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Report Details


Committee Name:

Legislation Committee (2001 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Sentencing Legislation Amendment and Repeal Bill 2002 and the Sentence Administration Bill 2002
Report No:18
No of Pages:193 with a minority report of 8 pages
Physical Location:Legislative Council Committee Office

Presentation Date:

05/23/2003
Inquiry Name(s):Sentencing Legislation Amendment and Repeal Bill 2002 & Sentence Administration Bill 2002


Click here to view the Government's response to the report
Click here to view the report
Click here to view the minority report



Hide details for Executive SummaryExecutive Summary

Executive Summary

1 The Sentencing Legislation Amendment and Repeal Bill 2002 and the Sentence Administration Bill 2002 (“the Bills”) were referred to the Legislation Committee (“Committee”) on December 19 2002.

2 The Sentencing Legislation Amendment and Repeal Bill 2002 amends the Sentencing Act 1995 and repeals other sentencing legislation including the Sentence Administration Act 1995. The Sentence Administration Bill 2002 replaces the Sentence Administration Act 1995 and replicates some, but not all, of its provisions

3. The Bills introduce a number of amendments to sentencing in Western Australia including amendments to parole and remission, the abolition of sentences of six months or less and the creation of a new Pre-sentence Order. Through the amendments contained in these Bills, the Government seeks to:

make the sentencing process clear and understandable for both the community and the judiciary;
enact “truth in sentencing” or transparency in sentencing by implementing a number of the recommendations of the Report of the Review of Remission and Parole; and
reduce the rate and associated cost of imprisonment in Western Australia.

4. In its consideration of the Bills, the Committee dealt with the key issues raised in submissions. In relation to the Sentencing Legislation Amendment and Repeal Bill 2002 the key issues are:

the introduction of Pre-sentence Orders and the ability for the court to adjourn sentencing for up to 12 months;
the amendment to Parole Eligibility Orders such that there is no presumption in favour of parole;
the amendment of parole to 50% of the sentence;
the abolition of remission;
the abolition of sentences of six months or less;
the amendments in relation to partly cumulative sentences; and
the transitional provisions for the adjustment of sentences to take account of the amendments to parole and remission.

5. The Committee dealt with the key issues raised in submissions in relation to the Sentence Administration Bills 2002 which are:

a clause setting out a number of criteria that must be addressed when release on parole is considered;
in relation to sentences of imprisonment of less than 12 months, the abolition of Home Detention Orders and the introduction of Chief Executive Officer (“CEO”) Parole;
an amendment to the “parole period” of a sentence; and
the abolition of Work Release Orders and the introduction of Re-entry Release Orders.

6. The submissions to the Committee also raised the issue of the impact of the Bills in remote and regional areas of the State. The Committee draws the attention of the House to recommendation 21 in this regard.

7. The Committee has recommended a number of amendments to the Bills which address the key issues and has also made a number of recommendations that the Committee believes that the Government should consider.

Recommendations

3 Recommendations are grouped as they appear in the text at the page number indicated:

Page 20

Recommendation 1: The Committee recommends that the Government reconsider the abolition of Home Detention Orders.


Page 24

Recommendation 2: The Committee recommends that clause 24(3) of the Sentence Administration Bill 2002 be amended in the following manner:

Page 16, line 21 - To delete “CEO” and insert instead -
“Board ”.


Page 24

Recommendation 3: The Committee recommends that a new clause 24(4) be inserted into the Sentence Administration Bill 2002 in the following manner:

Page 16, after line 22 - To insert the following -

“(4) The Board may consider the submissions and may make a decision in substitution for the decision made by the CEO.”.


Page 24

Recommendation 4: The Committee recommends that the “class prescribed” for the purpose of clause 23(2) of the Sentence Administration Bill 2002 with respect to “CEO Parole”, be included in the Sentence Administration Bill 2002 and not in regulations.


Page 24

Recommendation 5: The Committee recommends that the “prescribed class” for the purposes of clause 106(4) of the Sentence Administration Bill 2002, with respect to those parole decisions which may be delegated to the Parole Board Secretary or other authorised person, be included in the Sentence Administration Bill 2002 and not in regulations.


