b) must not suspend any term of imprisonment
2 imposed; and
3 (c) must record a conviction against the offender.
4 (4) Subsection (3) does not prevent a court from --
5 (a) making a direction under the Young Offenders
6 Act 1994 section 118(4); or
7 (b) making a special order under Part 7 Division 9
8 of that Act.
9
10 7. Section 281 amended
11 After section 281(2) insert:
12
13 (3) If the offence is committed by an adult offender in the
14 course of conduct that constitutes an aggravated home
15 burglary, the court sentencing the offender must,
16 notwithstanding any other written law, impose a term
17 of imprisonment of at least 75% of the term specified
18 in subsection (1).
19 (4) If the offence is committed by a juvenile offender in
20 the course of conduct that constitutes an aggravated
21 home burglary, the court sentencing the offender --
22 (a) must, notwithstanding the Young Offenders
23 Act 1994 section 46(5a), impose either --
24 (i) a term of imprisonment of at least
25 3 years; or
26 (ii) a term of detention under the Young
27 Offenders Act 1994 of at least 3 years,
28 as the court thinks fit; and
29 (b) must not suspend any term of imprisonment
30 imposed; and
31 (c) must record a conviction against the offender.
page 6
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 8
1 (5) Subsection (4) does not prevent a court from --
2 (a) making a direction under the Young Offenders
3 Act 1994 section 118(4); or
4 (b) making a special order under Part 7 Division 9
5 of that Act.
6
7 8. Section 283 amended
8 (1) In section 283 delete "Any person" and insert:
9
10 (1) Any person
11
12 (2) In section 283:
13 (a) delete "(1) Attempts" and insert:
14
15 (a) attempts
16
17 (b) delete "(2) With" and insert:
18
19 (b) with
20
21 (3) At the end of section 283 insert:
22
23 (2) If the offence is committed by an adult offender in the
24 course of conduct that constitutes an aggravated home
25 burglary, the court sentencing the offender, if it does
26 not impose a term of life imprisonment must,
27 notwithstanding any other written law, impose a term
28 of imprisonment of at least 15 years.
page 7
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 9
1 (3) If the offence is committed by a juvenile offender in
2 the course of conduct that constitutes an aggravated
3 home burglary, the court sentencing the offender --
4 (a) if it does not impose a term of imprisonment for
5 life, must, notwithstanding the Young Offenders
6 Act 1994 section 46(5a), impose either --
7 (i) a term of imprisonment of at least
8 3 years; or
9 (ii) a term of detention under the Young
10 Offenders Act 1994 of at least 3 years,
11 as the court thinks fit; and
12 (b) must not suspend any term of imprisonment
13 imposed; and
14 (c) must record a conviction against the offender.
15 (4) Subsection (3) does not prevent a court from --
16 (a) making a direction under the Young Offenders
17 Act 1994 section 118(4); or
18 (b) making a special order under Part 7 Division 9
19 of that Act.
20
21 9. Section 294 amended
22 (1) In section 294 delete "Any person who," and insert:
23
24 (1) Any person who,
25
26 (2) In section 294:
27 (a) delete "(1) unlawfully" and insert:
28
29 (a) unlawfully
30
page 8
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 9
1 (b) delete "(2) unlawfully" and insert:
2
3 (b) unlawfully
4
5 (c) delete "(3) unlawfully" and insert:
6
7 (c) unlawfully
8
9 (d) delete "(4) sends" and insert:
10
11 (d) sends
12
13 (e) delete "(5) causes" and insert:
14
15 (e) causes
16
17 (f) delete "(6) puts" and insert:
18
19 (f) puts
20
21 (g) delete "(7) unlawfully" and insert:
22
23 (g) unlawfully
24
25 (h) delete "(8) does" and insert:
26
27 (h) does
28
29 (3) At the end of section 294 insert:
30
31 (2) If the offence is committed by an adult offender in the
32 course of conduct that constitutes an aggravated home
page 9
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 10
1 burglary, the court sentencing the offender must,
2 notwithstanding any other written law, impose a term
3 of imprisonment of at least 75% of the term specified
4 in subsection (1).
