Sentencing Act 1997
An Act to amend and consolidate the law relating to the sentencing of offenders, to repeal the Penalties Remission Act 1934 and for related purposes
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
This Act may be cited as the Sentencing Act 1997 .
This Act commences on a day to be proclaimed.
The purpose of this Act is to –(a) amend and consolidate the State's sentencing law; and(b) promote the protection of the community as a primary consideration in sentencing offenders; and(c) promote consistency in the sentencing of offenders; and(d) establish fair procedures for –(i) imposing sentences on offenders generally; and(ii) imposing sentences on offenders in special cases; and(iii) dealing with offenders who breach the conditions of sentences; and(e) help prevent crime and promote respect for the law by allowing courts to –(i) impose sentences aimed at deterring offenders and other persons from committing offences; and(ii) impose sentences aimed at the rehabilitation of offenders; and(iii) impose sentences that denounce the conduct of offenders; and(f) promote public understanding of sentencing practices and procedures; and(g) set out the objectives of sentencing and related orders; and(h) recognise the interests of victims of offences.
In this Act, unless the contrary intention appears –Administrator of Magistrates Courts means the person appointed as Administrator of Magistrates Courts under section 16 of the Magistrates Court Act 1987 ;approved medical practitioner means an approved medical practitioner within the meaning of the Mental Health Act 1963 ;area restriction order means an order made under Division 3 of Part 9 ;authorised person means the DPP, a police officer or probation officer;breach includes fail to comply;community service order means an order of a court that the offender in respect of whom it is made must perform some work or other activity in the community under the direction of a probation officer or supervisor;compensation order means an order made under Division 2 of Part 9 ;court means the Supreme Court, the Court of Criminal Appeal or a court of petty sessions;DCS means Director of Corrective Services;DPP means Director of Public Prosecutions;driver's licence means a driver's licence within the meaning of the Traffic Act 1925 ;driving disqualification order means an order of a court under section 55 ;enactment means –(a) an Act; or(b) any other instrument of a legislative character; or(c) any provision or part of an Act or of any other instrument of a legislative character;escape offence means an offence under section 107 of the Criminal Code or an offence committed by a person who has escaped from lawful custody;fine means the sum of money payable by an offender under an order of a court made on the offender being convicted of an offence and includes a sum of money payable as costs, a restitution order and a compensation order;institution means an institution within the meaning of the Mental Health Act 1963 ;mental disorder means a mental disorder within the meaning of the Mental Health Act 1963 ;motor vehicle means a motor vehicle within the meaning of the Traffic Act 1925 ;non-parole period, in relation to a sentence of imprisonment, means –(a) in a case to which section 17(2)(a) or 18(1)(a) applies, the whole of the period of the sentence; or(b) in a case to which section 17(2)(b) or 18(1)(b) applies, the period specified in the order made under that section; or(c) in any other case, the non-parole period specified in section 67(1) of the Corrections Act 1997 ;notification means notification in writing;Parole Board means the Parole Board established under the Corrections Act 1997 ;pecuniary sum means a sum of money in respect of which a warrant to apprehend is issued under section 47(1) , including the prescribed costs of the warrant and of a warrant of commitment issued under section 47(2)(c) or (5) or 49(1) , as the case may require;police officer has the same meaning as in the Police Regulation Act 1898 ;prison offence means an offence specified in Schedule 1 to the Corrections Act 1997 ;probation officer means a probation officer within the meaning of the Corrections Act 1997 ;probation order means an order of a court that the offender in respect of whom it is made be of good behaviour during the period of the order or do or refrain from doing such things as are specified in the order;proper officer, in relation to a court, means the officer or officers of that court prescribed by the rules of that court for the purpose of the provision in which the term is used;restitution order means an order made under Division 1 of Part 9 ;supervisor means a supervisor within the meaning of the Corrections Act 1997 .
This Act, other than Division 3 of Part 9 , does not apply to –(a) a children's court established under the Child Welfare Act 1960 ; or(b) a court of summary jurisdiction within the meaning of the Justices Act 1959 that is hearing a charge against a person who has not attained the age of 17 years.
This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders.
PART 2 - General sentencing powers
A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence –(a) record a conviction and order that the offender serve a term of imprisonment; or(b) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or(c) record a conviction and, if the offence is punishable by imprisonment, make a community service order in respect of the offender; or(d) with or without recording a conviction, make a probation order in respect of the offender; or(e) record a conviction and order the offender to pay a fine; or(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or(g) record a conviction and order the discharge of the offender; or(h) without recording a conviction, order the dismissal of the charge for the offence; or(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment.
(1) A court that orders that an offender serve a term of imprisonment may also do any one or more of the following:(a) make a community service order in respect of the offender;(b) make a probation order in respect of the offender;(c) order the offender to pay a fine;(d) make a driving disqualification order in respect of the offender.(2) A court that makes a community service order in respect of an offender may also do any one or more of the following:(a) make a probation order in respect of the offender;(b) order the offender to pay a fine;(c) make a driving disqualification order in respect of the offender.(3) A court that records a conviction and makes a probation order in respect of an offender may also do either or both of the following:(a) order the offender to pay a fine;(b) make a driving disqualification order in respect of the offender.(4) A court that orders an offender to pay a fine may also make a driving disqualification order in respect of the offender.
9. Conviction or non-conviction
In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –(a) the nature and circumstances of the offence; and(b) the offender's antecedents and character; and(c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects.
10. Effect of finding of guilt without recording of conviction
(1) Except as otherwise provided by this Act or any other enactment, a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose.(2) A finding of guilt without the recording of a conviction –(a) does not prevent a court from making any other order that it is authorised to make by this Act or any other enactment in consequence of the finding; and(b) has the same effect as if a conviction had been recorded for the purpose of –(i) appeals against sentence; or(ii) proceedings for variation or breach of sentence; or(iii) subsequent proceedings against the offender for the same offence; or(iv) enactments providing for the mandatory forfeiture of property on conviction; or(v) enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits.
11. Court may impose single, general or mixed sentence
(1) A court may impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments –(a) one sentence for all of those offences; or(b) a separate sentence for each of those offences; or(c) one sentence for a group of those offences determined by the court and –(i) one sentence for all of the remaining offences; or(ii) a separate sentence for each of the remaining offences; or(iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group.(2) In imposing a single sentence on an offender for more than one offence, a court must not impose a penalty exceeding the sum of the maximum penalties that could otherwise have been imposed for those offences.
PART 3 - Custodial sentences
Division 1 - General
12. Mitigation of imprisonment
(1) In this section,custodial offence means an offence that is created under an enactment and has imprisonment as its only penalty.(2) If a court that sentences an offender for a custodial offence considers that the justice of the case will be better met by a non-custodial sentence than by imprisonment, the court may, notwithstanding the penalty provided for the offence, make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence.
