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Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012
Criminal Law (Two Strike Child Sex
Offenders) Amendment Bill 2012
Explanatory Notes
Objectives of the Bill
The primary objectives of the Criminal Law (Two Strike Child Sex
Offenders) Amendment Bill 2012 (the Bill) are to:
1. Amend the Penalties and Sentences Act 1992 to insert a new mandatory
sentencing regime of life imprisonment for certain repeat child sex
offenders; and
2. Amend the Corrective Services Act 2006 to prescribe a minimum
non-parole period of 20 years imprisonment for an offender sentenced to
mandatory life imprisonment under the new repeat child sex offender
sentencing regime in the Penalties and Sentences Act 1992.
Reasons for the Bill
The Bill implements the Liberal National Party's pre-election commitment
to toughen the sentences for repeat child sex offenders.
The Bill amends the Penalties and Sentences Act 1992 and the Corrective
Services Act 2006 to provide a new mandatory sentencing regime of life
imprisonment, with a 20 year non-parole period, for certain repeat child sex
offenders.
This new sentencing regime reflects that child sex offending is so heinous
and presents such a risk to the safety of the community that the strongest
legislative response is called for to ensure appropriate punishments are
imposed.
The new regime applies where:
· an adult offender is convicted of a relevant serious child sex offence
(as defined in the Bill);
· such offence is committed after the commencement of the Bill;
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Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012
· the offender has a prior conviction as an adult for a relevant serious
child sex offence (it does not matter whether the first offence was
committed, or the offender was convicted of the first offence, before
or after the commencement of the Bill); and
· the second offence is committed after the conviction of the first
offence.
The court in sentencing the offender on that second occasion, must impose
life imprisonment which cannot be mitigated or varied (the court may
however impose an indefinite sentence under Part 10 of the Penalties and
Sentences Act 1992).
The new regime applies to the Criminal Code offences listed in new
Schedule 1A to the Penalties and Sentences Act 1992 committed in relation
to a child under 16 years and in circumstances where an offender convicted
of the offence would be liable to imprisonment for life.
Achievement of the Objectives
The Bill achieves the objectives by way of the proposed amendments to
existing legislation described below.
Alternative ways of achieving policy objectives
There are no alternative ways of achieving the criminal law reform.
Estimated Cost for Government Implementation
Any costs in relation to the amendments will be met from existing agency
resources.
Consistency with Fundamental Legislative Principles
The Bill amends the Penalties and Sentences Act 1992 and the Corrective
Services Act 2006 to insert a new mandatory sentencing regime of life
imprisonment, with a 20 year minimum non-parole period, for certain
repeat child sex offenders.
The creation of the mandatory sentencing regime impacts on the rights and
liberties of individuals. The new regime represents significantly greater
punishment than was authorised by the former law. A mandatory sentence
that cannot be mitigated represents a significant abridgment of traditional
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Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012
rights. However, the effect on the individual must be balanced against the
need for community protection. Child sex offenders victimise one of the
most vulnerable groups in the community. It is incumbent on the
community to provide adequate protection from harm to this group, as they
are inherently unequipped to protect themselves from such predation.
The new mandatory sentencing regime is necessary to: denounce repeat
child sex offenders; provide adequate deterrence for this cohort of
offenders; protect one of the most vulnerable groups of the community; and
to enhance community confidence in the criminal justice system.
The new mandatory sentencing regime operates with partial retrospective
effect to the extent that a serious child sex offence conviction that occurred
before commencement of the Bill will be recognised as the `first child sex
offence' for the purpose of the new regime. However, the subsequent child
sex offence that attracts the sentence of mandatory life imprisonment must
be committed post-commencement of the Bill. The effect of the
retrospectivity therefore is that a person who, prior to commencement, has
a conviction for a relevant child sex offence will upon commencement of
the Bill be within the ambit of the new regime, but only if they re-offend
with a prescribed offence. Any adverse effect on the rights or liberties of
this cohort of offenders is justified with reference to community protection
considerations.
Consultation
Consultation with the following government departments and agencies
occurred: the Department of the Premier and Cabinet; Queensland
Treasury and Trade; the Department of Community Safety; and the
Queensland Police Service.
