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This is a Bill, not an Act. For current law, see the Acts databases.


SENTENCING AMENDMENT BILL 2000

                   Western Australia



       Sentencing Matrix Bill 1999


                     CONTENTS




                Part 1 -- Preliminary
1.      Short title                                      2
2.      Commencement                                     2
3.      Act amended                                      2

 Part 2 -- Amendments about appropriate and
            consistent sentencing
       Division 1 -- Sentencing Act 1995 amended
4.       Part 14A inserted                               3
     Division 2 -- Young Offenders Act 1994 amended
5.       The Act amended by this Division               19
6.       Section 46A amended                            20
7.       Section 55 amended                             20
8.       Schedule 2 amended                             20




                                                     page i


                        99--1
                           Western Australia



                     LEGISLATIVE ASSEMBLY




             Sentencing Matrix Bill 1999
                               A Bill for


An Act to amend the Sentencing Act 1995 and Young Offenders
Act 1994.



The Parliament of Western Australia enacts as follows:




                                                              page 1
     Sentencing Matrix Bill 1999
     Part 1        Preliminary

     s. 1



                            Part 1 -- Preliminary
     1.       Short title
              This Act may be cited as the Sentencing Matrix Act 1999.

     2.       Commencement
 5            This Act comes into operation on such day as is, or days as are
              respectively, fixed by proclamation.

     3.       Act amended
              The amendments in this Act are to the Sentencing Act 1995*
              unless otherwise indicated.
10            [* Act No. 76 of 1995.
                 For subsequent amendments see 1997 Index to Legislation of
                 Western Australia, Table 1, p. 211-12, and Acts Nos. 23, 29
                 and 38 of 1998.]




     page 2
                                                     Sentencing Matrix Bill 1999
          Amendments about appropriate and consistent sentencing          Part 2
                                 Sentencing Act 1995 amended          Division 1
                                                                             s. 4



            Part 2 -- Amendments about appropriate and
                       consistent sentencing
                    Division 1 -- Sentencing Act 1995 amended
     4.         Part 14A inserted
 5              After section 101 of the Sentencing Act 1995 the following Part
                is inserted --
     "
            Part 14A -- Sentence reporting and formulation
                        Division 1 -- Reporting of sentences
10          101A.     Application of this Division
                (1)   This Division applies if --
                       (a) an offence is prescribed in relation to a court by
                             regulations under section 101B; and
                       (b) that court is sentencing an offender for that
15                           offence.
                (2)   However, if Division 2 or 3 applies when a court is
                      sentencing an offender for an offence, this Division
                      does not apply.

            101B.     Reporting offences may be prescribed
20                    Regulations may prescribe an offence (a "reporting
                      offence") in relation to a prescribed court for the
                      purposes of this Division.




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     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



          101C.     Sentencing reports for reporting offences
              (1)   A court sentencing an offender for a reporting offence
                    must prepare a sentencing report and deliver it in
                    accordance with the regulations.
 5            (2)   Regulations may provide for the use of computer
                    programmes approved under the regulations to prepare
                    sentencing reports.

          101D.     Contents of sentencing reports for reporting
                    offences
10                  The sentencing report for a reporting offence must --
                     (a) set out each mitigating, aggravating or other
                           factor that was taken into account in arriving at
                           the sentence;
                     (b) indicate the degree to which --
15                            (i) each of those factors;
                             (ii) the maximum penalty for the offence;
                                   and
                            (iii) the minimum penalty (if any) for the
                                   offence,
20                         affected the sentence; and
                     (c) provide any other information required by the
                           regulations.




     page 4
                                                Sentencing Matrix Bill 1999
     Amendments about appropriate and consistent sentencing          Part 2
                            Sentencing Act 1995 amended          Division 1
                                                                        s. 4



                 Division 2 -- Reporting of variations from
                            indicative sentences
       101E.     Application of this Division
           (1)   This Division applies if --
 5                (a) a sentencing method for an offence is
                        prescribed in relation to a court by regulations
                        under section 101F; and
                  (b) that court is sentencing an offender for that
                        offence.
10         (2)   However, if Division 3 applies when a court is
                 sentencing an offender for an offence, this Division
                 does not apply.