13. Maximum prison term imposable by court of petty sessions for crime triable summarily
The maximum term of imprisonment that a court of petty sessions may impose on an offender convicted of a crime that is triable summarily is –(a) 12 months for a first offence; or(b) 3 years for a second or subsequent offence.
14. Commencement of custodial sentence
(1) Subject to sections 15 and 16 , a sentence of imprisonment commences on the day on which it is imposed unless the offender is not then in custody.(2) If the offender is not then in custody, the sentence of imprisonment commences on the day on which the offender is apprehended under a warrant to imprison issued in respect of the sentence.(3) If an offender who is sentenced to a term of imprisonment is allowed to be or go at large for any reason, the period between then and the day on which the offender is taken into custody to undergo the sentence does not count in calculating the term to be served and service of the sentence is suspended during that period.(4) If an offender who is lawfully imprisoned under a sentence escapes or fails to return after an authorised absence, the period between then and the day on which the offender surrenders or is apprehended does not count in calculating the term to be served and service of the sentence is suspended during that period.(5) Despite anything to the contrary in this Act or any other enactment or in any rule of law or practice, a sentence of imprisonment is to be calculated exclusive of any time during which service of it is suspended under subsection (3) or (4) .(6) If an offender to whom subsection (4) applies is, in the period during which service of the sentence is suspended under that subsection, imprisoned under another sentence, the unexpired portion of the suspended sentence takes effect –(a) if it is to be served cumulatively on the sentence the offender is then undergoing, on the day that sentence is completed; or(b) in any other case, at the end of the period of suspension.(7) If an offender who is sentenced to a term of imprisonment and allowed to be or go at large pending an appeal or the consideration of any question of law reserved or case stated is imprisoned under another sentence at the time when the appeal, question of law reserved or case stated is finally determined, the first-mentioned sentence or the unexpired portion of it takes effect –(a) if it is to be served cumulatively on the sentence the offender is then undergoing, on the day that sentence is completed; or(b) in any other case, on the day the appeal, question of law reserved or case stated is finally determined.(8) Subsection (7) applies unless the sentencing court or the court determining the appeal, question of law or case stated otherwise directs.
15. Custodial sentence: whether concurrent or cumulative
(1) Except as provided in this section, an offender who is sentenced to a term of imprisonment must serve the sentence concurrently with any uncompleted sentence of imprisonment that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise.(2) An offender who is sentenced to a term of imprisonment for an escape offence or for non-payment of a fine must serve the sentence cumulatively on any uncompleted sentence of imprisonment, other than a sentence of life imprisonment, that the offender is then serving or liable to serve.(3) An offender who is sentenced to a term of imprisonment for a prison offence must serve the sentence cumulatively on any uncompleted sentence of imprisonment that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise because of exceptional circumstances.(4) If a court sentences an offender to a term of imprisonment for an offence against a law of Tasmania and the offender is already serving or liable to serve a sentence of imprisonment for an offence against a law of the Commonwealth, the court must direct when the new term of imprisonment is to commence.(5) For the purposes of subsection (4) , the new term of imprisonment is to commence no later than immediately after –(a) the completion of the sentence for the Commonwealth offence if a non-parole period or pre-release period, as defined in Part 1B of the Crimes Act 1914 of the Commonwealth, was not fixed in respect of it; or(b) the end of that period if a non-parole period or pre-release period was fixed.(6) This section has effect despite anything to the contrary in this Act or any other enactment.
16. Time held in custody before trial, &c., to be taken into account
(1) A court that is sentencing an offender to a term of imprisonment for an offence must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence.(2) Subsection (1) does not apply to –(a) a period of custody of less than one day; or(b) a sentence of imprisonment of less than one day; or(c) a sentence of imprisonment that has been wholly suspended or the suspended part of a partly suspended sentence of imprisonment; or(d) a period of custody spent pending the determination of an appeal during which the offender is treated as if he or she were awaiting trial in accordance with section 415 of the Criminal Code.
Division 2 - Parole
17. Court may bar or limit eligibility for parole
(1) This section does not apply to a sentence of imprisonment for the term of an offender's natural life.(2) A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order –(a) that the offender is not eligible for parole in respect of that sentence; or(b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.(3) The period specified in an order under subsection (2)(b) is not to be less than one-half of the period of that sentence.(4) In exercising its discretion under subsection (2) , a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:(a) the nature and circumstances of the offence;(b) the offender's antecedents or character;(c) any other sentence to which the offender is subject.(5) An order under subsection (2) forms, for all purposes, part of the sentence to which it relates.(6) An offender in respect of whom an order has been made under subsection (2)(a) is not eligible to be released on parole in respect of his or her sentence.
18. Court to make order on eligibility of life prisoner for parole
(1) A court that sentences an offender to imprisonment for the term of the offender's natural life, either on the conviction of the offender or on the determination of an appeal, must order –(a) that the offender is not eligible for parole in respect of that sentence; or(b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.(2) For the purposes of subsection (1) , a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have particular regard to all or any of the following:(a) the nature and circumstances of the offence;(b) the offender's antecedents or character;(c) any other sentence to which the offender is subject.(3) An order made under subsection (1) forms, for all purposes, part of the sentence to which it relates.(4) An offender in respect of whom an order has been made under subsection (1)(a) is not eligible to be released on parole in respect of the offender's sentence.
Division 3 - Dangerous criminals
19. Court may declare violent offender to be dangerous criminal
(1) A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if –(a) the offender has been convicted for a crime involving violence or an element of violence; and(b) the offender has at least one previous conviction for a crime involving violence or an element of violence; and(c) the offender has apparently attained the age of 17 years; and(d) the judge is of the opinion that the declaration is warranted for the protection of the public.(2) In determining whether to declare an offender a dangerous criminal a judge may have regard to all or any of the following:(a) the nature and circumstances of the crimes referred to in subsection (1) ;(b) the offender's antecedents or character;(c) any medical or other opinion;(d) any other matter that the judge considers relevant.(3) A judge who declares an offender to be a dangerous criminal must, in addition to making that declaration, sentence that offender to a term of imprisonment for the crime referred to in subsection (1)(a) .(4) An offender in respect of whom a declaration under subsection (1) has been made is not eligible to be released from custody until that declaration is discharged.(5) Subsection (4) has effect whether or not the sentence of imprisonment imposed on that offender under subsection (3) has expired.(6) In subsection (1) , a reference to a previous conviction is to be read as a reference to –(a) any conviction, either in this State or in some other State or a Territory, on indictment or complaint; or(b) any conviction, either in this State or in some other State or a Territory, as a consequence of which a sentence is imposed by a court, being a court before which offences may be tried on indictment or complaint, on the committal of the accused to that court for sentence.
