Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017


Tasmanian Crest
Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017

An Act to amend the Sentencing Act 1997 to remove the power of courts to make community service orders and probation orders, to include a power for courts to make home detention orders and community correction orders, to restrict the power of courts to suspend certain sentences of imprisonment, to amend the Interstate Transfer (Community-based Sentences) Act 2009 , and for related purposes

[Royal Assent 20 December 2017]

Be it enacted by His 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:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017 .

2.   Commencement

(1)  The provisions of this Act commence on a day or days to be proclaimed.
(2)  Despite subsection (1), sections 8, 10 and 19 may not be commenced except if –
(a) a copy of a report in relation to a review under this section has been laid before both Houses of Parliament under subsection (8)(a); and
(b) at least 10 sitting-days of each of the Houses of Parliament have expired since a notice of intention to commence sections 8, 10 and 19 was laid before both Houses of Parliament under subsection (8)(b); and
(c) a motion to disallow the commencement of sections 8, 10 and 19 has not been passed by a House of Parliament under subsection (9).
(3)  The Minister may lay before each House of Parliament a draft of the terms of the review that has been prepared in consultation with the Sentencing Advisory Council.
(4)  A House of Parliament may pass a motion approving, or refusing to approve, a draft of the terms of the review that has been laid before the House of Parliament under subsection (3).
(5)  The Minister, by notice to the Sentencing Advisory Council, may request the Council to –
(a) conduct a review, in accordance with the terms of the review contained in a draft of the terms of review that is approved by each House of Parliament under subsection (4); and
(b) to provide a report in relation to the review by the day specified in the notice.
(6)  The Minister may only make a request under subsection (5) –
(a) not less than 18 months after; and
(b) not more than 2 years after –
the day by which both section 14 and 15 of this Act have commenced.
(7)  The Sentencing Advisory Council is to provide to the Minister a report in relation to the review within the period specified, in accordance with subsection (5)(b), in the notice under subsection (5).
(8)  The Minister –
(a) must, within 5 sitting-days after being provided with a report under subsection (7), lay a copy of the report before each House of Parliament; and
(b) may, after or at the same time as a copy of a report is laid before a House of Parliament under paragraph (a), lay before that House of Parliament a notice of intention to commence sections 8, 10 and 19.
(9)  A House of Parliament may, within 10 sitting-days after a notice of intention to commence sections 8, 10 and 19 has been laid before the House of Parliament under subsection (8)(b), pass a motion disallowing the commencement of sections 8, 10 and 19.
PART 2 - Sentencing Act 1997 Amended

3.   Principal Act

In this Part, the Sentencing Act 1997 is referred to as the Principal Act.

4.   

The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 .

5.   

The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 .

6.   

The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 .

7.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

[Uncommenced

8.    Section 23A inserted

Before section 24 of the Principal Act , the following section is inserted in Division 4:

23A.   Limitations on ability to suspend sentences

A court must not, except in exceptional circumstances, make an order suspending the whole or part of a sentence of imprisonment if the sentence of imprisonment is imposed in relation to –
(a) an offence, or an attempt to commit an offence, against a provision, specified in Column 2 of Part 1 of Schedule 3, of an Act, or of the Criminal Code, as specified in Column 3 of Part 1 of Schedule 3; or
(b) an offence, or an attempt to commit an offence, that is an offence –
(i) against a provision, of the Misuse of Drugs Act 2001 , specified in Column 2 of Part 2 of Schedule 3; and
(ii) that relates to a trafficable quantity, within the meaning of, and as determined under, that Act, of a controlled substance, within the meaning of that Act.

]

9.   

The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 .

[Uncommenced

10.    Section 27 amended (Breach of order suspending sentence)

Section 27 of the Principal Act is amended as follows:
(a) by omitting from subsection (4C)(c) "by order" and substituting "if there are exceptional circumstances, by order";
(b) by omitting from subsection (4C)(d) "make" and substituting "if there are exceptional circumstances, make";
(c) by omitting from subsection (4E)(c) "by order" and substituting "if there are exceptional circumstances, by order";
(d) by omitting from subsection (4E)(d) "make" and substituting "if there are exceptional circumstances, make";
(e) by inserting the following subsection after subsection (5) :
(5A)  Unless there are exceptional circumstances, a substituted sentence imposed under this section may not include an order suspending all or part of a sentence of imprisonment.