5 (3) If the offence is committed by a juvenile offender in
6 the course of conduct that constitutes an aggravated
7 home burglary, the court sentencing the offender --
8 (a) must, notwithstanding the Young Offenders
9 Act 1994 section 46(5a), impose either --
10 (i) a term of imprisonment of at least
11 3 years; or
12 (ii) a term of detention under the Young
13 Offenders Act 1994 of at least 3 years,
14 as the court thinks fit; and
15 (b) must not suspend any term of imprisonment
16 imposed; and
17 (c) must record a conviction against the offender.
18 (4) Subsection (3) does not prevent a court from --
19 (a) making a direction under the Young Offenders
20 Act 1994 section 118(4); or
21 (b) making a special order under Part 7 Division 9
22 of that Act.
23
24 10. Section 297 amended
25 (1) Delete section 297(5), (6) and (7) and insert:
26
27 (5) If the offence is committed by an adult offender, then
28 the court sentencing the offender --
29 (a) if the offence is committed in the course of
30 conduct that constitutes an aggravated home
31 burglary, must, notwithstanding any other
page 10
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 10
1 written law, impose a term of imprisonment
2 of --
3 (i) at least 75% of the term specified in
4 subsection (3), where the offence is
5 committed in circumstances of
6 aggravation; or
7 (ii) at least 75% of the term specified in
8 subsection (1), in any other case;
9 and
10 (b) if the offence is committed in prescribed
11 circumstances, must, notwithstanding any other
12 written law, impose a term of imprisonment of
13 at least 12 months, and must not suspend the
14 term of imprisonment imposed.
15 (6) If the offence is committed by a juvenile offender, then
16 the court sentencing the offender --
17 (a) if the offence is committed in the course of
18 conduct that constitutes an aggravated home
19 burglary, must, notwithstanding the Young
20 Offenders Act 1994 section 46(5a), impose
21 either --
22 (i) a term of imprisonment of at least
23 3 years; or
24 (ii) a term of detention under the Young
25 Offenders Act 1994 of at least 3 years,
26 as the court thinks fit; and
27 (b) if the offence is committed in prescribed
28 circumstances, must, notwithstanding the
29 Young Offenders Act 1994, impose either --
30 (i) a term of imprisonment of at least
31 3 months, notwithstanding the
32 Sentencing Act 1995 section 86; or
page 11
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 11
1 (ii) a term of detention under the Young
2 Offenders Act 1994 of at least 3 months,
3 as the court thinks fit,
4 and in either case must not suspend any term of
5 imprisonment imposed and must record a conviction.
6 (7) Subsection (6) does not prevent a court from --
7 (a) making a direction under the Young Offenders
8 Act 1994 section 118(4); or
9 (b) making a special order under Part 7 Division 9
10 of that Act.
11
12 (2) In section 297(8) delete "subsections (5) and (7)" and insert:
13
14 subsections (5) and (6)
15
16 11. Section 320 amended
17 After section 320(6) insert:
18
19 (7) If an offence under this section is committed by an
20 adult offender in the course of conduct that constitutes
21 an aggravated home burglary, the court sentencing the
22 offender must, notwithstanding any other written law,
23 impose a term of imprisonment of at least 75% of the
24 term specified in whichever of subsection (2), (3), (4),
25 (5) or (6) constitutes the offence.
26 (8) If an offence under this section is committed by a
27 juvenile offender in the course of conduct that
28 constitutes an aggravated home burglary, the court
29 sentencing the offender --
30 (a) must, notwithstanding the Young Offenders
31 Act 1994 section 46(5a), impose either --
32 (i) a term of imprisonment of at least
33 3 years; or
page 12
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 12
1 (ii) a term of detention under the Young
2 Offenders Act 1994 of at least 3 years,
3 as the court thinks fit; and
4 (b) must not suspend any term of imprisonment
5 imposed; and
6 (c) must record a conviction against the offender.
7 (9) Subsection (8) does not prevent a court from making a
8 direction under the Young Offenders Act 1994
9 section 118(4).
