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SENTENCING AMENDMENT (MANDATORY SENTENCING FOR SERIOUS SEXUAL OFFENCES AGAINST CHILDREN) BILL 2018 BILL 5 OF 2018

                                     TASMANIA

                                      __________


                 SENTENCING AMENDMENT (MANDATORY
               SENTENCING FOR SERIOUS SEXUAL OFFENCES
                     AGAINST CHILDREN) BILL 2018
                                      __________

                                     CONTENTS
          1.       Short title
          2.       Commencement
          3.       Principal Act
          4.       Section 16AA inserted
                     16AA. Determination of whether exceptional circumstances
                              exist under sections 16A and 16B
          5.       Sections 16B and 16C inserted
                     16B.     Mandatory imprisonment for certain sexual offences
                              against children
                     16C.     Application of Act where section 16B applies in
                              relation to offence
          6.       Repeal of Act




[Bill 5]-XI

 


 

2

 


 

SENTENCING AMENDMENT (MANDATORY SENTENCING FOR SERIOUS SEXUAL OFFENCES AGAINST CHILDREN) BILL 2018 (Brought in by the Minister for Justice, the Honourable Elise Nicole Archer) A BILL FOR An Act to amend the Sentencing Act 1997 Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: 1. Short title This Act may be cited as the Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018. 2. Commencement This Act commences on the day on which this Act receives the Royal Assent. 3. Principal Act In this Act, the Sentencing Act 1997* is referred to as the Principal Act. *No. 59 of 1997 [Bill 5] 3

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 4 4. Section 16AA inserted After section 16 of the Principal Act, the following section is inserted in Division 1: 16AA. Determination of whether exceptional circumstances exist under sections 16A and 16B In determining, for the purposes of section 16A or 16B, whether exceptional circumstances exist, a court is to have regard to - (a) the nature and circumstances of the offence against section 16A or 16B, as the case may be; and (b) the circumstances of the offender; and (c) any other matter that the court considers to be relevant. 5. Sections 16B and 16C inserted After section 16A of the Principal Act, the following sections are inserted in Division 1: 16B. Mandatory imprisonment for certain sexual offences against children (1) In this section - aggravating circumstance, in relation to an offence, has the same 4

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 5 meaning as it has under section 11A in relation to the offence; minimum period, in relation to - (a) an offence to which subsection (2) applies - means a period of 2 years; or (b) an offence to which subsection (3) applies - means a period of 3 years; or (c) an offence to which subsection (4) or (5) applies - means a period of 4 years. (2) Despite section 7, if a court convicts an offender of, or imposes on an offender a sentence on the conviction of the offender for, an offence against section 124 of the Criminal Code in relation to a person who had not attained the age of 17 years at the time at which the offence was committed, the court must, if there is an aggravating circumstance in relation to the offence, order the offender to serve in respect of the offence a term of imprisonment of not less than the minimum period in relation to the offence. 5

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 5 (3) Despite section 7, if a court convicts an offender of, or imposes on an offender a sentence on the conviction of the offender for, an offence against section 125A of the Criminal Code in relation to a person who had not attained the age of 17 years at the time at which the offence was committed, the court must, if there is an aggravating circumstance in relation to the offence, order the offender to serve in respect of the offence a term of imprisonment of not less than the minimum period in relation to the offence. (4) Despite subsection (3) and section 7, if - (a) a court convicts an offender of, or imposes on an offender a sentence on the conviction of the offender for, an offence against section 125A of the Criminal Code in relation to a person who had not attained the age of 17 years at the time at which the offence was committed; and (b) one of the unlawful acts constituting the offence against section 125A of the Criminal Code is an offence against section 185 of the Criminal Code - the court must order the offender to serve in respect of the offence a term of 6

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 5 imprisonment of not less than the minimum period in relation to the offence. (5) Despite section 7, if a court convicts an offender of, or imposes on an offender a sentence on the conviction of the offender for, an offence against section 185 of the Criminal Code in relation to a person who had not attained the age of 17 years at the time at which the offence was committed, the court must order the offender to serve in respect of the offence a term of imprisonment of not less than the minimum period in relation to the offence. (6) This section does not apply in relation to an offence committed by an offender if - (a) the offender had not attained the age of 18 years at the time at which the offence was committed; or (b) the offender has impaired mental functioning that is causally linked to the offence and that - (i) ought to be regarded as reducing the offender's culpability for the offence; or (ii) is likely to result in imprisonment of the 7

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 5 offender being more difficult for the offender, or more of a risk to the health or wellbeing of the offender, than would be the case for an offender who did not have such impaired mental functioning; or (c) there are exceptional circumstances. 16C. Application of Act where section 16B applies in relation to offence (1) In this section - minimum period, in relation to an offence, has the same meaning as it has in section 16B. (2) Section 10(2)(b)(v) does not apply in relation to an offence to which section 16B applies, to the extent that section 10(2)(b)(v) might otherwise be taken to require section 16B or this section to apply to an offence in relation to which a finding of guilt has been made but a conviction has not been recorded. (3) If an order that an offender must serve in respect of an offence a term of imprisonment has been made in accordance with section 16B, a court must not - 8

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 5 (a) make any other order in respect of the offence, other than an order under section 17 or 18; or (b) amend an order in respect of the offence, other than an order under section 17 or 18 - if the effect of that other order or amendment would be that the person is not imprisoned for the minimum period in relation to the offence. (4) Nothing in this section or section 16B is to be taken to prevent the application of section 11 in relation to an offence to which section 16B applies, providing the offender is sentenced to a term of imprisonment of not less than the minimum period in relation to the offence, whether or not the sentence applies, in addition, to another offence, and whether or not that other offence is an offence to which section 16B applies. (5) Subject to subsection (6), nothing in this section or section 16B is to be taken to prevent a court ordering an offender to serve, in respect of an offence to which section 16B applies, a term of imprisonment of more than the minimum period in relation to the offence. (6) A court, in imposing on an offender a sentence in relation to an offence to 9

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 5 which section 16B applies, must only impose a term of imprisonment that is more than the minimum period in relation to the offence, if the court would, if section 16B did not apply in relation to - (a) the offence committed by the offender; or (b) an offence, whether committed by the offender or another person, to which a court may have regard in determining the sentence to impose on the offender - impose on that offender, in relation to that offence, that term of imprisonment. (7) Section 12 does not apply in relation to an offence to which section 16B applies. (8) Nothing in section 16B or this section, apart from subsections (3) and (7), is to be taken to prevent a court making, in respect of an offence to which section 16B applies, an order (including an order imposing a penalty) that is an order in addition to an order imposing in respect of the offence a term of imprisonment in accordance with section 16B and this section. 10

 


 

Sentencing Amendment (Mandatory Sentencing for Serious Sexual Offences Against Children) Act 2018 Act No. of s. 6 6. Repeal of Act This Act is repealed on the three hundred and sixty fifth day from the day on which it commences. Government Printer, Tasmania 11

 


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