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This is a Bill, not an Act. For current law, see the Acts databases.
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 TABLE OF PROVISIONS Clause Page Part 1--Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2--Repeal of the baseline sentencing scheme 3 Division 1--Amendment of the Sentencing Act 1991 3 3 Definitions 3 4 Sentencing guidelines 3 5 Sentencing for a baseline offence 3 6 Median sentence 3 7 Content of guideline judgment 3 8 Aggregate sentence of imprisonment 3 9 Fixing of non-parole period for baseline offence 3 10 Aggregate fines 3 11 Transitional provisions--Sentencing Amendment (Baseline Sentences) Act 2014 4 Division 2--Amendment of the Crimes Act 1958 4 12 Definitions 4 13 Punishment for murder 4 14 Culpable driving causing death 4 Division 3--Amendment of the Drugs, Poisons and Controlled Substances Act 1981 4 15 Definitions 4 16 Trafficking in a drug or drugs of dependence--large commercial quantity 4 Part 3--Standard sentence scheme 5 Division 1--Amendment of the Sentencing Act 1991 5 17 Definitions 5 18 Sentencing guidelines 5 19 New sections 5A and 5B inserted 5 20 Content of guideline judgment 8 i
Clause Page 21 Aggregate sentence of imprisonment 8 22 New section 11A inserted 8 23 Aggregate fines 10 Division 2--Amendment of the Crimes Act 1958 10 24 Definition inserted 10 25 Standard sentence for murder 10 26 Standard sentence for rape 11 27 Standard sentence for sexual penetration of a child under the age of 12 12 28 Standard sentence for sexual penetration of a child under the age of 16 12 29 Standard sentence for sexual assault of a child under the age of 16 12 30 Standard sentence for sexual activity in the presence of a child under the age of 16 13 31 Standard sentence for causing a child under the age of 16 to be present during sexual activity 13 32 Standard sentence for persistent sexual abuse of a child under the age of 16 13 33 Standard sentence for sexual penetration of a child or lineal descendant 14 34 Standard sentence for sexual penetration of a step-child 14 35 Standard sentence for culpable driving causing death 15 Division 3--Amendment of the Drugs, Poisons and Controlled Substances Act 1981 15 36 Definition inserted 15 37 Standard sentence for trafficking in a large commercial quantity of a drug or drugs of dependence 15 Part 4--Guideline judgments 16 38 Definition 16 39 New section 6ABA inserted 16 40 Content of guideline judgment 17 41 Procedural requirements 17 Part 5--Miscellaneous 19 42 New section 162 inserted 19 43 Amendment of Schedule 1 20 Part 6--Repeal of amending Act 21 44 Repeal of amending Act 21 ═══════════════ Endnotes 22 1 General information 22 ii
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 [Assented to ] The Parliament of Victoria enacts: Part 1--Preliminary 1 Purposes The purposes of this Act are-- (a) to amend the Sentencing Act 1991-- (i) to repeal the baseline sentencing scheme; and (ii) to provide for standard sentences for indictable offences; and 1
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 1--Preliminary (iii) to enhance the scheme in that Act for the giving of guideline judgments; and (iv) to amend the definition of arson offence for the purposes of Part 2A of that Act (serious offenders); and (b) to amend the Crimes Act 1958-- (i) to remove references to the baseline sentencing scheme; and (ii) to fix a standard sentence for-- (A) murder; and (B) a range of sexual offences; and (C) culpable driving causing death; and (c) to amend the Drugs, Poisons and Controlled Substances Act 1981-- (i) to remove references to the baseline sentencing scheme; and (ii) to fix a standard sentence for trafficking in a large commercial quantity of a drug or drugs of dependence. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 April 2018, it comes into operation on that day. 2
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 2--Repeal of the baseline sentencing scheme Part 2--Repeal of the baseline sentencing scheme Division 1--Amendment of the Sentencing Act 1991 3 Definitions In section 3(1) of the Sentencing Act 1991, the definitions of baseline offence, baseline sentence and median sentence are repealed. 4 Sentencing guidelines Section 5(2)(ab) of the Sentencing Act 1991 is repealed. 5 Sentencing for a baseline offence Section 5A of the Sentencing Act 1991 is repealed. 6 Median sentence Section 5B of the Sentencing Act 1991 is repealed. 7 Content of guideline judgment Section 6AC(ea) of the Sentencing Act 1991 is repealed. 8 Aggregate sentence of imprisonment Section 9(1A)(ab) of the Sentencing Act 1991 is repealed. 9 Fixing of non-parole period for baseline offence Section 11A of the Sentencing Act 1991 is repealed. 10 Aggregate fines Section 51(1A) of the Sentencing Act 1991 is repealed. 3