10
11 12. Section 321 amended
12 After section 321(13) insert:
13
14 (14) If an offence under this section is committed by an
15 adult offender in the course of conduct that constitutes
16 an aggravated home burglary, the court sentencing the
17 offender must, notwithstanding any other written law,
18 impose a term of imprisonment of at least 75% of the
19 term specified in whichever of subsection (7) or (8)
20 applies to the offence.
21 (15) If an offence under this section is committed by a
22 juvenile offender in the course of conduct that
23 constitutes an aggravated home burglary, the court
24 sentencing the offender --
25 (a) must, notwithstanding the Young Offenders
26 Act 1994 section 46(5a), impose either --
27 (i) a term of imprisonment of at least
28 3 years; or
29 (ii) a term of detention under the Young
30 Offenders Act 1994 of at least 3 years,
31 as the court thinks fit; and
page 13
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 13
1 (b) must not suspend any term of imprisonment
2 imposed; and
3 (c) must record a conviction against the offender.
4 (16) Subsection (15) does not prevent a court from making a
5 direction under the Young Offenders Act 1994
6 section 118(4).
7
8 13. Section 324 amended
9 (1) In section 324 delete "A person" and insert:
10
11 (1) A person
12
13 (2) At the end of section 324 insert:
14
15 (2) If the offence is committed in the course of conduct
16 that constituted an aggravated home burglary it is not
17 to be dealt with summarily.
18 (3) If the offence is committed by an adult offender in the
19 course of conduct that constitutes an aggravated home
20 burglary, the court sentencing the offender must,
21 notwithstanding any other written law, impose a term
22 of imprisonment of at least 75% of the term specified
23 in subsection (1) (not being the term specified in the
24 summary conviction penalty in that subsection).
25 (4) If the offence is committed by a juvenile offender in
26 the course of conduct that constitutes an aggravated
27 home burglary, the court sentencing the offender --
28 (a) must, notwithstanding the Young Offenders
29 Act 1994 section 46(5a), impose either --
30 (i) a term of imprisonment of at least
31 3 years; or
page 14
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 14
1 (ii) a term of detention under the Young
2 Offenders Act 1994 of at least 3 years,
3 as the court thinks fit; and
4 (b) must not suspend any term of imprisonment
5 imposed; and
6 (c) must record a conviction against the offender.
7 (5) Subsection (4) does not prevent a court from --
8 (a) making a direction under the Young Offenders
9 Act 1994 section 118(4); or
10 (b) making a special order under Part 7 Division 9
11 of that Act.
12
13 14. Section 325 amended
14 (1) In section 325 delete "A person" and insert:
15
16 (1) A person
17
18 (2) At the end of section 325 insert:
19
20 (2) If the offence is committed by an adult offender in the
21 course of conduct that constitutes an aggravated home
22 burglary, the court sentencing the offender must,
23 notwithstanding any other written law, impose a term
24 of imprisonment of at least 75% of the term specified
25 in subsection (1).
26 (3) If the offence is committed by a juvenile offender in
27 the course of conduct that constitutes an aggravated
28 home burglary, the court sentencing the offender --
29 (a) must, notwithstanding the Young Offenders
30 Act 1994 section 46(5a), impose either --
31 (i) a term of imprisonment of at least
32 3 years; or
page 15
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 15
1 (ii) a term of detention under the Young
2 Offenders Act 1994 of at least 3 years,
3 as the court thinks fit; and
4 (b) must not suspend any term of imprisonment
5 imposed; and
6 (c) must record a conviction against the offender.
7 (4) Subsection (3) does not prevent a court from --
8 (a) making a direction under the Young Offenders
9 Act 1994 section 118(4); or
10 (b) making a special order under Part 7 Division 9
11 of that Act.
12
13 15. Section 326 amended
14 (1) In section 326 delete "A person" and insert:
15
16 (1) A person
17
18 (2) At the end of section 326 insert:
19
20 (2) If the offence is committed by an adult offender in the
21 course of conduct that constitutes an aggravated home
22 burglary, the court sentencing the offender must,
23 notwithstanding any other written law, impose a term
24 of imprisonment of at least 75% of the term specified
25 in subsection (1).