Page 31

Recommendation 6: The Committee recommends that clause 51(2) of the Sentence Administration Bill be amended in the following manner:

Page 30, line 4 - To insert after “that” - “ - (a) ”

Page 30, line 6 - To insert after “community” where it second appears - “; or

(b) the safety of people in the community or of any individual in the community would be better assured by the prisoner spending time on supervised re-entry release than by being released at the end of the sentence without any supervised release.”

This amendment would have the effect that clause 51(2) would read as follows:

(2) The Board must not make an RRO in respect of a prisoner unless satisfied that:

(a) the prisoner is a person whose release would pose a low risk to the personal safety of people in the community or of any individual in the community; or

(b) the safety of people in the community or of any individual in the community would be better assured by the prisoner spending time on supervised re-entry release than by being released at the end of the sentence without any supervised release.


Page 32

Recommendation 7: The Committee recommends that the Re-entry Release Order provisions be amended to enable the Parole Board to determine the duration of the Order up to a period of six months and for this purpose the Committee recommends that clause 51(1) of the Sentence Administration Bill 2002 be amended in the following manner:

Page 29, line 30 - To insert after “RRO” - “to come into effect on a date specified by the Board.”.


Page 51

Recommendation 8: The Committee recommends that the Government place a high priority on the development and implementation of any proposed Drug Court legislation and in preparing that legislation explores the use of conditional suspended sentences.


Page 51

Recommendation 9: The Committee recommends that the Government consider an amendment to Division 2 of Part 2 of the Sentencing Legislation Amendment and Repeal Bill 2002 to incorporate provisions to deal with offences committed during the duration of a Pre-sentence Order that are dealt with after the expiration of the Pre-sentence Order.


Page 52

Recommendation 10: The Committee recommends that clause 6 of the Sentencing Legislation Amendment and Repeal Bill 2002 be amended in the following manner:

Page 6, line 10 - To delete “12 months” and insert instead -“ 2 years ”.


Page 52

Recommendation 11: The Committee recommends that the limitation on the length of a curfew order made as part of a Pre-sentence Order be capable of being exceeded or extended by a speciality court. To give effect to this the Committee recommends that clause 6 of the Sentencing Legislation Amendment and Repeal Bill 2002 be amended in the following manner:

Page 10, lines 28 to 31 - To delete the lines and insert instead -

“(3) The curfew requirement may only be imposed for a term of six months or less, as set by the court, beginning when the PSO is made or as ordered by the speciality court or as extended by the speciality court.”.

Page 11, lines 7 to 9 - To delete the lines.


Page 52

Recommendation 12: The Committee recommends that, to provide more flexibility in speciality courts and to take into account case management, clause 6 of the Sentencing Legislation Amendment and Repeal Bill 2002 be amended in the following manner:

Page 13, line 15 - To insert after “court” -

“and in the form and at a forum directed by the speciality court”.


Page 53

Recommendation 13: The Committee recommends that performance reports for Pre-sentence Orders be made available to speciality court officers in addition to those persons already proposed and for this purpose clause 6 of the Sentencing Legislation Amendment and Repeal Bill 2002 be amended in the following manner:

Page 14, line 2 - To insert after “offender” -

“and to speciality court officers ”.


Page 53

Recommendation 14: The Committee recommends that the Sentencing Legislation Amendment and Repeal Bill 2002 be amended to enable Pre-sentence Orders to be amended by the court to allow offenders further time to comply with the requirements of the Pre-sentence Order and for this purpose proposed section 33N in clause 6 of the Sentencing Legislation Amendment and Repeal Bill 2002 be amended in the following manner:

Page 16 line 14 - To insert after “so,” -

“or if the offender requests, ”.


Page 53

Recommendation 15: The Committee recommends that the Government consider an amendment to add a further element in Pre-sentence Orders to incorporate a requirement that an offender can be taken under compulsion (at the cost of the State) by an authorised person to another location for the purposes of the Pre-Sentence Order. The Committee recommends that the provisions of the Protective Custody Act 2000 be used as a guide in the drafting of the amendment. In view of section 46 of the Constitution Acts Amendment Act 1899 and the financial implications of this amendment the Committee observes that this amendment may need to be made in the Legislative Assembly.