20. Dangerous criminal may apply for discharge of status
(1) In this section and in sections 21 , 22 and 23 –applicant means a dangerous criminal who applies to have the declaration by which he or she acquired the status of a dangerous criminal discharged;dangerous criminal means an offender in respect of whom –(a) a declaration under section 19(1) is in force; or(b) a declaration under section 392(1) of the Criminal Code, as in force immediately before the commencement of this Act, is in force;sentence means the sentence of imprisonment imposed on an offender in respect of the offence by reason of which the offender was declared to be a dangerous criminal.(2) A dangerous criminal who has served a term of imprisonment equal to the non-parole period applicable to his or her sentence may apply to the Supreme Court to have the declaration by which he or she acquired the status of a dangerous criminal discharged.(3) On an application under subsection (2) , the Supreme Court must make an order discharging the relevant declaration if the court is satisfied that the declaration is no longer warranted for the protection of the public.(4) An order under subsection (3) does not take effect until –(a) if no appeal is lodged under section 23(1) , the end of the appeal period or, in a case to which section 21(10) applies, such later date as may be specified by the court; or(b) if an appeal is lodged under section 23(1) , the dismissal of the appeal.(5) An application under subsection (2) may be withdrawn or discontinued by leave of the court.(6) An applicant whose application under subsection (2) is unsuccessful may submit a further application under that subsection after the expiration of a period of 2 years, or such lesser period as the court may allow, from the date on which the unsuccessful application was filed with the court.(7) The discharge of a declaration under section 19(1) does not affect a sentence of imprisonment imposed on the offender to whom the declaration related.
(1) An application under section 20(2) is to be in writing.(2) A copy of the application is to be served on the DPP.(3) The DPP, or counsel on the DPP's behalf, must appear for the Crown at the hearing of the application.(4) The applicant is entitled to be present at the hearing of the application unless the court hearing the application, in its discretion, orders otherwise.(5) The court may order the DCS or any other person or body to prepare a report in respect of the applicant, addressing such matters as the court specifies in the order, and the court may have regard to the report for the purpose of determining the application.(6) A copy of a report prepared pursuant to an order of the court under subsection (5) is to be provided to the DPP and the applicant.(7) The DPP or the applicant may adduce evidence in relation to the application.(8) If the DPP or the applicant causes a report to be prepared in relation to the application, a copy of the report is to be provided to the other party to the application if it is proposed to use the report at the hearing of the application.(9) If either party to the application puts a report in evidence –(a) the other party to the application is entitled to cross-examine the author of the report; and(b) if the author of the report is cross-examined, the party putting the report in evidence is entitled to examine the author of the report by way of reply.(10) If the discharge of the declaration would result in the immediate release of the applicant from custody, the court may order that the discharge is not to take effect for such time as it considers necessary for the purpose of enabling the applicant to undergo a pre-release program under the supervision of the DCS.
(1) At any time after an application is made under section 20(2) , but before the hearing of the application, a judge may require the parties to attend a conference for the purpose of ensuring a proper consideration of the application.(2) At a conference under subsection (1) the judge may –(a) give any directions to either or both of the parties to the application as the judge considers necessary or expedient for a proper consideration of the application; and(b) determine any question of law or procedure that has arisen or is expected to arise in the hearing; and(c) give such directions as the judge thinks fit in order to resolve any issue or matter that the judge considers necessary or convenient to resolve before the hearing.
(1) The Attorney-General may appeal to the Court of Criminal Appeal against an order of the court under section 20(3) as if that order were a sentence imposed on conviction.(2) An applicant may appeal to the Court of Criminal Appeal against the refusal of the court to make an order under section 20(3) as if that refusal were a sentence imposed on conviction.(3) It is not necessary to obtain the leave of the Court of Criminal Appeal for an appeal under subsection (1) or (2) .
Division 4 - Suspended sentences
24. Suspended sentence may be conditional
An order of a court suspending the whole or a part of a sentence of imprisonment may be made subject to such conditions as the court considers necessary or expedient.
25. Effect of suspended sentence
(1) A partly suspended sentence of imprisonment is taken for all purposes to be a sentence of imprisonment for the whole term stated by the court.(2) A wholly suspended sentence of imprisonment is taken to be a sentence of imprisonment for the purposes of all enactments other than enactments providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits.(3) If, under section 27 , an offender is ordered to serve the whole or part of a wholly suspended sentence of imprisonment then, for the purposes of any enactment providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits, the offender is taken to have been sentenced to imprisonment on the day on which the order was made under that section.(4) An offender in respect of whom a suspended sentence has been imposed is not required to serve the sentence or part sentence held in suspense unless the offender is ordered to do so under section 27 .
26. Variation of order conditionally suspending sentence
(1) A court that has made an order suspending a sentence of imprisonment on conditions may, on application under this subsection –(a) vary the order; or(b) cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just convicted the offender of that offence or those offences.(2) Before the court varies or cancels the order it must be satisfied that –(a) the circumstances of the offender have materially altered since the order was made, as a result of which the offender will not be able to comply with any one or more of the conditions of the order; or(b) the offender is no longer willing to comply with the order.(3) If the court cancels the order it must, in determining how to deal with the offender, take into account the extent to which the offender had complied with the order before its cancellation.(4) An application under subsection (1) may be made by –(a) the offender or DPP if the sentencing court was the Supreme Court; or(b) the offender, complainant or police prosecutor if the sentencing court was a court of petty sessions.(5) Notice of an application under subsection (1) by an offender is to be given to –(a) the DPP if the sentencing court was the Supreme Court; or(b) the complainant or police prosecutor if the sentencing court was a court of petty sessions.(6) Notice of an application under subsection (1) by a complainant or police prosecutor or the DPP is to be given to the offender.(7) The court may order that a warrant to arrest be issued against the offender if the offender does not attend before the court on the hearing of the application.