26 (3) If the offence is committed by a juvenile offender in
27 the course of conduct that constitutes an aggravated
28 home burglary, the court sentencing the offender --
29 (a) must, notwithstanding the Young Offenders
30 Act 1994 section 46(5a), impose either --
31 (i) a term of imprisonment of at least
32 3 years; or
page 16
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 16
1 (ii) a term of detention under the Young
2 Offenders Act 1994 of at least 3 years,
3 as the court thinks fit; and
4 (b) must not suspend any term of imprisonment
5 imposed; and
6 (c) must record a conviction against the offender.
7 (4) Subsection (3) does not prevent a court from --
8 (a) making a direction under the Young Offenders
9 Act 1994 section 118(4); or
10 (b) making a special order under Part 7 Division 9
11 of that Act.
12
13 16. Section 327 amended
14 (1) In section 327 delete "A person" and insert:
15
16 (1) A person
17
18 (2) At the end of section 327 insert:
19
20 (2) If the offence is committed by an adult offender in the
21 course of conduct that constitutes an aggravated home
22 burglary, the court sentencing the offender must,
23 notwithstanding any other written law, impose a term
24 of imprisonment of at least 75% of the term specified
25 in subsection (1).
26 (3) If the offence is committed by a juvenile offender in
27 the course of conduct that constitutes an aggravated
28 home burglary, the court sentencing the offender --
29 (a) must, notwithstanding the Young Offenders
30 Act 1994 section 46(5a), impose either --
31 (i) a term of imprisonment of at least
32 3 years; or
page 17
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 2 Amendments relating to offences committed in the course of
aggravated home burglary
s. 17
1 (ii) a term of detention under the Young
2 Offenders Act 1994 of at least 3 years,
3 as the court thinks fit; and
4 (b) must not suspend any term of imprisonment
5 imposed; and
6 (c) must record a conviction against the offender.
7 (4) Subsection (3) does not prevent a court from making a
8 direction under the Young Offenders Act 1994
9 section 118(4).
10
11 17. Section 328 amended
12 (1) In section 328 delete "A person" and insert:
13
14 (1) A person
15
16 (2) At the end of section 328 insert:
17
18 (2) If the offence is committed by an adult offender in the
19 course of conduct that constitutes an aggravated home
20 burglary, the court sentencing the offender must,
21 notwithstanding any other written law, impose a term
22 of imprisonment of at least 75% of the term specified
23 in subsection (1).
24 (3) If the offence is committed by a juvenile offender in
25 the course of conduct that constitutes an aggravated
26 home burglary, the court sentencing the offender --
27 (a) must, notwithstanding the Young Offenders
28 Act 1994 section 46(5a), impose either --
29 (i) a term of imprisonment of at least
30 3 years; or
page 18
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to offences committed in the course of Division 2
aggravated home burglary
s. 18
1 (ii) a term of detention under the Young
2 Offenders Act 1994 of at least 3 years,
3 as the court thinks fit; and
4 (b) must not suspend any term of imprisonment
5 imposed; and
6 (c) must record a conviction against the offender.
7 (4) Subsection (3) does not prevent a court from making a
8 direction under the Young Offenders Act 1994
9 section 118(4).
10
11 18. Section 330 amended
12 After section 330(9) insert:
13
14 (10) If an offence under this section is committed by an
15 adult offender in the course of conduct that constitutes
16 an aggravated home burglary, the court sentencing the
17 offender must, notwithstanding any other written law,
18 impose a term of imprisonment of at least 75% of the
19 term specified in whichever of subsection (7) or (8)
20 applies to the offence.
21 (11) If an offence under this section is committed by a
22 juvenile offender in the course of conduct that
23 constitutes an aggravated home burglary, the court
24 sentencing the offender --
25 (a) must, notwithstanding the Young Offenders
26 Act 1994 section 46(5a), impose either --
27 (i) a term of imprisonment of at least
28 3 years; or
29 (ii) a term of detention under the Young
30 Offenders Act 1994 of at least 3 years,
31 as the court thinks fit; and
page 19
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 3 Amendments relating to home burglary repeat offenders
s. 19
1 (b) must not suspend any term of imprisonment
2 imposed; and
3 (c) must record a conviction against the offender.
4 (12) Subsection (11) does not prevent a court from making a
5 direction under the Young Offenders Act 1994
6 section 118(4).
