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New South Wales
Crimes (Sentencing Procedure)
Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendments relating to Sentencing Council
recommendations 3
Schedule 2 Amendments to Crimes (Sentencing Procedure)
Act 1999 No 92 relating to aggregate sentencing 9
b2010-121-19.d13
New South Wales
Crimes (Sentencing Procedure)
Amendment Bill 2010
No , 2010
A Bill for
An Act to amend the Crimes (Sentencing Procedure) Act 1999 and various other
Acts to implement certain recommendations of the Sentencing Council; to amend the
Crimes (Sentencing Procedure) Act 1999 to provide for the aggregation of sentences;
and for other purposes.
Clause 1 Crimes (Sentencing Procedure) Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Crimes (Sentencing Procedure) Amendment Act 2010. 3
2 Commencement 4
(1) This Act commences on a day or days to be appointed by proclamation, 5
except as provided by subsection (2). 6
(2) Schedule 1.3 commences on the date of assent to this Act. 7
Page 2
Crimes (Sentencing Procedure) Amendment Bill 2010
Amendments relating to Sentencing Council recommendations Schedule 1
Schedule 1 Amendments relating to Sentencing 1
Council recommendations 2
1.1 Crimes (Administration of Sentences) Act 1999 No 93 3
[1] Section 135 General duty of Parole Authority 4
Insert after section 135 (2): 5
(2A) Without limiting subsection (2) (k), if the offender has provided 6
post-sentence assistance, the Parole Authority may have regard to 7
the nature and extent of the assistance (including the reliability 8
and value of any information or evidence provided by the 9
offender) and the degree to which the offender's willingness to 10
provide such assistance reflects the offender's progress to 11
rehabilitation. 12
(2B) In subsection (2A): 13
post-sentence assistance means assistance in the prevention, 14
detection or investigation of, or in proceedings relating to, any 15
offence, provided by an offender to law enforcement authorities 16
after the offender was sentenced and that was not taken into 17
account or considered by the sentencing court. 18
[2] Schedule 5 Savings, transitional and other provisions 19
Insert at the end of clause 1 (1): 20
Crimes (Sentencing Procedure) Amendment Act 2010 (but only 21
to the extent that it amends this Act) 22
[3] Schedule 5, Part 18 23
Insert after Part 17: 24
Part 18 Provision consequent on enactment of 25
Crimes (Sentencing Procedure) 26
Amendment Act 2010 27
109 Proceedings pending before Parole Authority 28
Any matter pending before the Parole Authority before the 29
commencement of the amendment made to section 135 by the 30
Crimes (Sentencing Procedure) Amendment Act 2010 is to be 31
continued and completed as if that section had not been amended. 32
Page 3
Crimes (Sentencing Procedure) Amendment Bill 2010
Schedule 1 Amendments relating to Sentencing Council recommendations
1.2 Crimes (Sentencing Procedure) Act 1999 No 92 1
[1] Section 22 Guilty plea to be taken into account 2
Insert at the end of section 22 (1) (b): 3
and 4
(c) the circumstances in which the offender indicated an 5
intention to plead guilty, 6
[2] Section 22 (1A) 7
Insert after section 22 (1): 8
(1A) A lesser penalty imposed under this section must not be 9
unreasonably disproportionate to the nature and circumstances of 10
the offence. 11
[3] Section 22A Power to reduce penalties for facilitating the administration 12
of justice 13
Omit section 22A (1). Insert instead: 14
(1) A court may impose a lesser penalty than it would otherwise 15
impose on an offender who was tried on indictment having regard 16
to the degree to which the administration of justice has been 17
facilitated by the defence (whether by disclosures made pre-trial 18
or during the trial or otherwise). 19
[4] Section 23 Power to reduce penalties for assistance provided to law 20
enforcement authorities 21
Omit section 23 (2) (a). 22
[5] Section 23 (2) (j) 23
Omit the paragraph. 24
[6] Section 23 (4)-(6) 25
Insert after section 23 (3): 26
(4) A court that imposes a lesser penalty under this section on an 27
offender because the offender has assisted, or undertaken to 28
assist, law enforcement authorities must: 29
(a) indicate to the offender, and make a record of the fact, that 30
the lesser penalty is being imposed for either or both of 31
those reasons, and 32
(b) state the penalty that it would otherwise have imposed, and 33
Page 4
Crimes (Sentencing Procedure) Amendment Bill 2010
Amendments relating to Sentencing Council recommendations Schedule 1
(c) where the lesser penalty is being imposed for both 1
reasons--state the amount by which the penalty has been 2
reduced for each reason. 3
(5) Subsection (4) does not limit any requirement that a court has, 4
apart from that subsection, to record the reasons for its decisions. 5
(6) The failure of a court to comply with the requirements of 6
subsection (4) with respect to any sentence does not invalidate 7
the sentence. 8