27. Breach of order suspending sentence
(1) If it appears to an authorised person that during the period an order suspending a sentence of imprisonment is in force the offender has breached a condition of the suspended sentence or committed another offence punishable by imprisonment (in this section called "the new offence", the authorised person may apply to the court that sentenced the offender for an order under this section.(2) The authorised person must give notice of the application to the offender.(3) The court may order that a warrant to arrest be issued against the offender if the offender does not attend before the court on the hearing of the application.(4) If, on the hearing of the application, the court is satisfied by evidence on oath or by affidavit or by the admission of the offender that the offender has, during the relevant period, breached the condition of the suspended sentence without reasonable excuse or committed the new offence, the court may –(a) order that sentence to take effect; or(b) order that a sentence (in this section called the "substituted sentence" take effect in place of the suspended sentence; or(c) by order, vary the conditions on which the execution of the sentence was suspended.(5) A substituted sentence may be any sentence that the court could have imposed on the offender had it just found the offender guilty of the offence in respect of which the suspended sentence was imposed, but no greater term of imprisonment is to be imposed by the substituted sentence than was imposed by the suspended sentence.(6) If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served –(a) immediately; and(b) cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court.(7) A fine imposed under this section is taken for all purposes to be a fine payable on a conviction of an offence.
PART 4 - Community service orders
28. Conditions of community service order
A community service order is subject to the following conditions:(a) the offender must not commit an offence punishable by imprisonment while the order is in force;(b) the offender must report within one clear working day to a probation officer or supervisor, at the place specified in the order;(c) the offender must satisfactorily perform community service, as directed by a probation officer or supervisor, for the number of hours specified in the order;(d) the offender must comply with the reasonable directions of a probation officer or supervisor;(e) the offender must give notification to a probation officer of any change of address or employment before, or within 2 clear working days after, the change;(f) the offender must not leave or stay outside Tasmania without the permission of a probation officer;(g) the offender must attend educational and other programs as directed by a probation officer.
29. Court may consider compliance with previous order
In determining whether to make a community service order in respect of an offender, a court may have regard to the extent to which the offender complied with any previous community service order.
30. Multiple community service orders
(1) A court may make –(a) 2 or more community service orders in respect of an offender in relation to 2 or more offences; and(b) a community service order in respect of an offender who is already subject to a community service order.(2) If a court makes separate community service orders in relation to 2 or more offences committed by an offender, the conditions of the orders are concurrent unless the court directs otherwise.(3) The conditions of a community service order made in respect of a person are, unless the court making the order directs otherwise, concurrent with those of any other community service order in force in respect of that person.
31. Limitation on number of hours of community service
(1) The maximum number of hours that a court may order community service to be performed under a community service order imposed in respect of one offence is 240.(2) The maximum number of hours that a court may order community service to be performed under a community service order imposed in respect of 2 or more offences is 240.(3) A court that makes a community service order in respect of an offender who is already subject to such an order must not require the offender to do community service for a number of hours that, aggregated with the number of hours of community service remaining to be completed under the subsisting order, would exceed 240.(4) This section does not apply to a community service order made under section 47(2)(a) .
32. Attendance at educational program
If an offender who is subject to a community service order attends an educational or other program in accordance with the directions of a probation officer, the time that the offender spends attending that program is taken to be performance of community service under the order.
33. Community service for benefit of victim of offence
(1) A probation officer may arrange for an offender who is subject to a community service order to perform community service for the benefit of the victim of the offender's offence.(2) Community service that an offender performs under subsection (1) is taken to be performance of community service under the order.
34. Duration of community service order
A community service order remains in force until the first of the following occurs:(a) the offender finishes performing community service in accordance with the order for the number of hours specified in the order;(b) the order is cancelled under section 35 or 36 .
35. Review of community service order
(1) An offender who is subject to a community service order, or an authorised person, may apply to have the order reviewed.(2) The application is to be made to the court that made the community service order.(3) A copy of the application and notification of the time and place of the hearing of the application is to be served, at least 7 days before the hearing, on –(a) the offender if the applicant is an authorised person; or(b) the DPP and the offender's probation officer if the application is made by the offender to the Supreme Court; or(c) the complainant or police prosecutor, and the offender's probation officer, if the application is made by the offender to a court of petty sessions.(4) If the applicant is an authorised person, the court may issue a warrant to arrest the offender if –(a) the offender fails to appear at the hearing of the application; or(b) reasonable efforts have been made to serve the application on the offender but have been unsuccessful.(5) Subject to subsection (6) , at the hearing of the application, the court may –(a) vary the community service order; or(b) cancel the community service order and deal with the offender for the offence or offences in respect of which it was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences.(6) The court must not vary or cancel the community service order unless it is satisfied that –(a) changes in the offender's circumstances since the making of the order have rendered the offender unable to comply with any one or more of the conditions of the order; or(b) the offender is no longer willing or able to comply with the order.(7) In determining how to deal with an offender following the cancellation by it of a community service order, the court must take into account the extent to which the offender had complied with the order before its cancellation.
36. Breach of community service order
(1) An offender who does any of the following is guilty of an offence:(a) breaches a condition of a community service order without reasonable excuse;(b) assaults, threatens, insults or uses abusive language to a probation officer or supervisor;(c) disturbs, interferes with or prevents a person from performing an activity under a community service order.(2) Proceedings for an offence under subsection (1) are to be commenced by a complaint under the Justices Act 1959 .(3) The complaint is to be made by an authorised person.(4) If, on the hearing of the complaint, the court is satisfied by evidence on oath or otherwise that the offender has committed an offence under subsection (1) , the court may do either or both of the following:(a) impose a fine not exceeding 10 penalty units;(b) impose a term of imprisonment not exceeding 3 months.(5) In addition to or instead of exercising its power under subsection (4) , in the circumstances referred to in that subsection, the court may –(a) if the community service order was made by a court of petty sessions –(i) confirm the order as originally made; or(ii) increase the number of hours of community service that the offender is required to perform under the order; or(iii) cancel the order and deal with the offender for the offence or offences in respect of which it was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences; or(b) if the community service order was made by the Supreme Court –(i) confirm the order as originally made; or(ii) if the court considers the breach to be a serious one, commit the offender to custody or release the offender on bail, with or without sureties, to be brought or to appear before the Supreme Court.(6) In a case to which subsection (5)(b)(ii) applies, the Supreme Court may –(a) confirm the community service order as originally made; or(b) increase the number of hours of community service that the offender is required to perform under the order; or(c) cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences.(7) A fine or other sentence imposed under this section does not affect the continuance of the community service order if it is still in force.(8) A fine imposed under this section is to be taken for all purposes to be a fine payable on a conviction for an offence.(9) In determining how to deal with an offender found guilty of an offence under this section, the court must take into account the extent to which the offender had complied with the community service order before committing the offence.(10) This section applies to any community service order imposed by a court, including a community service order imposed under section 47(2)(a) .