       101F.     Indicative sentencing method may be prescribed
           (1)   Regulations may prescribe a method to be applied by a
15               prescribed court to arrive at an indication of the
                 appropriate sentence (the "indicative sentence") for a
                 prescribed offence (a "regulated offence").
           (2)   In prescribing a sentencing method for a regulated
                 offence the regulations --
20                 (a) may provide for the indicative sentence to be
                         determined in accordance with a prescribed
                         formula or in such other manner as is
                         prescribed; and
                   (b) may provide that the making of a spent
25                       conviction order in relation to the offence
                         would not be appropriate.




                                                                        page 5
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



          101G.     Sentencing procedures for regulated offences
              (1)   A court sentencing an offender for a regulated offence
                    must --
                     (a) determine the indicative sentence;
 5                   (b) impose a sentence for the offence (the "actual
                           sentence"); and
                     (c) prepare a sentencing report and deliver it in
                           accordance with the regulations.
              (2)   Regulations may provide for the use of computer
10                  programmes approved under the regulations to --
                      (a) determine indicative sentences; and
                      (b) prepare sentencing reports.

          101H.     Contents of sentencing reports for regulated
                    offences
15                  The sentencing report for a regulated offence must --
                     (a) set out the indicative sentence;
                     (b) set out each mitigating, aggravating or other
                           factor that was taken into account in arriving at
                           the indicative sentence and the actual sentence;
20                   (c) set out the degree to which --
                              (i) each of the factors set out under
                                   paragraph (b);
                             (ii) the maximum penalty for the offence;
                                   and
25                          (iii) the minimum penalty (if any) for the
                                   offence,
                           affected the indicative sentence and the actual
                           sentence;


     page 6
                                                Sentencing Matrix Bill 1999
     Amendments about appropriate and consistent sentencing          Part 2
                            Sentencing Act 1995 amended          Division 1
                                                                        s. 4



                  (d)    if the actual sentence is not the same as the
                         indicative sentence, explain, in the prescribed
                         manner, the reasons for the difference between
                         the actual sentence and the indicative sentence;
 5                       and
                   (e)   provide any other information required by the
                         regulations.

                 Division 3 -- Sentencing according to a
                            prescribed method
10     101I.     Application of this Division
                 This Division applies if --
                  (a) a sentencing method for an offence is
                        prescribed in relation to a court by regulations
                        under section 101J that have come into
15                      operation under section 101K; and
                  (b) that court is sentencing an offender for that
                        offence.

       101J.     Sentencing method may be prescribed
           (1)   Regulations may prescribe a method to be
20               applied by a court to arrive at the appropriate
                 sentence (the "relevant sentence") for an offence
                 (a "controlled offence").
           (2)   In prescribing a sentencing method for a controlled
                 offence the regulations --
25                 (a) may provide for the relevant sentence to be
                         determined in accordance with a prescribed
                         formula or in such other manner as is
                         prescribed;


                                                                       page 7
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



                     (b)    may provide for prescribed factors to be taken
                            into account or ignored, or to be taken into
                            account to a particular degree, in determining
                            the relevant sentence; and
 5                    (c)   may provide that the making of a spent
                            conviction order in relation to the offence is not
                            appropriate.

