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Sentencing (Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 provides that the main purpose of the Bill is to amend the
Sentencing Act 1991 to empower the Court of Appeal to give
guideline judgments and to establish a Sentencing Advisory
Council.
Clause 2 provides for the commencement of this Bill. The Bill (except
Part 4) comes into operation on a day or days to be proclaimed.
Part 4 is deemed to have come into operation on 17 February
2003. If a provision of the Bill does not come into operation
before 1 July 2004, it comes into operation on that date.
Clause 3 provides that the Sentencing Act 1991 is the Principal Act in this
Bill.
PART 2--GUIDELINE JUDGMENTS
Clause 4 inserts new Part 2AA in the Principal Act which sets out the
power of the Court of Appeal to give guideline judgments.
New section 6AA defines a guideline judgment to mean a
judgment that is expressed to contain guidelines to be taken into
account by courts in sentencing offenders, being guidelines that
apply generally, or to a particular court or class of court, a
particular offence or class of offence, a particular penalty or class
of penalty or a particular class of offence.
One guideline judgment may contain guidelines that apply to any
or all of the matters set out in new section 6AA.
New section 6AB(1) provides that, on hearing and considering an
appeal against sentence, the Court of Appeal may consider
whether to give a guideline judgment or whether to review a
guideline judgment given by it in a previous proceeding.
The Court may do this on its own initiative or on an application
made by a party to the appeal.
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New section 6AB(2) provides that, on a review of a guideline
judgment, the Court of Appeal may confirm, vary, revoke or
substitute a guideline judgment with a new guideline judgment.
New section 6AB(3) provides that the Court of Appeal may give
or review a guideline judgment even if it is not necessary for the
purpose of determining any appeal in which the judgment is
given or reviewed.
New section 6AB(4) provides that a decision of the Court of
Appeal to give or review a guideline judgment must be a
unanimous decision of the Judges constituting the Court.
New section 6AB(5) provides that a guideline judgment may be
given separately to, or included in, the Court of Appeal's
judgment in an appeal.
New section 6AB(6) provides that nothing requires the Court of
Appeal to give or review a guideline judgment if it considers it
inappropriate to do so.
New section 6AC provides that a guideline judgment may set out
a number of matters, including the criteria to be applied in
selecting amongst the various sentencing alternatives, the criteria
by which the sentencing court is to determine the gravity of the
offence and any other matter consistent with the principles
contained in the Principal Act.
New section 6AD sets out the procedural requirements that apply
if the Court of Appeal decides to give or review a guideline
judgment.
New section 6AD(1)(a) provides that, if the Court of Appeal
decides to give or review a guideline judgment, it must notify the
Sentencing Advisory Council and consider any written views that
have been provided, by the Council to the Court, within the
period specified in the notification.
New section 6AD(1)(b) provides that the Court of Appeal must
also give the Director of Public Prosecutions (or a legal
practitioner representing the Director) and a legal practitioner
representing Victoria Legal Aid (or a legal practitioner arranged
by Victoria Legal Aid) an opportunity to appear before the Court
and make a submission on the matter.
New section 6AB(5) will enable the Court of Appeal to defer the
giving of a guideline judgment to allow the Sentencing Advisory
Council sufficient time to prepare its written views without
causing delay for an individual appellant, that is, the Court can
deliver its judgment in an appeal and then at a later date it may
deliver a guideline judgment.
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New section 6AE provides that, in considering the giving of, or
in reviewing, a guideline judgment, the Court of Appeal must
have regard to--
· the need to promote consistency of approach in
sentencing offenders; and
· the need to promote public confidence in the criminal
justice system; and
· any views stated by the Sentencing Advisory Council,
and any submissions made by the Director of Public
Prosecutions or a legal practitioner under new
section 6AD.
This provision does not in any way preclude the Court from
being informed or assisted by other matters in considering the
giving of, or in reviewing, a guideline judgment. For instance the
Court may be informed and assisted by representations made by
defence counsel in an appeal which gives rise to the giving of, or
review of, a guideline judgment.
New section 6AF provides that nothing in Part VI of the Crimes
Act 1958 limits the evidence or other matters that the Court of
Appeal may take into consideration in giving or reviewing a
guideline judgment and the Court may inform itself as it sees fit.
New section 6AG provides that a guideline judgment is
additional to any other matter that a court is required to take into
account under Part 2 of the Principal Act and does not limit or
take away from such requirement.
Clause 5 inserts new section 128 in the Principal Act, which contains a
transitional provision.
New section 128 provides that the amendments introduced by
Part 2AA apply in relation to appeals heard by the Court of
Appeal irrespective of when the notice of appeal or notice of
application for leave to appeal was given or the offence is alleged
to have been committed.
PART 3--SENTENCING ADVISORY COUNCIL
Clause 6 inserts new Part 9A in the Principal Act which provides for the
establishment of a Sentencing Advisory Council.
New section 108A sets out the definitions of terms to be used in
relation to new Part 9A.
New section 108B provides for the establishment of the
Sentencing Advisory Council as a body corporate.