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 2--Repeal of the baseline sentencing scheme 11 Transitional provisions--Sentencing Amendment (Baseline Sentences) Act 2014 Section 155 of the Sentencing Act 1991 is repealed. Division 2--Amendment of the Crimes Act 1958 12 Definitions In section 2A(1) of the Crimes Act 1958, the definition of baseline sentence is repealed. 13 Punishment for murder (1) Section 3(2) and (3) of the Crimes Act 1958 is repealed. (2) The note at the foot of section 3 of the Crimes Act 1958 is repealed. 14 Culpable driving causing death Section 318(1A) of the Crimes Act 1958 is repealed. Division 3--Amendment of the Drugs, Poisons and Controlled Substances Act 1981 15 Definitions In section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981, the definition of baseline sentence is repealed. 16 Trafficking in a drug or drugs of dependence--large commercial quantity Section 71(2) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed. 4
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme Part 3--Standard sentence scheme Division 1--Amendment of the Sentencing Act 1991 17 Definitions In section 3(1) of the Sentencing Act 1991 insert the following definitions-- "standard sentence, in relation to an offence, means the period specified by an Act as the standard sentence for the offence; Note See section 5A. standard sentence offence means an offence for which an Act specifies a standard sentence; Note See section 5A.". 18 Sentencing guidelines After section 5(2)(a) of the Sentencing Act 1991 insert-- "(ab) the standard sentence, if any, for the offence; and". 19 New sections 5A and 5B inserted After section 5 of the Sentencing Act 1991 insert-- "5A Standard sentence scheme (1) If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then-- (a) the offence is a standard sentence offence; and 5
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme (b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. (2) An offence of conspiracy to commit, incitement to commit or attempting to commit a standard sentence offence is itself not a standard sentence offence. (3) For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined-- (a) without reference to matters personal to a particular offender or class of offenders; and (b) wholly by reference to the nature of the offending. 5B Sentencing for a standard sentence offence (1) This section applies in relation to sentencing an offender for a standard sentence offence unless-- (a) the offender was under the age of 18 at the time of the commission of the offence; or (b) the offence is heard and determined summarily; or (c) section 162 makes this section inapplicable because of when the offence is alleged to have been committed. 6
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme (2) In sentencing an offender for a standard sentence offence, a court-- (a) must take the standard sentence into account as one of the factors relevant to sentencing; and (b) despite section 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied. (3) Subsection (2)-- (a) does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and (b) is not intended to affect the approach to sentencing known as instinctive synthesis. (4) A court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for-- (a) imposing that sentence; and (b) any non-parole period fixed in accordance with section 11 as part of that sentence if that period is shorter than the period specified in section 11A(4)(a), (b) or (c), as the case requires. (5) As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.". 7
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme 20 Content of guideline judgment After section 6AC(e) of the Sentencing Act 1991 insert-- "(ea) guidelines for sentencing offenders for standard sentence offences;". 21 Aggregate sentence of imprisonment After section 9(1A)(a) of the Sentencing Act 1991 insert-- "(ab) the offences comprise at least one offence that is a standard sentence offence; or". 22 New section 11A inserted After section 11 of the Sentencing Act 1991 insert-- "11A Fixing of non-parole period for standard sentence offence (1) This section applies to a court when fixing, in accordance with section 11, a non-parole period-- (a) for a standard sentence offence; or (b) in respect of a total effective sentence imposed in respect of 2 or more sentences, at least one of which is for a standard sentence offence. (2) This section also applies to a court when fixing, in accordance with section 14, a new single non-parole period in circumstances where the further sentence is a sentence of imprisonment for a standard sentence offence. 8