          101K.     Approval of sentencing method by Parliament
              (1)   In this section --
10                  "sentencing regulations" means regulations under
                         section 101J that --
                         (a) prescribe a sentencing method for an
                               offence; or
                         (b) amend a sentencing method prescribed for an
15                             offence.
              (2)   Sections 41(1)(b) and 42 of the Interpretation Act 1984
                    do not apply to sentencing regulations.
              (3)   After being published in the Gazette, sentencing
                    regulations are to be laid before each House of
20                  Parliament.
              (4)   A House of Parliament may pass a resolution approving
                    of sentencing regulations that have been laid before it.
              (5)   If each House of Parliament has passed a resolution
                    under subsection (4), notice to that effect is to be
25                  published in the Gazette within 21 days.
              (6)   If the Houses of Parliament pass separate resolutions
                    under subsection (4) on different days, the 21 day
                    period mentioned in subsection (5) commences after
                    the later of those days.

     page 8
                                                Sentencing Matrix Bill 1999
     Amendments about appropriate and consistent sentencing          Part 2
                            Sentencing Act 1995 amended          Division 1
                                                                        s. 4



           (7)   If sentencing regulations are approved by each House
                 of Parliament under subsection (4), they come into
                 operation --
                   (a) on the 7th day after the publication of the notice
 5                       under subsection (5); or
                   (b) where a later day is specified or provided for in
                         the regulations, on that day,
                 and have effect as if enacted in this Act.
           (8)   If a resolution to approve of sentencing regulations is
10               defeated in either House of Parliament, the defeat of
                 the resolution repeals the regulations.
           (9)   Regulations may abolish a sentencing method
                 prescribed under section 101J and this section does not
                 apply to those regulations unless they prescribe another
15               sentencing method to replace the method that is
                 abolished.

       101L.     Sentencing requirements for controlled offences
           (1)   A court sentencing an offender to imprisonment for a
                 controlled offence must --
20                 (a) determine the relevant sentence;
                   (b) impose a sentence for the offence (the "actual
                         sentence") being --
                           (i) the relevant sentence; or
                          (ii) a sentence imposed under
25                              subsection (2);
                         and
                   (c) prepare a sentencing report and deliver it in
                         accordance with the regulations.


                                                                       page 9
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



               (2)   If the court considers that the relevant sentence would
                     be so unreasonable that it would be unjust to impose
                     that sentence, it may elect to impose another sentence.
               (3)   For the purposes of subsection (2), the relevant
 5                   sentence cannot be considered as being unreasonable to
                     the extent to which it was arrived at by --
                       (a) taking into account or ignoring a factor; or
                       (b) taking a factor into account to a particular
                             degree,
10                   as required by the sentencing method.
               (4)   This section has effect despite any provision of this Act
                     (other than section 87) or any other law but nothing in
                     this section authorizes the court to impose a sentence
                     that is greater than the maximum penalty for the
15                   offence or less than the minimum penalty (if any) for
                     the offence.
               (5)   This section does not prevent the court from making an
                     order under Part 14 and the making of such an order is
                     not to be taken into account for the purposes of
20                   Division 4.
               (6)   Regulations may provide for the use of computer
                     programmes approved under the regulations to --
                       (a) determine relevant sentences; and
                       (b) prepare sentencing reports.

25        101M. Contents of sentencing reports for controlled
                offences
                     The sentencing report for a controlled offence must --
                      (a) set out the relevant sentence;


     page 10
                                                Sentencing Matrix Bill 1999
     Amendments about appropriate and consistent sentencing          Part 2
                            Sentencing Act 1995 amended          Division 1
                                                                        s. 4



                  (b)    set out each mitigating, aggravating or other
                         factor that was taken into account in arriving at
                         the relevant sentence;
                   (c)   indicate the degree to which --
 5                          (i) each of those factors;
                           (ii) the maximum penalty for the offence;
                                 and
                          (iii) the minimum penalty (if any) for the
                                 offence,
10                       affected the relevant sentence;
                  (d)    if the actual sentence is imposed under
                         section 101L(2), explain, in the prescribed
                         manner, why the court considered that
                         imposition of the relevant sentence would be
15                       unjust and the reasons for the difference
                         between the actual sentence and the relevant
                         sentence; and
                   (e)   provide any other information required by the
                         regulations.