[7] Section 24A Mandatory requirements for supervision of sex offenders 9
and prohibitions against child-related employment to be disregarded in 10
sentencing 11
Insert at the end of section 24A (1) (b): 12
, or 13
(c) as a consequence of being convicted of the offence, is 14
prohibited under the Commission for Children and Young 15
People Act 1998 from applying for or attempting to obtain 16
child-related employment or from undertaking or 17
remaining in child-related employment. 18
[8] Section 24B 19
Insert after section 24A: 20
24B Confiscation of assets and forfeiture of proceeds of crime to be 21
disregarded in sentencing 22
(1) In sentencing an offender, the court must not take into account, 23
as a mitigating factor in sentencing, the consequences for the 24
offender of any order of a court imposed because of the offence 25
under confiscation or forfeiture legislation. 26
(2) In this section: 27
confiscation or forfeiture legislation means the following: 28
(a) the Confiscation of Proceeds of Crime Act 1989, 29
(b) the Criminal Assets Recovery Act 1990, 30
(c) the Proceeds of Crime Act 2002 of the Commonwealth, 31
(d) any other law prescribed by the regulations for the 32
purposes of this definition. 33
Page 5
Crimes (Sentencing Procedure) Amendment Bill 2010
Schedule 1 Amendments relating to Sentencing Council recommendations
[9] Section 32 Prosecutor may file list of additional charges 1
Insert after section 32 (5): 2
(6) A failure to comply with the requirements of this section does not 3
invalidate any sentence imposed by the court for the principal 4
offence. 5
[10] Section 35A 6
Insert after section 35: 7
35A Consultation with victim and police in relation to charge 8
negotiations 9
(1) In this section: 10
charge negotiations means negotiations between the prosecution 11
and an offender with respect to a plea of guilty in relation to an 12
offence other than the offence or offences with which the 13
offender has been charged or committed for trial. 14
prosecution guidelines means prosecution guidelines in relation 15
to charge negotiations issued by the Director of Public 16
Prosecutions. 17
requisite consultation means consultation with the victim and 18
the police officer in charge of investigating an offence that 19
complies with the applicable prosecution guidelines. 20
victim has the same meaning as it has in section 26. 21
(2) A court must not take into account offences specified in a list of 22
additional charges under section 32 in relation to an offence, or 23
any statement of agreed facts, that was the subject of charge 24
negotiations unless the prosecutor has filed a certificate with the 25
court verifying that: 26
(a) the requisite consultation has taken place or, if 27
consultation has not taken place, the reasons why it has not 28
occurred, and 29
(b) any statement of agreed facts arising from the negotiations 30
tendered to the court constitutes a fair and accurate account 31
of the objective criminality of the offender having regard 32
to the relevant and provable facts or has otherwise been 33
settled in accordance with the applicable prosecution 34
guidelines. 35
(3) The certificate must be signed by or on behalf of the Director of 36
Public Prosecutions. 37
Page 6
Crimes (Sentencing Procedure) Amendment Bill 2010
Amendments relating to Sentencing Council recommendations Schedule 1
(4) A certificate is taken to be signed on behalf of the Director of 1
Public Prosecutions if it is signed by a person: 2
(a) who is authorised to do so by means of a written order 3
signed by the Director of Public Prosecutions or who 4
belongs to a class of persons so authorised, or 5
(b) who is prescribed by the regulations or who belongs to a 6
class of persons so prescribed. 7
(5) The court may require the prosecution to explain the reason for a 8
failure to file a certificate when it is required by this section to do 9
so. 10
[11] Section 57 Sentences for offences involving escape by inmates 11
Insert after section 57 (1): 12
(1A) A sentence of imprisonment to which this section applies must be 13
imposed after any other sentence of imprisonment that is imposed 14
in the same proceedings. 15
[12] Section 57 (2) 16
Insert "to which this section applies" after "imprisonment" where firstly 17
occurring. 18
[13] Schedule 2 Savings, transitional and other provisions 19
Insert at the end of clause 1 (1): 20
Crimes (Sentencing Procedure) Amendment Act 2010 (but only 21
to the extent that it amends this Act) 22
[14] Schedule 2, Part 21 23
Insert after Part 20: 24
Part 21 Provision consequent on enactment of 25
Crimes (Sentencing Procedure) 26
Amendment Act 2010 27
62 Application of amendments 28
(1) In this Part: 29
amending Act means the Crimes (Sentencing Procedure) 30
Amendment Act 2010. 31
Page 7
Crimes (Sentencing Procedure) Amendment Bill 2010
Schedule 1 Amendments relating to Sentencing Council recommendations
(2) An amendment made by the amending Act applies to the 1