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Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012
Notes on Provisions
Part 1 Preliminary
Clause 1 establishes the short title to the Act as the Criminal Law (Two
Strike Child Sex Offenders) Amendment Act 2012.
Part 2 Amendment of Corrective
Services Act 2006
Clause 2 provides that part 2 amends the Corrective Services Act 2006.
Clause 3 inserts new section 181A, which provides for the parole eligibility
date for a prisoner who is serving a term of mandatory life imprisonment
for a repeat serious child sex offence under new section 161E of the
Penalties and Sentences Act 1992. The prisoner must serve a minimum of
20 years imprisonment before parole eligibility.
Part 3 Amendment of Penalties and
Sentences Act 1992
Clause 4 provides that part 3 amends the Penalties and Sentences Act 1992.
Clause 5 amends section 4 (Definitions) to provide that the definition of
`serious child sex offence' is contained in new section 161D.
Clause 6 amends section 160A (Application of ss160B-160D)
consequential to the insertion of new section 181A in the Corrective
Services Act 2006.
Clause 7 inserts new Part 9B `Repeat serious child sex offences', which
provides a new mandatory sentencing regime of life imprisonment for
certain serious repeat child sex offenders.
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Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012
New section 161D defines the term serious child sex offence as an offence
listed in the new schedule 1A (or an offence that involved counselling or
procuring the commission of an offence mentioned in schedule 1A)
committed in relation to a child under 16 years and in circumstances in
which an offender convicted of the offence would be liable to a maximum
penalty of life imprisonment.
New section 161E sets out the circumstances under which an offender is
convicted of a repeat serious child sex offence and the sentencing scheme
to be applied.
Subsection (1) provides that an offender is convicted of a repeat serious
child sex offence if the offender is convicted of a serious child sex offence
(the repeat offence) committed by them as an adult; and before the offender
committed the repeat offence, the offender was convicted of another
serious child sex offence which was committed by them as an adult (the
previous offence).
Subsection (2) provides that a person convicted of a repeat serious child sex
offence under section 161E(1) is liable to either life imprisonment, which
cannot be mitigated or varied under any law, or an indefinite sentence
under Part 10 of the Penalties and Sentences Act 1992.
Subsection (3) provides that the sentence of life imprisonment, which
cannot be mitigated or varied under any law, is the nominal sentence and
the finite sentence for an indefinite sentence under Part 10 of the Penalties
and Sentences Act 1992.
Clause 8 amends section 171 (Review - periodic) consequential to the
insertion of the new sentencing regime for repeat serious child sex
offenders in new Part 9B.
Subsection (4) is inserted into section 171 to provide that a court that
imposes an indefinite sentence for which the nominal sentence is life
imprisonment under new section 161E(2), or a court of like jurisdiction,
must for the first time review the indefinite sentence within 6 months after
the offender has served 20 years imprisonment.
Clause 9 inserts new Division 3 and new section 223 into Part 14, which
provide the transitional arrangements for the Criminal Law (Two Strike
Child Sex Offenders) Amendment Act 2012.
New section 223 deals with the transitional application of new section
161E, which provides a mandatory sentence of life imprisonment for
certain serious repeat child sexual offenders.
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Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012
Subsection (1) provides that new section 161E operates with partial
retrospective effect in that it does not matter whether the previous offence
was committed, or whether the offender was convicted of the previous
offence, before or after commencement (however, the repeat offence,
attracting the sentence of life imprisonment, must be committed after
commencement and after conviction for the previous offence).
Subsection (2) provides that, for a previous offence mentioned in
subsection (1) as having been committed before commencement, a
reference in new schedule 1A to the provision to which the offence relates
is taken to be a reference to the provision as in force at any time before the
commencement.
Subsection (3) provides that the section applies despite the Acts
Interpretation Act 1954, section 20C(3) and the Criminal Code, section 11.
Subsection (4) defines `commencement' and `previous offence' for the
purpose of the section.
Clause 10 inserts new schedule 1A, `Serious child sex offences', which
lists the offences to which the mandatory life imprisonment sentencing
regime in new Part 9B (Repeat convictions of serious child sex offences)
applies.
© State of Queensland 2012
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