20     101N.     Procedure on appeal
           (1)   If the actual sentence is more severe than the relevant
                 sentence as determined by the sentencing court and the
                 offender appeals against the actual sentence, the onus is
                 on the prosecution to show cause before the appeal
25               court why the actual sentence should not be quashed
                 and a less severe sentence imposed.
           (2)   If the actual sentence is less severe than the relevant
                 sentence as determined by the sentencing court and the
                 prosecution appeals against the actual sentence, the
30               onus is on the offender to show cause before the appeal


                                                                      page 11
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



                     court why the actual sentence should not be quashed
                     and a more severe sentence imposed.
               (3)   The relevant sentence is not a sentence fixed by law for
                     the purposes of section 688(1b)(b) of The Criminal
 5                   Code.

               Division 4 -- Comparison of actual sentences with
                         indicative or relevant sentences
          101O.      Purpose of this Division
                     The provisions of this Division have effect for the
10                   purpose of determining under Division 2 or 3 whether
                     the actual sentence is the same as, more severe than or
                     less severe than the indicative sentence or the relevant
                     sentence.

          101P.      Meaning of terms used in this Division
15             (1)   In this Division --
                     "actual sentence" has the meaning given by
                          section 101G or 101L, whichever is applicable;
                     "indicative sentence" has the meaning given by
                          section 101F;
20                   "punishment option" means a sentencing option listed
                          in section 39(2) or a combination of 2 or more of
                          those sentencing options;
                     "recommended sentence" means the indicative
                          sentence or the relevant sentence, whichever is
25                        applicable;
                     "relevant sentence" has the meaning given by
                          section 101J;



     page 12
                                                Sentencing Matrix Bill 1999
     Amendments about appropriate and consistent sentencing          Part 2
                            Sentencing Act 1995 amended          Division 1
                                                                        s. 4



                 "sentencing method" means the sentencing method
                     prescribed under section 101F or 101J, whichever
                     is applicable.
           (2)   For the purposes of this Division, a punishment option
 5               is higher than any other punishment option that is listed
                 before it in section 39(2).
           (3)   In the case of a punishment option that is a
                 combination of options, its position in section 39(2) is
                 determined by reference to the highest of those options.

10     101Q.     One sentencing option provided
           (1)   This section applies if the sentencing method provides
                 for the recommended sentence to involve the use of a
                 particular punishment option (the "prescribed
                 option").
15         (2)   If the actual sentence only involves the use of the
                 prescribed option, the actual sentence is to be regarded
                 as more severe than the recommended sentence if it is
                 greater than the recommended sentence.
           (3)   If the actual sentence involves the use of another
20               sentencing option, or other sentencing options, in
                 addition to the prescribed option, the actual sentence is
                 to be regarded as more severe than the recommended
                 sentence if --
                   (a) that other option, or one or more of those other
25                        options, is higher than the prescribed option; or
                   (b) the portion of the sentence imposed using the
                          prescribed option is not less than the
                          recommended sentence.




                                                                       page 13
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



               (4)   If the actual sentence does not involve the use of the
                     prescribed option, the actual sentence is to be regarded
                     as more severe than the recommended sentence if a
                     sentencing option used is higher than the prescribed
 5                   option.
               (5)   Unless --
                      (a) the actual sentence only involves the use of the
                            prescribed option and is the same as the
                            recommended sentence; or
10                    (b) subsection (2), (3) or (4) provides otherwise,
                     the actual sentence is to be regarded as less severe than
                     the recommended sentence.
               (6)   If the sentencing method provides for the recommended
                     sentence to be within a range of sentences involving the
15                   use of the prescribed option then --
                        (a) for the purposes of subsection (5)(a), the actual
                              sentence is the same as the recommended
                              sentence if it is within that range;
                       (b) for the purposes of subsection (2), the actual
20                            sentence is greater than the recommended
                              sentence if it is greater than the most severe
                              sentence in that range; and
                        (c) for the purposes of subsection (3)(b), the actual
                              sentence is not less than the recommended
25                            sentence if it is not less than the most severe
                              sentence in that range.