determination of a sentence for an offence whenever committed, 2
unless: 3
(a) a court has convicted the person being sentenced of the 4
offence, or 5
(b) a court has accepted a plea of guilty and the plea has not 6
been withdrawn, 7
before the commencement of the amendment concerned. 8
1.3 Crimes (Serious Sex Offenders) Act 2006 No 7 9
[1] Section 6 Application for extended supervision order 10
Omit section 6 (1) (a). Insert instead: 11
(a) while serving a sentence of imprisonment: 12
(i) for a serious sex offence, or 13
(ii) for an offence of a sexual nature, or 14
(iii) for another offence which is being served 15
concurrently or consecutively, or partly 16
concurrently and partly consecutively, with one or 17
more sentences of imprisonment referred to in 18
subparagraph (i) or (ii), 19
whether the sentence is being served by way of full-time 20
detention, intensive correction in the community or home 21
detention and whether the offender is in custody or on 22
release on parole, or 23
[2] Section 14 Application for continuing detention order 24
Omit section 14 (1) (a). Insert instead: 25
(a) while serving a sentence of imprisonment by way of 26
full-time detention: 27
(i) for a serious sex offence, or 28
(ii) for an offence of a sexual nature, or 29
(iii) for another offence which is being served 30
concurrently or consecutively, or partly 31
concurrently and partly consecutively, with one or 32
more sentences of imprisonment referred to in 33
subparagraph (i) or (ii), or 34
Page 8
Crimes (Sentencing Procedure) Amendment Bill 2010
Amendments to Crimes (Sentencing Procedure) Act 1999 No 92 relating to Schedule 2
aggregate sentencing
Schedule 2 Amendments to Crimes (Sentencing 1
Procedure) Act 1999 No 92 relating to 2
aggregate sentencing 3
[1] Section 3 Interpretation 4
Insert in alphabetical order in section 3 (1): 5
aggregate sentence of imprisonment--see section 53A. 6
[2] Section 17A Non-association and place restriction orders 7
Insert "or to an aggregate sentence of imprisonment in respect of 2 or more 8
offences any one of which is an offence to which this section applies" after 9
"fine" in section 17A (1). 10
[3] Section 44 Court to set non-parole period 11
Omit "When" from section 44 (1). 12
Insert instead "Unless imposing an aggregate sentence of imprisonment, 13
when". 14
[4] Section 44 (2A)-(2C) 15
Insert after section 44 (2): 16
(2A) Without affecting the requirement to set a non-parole period for 17
a sentence, a court imposing an aggregate sentence of 18
imprisonment in respect of 2 or more offences on an offender 19
may set one non-parole period for all the offences to which the 20
sentence relates after setting the term of the sentence. 21
(2B) The term of the sentence that will remain to be served after the 22
non-parole period set for the aggregate sentence of imprisonment 23
is served must not exceed one-third of the non-parole period, 24
unless the court decides that there are special circumstances for it 25
being more (in which case the court must make a record of its 26
reasons for that decision). 27
(2C) The court need not indicate the non-parole period that would 28
have been imposed for each offence had separate sentences been 29
imposed instead of an aggregate sentence unless it is required to 30
do so by section 54B (4A). 31
[5] Section 44 (3) 32
Omit "subsection (2)". Insert instead "subsection (2), (2B) or (2C)". 33
Page 9
Crimes (Sentencing Procedure) Amendment Bill 2010
Schedule 2 Amendments to Crimes (Sentencing Procedure) Act 1999 No 92 relating to
aggregate sentencing
[6] Section 45 Court may decline to set non-parole period 1
Omit section 45 (1). Insert instead: 2
(1) When sentencing an offender to imprisonment for an offence or, 3
in the case of an aggregate sentence of imprisonment, for 4
offences (other than an offence or offences set out in the Table to 5
Division 1A of this Part), a court may decline to set a non-parole 6
period for the offence or offences if it appears to the court that it 7
is appropriate to do so: 8
(a) because of the nature of the offence to which the sentence, 9
or of each of the offences to which an aggregate sentence 10
relates, or the antecedent character of the offender, or 11
(b) because of any other penalty previously imposed on the 12
offender, or 13
(c) for any other reason that the court considers sufficient. 14
[7] Section 45 (2) 15
Insert "or an aggregate sentence of imprisonment" after "imprisonment". 16
[8] Section 47 Commencement of sentence 17
Insert "or, in the case of an aggregate sentence of imprisonment, any of the 18
offences" after "offence" in section 47 (3). 19
[9] Section 47 (5) 20
Insert "(or an aggregate sentence of imprisonment)" after "imprisonment" 21
where firstly occurring. 22
[10] Section 47 (6) 23
Insert "(or an aggregate sentence of imprisonment)" after "imprisonment". 24
[11] Section 48 Information about release date 25
Insert ", or to an aggregate sentence of imprisonment for 2 or more offences" 26