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New section 108C sets out the functions of the Council, which
are to--
· state in writing to the Court of Appeal its views in
relation to the giving, or review, of a guideline
judgment;
· provide statistical information on sentencing, including
information on current sentencing practices, to members
of the judiciary and other interested persons;
· conduct research and disseminate information on
sentencing matters to members of the judiciary and
other interested persons;
· gauge public opinion on sentencing matters;
· consult on sentencing matters with government
departments and other interested persons and bodies as
well as the general public;
· advise the Attorney-General on sentencing matters.
New section 108C(2) provides that the Council may perform its
functions, and exercise its powers, within or outside Victoria.
New section 108D provides that the Council has the power to do
all things necessary or convenient to be done, for, or in
connection with, performing its functions subject to the
following--
· the Council does not however have the power to
acquire, hold or dispose of real property; and
· the Council must not, without the prior written approval
of the Attorney-General, acquire or dispose of any
personal property, right or privilege worth more than
$50 000.
New section 108E provides that the Council may delegate any of
its functions or powers to a director of the Council, the chief
executive officer of the Council or a member of staff of the
Council, other than--
· its function to provide written views to the Court of
Appeal in relation to the giving, or review, of a
guideline judgment; and
· its power of delegation.
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New section 108F provides for the constitution of the Council.
There shall be a board of directors of the Council consisting of
not less than nine and not more than twelve directors, of whom--
· two must be people who have, in the opinion of the
Attorney-General, broad experience in community
issues affecting courts;
· one must have experience as a senior member of the
academic staff of a tertiary institution;
· one must be a member of a victim of crime support or
advocacy group;
· one must be a person who, in the opinion of the
Attorney-General, is a highly experienced prosecution
lawyer;
· one must be a person who, in the opinion of the
Attorney-General, is a highly experienced defence
lawyer;
· the remainder must have experience in the operation of
the criminal justice system.
New section 108F(2) provides that directors are appointed by the
Governor in Council on the nomination of the Attorney-General.
New section 108F(3) provides that the Board is responsible for
the management of the affairs of the Council, and may exercise
the powers of the Council.
New section 108G(1) provides that the Governor in Council may,
on the recommendation of the Attorney-General, appoint a
director to be a chairperson of the Board.
New section 108G(2) provides that the chairperson may resign
that office by notice in writing signed by the chairperson and
delivered to the Attorney-General.
New section 108H sets out the terms and conditions of office of
directors of the Council. A director holds office for a term not
exceeding three years and is eligible for re-appointment.
The terms and conditions of office of an appointed director are
set out in his or her instrument of appointment.
New section 108H(2) provides that the Public Sector
Management and Employment Act 1998 does not apply to the
office of director. This means that a director is not an employee
of the public service.
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New section 108I(1) sets out the circumstances in which an
appointed director's office becomes vacant.
New section 108I(2) provides that a director may resign from
office by notice in writing delivered to the Attorney-General.
New section 108I(3) provides that the Governor in Council may
remove a director from office if of the opinion that the director
has failed to comply with any term or condition of appointment.
New section 108J provides that a director is entitled to be paid
the travelling and other allowances that are fixed from time to
time in respect of him or her by the Governor in Council.
New section 108K provides that a defect or irregularity in
connection with the appointment of a director or a vacancy in the
membership of the Board will not invalidate an act or decision of
the Board.
New section 108L sets out how meetings of the Board will be
convened and conducted.
The chairperson must convene as many meetings of the Board as
he or she considers necessary for the efficient conduct of its
affairs. The chairperson must preside at any meeting of the
Board at which he or she is present. If the chairperson is absent,
the directors present may elect another director to preside at the
meeting.
A quorum for a meeting of the Board is three less than the total
appointed membership of the Board at the time.
A question arising at a meeting of the Board is determined by a
majority of the votes of the members present and voting on the
question. The person presiding has a deliberative vote and, in the
event of an equality of votes, a second or casting vote.
Subject to the Act the Board may regulate its own procedure.
New section 108M provides for the employment of a chief
executive officer of the Council and as many other employees as
are necessary to enable the Council to perform its functions,
subject to the Council's budget. The chief executive officer and
employees must be employed under Part 3 of the Public Sector
Management and Employment Act 1998, which means they
will be members of the public service.
New section 108N provides that the Council may engage
consultants for remuneration, to be determined by the Council
having regard to its budget, or in an honorary capacity.
New section 108O sets a control on the expenditure of the
Council.
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New section 108P requires the Council to provide information
to Parliament or a Parliamentary Committee when requested.
The information may relate to the performance by the Council of
its functions, the exercise by the Council of its powers, or the
Council's expenditure or proposed expenditure.
PART 4--STATUTE LAW REVISION
Clause 7 makes a statute law revision amendment to section 11 of the
Sentencing (Amendment) Act 2002. The amendment is
necessary because section 6 of the Magistrates' Court (Koori
Court) Act 2002 came into operation before section 11 of the
Sentencing (Amendment) Act 2002. Without the amendment
the new section 4C of the Magistrates' Court Act 1989 would
appear after section 4G and not after section 4B.
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