]

11.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

12.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

13.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

14.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

15.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

16.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

17.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

18.   

The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 .

[Uncommenced

19.    Schedule 3 inserted

After Schedule 2 to the Principal Act , the following Schedule is inserted:
SCHEDULE 3 - Non-suspension of sentence offences

Section 23A

PART 1 - Offences generally

Column 1 - Description of offence

Column 2 – Section

Column 3 – Act

Sexual intercourse with a young person under the age of 17 years

Section 124 (1)

Criminal Code Act 1924

Maintaining a sexual relationship with a young person under the age of 17 years

Section 125A (2)

Criminal Code Act 1924

Procuring unlawful sexual intercourse with young person

Section 125C(2)

Criminal Code Act 1924

Sexual intercourse with a person with a mental impairment

Section 126 (1)

Criminal Code Act 1924

Aggravated sexual assault

Section 127A (1)

Criminal Code Act 1924

Involving a person under the age of 18 years in the production of child exploitation material

Section 130

Criminal Code Act 1924

Producing child exploitation material

Section 130A

Criminal Code Act 1924

Distributing child exploitation material

Section 130B (1)

Criminal Code Act 1924

Incest

Section 133 (1)

Criminal Code Act 1924

Murder

Section 158

Criminal Code Act 1924

Manslaughter

Section 159 (2)

Criminal Code Act 1924

Being accessory after the fact to murder

Section 161

Criminal Code Act 1924

Committing an unlawful act intended to cause grievous bodily harm

Section 170 (1)

Criminal Code Act 1924

Wounding [or causing grievous bodily harm]

Section 172

Criminal Code Act 1924

Performing female genital mutilation

Section 178A (1)

Criminal Code Act 1924

Setting a spring-gun [or man-trap] [or allowing a spring-gun (or man-trap) to remain set]

Section 179 (1)

Criminal Code Act 1924

Rape

Section 185 (1)

Criminal Code Act 1924

Forcible abduction

Section 186 (1)

Criminal Code Act 1924

Abduction

Section 186 (2)

Criminal Code Act 1924

Abduction of a child

Section 191(1)

Criminal Code Act 1924

Kidnapping

Section 191A

Criminal Code Act 1924

Armed robbery

Section 240(3)

Criminal Code Act 1924

Aggravated armed robbery

Section 240(4)

Criminal Code Act 1924

Arson

Section 268

Criminal Code Act 1924

Procuring or otherwise causing or permitting a child to provide sexual services in a sexual services business

Section 9(1)

Sex Industry Offences Act 2005

Receiving a fee or reward that a person knows &c. is derived, directly or indirectly, from sexual services provided by a child in a sexual services business

Section 9(2)

Sex Industry Offences Act 2005

PART 2 - Drug Offences where trafficable quantity

Column 1 – Description of Offence

Column 2 – Section

Column 3 – Act

Manufacturing controlled drug for sale

Section 6(1)

Misuse of Drugs Act 2001

Cultivating controlled plant for sale

Section 7(1)

Misuse of Drugs Act 2001

Possessing thing intended for use in manufacture of controlled substance for sale

Section 8

Misuse of Drugs Act 2001

Possessing thing intended for use in cultivation of controlled plant for sale

Section 9

Misuse of Drugs Act 2001

Manufacturing controlled precursor intended for use in manufacture of controlled drug for sale

Section 10(1) or (2)

Misuse of Drugs Act 2001

Selling controlled precursor for use in manufacturing controlled drug

Section 11

Misuse of Drugs Act 2001

Trafficking in controlled substance

Section 12(1)

Misuse of Drugs Act 2001

Procuring child to traffic in controlled substance

Section 13(1)

Misuse of Drugs Act 2001

Supplying controlled drug to child

Section 14

Misuse of Drugs Act 2001

Concealing, &c., property derived from drug offence

Section 16

Misuse of Drugs Act 2001

Receiving property directly received from drug offence

Section 17(1)

Misuse of Drugs Act 2001

]

PART 3 - Interstate Transfer (Community-based Sentences) Act 2009 Amended

20.   

The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 .

21.   

The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 .

22.   

The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 .

23.   

The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 .

24.   

The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 .
PART 4 - Concluding Provision

25.   Repeal of Act

This Act is repealed on the three hundred and sixty fifth day from the day on which all of the provisions of this Act commence.