PART 5 - Probation orders
37. Conditions of probation order
(1) A probation order is subject to the following conditions:(a) during the period of probation the offender must not commit an offence punishable by imprisonment;(b) the offender must report within one clear working day to a probation officer at the place specified in the order;(c) during the period of probation the offender must submit to the supervision of a probation officer as required by that probation officer;(d) during the period of probation the offender must report to a probation officer as required by that probation officer;(e) during the period of probation the offender must not leave or stay outside Tasmania without the permission of a probation officer;(f) during the period of probation the offender must comply with reasonable and lawful directions given by a probation officer;(g) the offender must give notification to a probation officer of any change of address or employment before, or within 2 working days after, the change.(2) A probation order may also include any or all of the following special conditions:(a) the offender must attend educational and other programs as directed by the court or a probation officer;(b) the offender must undergo assessment and treatment for alcohol or drug dependency as directed by a probation officer;(c) the offender must submit to testing for alcohol or drug use as directed by a probation officer;(d) the offender must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;(e) such other special conditions as the court thinks necessary or expedient.(3) A special condition may apply during the whole or any part of the period of probation as specified in the order.
(1) A court may make –(a) 2 or more probation orders in respect of an offender in relation to 2 or more offences; and(b) a probation order in respect of an offender who is already subject to a probation order.(2) If a court makes separate probation orders in respect of 2 or more offences committed by an offender, the conditions of those orders are concurrent unless the court directs otherwise.(3) The conditions of a probation order made in respect of an offender are, unless the court making the order directs otherwise, concurrent with those of any other probation order in force in respect of that offender.
39. Limitation on duration of probation order
(1) Subject to subsection (2) , the period of a probation order made against an offender is to be such period not exceeding 3 years as the court specifies.(2) A court must not make a probation order against an offender for such a period that, as a result of the making of the order, the total consecutive period of probation imposed on that person at one time would exceed 3 years.
40. Commencement of probation order
The period of a probation order made against an offender commences on the day on which the order is made or on such later date as the court, by the order, may specify.
(1) An offender who is subject to a probation order, or an authorised person, may apply to have the order reviewed.(2) The application is to be made to the court that made the probation order.(3) A copy of the application and notification of the time and place of the hearing of the application is to be served, at least 7 days before the hearing, on –(a) the offender if the applicant is an authorised person; or(b) the DPP and the offender's probation officer if the application is made by the offender to the Supreme Court; or(c) the complainant or police prosecutor, and the offender's probation officer, if the application is made by the offender to a court of petty sessions.(4) If the applicant is an authorised person, the court may issue a warrant to arrest the offender if –(a) the offender fails to appear at the hearing of the application; or(b) reasonable efforts have been made to serve the application on the offender but have been unsuccessful.(5) Subject to subsections (6) and (7) , at the hearing of the application, the court may –(a) vary the probation order; or(b) cancel the probation order and deal with the offender for the offence or offences in respect of which it was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences.(6) The court must not vary or cancel the probation order unless it is satisfied that –(a) changes in the offender's circumstances since the making of the order have rendered the offender unable to comply with any one or more of the conditions of the order; or(b) the offender is no longer willing or able to comply with the order.(7) If the period during which a probation order has effect is extended under subsection (5)(a) , the court must not extend that period so that it continues for more than the relevant period specified in section 39 .(8) In determining how to deal with an offender following the cancellation by it of a probation order, the court must take into account the extent to which the offender had complied with the order before its cancellation.
(1) An offender who does either of the following is guilty of an offence:(a) breaches a condition of a probation order without reasonable excuse;(b) assaults, threatens, insults or uses abusive language to a probation officer.(2) Proceedings for an offence under subsection (1) are to be commenced by a complaint under the Justices Act 1959 .(3) The complaint is to be made by an authorised person.(4) If, on the hearing of the complaint, the court is satisfied by evidence on oath or otherwise that the offender has committed an offence under subsection (1) , the court may do either or both of the following:(a) impose a fine not exceeding 10 penalty units;(b) impose a term of imprisonment not exceeding 3 months.(5) In addition to or instead of exercising its power under subsection (4) , in the circumstances referred to in that subsection, the court may do –(a) one or more of the following if the probation order was made by a court of petty sessions:(i) confirm the order as originally made;(ii) increase the period during which the order has effect;(iii) vary the special conditions to which the order is subject;(iv) cancel the order and deal with the offender for the offence or offences in respect of which it was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences; or(b) either of the following if the probation order was made by the Supreme Court:(i) confirm the order as originally made;(ii) if the court considers the breach to be a serious one, commit the offender to custody or release the offender on bail, with or without sureties, to be brought or to appear before the Supreme Court.(6) In a case to which subsection (5)(b)(ii) applies, the Supreme Court may –(a) confirm the probation order as originally made; or(b) increase the period during which the order has effect; or(c) vary the special conditions to which the order is subject; or(d) cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences.(7) A fine or other sentence imposed under this section does not affect the continuance of the probation order if it is still in force.(8) A fine imposed under this section is to be taken for all purposes to be a fine payable on a conviction for an offence.(9) If the period during which a probation order has effect is increased under subsection (5) , the court is not to extend that period so that it continues for more than the relevant period in section 39 .(10) In determining how to deal with an offender found guilty of an offence under this section, the court must take into account the extent to which the offender had complied with the probation order before committing the offence.
PART 6 - Fines
43. Priority of fine and restitution or compensation order
If a court considers that –the court must give preference to restitution or compensation, though it may impose the fine as well.(a) it would be appropriate both to impose a fine and to make a restitution or compensation order; but(b) the offender has insufficient means to pay both –
44. Time for payment of fine and enforcement of payment
(1) A court that orders an offender to pay a fine must also order –(a) that the fine be paid forthwith; or(b) that the fine be paid within the period specified in the order; or(c) that the fine be paid in instalments as specified in the order.(2) If the court fails for any reason to make an order under subsection (1) it is nevertheless taken to have ordered that the fine be paid within 14 days.(3) If the court orders that the fine be paid in instalments and the offender defaults in the payment of an instalment, the whole of the balance of the fine becomes due and payable on that default.
45. Enforcement of Supreme Court fine
(1) If the Supreme Court orders an offender to pay a fine it must cause a sealed copy of the order to be sent to the Administrator of Magistrates Courts.(2) When the Administrator of Magistrates Courts receives the sealed copy of the order it is taken, for the purposes of this Part, to have been made by a court of petty sessions.
46. Variation of time or manner of payment of fine
(1) An offender who has been ordered by a court to pay a fine may, within any period allowed under section 44 for payment of that fine, apply to a magistrate for an order varying the time or manner of payment of that fine.(2) On an application under subsection (1) –(a) the magistrate may make such order as it considers appropriate; and(b) the order has effect as if it had been made under section 44 .