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme (3) However, this section only applies to a court when fixing a non-parole period for a standard sentence offence if section 5B applied in relation to the sentencing for that offence. (4) Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least-- (a) 30 years if the relevant term is the term of the offender's natural life; or (b) 70% of the relevant term if that term is a term of 20 years or more; or (c) 60% of the relevant term if that term is a term of less than 20 years. (5) In subsection (4) the relevant term is-- (a) if a non-parole period is being fixed for a standard sentence offence, the sentence for that offence; and (b) if a non-parole period is being fixed in respect of a total effective sentence referred to in subsection (1)(b), that sentence. (6) Nothing in this section affects the fixing of a non-parole period for an offence that is not a standard sentence offence or in respect of a total effective sentence imposed in respect of 2 or more sentences, none of which is for a standard sentence offence.". 9
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme 23 Aggregate fines After section 51(1) of the Sentencing Act 1991 insert-- "(1A) Despite subsection (1), a court must not impose one fine in respect of 2 or more offences if at least one of them is a standard sentence offence.". Division 2--Amendment of the Crimes Act 1958 24 Definition inserted In section 2A(1) of the Crimes Act 1958 insert the following definition-- "standard sentence, in relation to an offence, has the same meaning as in the Sentencing Act 1991.". 25 Standard sentence for murder (1) The note at the foot of section 3(1) of the Crimes Act 1958 is repealed. (2) After section 3(1) of the Crimes Act 1958 insert-- "(2) The standard sentence for murder is-- (a) 30 years if the court, in determining sentence, is satisfied that the prosecution has proved beyond reasonable doubt that-- (i) the person murdered was a custodial officer on duty or an emergency worker on duty; and (ii) at the time of carrying out the conduct the accused knew or was reckless as to whether that person was a custodial officer or an emergency worker; and 10
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme (b) in any other case, 25 years. Notes 1 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences. 2 Murder is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence. (3) In subsection (2)(a) custodial officer on duty, custodial officer, emergency worker on duty and emergency worker have the same meanings as in section 10AA of the Sentencing Act 1991.". 26 Standard sentence for rape (1) The note at the foot of section 38(2) of the Crimes Act 1958 is repealed. (2) After section 38(2) of the Crimes Act 1958 insert-- "(3) The standard sentence for an offence against subsection (1) is 10 years.". (3) For the note at the foot of section 38 of the Crimes Act 1958 substitute-- "Notes 1 An exception applies to this offence--see section 48A. 2 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences. 3 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.". 11
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme 27 Standard sentence for sexual penetration of a child under the age of 12 (1) After section 49A(2) of the Crimes Act 1958 insert-- "(3) The standard sentence for an offence against subsection (1) is 10 years.". (2) For note 3 at the foot of section 49A of the Crimes Act 1958 substitute-- "3 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences. 4 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.". 28 Standard sentence for sexual penetration of a child under the age of 16 (1) After section 49B(2) of the Crimes Act 1958 insert-- "(3) The standard sentence for an offence against subsection (1) is 6 years.". (2) After note 2 at the foot of section 49B of the Crimes Act 1958 insert-- "3 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.". 29 Standard sentence for sexual assault of a child under the age of 16 (1) After section 49D(2) of the Crimes Act 1958 insert-- "(2A) The standard sentence for an offence against subsection (1) is 4 years.". (2) After note 3 at the foot of section 49D of the Crimes Act 1958 insert-- "4 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.". 12