7
8 Division 3 -- Amendments relating to home burglary
9 repeat offenders
10 19. Section 400 amended
11 (1) In section 400(1) insert in alphabetical order:
12
13 commencement day means the day on which the
14 Criminal Law Amendment (Home Burglary and Other
15 Offences) Act 2014 section 19 comes into operation;
16
17 (2) Delete section 400(3) and (4).
18 20. Sections 401A and 401B inserted
19 After section 400 insert:
20
21 401A. Term used: relevant conviction
22 (1) For the purposes of this Chapter, subject to
23 subsections (2), (3) and (4), a person's conviction for a
24 home burglary is a relevant conviction for that person
25 if --
26 (a) the home burglary was committed before the
27 commencement day and either --
28 (i) it is the person's first conviction for a
29 home burglary (the person's first
30 relevant conviction); or
page 20
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to home burglary repeat offenders Division 3
s. 20
1 (ii) it is the person's first conviction for a
2 home burglary committed after the date
3 on which the person's first relevant
4 conviction was recorded (the person's
5 second relevant conviction); or
6 (iii) it is a conviction for a home burglary
7 committed after the date on which the
8 person's second relevant conviction was
9 recorded;
10 or
11 (b) the home burglary was committed on or after
12 the commencement day and --
13 (i) the person is an adult offender with
14 respect to the home burglary; or
15 (ii) the person is a juvenile offender with
16 respect to the home burglary and
17 either --
18 (I) it is the person's first
19 conviction for a home burglary;
20 or
21 (II) at the time of the home
22 burglary, the person already
23 had a conviction for a previous
24 home burglary;
25 or
26 (iii) at the time of the home burglary the
27 person had not reached 16 years of age,
28 and either --
29 (I) it is the person's first
30 conviction for a home burglary
31 (the person's first relevant
32 conviction); or
33 (II) it is the person's first
34 conviction for a home burglary
page 21
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 3 Amendments relating to home burglary repeat offenders
s. 20
1 committed after the date on
2 which the person's first
3 relevant conviction was
4 recorded (the person's second
5 relevant conviction); or
6 (III) it is a conviction for a home
7 burglary committed after the
8 date on which the person's
9 second relevant conviction was
10 recorded.
11 (2) In this section --
12 (a) a conviction includes a finding or admission of
13 guilt that leads to a punishment being imposed
14 on, or an order being made in respect of, the
15 person, whether or not a conviction was
16 recorded; and
17 (b) a conviction does not include a conviction that
18 has been set aside or quashed.
19 (3) For the purposes of this section, convictions for 2 or
20 more home burglaries committed on the same day on
21 or after the commencement day are to be treated as a
22 single conviction.
23 (4) Where --
24 (a) a person has 2 or more relevant convictions (the
25 prior relevant convictions); and
26 (b) after the sentence completion date for the latest
27 of the prior relevant convictions, the person is
28 convicted for another home burglary (the new
29 conviction); and
30 (c) the new conviction relates to a home burglary
31 which was committed before the date on which
32 the home burglary to which the latest of the
33 prior relevant convictions relates was
34 committed; and
page 22
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to home burglary repeat offenders Division 3
s. 20
1 (d) the court sentencing the offender for the home
2 burglary to which the new conviction relates
3 (the sentencing court) considers that
4 exceptional circumstances exist which justify
5 imposing a lesser sentence than would be
6 required by section 401(4),
7 the sentencing court may decide to impose a lesser
8 sentence than would be required by section 401(4).