47. Failure to pay fine within time granted
(1) If an offender who has been ordered by a court to pay a fine is in default of payment of that fine, a clerk of petty sessions may issue a warrant to apprehend the offender.(2) If an offender against whom a warrant has been issued under subsection (1) fails to pay the fine in respect of which the warrant is issued, together with the prescribed costs of the warrant, a magistrate, on the offender being brought or otherwise appearing before that magistrate, may –(a) make a community service order against the offender specifying the amount of community service or other activity that the offender is required to do calculated in accordance with section 48 ; or(b) direct that civil proceedings be taken against the offender under the Magistrates Court (Civil Division) Act 1992 ; or(c) issue a warrant of commitment against the offender for a term of imprisonment calculated in accordance with section 50 in respect of the outstanding amount of the fine.(3) A community service order is not to be made under subsection (2)(a) in respect of a fine imposed for a breach of another community service order.(4) If an offender is sentenced pursuant to subsection (2)(c) , the magistrate may suspend the execution of a warrant of commitment in respect of that imprisonment for a period not exceeding 6 months for the purpose of allowing the offender to pay the outstanding amount of the fine and any such suspension may be made on such conditions as the court thinks fit.(5) If –the magistrate must, as soon as practicable after the expiration of the period of suspension, cancel the warrant and issue a new warrant of commitment against the offender for a term of imprisonment calculated in accordance with section 50 in respect of the outstanding amount of the fine as at the expiration of the period of suspension of the earlier warrant.(a) a magistrate has suspended the execution of a warrant of commitment for a period under subsection (4) ; and(b) the offender pays part of the outstanding amount of the fine before the period of suspension expires –(6) Except as provided by subsection (7) , the execution of a warrant of commitment issued under subsection (5) is not capable of being suspended.(7) A warrant of commitment issued in respect of the non-payment of a restitution order or compensation order that has been suspended under subsection (4) may be vacated by the court on its own motion or on application by the person in whose favour the order was made at any time before the warrant is executed, and the court may direct that civil proceedings be taken under the Magistrates Court (Civil Division) Act 1992 to enforce payment.(8) A term of imprisonment to which an offender is sentenced under subsection (2)(c) or (5) is not to be served concurrently with any other term of imprisonment to which the offender has been, or is liable to be, sentenced.(9) If any proceedings under subsection (2) are adjourned, the court may admit the offender to bail.(10) Section 26 of the Justices Act 1959 does not apply to the issue of a warrant to apprehend under subsection (1) .(11) Part 4 applies to a community service order made under this section as if it had been made under that Part.
48. Calculation, &c., of community service order made for default in payment of fine
(1) This section applies to a community service order made under section 47(2)(a) .(2) The amount of community service or other activity required to be performed under a community service order to which this section applies is to be calculated at the rate of 7 hours for each prescribed unit or part prescribed unit of the pecuniary sum or the balance outstanding, as the case may require.(3) If a community service order to which this section applies is made against an offender, the offender must do community service or another activity in accordance with the order.(4) An offender may be required to do community service or another activity under a community service order to which this section applies for more than 240 hours.(5) If an offender performs community service or another activity under a community service order to which this section applies, the outstanding amount of the pecuniary sum is reduced by one prescribed unit for each 7 hours of community service or other activity performed by the offender.(6) If an offender at any time pays to the DCS a part of the pecuniary sum then outstanding, the number of hours of community service or other activity to be performed is reduced by the proportion that the amount so paid bears to that outstanding sum, ignoring any fraction or part of an hour.(7) If an offender is in breach of a community service order to which this section applies, the magistrate must, in sentencing the offender to a term of imprisonment under section 36 , calculate the term at the rate of one day of imprisonment (or if some other number of days is prescribed, that number) for each 7 hours of community service or other activity not performed by the offender.
49. Failure of defendant outside jurisdiction to pay fine
(1) If –the magistrate may, on the application of a clerk of petty sessions, issue a warrant of commitment against the offender for a term of imprisonment for a period calculated in accordance with section 50 in respect of the outstanding amount of the fine.(a) an offender who has been ordered by a court to pay a fine is in default in payment of that fine; and(b) a magistrate is satisfied that the offender is no longer in Tasmania or that the usual place of residence of the defendant is outside Tasmania –(2) A warrant of commitment may be issued in the circumstances specified in subsection (1) whether or not a warrant to apprehend has been issued under section 47(1) in the absence of the defendant.(3) Section 26 of the Justices Act 1959 does not apply to the issue of a warrant of commitment under subsection (1) .
50. Calculation of prison term for default in payment of fine
A term of imprisonment to which an offender is sentenced under section 47(2)(c) or (5) or 49(1) is to be calculated at the rate of one day of imprisonment for each prescribed unit or part prescribed unit of the pecuniary sum or the balance outstanding, as the case may require.
51. Amount in default reduced by imprisonment
(1) If an offender is committed to prison pursuant to a warrant of commitment issued under this Part, the amount in respect of which the warrant was issued is reduced by one prescribed unit for each day served in prison pursuant to the warrant.(2) If the offender at any time pays to the DCS the amount then outstanding under the warrant, together with the costs of issuing and executing the warrant, the sentence of imprisonment is wholly extinguished.(3) If the offender at any time pays to the DCS a part of the amount then outstanding under the warrant, the balance of the term of imprisonment remaining to be served is reduced by the proportion that the amount so paid bears to that outstanding amount, ignoring any fraction or part of a day.(4) The DCS must issue a receipt for the payment of a sum of money made under this section and forward the sum to the appropriate clerk of petty sessions.(5) When an offender has served a term of imprisonment fixed under this Part, the whole of the amount in respect of which the warrant of commitment was issued is extinguished.(6) Nothing in this section affects a term of imprisonment other than that imposed in respect of the matter in connection with which the total or partial payment is made.
52. Satisfaction of execution by payment
A police officer who is charged with executing a warrant of apprehension or commitment issued against an offender under section 47 or 49 must not execute that warrant if the person –(a) pays or tenders to the police officer the sum mentioned in the warrant and the amount of the prescribed costs and charges of the warrant; or(b) produces to the police officer the receipt of a clerk of petty sessions for that sum and that amount.
53. Enforcement of fine by civil process
(1) If an offender who has been ordered by a court to pay a fine is in default in payment of that fine, the fine is taken to be a judgment of the Magistrates Court (Civil Division) and enforceable under the Magistrates Court (Civil Division) Act 1992 .(2) An action to enforce the fine under the Magistrates Court (Civil Division) Act 1992 pursuant to this section does not preclude action being taken or continued under section 47 against the offender in default.