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme 30 Standard sentence for sexual activity in the presence of a child under the age of 16 (1) After section 49F(2) of the Crimes Act 1958 insert-- "(2A) The standard sentence for an offence against subsection (1) is 4 years.". (2) After note 3 at the foot of section 49F of the Crimes Act 1958 insert-- "4 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.". 31 Standard sentence for causing a child under the age of 16 to be present during sexual activity (1) After section 49H(2) of the Crimes Act 1958 insert-- "(2A) The standard sentence for an offence against subsection (1) is 4 years.". (2) After note 3 at the foot of section 49H of the Crimes Act 1958 insert-- "4 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.". 32 Standard sentence for persistent sexual abuse of a child under the age of 16 (1) After section 49J(2) of the Crimes Act 1958 insert-- "(2A) The standard sentence for an offence against subsection (1) is 10 years.". (2) For the note at the foot of section 49J of the Crimes Act 1958 substitute-- "Notes 1 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences. 13
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme 2 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.". 33 Standard sentence for sexual penetration of a child or lineal descendant (1) After section 50C(2) of the Crimes Act 1958 insert-- "(3) The standard sentence for an offence against subsection (1) is 10 years if B is, at the time of the offence, under the age of 18 years.". (2) For note 4 at the foot of section 50C of the Crimes Act 1958 substitute-- "4 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences. 5 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991 if B is, at the time of the offence, under the age of 18 years. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.". 34 Standard sentence for sexual penetration of a step-child (1) After section 50D(2) of the Crimes Act 1958 insert-- "(3) The standard sentence for an offence against subsection (1) is 10 years if B is, at the time of the offence, under the age of 18 years.". (2) For note 4 at the foot of section 50D of the Crimes Act 1958 substitute-- "4 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences. 5 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991 if B is, at the time of the offence, under the age of 18 years. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.". 14
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 3--Standard sentence scheme 35 Standard sentence for culpable driving causing death After section 318(1) of the Crimes Act 1958 insert-- "(1A) The standard sentence for an offence under subsection (1) is 8 years. Note See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.". Division 3--Amendment of the Drugs, Poisons and Controlled Substances Act 1981 36 Definition inserted In section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert the following definition-- "standard sentence, in relation to an offence, has the same meaning as in the Sentencing Act 1991;". 37 Standard sentence for trafficking in a large commercial quantity of a drug or drugs of dependence After section 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert-- "(2) The standard sentence for an offence under subsection (1) (other than one constituted by an attempt to traffick) is 16 years. Note See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.". 15
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 4--Guideline judgments Part 4--Guideline judgments 38 Definition In section 6AA of the Sentencing Act 1991, in the definition of guideline judgment, after "offenders" insert "for offences (other than offences against a law of the Commonwealth)". 39 New section 6ABA inserted After section 6AB of the Sentencing Act 1991 insert-- "6ABA Guideline judgments on application of Attorney-General (1) The Attorney-General may apply to the Court of Appeal for it to give a guideline judgment, or review a guideline judgment previously given by it, if the Attorney- General believes that-- (a) a guideline judgment is required to be given or reviewed to address a broad or systemic sentencing issue; and (b) the making of the application is in the public interest. (2) An application is not to be made in respect of any proceeding before any court or with respect to a particular offender. (3) An application may include submissions with respect to the framing of the proposed guideline judgment. (4) The Court of Appeal must state the reasons if it refuses to give or review a guideline judgment on an application under this section. 16