9 (5) In subsection (4) --
10 sentence completion date for a conviction means --
11 (a) where no sentence or other punishment is
12 imposed in respect of the conviction, the date of
13 the conviction; and
14 (b) where a conditional release order is imposed
15 under the Sentencing Act 1995 Part 7 in respect
16 of the conviction, the date on which the
17 conditional release order ceases to be in force
18 under section 48(2) of that Act; and
19 (c) where a fine is imposed under the Sentencing
20 Act 1995 Part 8 in respect of the conviction, the
21 earlier of --
22 (i) the date on which the fine is paid; or
23 (ii) the date on which the offender's liability
24 to pay the fine is discharged under
25 section 58(6) or 59(1) of that Act;
26 and
27 (d) where a community based order is imposed
28 under the Sentencing Act 1995 Part 9 in respect
29 of the conviction, the date on which the
30 community based order ceases to be in force
31 under section 62(4) of that Act; and
32 (e) where an intensive supervision order is
33 imposed under the Sentencing Act 1995 Part 10
34 in respect of the conviction, the date on which
page 23
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 3 Amendments relating to home burglary repeat offenders
s. 20
1 the intensive supervision order ceases to be in
2 force under section 69(5) of that Act; and
3 (f) where suspended imprisonment is imposed
4 under the Sentencing Act 1995 Part 11 in
5 respect of the conviction, the date on which the
6 offender is taken to be discharged under
7 section 77(4) of that Act; and
8 (g) where conditional suspended imprisonment is
9 imposed under the Sentencing Act 1995 Part 12
10 in respect of the conviction, the date on which
11 the offender is taken to be discharged under
12 section 82(4) of that Act; and
13 (h) where a term of imprisonment is imposed under
14 the Sentencing Act 1995 Part 13 in respect of
15 the conviction, the date on which the offender
16 is discharged under section 93(3) or 95 of that
17 Act or the Sentence Administration Act 2003
18 section 66(2); and
19 (i) where a youth community based order is
20 imposed under the Young Offenders Act 1994
21 Part 7 Division 6 in respect of the conviction,
22 the date on which the order ceases to be in
23 force under section 76(2) of that Act; and
24 (j) where an intensive youth supervision order is
25 imposed under the Young Offenders Act 1994
26 Part 7 Division 7 in respect of the conviction
27 without a sentence of detention, the date on
28 which the order ceases to be in force under
29 section 76(2) of that Act; and
30 (k) where a term of detention is imposed under the
31 Young Offenders Act 1994 section 118(1)(b) in
32 respect of the conviction, whether or not an
33 intensive youth supervision order is also
34 imposed under Part 7 Division 7 of that Act, the
35 last day of that term.
page 24
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to home burglary repeat offenders Division 3
s. 21
1 (6) A court making the decision referred to in
2 subsection (4) must give written reasons why the
3 decision was made.
4 401B. Term used: repeat offender
5 (1) For the purposes of this Chapter, a person who is being
6 sentenced for a home burglary (the current offence) is
7 a repeat offender if the person has at least 3 relevant
8 convictions.
9 (2) For the purposes of subsection (1) --
10 (a) the person's conviction for the current offence,
11 if it is a relevant conviction, is to be counted;
12 and
13 (b) each of the person's relevant convictions is to
14 be counted, regardless of whether the home
15 burglary to which it relates was committed
16 before or after the date of any previous relevant
17 conviction; and
18 (c) each of the person's relevant convictions is to
19 be counted, regardless of whether it has been
20 counted on the occasion of sentencing for a
21 previous home burglary to determine whether
22 the person was, on that occasion, a repeat
23 offender.