     page 14
                                                Sentencing Matrix Bill 1999
     Amendments about appropriate and consistent sentencing          Part 2
                            Sentencing Act 1995 amended          Division 1
                                                                        s. 4



       101R.     Two or more sentencing options provided
           (1)   This section applies if the sentencing method provides
                 for the recommended sentence to involve the use of
                 any of 2 or more punishment options (the "prescribed
 5               options").
           (2)   If the actual sentence only involves the use of one of
                 the prescribed options, the actual sentence is to be
                 regarded as being the same as the recommended
                 sentence if it is the same as the recommended sentence
10               determined using that option.
           (3)   If the actual sentence only involves the use of the
                 highest of the prescribed options, the actual sentence is
                 to be regarded as more severe than the recommended
                 sentence if it is greater than the recommended sentence
15               determined using that option.
           (4)   If the actual sentence involves the use of another
                 sentencing option, or other sentencing options, in
                 addition to the highest of the prescribed options, the
                 actual sentence is to be regarded as more severe than
20               the recommended sentence if --
                   (a) that other option, or one or more of those other
                          options, is higher than the highest of the
                          prescribed options; or
                   (b) the portion of the sentence imposed using the
25                        highest prescribed option is not less than the
                          recommended sentence determined using that
                          option.
           (5)   In subsection (4) --
                 "sentencing option" includes a prescribed option.



                                                                     page 15
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



               (6)   If the actual sentence involves the use of another
                     sentencing option, or other sentencing options in
                     addition to a prescribed option (other than the highest
                     of the prescribed options), the actual sentence is to be
 5                   regarded as more severe than the recommended
                     sentence if that other option, or one of those other
                     options, is higher than the highest of the prescribed
                     options.
               (7)   If no prescribed option is used in the actual sentence,
10                   the actual sentence is to be regarded as more severe
                     than the recommended sentence if a sentencing option
                     used is higher than the highest of the prescribed
                     options.
               (8)   Unless subsection (2), (3), (4), (6) or (7) provides
15                   otherwise, the actual sentence is to be regarded as less
                     severe than the recommended sentence.
               (9)   If the sentencing method provides for the
                     recommended sentence determined under a prescribed
                     option to be within a range of sentences involving the
20                   use of that option then --
                       (a) for the purposes of subsection (2), the actual
                              sentence is the same as the recommended
                              sentence determined using that option if it is
                              within that range;
25                     (b) for the purposes of subsection (3), the actual
                              sentence is greater than the recommended
                              sentence determined using that option if it is
                              greater than the most severe sentence in that
                              range; and




     page 16
                                               Sentencing Matrix Bill 1999
    Amendments about appropriate and consistent sentencing          Part 2
                           Sentencing Act 1995 amended          Division 1
                                                                       s. 4



                  (c)   for the purposes of subsection (4)(b), the actual
                        sentence is not less than the recommended
                        sentence determined using that option if it is
                        not less than the most severe sentence in that
5                       range.
             Table showing some examples of the operation of Division 4
     Recommended sentence Actual sentence imposed           Comparison of
     ("RS")                  ("AS")                         AS with RS
     $10 000 fine            $5 000 fine and                AS less severe
                             12 months CRO
                             $10 000 fine and               AS more severe
                             6 months CRO
                             $5 000 fine and                AS more severe
                             12 months CBO
                             6 months CBO                   AS more severe
     $10 000 to $20 000 fine $15 000 fine                   AS same as RS
     OR                      $25 000 fine                   AS less severe
     12 to 24 months CBO     $25 000 fine and               AS less severe
                             15 months CRO
                             $20 000 fine and               AS less severe
                             20 months CBO
                             $2 000 fine and                AS more severe
                             24 months CBO
                             $2 000 fine and                AS more severe
                             6 months imprisonment
     $10 000 to $20 000 fine $20 000 fine                   AS same as RS
     OR                      24 months CBO                  AS same as RS
     12 to 24 months CBO     $20 000 fine and               AS less severe
     OR                      24 months CBO
     6 to 9 months
                             $20 000 fine and               AS less severe
     imprisonment
                             8 months imprisonment
                             $20 000 fine and               AS more severe
                             9 months imprisonment




                                                                          page 17
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 1    Sentencing Act 1995 amended
     s. 4



           Division 5 -- Application of this Part to the sentencing
                             of young persons
          101S.      Meaning of terms used in this Division
                     In this Division --
 5                   "Schedule 1 offence", "Schedule 2 offence" and
                          "young person" have the same meanings as they
                          have in the Young Offenders Act 1994.