after "for an offence" in section 48 (1). 27
[12] Section 49 Restriction on term of sentence 28
Insert "(other than an aggregate sentence of imprisonment)" after "sentence of 29
imprisonment". 30
Page 10
Crimes (Sentencing Procedure) Amendment Bill 2010
Amendments to Crimes (Sentencing Procedure) Act 1999 No 92 relating to Schedule 2
aggregate sentencing
[13] Section 49 (2) 1
Insert at the end of section 49: 2
(2) The term of an aggregate sentence of imprisonment: 3
(a) must not be more than the sum of the maximum periods of 4
imprisonment that could have been imposed if separate 5
sentences of imprisonment had been imposed in respect of 6
each offence to which the sentence relates, and 7
(b) must not be less than the shortest term of imprisonment (if 8
any) that must be imposed for any separate offence or, if 9
the sentence relates to more than one such offence, must 10
not be less than the shortest term of imprisonment that 11
must be imposed for any of the offences. 12
[14] Sections 53 and 53A 13
Omit section 53. Insert instead: 14
53 Multiple sentences of imprisonment 15
(1) When a court imposes a sentence of imprisonment on an offender 16
in relation to more than one offence, the court must (unless 17
imposing an aggregate sentence of imprisonment in accordance 18
with section 53A) comply with the requirements of this Division 19
by imposing a separate sentence in relation to each offence. 20
(2) The term, and any non-parole period, set under this Division in 21
relation to a sentence of imprisonment is not revoked or varied by 22
a later sentence of imprisonment that the same or some other 23
court subsequently imposes in relation to another offence. 24
53A Aggregate sentences of imprisonment 25
(1) A court may, in sentencing an offender for more than one 26
offence, impose an aggregate sentence of imprisonment with 27
respect to all or any 2 or more of those offences instead of 28
imposing a separate sentence of imprisonment for each. 29
(2) A court that imposes an aggregate sentence of imprisonment 30
under this section on an offender must indicate to the offender, 31
and make a record of, the following: 32
(a) the fact that an aggregate sentence is being imposed, 33
(b) the sentence that would have been imposed for each 34
offence (after taking into account such matters as are 35
relevant under Part 3 or any other provision of this Act) 36
had separate sentences been imposed instead of an 37
aggregate sentence, 38
Page 11
Crimes (Sentencing Procedure) Amendment Bill 2010
Schedule 2 Amendments to Crimes (Sentencing Procedure) Act 1999 No 92 relating to
aggregate sentencing
(c) the relative weight given to the objective seriousness of 1
each offence in determining the aggregate sentence of 2
imprisonment. 3
(3) Subsection (2) does not limit any requirement that a court has, 4
apart from that subsection, to record the reasons for its decisions. 5
(4) The term, and any non-parole period, set under this Division in 6
relation to an aggregate sentence of imprisonment is not revoked 7
or varied by a later sentence of imprisonment that the same or 8
some other court subsequently imposes in relation to another 9
offence. 10
(5) An aggregate sentence of imprisonment is not invalidated by a 11
failure to comply with this section. 12
[15] Section 54B Sentencing procedure 13
Insert ", or an aggregate sentence of imprisonment with respect to one or more 14
offences" after "offence" where firstly occurring in section 54B (2). 15
[16] Section 54B (2) 16
Insert "or, in the case of an aggregate sentence, incorporate the standard 17
non-parole period for each offence into the period it sets as the non-parole 18
period for the sentence" after "offence" where secondly occurring. 19
[17] Section 54B (4A) 20
Insert after section 54B (4): 21
(4A) A court that sets the non-parole period for an aggregate sentence 22
of imprisonment in relation to any one or more offences to which 23
this section applies must indicate to the offender, and make a 24
record of, the proportion of the non-parole period attributable to 25
the incorporation of a standard non-parole period, or increased or 26
reduced standard non-parole period, for each offence in 27
accordance with this section. 28
[18] Section 66 Intensive correction not available for certain sexual offences 29
Insert "or with respect to an aggregate sentence of imprisonment with respect 30
to 2 or more offences, any one of which is a prescribed sexual offence" after 31
"offence" in section 66 (1). 32
Page 12
Crimes (Sentencing Procedure) Amendment Bill 2010
Amendments to Crimes (Sentencing Procedure) Act 1999 No 92 relating to Schedule 2
aggregate sentencing
[19] Section 76 Home detention not available for certain offences 1
Insert "or with respect to an aggregate sentence of imprisonment with respect 2
to 2 or more offences, any one of which is one of the following offences" after 3
"offences" where firstly occurring. 4
Page 13
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