24
25 21. Section 401 amended
26 (1) In section 401(1) delete paragraphs (a) and (b) and insert:
27
28 (a) if the offence is an aggravated home burglary,
29 to imprisonment for 20 years; or
30 (ba) if the offence is not a home burglary but is
31 committed in circumstances of aggravation, to
32 imprisonment for 20 years; or
page 25
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 3 Amendments relating to home burglary repeat offenders
s. 21
1 (b) if the offence is a home burglary not committed
2 in circumstances of aggravation, to
3 imprisonment for 18 years; or
4
5 (2) In section 401(1) in the summary conviction penalty after
6 paragraph (a) insert:
7
8 (ba) in a case to which paragraph (ba) applies
9 where the only circumstance of aggravation
10 is that the offender is in company with
11 another person or other persons --
12 imprisonment for 3 years and a fine of
13 $36 000; or
14
15 (3) In section 401(2) delete paragraphs (a) and (b) and insert:
16
17 (a) if the offence is an aggravated home burglary,
18 to imprisonment for 20 years; or
19 (ba) if the offence is not a home burglary but is
20 committed in circumstances of aggravation, to
21 imprisonment for 20 years; or
22 (b) if the offence is a home burglary not committed
23 in circumstances of aggravation, to
24 imprisonment for 18 years; or
25
26 (4) In section 401(2) in the summary conviction penalty after
27 paragraph (a) insert:
28
29 (ba) in a case to which paragraph (ba) applies
30 where the only circumstance of aggravation
31 is that the offender is in company with
32 another person or other persons --
33 imprisonment for 3 years and a fine of
34 $36 000; or
35
page 26
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Amendments relating to home burglary repeat offenders Division 3
s. 21
1 (5) Delete section 401(4) and insert:
2
3 (4) Subject to section 401A(4), where a person convicted
4 under this section of a home burglary (the current
5 offence) is a repeat offender, whether or not the
6 conviction for the current offence is a relevant
7 conviction the court sentencing the person for the
8 current offence --
9 (a) if the current offence was committed before the
10 commencement day --
11 (i) if the person is an adult offender,
12 notwithstanding any other written law,
13 must impose a term of imprisonment of
14 at least 12 months; or
15 (ii) if the person had not reached 18 years of
16 age when the current offence was
17 committed, notwithstanding the Young
18 Offenders Act 1994 section 46(5a), must
19 impose either --
20 (I) a term of imprisonment of at
21 least 12 months; or
22 (II) a term of detention under the
23 Young Offenders Act 1994 of at
24 least 12 months,
25 as the court thinks fit;
26 or
27 (b) if the current offence was committed on or after
28 the commencement day --
29 (i) if the person is an adult offender,
30 notwithstanding any other written law,
31 must impose a term of imprisonment of
32 at least 2 years; or
33 (ii) if the person had not reached 18 years of
34 age when the current offence was
page 27
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 2 The Criminal Code amended
Division 4 Other amendments
s. 22
1 committed, notwithstanding the Young
2 Offenders Act 1994 section 46(5a), must
3 impose either --
4 (I) a term of imprisonment of at
5 least 12 months; or
6 (II) a term of detention under the
7 Young Offenders Act 1994 of at
8 least 12 months,
9 as the court thinks fit.
10
11 (6) In section 401(5) delete "shall" and insert:
12
13 must
14
15 (7) Delete section 401(6) and insert:
16
17 (6) Subsection (4) does not prevent a court from --
18 (a) making a direction under the Young Offenders
19 Act 1994 section 118(4); or
20 (b) making a special order under Part 7 Division 9
21 of that Act.
22
23 Division 4 -- Other amendments
24 22. Section 740B inserted
25 After section 740A insert:
26
27 740B. Review of certain amendments relating to home
28 burglary
29 (1) In this section --
30 review date means the fifth anniversary of the day on
31 which the Criminal Law Amendment (Home Burglary
page 28
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
The Criminal Code amended Part 2
Other amendments Division 4
s. 22
1 and Other Offences) Act 2014 section 4 comes into
2 operation.
3 (2) As soon as practicable after the review date the
4 Minister is to review the operation and effectiveness
5 of --
6 (a) the amendments made to this Code by the
7 Criminal Law Amendment (Home Burglary and
8 Other Offences) Act 2014 Part 2 Divisions 2
9 and 3; and
10 (b) the amendment made to the Sentencing
11 Act 1995 by the Criminal Law Amendment
12 (Home Burglary and Other Offences) Act 2014
13 Part 3.
14 (3) The Minister is to cause a report of the review to be
15 laid before each House of Parliament as soon as
16 practicable after it is done.
17
page 29
Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014
Part 3 Sentencing Act 1995 amended
s. 23
1 Part 3 -- Sentencing Act 1995 amended
2 23. Act amended
3 This Part amends the Sentencing Act 1995.
4 24. Section 90 amended
5 Delete section 90(1)(a) and insert:
6
7 (a) set a minimum period of --
8 (i) at least 15 years, if the offence is
9 committed by an adult offender (within
10 the meaning given in The Criminal
11 Code section 1(1)) in the course of
12 conduct that constitutes an aggravated
13 home burglary (within the meaning
14 given in that section); or
15 (ii) at least 10 years, in any other case,
16 that the offender must serve before being
17 eligible for release on parole; or
18
19
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