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 4--Guideline judgments (5) A guideline judgment given or reviewed on an application under this section must be given or reviewed separately from any proceeding before the Court with respect to a particular offender.". 40 Content of guideline judgment (1) Before section 6AC(f) of the Sentencing Act 1991 insert-- "(eb) guidelines as to the appropriate level or range of sentences for a particular offence or class of offence;". (2) At the end of section 6AC of the Sentencing Act 1991 insert-- "(2) Counsel for the prosecution or the defence may make a submission to a court considering the sentence for an offence, on the level or range of sentences that could be imposed for it, if that level or range has been set out in a guideline judgment. (3) Subsections (1)(eb) and (2) have effect despite any rule of law or practice to the contrary and any such rule is abolished.". 41 Procedural requirements (1) In section 6AD of the Sentencing Act 1991, after "Court of Appeal" insert "is considering (including on an application by the Attorney- General under section 6ABA) whether to give or review a guideline judgment or". (2) At the end of section 6AD of the Sentencing Act 1991 insert-- "(2) In specifying a period for the purposes of subsection (1)(a), the Court of Appeal must take into consideration the period reasonably required for the Sentencing Advisory Council to-- 17
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 4--Guideline judgments (a) undertake research and statistical analysis; and (b) consult with relevant persons within the criminal justice system as well as the general public. (3) Views stated by the Sentencing Advisory Council under subsection (1)(a) or a submission made under subsection (1)(b) may include a view or submission with respect to the framing of the proposed guideline judgment.". 18
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 5--Miscellaneous Part 5--Miscellaneous 42 New section 162 inserted At the end of Part 12 of the Sentencing Act 1991 insert-- "162 Transitional provisions--Sentencing Amendment (Sentencing Standards) Act 2017 (1) In this section-- 2017 Act means the Sentencing Amendment (Sentencing Standards) Act 2017; Part 3 commencement day means the day on which Part 3 of the 2017 Act comes into operation. (2) The amendments made to this Act by Part 3 of the 2017 Act only apply to the sentencing of an offender on or after the Part 3 commencement day for an offence alleged to have been committed on or after that day. (3) However, nothing in subsection (2) prevents a court taking into account the effect on current sentencing practices of the amendments made to this Act by Part 3 of the 2017 Act in sentencing an offender on or after the Part 3 commencement day for an offence to which those amendments would have applied had it been committed on or after that day. Note Section 5(2)(b) requires a court in sentencing an offender to have regard to current sentencing practices. 19
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 5--Miscellaneous (4) For the purposes of subsections (2) and (3), if an offence is alleged to have been committed between 2 dates, one before and one after the Part 3 commencement day, the offence is alleged to have been committed before that day. (5) The amendment made to this Act by section 43(2) of the 2017 Act applies to a sentence imposed after the commencement of that section, irrespective of when the offence was committed. (6) For the purposes of subsection (5), a sentence imposed by an appellate court on setting aside a sentencing order must be taken to have been imposed at the time the original sentencing order was made.". 43 Amendment of Schedule 1 (1) In clause 5(c) of Schedule 1 to the Sentencing Act 1991, for "(bb)." substitute "(bb);". (2) After clause 5(c) of Schedule 1 to the Sentencing Act 1991 insert-- "(d) any other offence, whether committed in Victoria or elsewhere, the necessary elements of which consist of elements that constitute any of the offences referred to in paragraphs (a) to (c).". 20
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Part 6--Repeal of amending Act Part 6--Repeal of amending Act 44 Repeal of amending Act This Act is repealed on 1 April 2019. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ 21
Sentencing Amendment (Sentencing Standards) Act 2017 No. of 2017 Endnotes Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. Minister's second reading speech-- Legislative Assembly: Legislative Council: The long title for the Bill for this Act was "A Bill for an Act to amend the Sentencing Act 1991 to repeal the baseline sentencing scheme, provide for standard sentences for indictable offences and enhance the scheme in that Act for the giving of guideline judgments, to amend the Crimes Act 1958 and the Drugs, Poisons and Controlled Substances Act 1981 to remove references to the baseline sentencing scheme and fix a standard sentence for certain offences against those Acts and for other purposes." By Authority. Government Printer for the State of Victoria. 22
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