          101T.      Prescribing offences in relation to the Children's
                     Court
10             (1)   Regulations may be made under section 101B, 101F
                     or 101J to apply provisions of this Part to sentencing
                     by the Children's Court but only in relation to a
                     Schedule 1 offence or a Schedule 2 offence.
               (2)   Regulations referred to in subsection (1) may be made
15                   in a way that makes the operation of provisions of this
                     Part depend on, or differ according to, the age of an
                     offender at the time of --
                       (a) committing;
                       (b) being charged with;
20                     (c) being convicted of; or
                       (d) being sentenced for,
                     the offence.

          101U.      Sentencing of young persons by other courts
                     If regulations referred to in section 101T(1) are made,
25                   provisions of this Part that apply to the Children's
                     Court also apply in the same way to any other court
                     sentencing a young person for the offence in question.


     page 18
                                                     Sentencing Matrix Bill 1999
          Amendments about appropriate and consistent sentencing          Part 2
                            Young Offenders Act 1994 amended          Division 2

                                                                                 s. 5


            101V.       Modified operation of certain provisions of this Part
                  (1)   If regulations referred to in section 101T(1) are made
                        under section 101J, section 101L(5) applies as if it
                        were amended by inserting after "Part 14" the
 5                      following --
                         "
                               , or under Part 7, Division 9 of the Young
                               Offenders Act 1994
                                                                                   ".
10                (2)   If regulations referred to in section 101T(1) are made
                        under section 101F or 101J then, unless section 50B of
                        the Young Offenders Act 1994 applies, references in
                        Division 4 to section 39(2) are to be read as references
                        to the Table to this subsection.
15                                          Table
                  Sentencing options under the Young Offenders Act 1994
             1.    The imposition of a fine under section 71.
             2.    The making of a youth community based order under
                   section 73.
             3.    The making of an intensive youth supervision order under
                   section 98.
             4.    The imposition of a custodial sentence under section 118.
                                                                                   ".

                  Division 2 -- Young Offenders Act 1994 amended
     5.           The Act amended by this Division
                  The amendments in this Division are to the Young Offenders
20                Act 1994*.
                  [* Reprinted as at 26 March 1996.
                     For subsequent amendments see 1997 Index to Legislation of
                     Western Australia, Table 1, p. 259, and Act No. 29 of 1998.]

                                                                            page 19
     Sentencing Matrix Bill 1999
     Part 2        Amendments about appropriate and consistent sentencing
     Division 2    Young Offenders Act 1994 amended

     s. 6


     6.          Section 46A amended
                 Section 46A(1) is amended after paragraph (b) by deleting "or"
                 and inserting --
                        "
 5                          (ba)   to the extent that Division 5 of Part 14A of the
                                   Sentencing Act 1995 provides for that Part to
                                   apply; or
                                                                                      ".

     7.          Section 55 amended
10               After section 55(4) the following subsection is inserted --
            "
                (4a)        Although a conviction is not recorded, the offender is
                            deemed to have been convicted for the purpose of the
                            application of Part 14A of the Sentencing Act 1995 to
15                          the sentencing of the offender for another offence.
                                                                                      ".

     8.          Schedule 2 amended
                 Schedule 2 is amended in the Division headed "1. The Criminal
                 Code" by deleting the item relating to s. 378(2) and inserting
20               instead --
                 "     s. 378                   Stealing a motor vehicle    ".




 


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