54. Reciprocal enforcement of fines, &c., against bodies corporate
(1) The Governor may –(a) by proclamation, declare another State or a Territory, being a State or Territory having laws providing for enforcement in that State or Territory of a sum of money payable under a conviction or order of a court of summary jurisdiction in this State against a body corporate, to be a reciprocating State or Territory; and(b) by the same or a different proclamation, declare a court having summary jurisdiction in that reciprocating State or Territory to be a reciprocating court.(2) If, under a conviction or order of a reciprocating court made in the exercise of its summary jurisdiction, a sum of money is payable by a body corporate having or appearing to have property in this State and the clerk (in this section calledthe Tasmanian clerk) of a court of summary jurisdiction at or near to a place where the body corporate has or appears to have property receives a request in writing from the clerk or other corresponding officer of that reciprocating court for the enforcement of the conviction or order accompanied by –the Tasmanian clerk must register the conviction or order by filing in the court a certified copy of the conviction or order and must note the date of registration on the copy.(a) a certified copy of the conviction or order; and(b) a certificate under the hand of the clerk or corresponding officer making the request certifying the amount payable under the conviction or order –(3) On the registration of a conviction or order under subsection (2) , the conviction or order is, for the purposes of this section, taken to be a conviction or order of the court in which it is registered requiring payment by the body corporate of the amount stated in the certificate referred to in that subsection.(4) If the Tasmanian clerk receives, after the request for the enforcement of the conviction or order, a notification from the clerk or other corresponding officer of the reciprocating court of payment by or on behalf of the body corporate of an amount in full or partial satisfaction of the amount outstanding, the Tasmanian clerk must note the particulars of the payment on the certified copy of the conviction or order filed in the court.(5) The Tasmanian clerk, on receiving a sum of money in full or partial satisfaction of the amount payable under the conviction or order, if enforced under subsection (3) , must forward that sum of money to the clerk or other corresponding officer of the reciprocating court.(6) A sum of money paid to or received by a clerk of a court of summary jurisdiction by or from a reciprocating court, in full or partial satisfaction of an amount payable under a conviction or order of the court of summary jurisdiction and enforced by the reciprocating court, is to be applied by the clerk as if the sum had been paid to the clerk by the body corporate by which the amount was payable in full or partial satisfaction of that amount.
PART 7 - Driving disqualification orders
55. Power of court to disqualify driver on conviction for certain offences
(1) In this section –motor vehicle means a motor vehicle within the meaning of the Traffic Act 1925 ;motor vehicle offence means –(a) an offence against section 32 of the Traffic Act 1925 ; or(b) an indictable offence arising out of the driving, operation or use of a motor vehicle or in the commission of which a vehicle was used or the commission of which was facilitated by a motor vehicle, including any such indictable offence that is triable by a court of petty sessions.(2) A court that convicts an offender of a motor vehicle offence may, in addition to imposing any other penalty to which the offender is liable –(a) order that the offender be disqualified, either for a specified period or until further ordered by a court, from obtaining or holding a driver's licence; and(b) if the court thinks fit order that the offender is not, at the end of the period of disqualification or on the removal of the disqualification, to be granted a driver's licence unless the offender passes such driving test or attends such driver training course, or both, as the Registrar of Motor Vehicles may direct or approve.(3) If an order is made under this section requiring an offender who is disqualified from obtaining or holding a driver's licence to pass a driving test or to attend a driver training course, that offender's disqualification continues until whichever of the following last occurs:(a) the expiration of the period of disqualification;(b) if the person has been ordered to pass a driving test – the passing of the test;(c) if the person has been ordered to attend a driver training course – the completion of the course;(d) if the person has been ordered to pass a driving test and attend a driver training course – the passing of the test and the completion of the course.
56. Court may delay disqualification
A court that makes a driving disqualification order may, if it thinks fit, order that the disqualification imposed by the order is to take effect from a day or hour subsequent to the making of the order.
If a court makes a driving disqualification order in respect of an offender, a magistrate may make an order under section 36(1) of the Traffic Act 1925 as if the offender had been convicted of an offence under that Act.
PART 8 - Adjournments, discharges and dismissals
58. Purpose of orders to adjourn, discharge or dismiss
An order under section 7(f) , (g) or (h) may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:(a) to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;(b) to take account of the trivial, technical or minor nature of the offence committed by an offender;(c) to allow for circumstances in which it may be inappropriate to record a conviction against an offender;(d) to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;(e) to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender.
59. Conditions of undertaking given by released offender
An undertaking given by an offender under section 7(f) is subject to the following conditions:(a) that the offender must appear before the court during the period of the adjournment if called on to do so and, if the court so specifies, at the time to which the further hearing is adjourned;(b) that the offender must be of good behaviour during the period of the adjournment;(c) that the offender must observe any conditions imposed by the court.
60. Released offender may be called on to appear
(1) An offender who has given an undertaking under section 7(f) may be called on to appear before the court –(a) by order of the court; or(b) by notice issued by the proper officer of the court.(2) An order or notice under subsection (1) is to be served on the offender not less than 4 days before the time specified in it for the appearance.(3) If, at the time to which the further hearing of a proceeding is adjourned, the court is satisfied that the offender has observed the conditions of the undertaking, the court must –(a) if a conviction was recorded under section 7(f) , discharge the offender without any further hearing of the proceedings; or(b) if a conviction was not recorded under section 7(f) , dismiss the charge without any further hearing of the proceedings.(4) If, at the time to which the further hearing of a proceeding is adjourned, the court is not satisfied that the offender has observed the conditions of the undertaking, the court may cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences.
61. Discharge of order for release on adjournment
(1) If a court makes an order under section 7(f) and records a conviction, the offender is discharged when the period specified in the order expires, unless –(a) the court specifies a time under section 59(a) to which the further hearing is adjourned; or(b) the offender is called on to appear before the court under section 60 ; or(c) an application has been made under section 62 .(2) If a court makes an order under section 7(f) without recording a conviction, the charge is dismissed when the period specified in the order expires, unless –(a) the court specifies a time under section 59(a) to which the further hearing is adjourned; or(b) the offender is called on to appear before the court under section 60 ; or(c) an application has been made under section 62 .
62. Breach of order for release on adjournment
(1) An authorised person who considers that an offender has failed without reasonable excuse to comply with a condition of an undertaking given under section 7(f) may apply to the court that made the relevant order for the making of an order under this section.(2) Notice of the application is to be given to the offender.(3) The court may order that a warrant to arrest be issued against the offender if the offender does not attend before the court on the hearing of the application.(4) If, on the hearing of the application, the court is satisfied by evidence on oath or by affidavit or by the admission of the offender that the offender has failed without reasonable excuse to comply with a condition of the undertaking, it may –(a) confirm the order as originally made; or(b) vary the order; or(c) cancel the order if it is still in force and, whether or not the order is still in force, deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences.(5) The court may, in addition to exercising its power under subsection (4) , impose a fine of such amount as the court considers appropriate.(6) A fine imposed under this section is to be taken for all purposes to be a fine payable on a conviction of an offence.(7) In determining how to deal with an offender following the cancellation by it of an order made under section 7(f) , a court must take into account the extent to which the offender had complied with the order before its cancellation.