Page 70

Recommendation 16: The Committee recommends that in order to avoid complicated transitional provisions and parole terms of greater than two years, the Government seriously consider altering the amendment to section 93 in clause 20 of the Sentencing Legislation Amendment and Repeal Bill 2002 to substitute part with a provision that more closely follows the current provision but without the automatic remission of one third which would be removed before passing sentence. Thus clause 20 of the Sentencing Legislation Amendment and Repeal Bill 2002 could be amended in the following manner:

Page 27, lines 9 and 10 - To delete the words “when he or she has served one-half of the term” and insert instead -

“-
(a) if the term served is four years or less - when he or she has served one-half of the term; or

(b) if the term served is more than four years - when he or she has served 2 years less than the term.”

Similarly clause 2 of Schedule 1 could be amended so that the clause reads in the following terms:

“(1) If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.

(2) For the purposes of subsection (1) —

(a) it does not matter that the court may be proposing to suspend the fixed term under Part 11 of the Sentencing Act 1995; and

(b) a reference to imposing a fixed term includes a reference to dealing with an offender under section 80 of the Sentencing Act 1995 in respect of a sentence of suspended imprisonment imposed under the old provisions.

(3) Despite subclause (1), if the sentence required by that subclause would contravene section 86 of the Sentencing Act 1995, if the court considers that a term of imprisonment is warranted in all the circumstances, the court may impose a term of more than 6 months.

(4) A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause.

(5) This clause does not apply if —

(a) the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced;

(b) a guideline judgment given under section 143 of the Sentencing Act 1995 since the new provisions commenced applies to the offender or the offence for which the offender is being sentenced;

(c) the application of this clause would be inconsistent with or contrary to any other judgment given since the new provisions commenced that binds the sentencing court;

(d) a court is imposing a term under section 401(4) of The Criminal Code; or

(e) a court is sentencing an offender to a term that, under the old provisions, would have been a prescribed term within the meaning of section 85 of the Sentencing Act 1995.”.

The means to achieve this in the House would be to amend clause 2 of Schedule 1 in the following manner:

Page 76, line 29 to page 77, line 2 - To delete the lines and insert instead -

“impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.”

Page 77, line 3 - To delete “(2)” and insert instead -

“(1)”.

Page 77, line 5 - To insert after “1995. -

“and”.

Page 77, lines 10 to 17 - To delete the lines.

Page 77, line 18 - To delete “(2)” and insert instead -

“(1)”.


Page 88

Recommendation 17: The Committee recommends that Part 5 of the Sentencing Legislation Amendment and Repeal Bill 2002 be proclaimed separately from the remainder of the Bill so as to enable the effects on sentencing to be more clearly distinguished.


Page 88

Recommendation 18: The Committee recommends a review of Part 5 of the Sentencing Legislation Amendment and Repeal Bill 2002 be undertaken two years after that Part is proclaimed.


Page 88

Recommendation 19: The Committee recommends that the amendments to the Criminal Code summary offence of racial harassment and incitement to racial hatred retain the option of a prison sentence and that clause 51(2) of the Sentencing Legislation Amendment and Repeal Bill 2002 be amended in the following manner:

Page 47, line 16 - To delete “$6 000” and insert instead -

“imprisonment for 12 months.”


Page 96

Recommendation 20: The Committee recommends that as a matter of urgency the Government work with the judiciary to resolve the problems with the operation of section 88 of the Sentencing Act 1995 as amended by clause 17 as discussed in Chapter 6 the Committee’s report.


Page 98

Recommendation 21: The Committee draws the attention of the House to the matters raised in Chapter 7 of the Committee’s report and recommends that:

(a) as a matter of urgency the Government consider establishing an inquiry into sentencing, law enforcement and penalties in remote and regional areas of Western Australia with the intention of reducing the rate of imprisonment;

(b) a judicial officer at the level of a magistrate conduct the inquiry; and

(c) the judicial officer be provided with assistance by the relevant agencies,authorities and government departments including the Department of Justice, the Department of Transport and the Western Australian Police Service.


Page 98

Recommendation 22: The Committee recommends that the Sentence Administration Bill 2002 be passed subject to recommendations 1 through to 7.


Page 98

Recommendation 23: The Committee recommends that the Sentencing Legislation Amendment and Repeal Bill 2002 be passed subject to recommendations 9 through to 14 and 16 through to 19.


There was a dissent from Recommendation 23.