An order under section 7(f) in the case where a conviction is not recorded, or an order under section 7(h) , has, for the purposes of –the effect of a conviction for the offence in respect of which the order was made.(a) section 29 of the Sale of Goods Act 1896 ; and(b) awards of costs against offenders generally –
64. Compensation or restitution
A court may make an order for compensation or restitution in addition to making an order under section 7(f) , (g) or (h) .
PART 9 - Orders in addition to sentence
Division 1 - Restitution
(1) If goods are stolen and a person is found guilty or convicted of an offence connected with the theft, whether or not stealing is the gist of the offence, the court may make an order –(a) that the person who has possession or control of the stolen goods restore them to the person entitled to them; or(b) that the offender deliver or transfer to another person goods that directly or indirectly represent the stolen goods (that is, goods that are the proceeds of any disposal or realisation of the whole or part of the stolen goods or of goods so representing them); or(c) that a sum not exceeding the value of the stolen goods be paid to another person out of money taken from the offender's possession on arrest if the court is satisfied that the money so taken belongs to the offender.(2) An order under subsection (1)(b) or (c) may only be made in favour of a person who, if the stolen goods were in the offender's possession, would be entitled to recover them from the offender.(3) The court may make an order under both subsection (1)(b) and (c) if the person in whose favour the order is made does not thereby recover more than the value of the stolen goods.(4) If the court makes an order under subsection (1)(a) against a person and it appears to the court that that person in good faith bought the stolen goods from, or loaned money on the security of the stolen goods to, the offender, the court may, on the application of that person, order that a sum not exceeding the purchase price or the amount loaned, as the case requires, be paid to that person out of money taken from the offender's possession on arrest if the court is satisfied that the money so taken belongs to the offender.(5) An order under this section may be made by the court –(a) on its own motion; or(b) on an application made –(i) by a person in whose favour the order is sought; or(ii) on that person's behalf by the DPP, if the sentencing court was the Supreme Court, or the complainant or police prosecutor, if the sentencing court was a court of petty sessions.(6) An application under subsection (5)(b) is to be made as soon as practicable after the offender is found guilty or convicted of an offence.(7) A court may exercise its powers under this section if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.(8) In subsection (7) ,the available documents means –(a) any written statements or admissions that were made for use, and would have been admissible, as evidence on the hearing of the charge; or(b) the depositions taken at the committal proceeding; or(c) any written statements or admissions used as evidence in the committal proceeding.(9) References in this section to goods include references to a motor vehicle.(10) References in this section to stealing or theft are taken to be references to offences contained in Chapters XXIV , XXV , XXVI , XXVII and XXIX of the Criminal Code .
66. Enforcement of restitution order
(1) A restitution order made by the Supreme Court is taken to be a judgment of that court and is enforceable under the Supreme Court Civil Procedure Act 1932 .(2) A restitution order made by a court of petty sessions is taken to be a judgment of the Magistrates Court (Civil Division) and is enforceable under the Magistrates Court (Civil Division) Act 1992 .
Division 2 - Compensation
67. Interpretation of Division
In this Division –burglary means an offence contained in Chapter XXVII of the Criminal Code ;stealing means an offence contained in Chapter XXIV , XXV , XXVI or XXIX of the Criminal Code ;unlawfully injuring property means an offence contained in Chapter XXXI of the Criminal Code or section 37 of the Police Offences Act 1935 .
(1) If a person is found guilty or convicted of an offence and the court finds that another person has suffered injury, loss, destruction or damage as a result of the offence, the court –order the offender to pay compensation for that injury, loss, destruction or damage.(a) must, if the offence is burglary, stealing or unlawfully injuring property; and(b) may, in the case of any other offence –(2) In making an order under subsection (1) , the court may direct that the compensation be paid by instalments and that, in default of payment of any one instalment, the whole of the compensation remaining unpaid becomes due and payable.(3) An order under subsection (1) may be made by the court –(a) on its own motion; or(b) on an application made –(i) by a person in whose favour the order is sought; or(ii) on that person's behalf by the DPP, if the sentencing court was the Supreme Court, or the complainant or police prosecutor, if the sentencing court was a court of petty sessions.(4) An application under subsection (3)(b) is to be made as soon as practicable after the offender is found guilty or convicted of an offence.(5) Nothing in subsection (3)(b)(ii) requires the DPP or the complainant or police prosecutor to make an application on behalf of a person.(6) A court may exercise its powers under this section if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.(7) In subsection (6) ,the available documents means –(a) any written statements or admissions that were made for use, and would have been admissible, as evidence on the hearing of the charge; or(b) the depositions taken at the committal proceeding; or(c) any written statements or admissions used as evidence in the committal proceeding.(8) Nothing in this section takes away from, or affects the right of, any person to recover damages for, or to be indemnified against, any injury, loss, destruction or damage so far as it is not satisfied by payment or recovery of compensation under this section.(9) In determining, for the purposes of this section, the amount of loss, destruction or damage to property that a person has suffered as a result of an offence, the court is not bound by the rules of evidence and it may inform itself in any matter in any way it considers appropriate.
69. Enforcement of compensation order
(1) A compensation order made by the Supreme Court is taken to be a judgment of that court and is enforceable under the Supreme Court Civil Procedure Act 1932 .(2) A compensation order made by a court of petty sessions is taken to be a judgment of the Magistrates Court (Civil Division) and is enforceable under the Magistrates Court (Civil Division) Act 1992 .
Division 3 - Area restriction
(1) A court that finds a person guilty of an offence may make an area restriction order in respect of that person.(2) An area restriction order is an order of the court that the offender in respect of whom it is made must not, while the order is in force, loiter in an area or class of area specified in the order at any time, or at such times or during such periods as are specified in the order.(3) An area restriction order –(a) comes into force when it is made or at such later time or on such later day as is specified in the order; and(b) remains in force for such period or until such time or day as is specified in the order.
71. Breach of area restriction order
(1) An offender who breaches an area restriction order without reasonable excuse is guilty of an offence.Penalty: Fine not exceeding 10 penalty units or imprisonment for a term not exceeding 3 months.(2) Proceedings for an offence under subsection (1) are to be commenced by a complaint under the Justices Act 1959 .(3) The complaint is to be made by an authorised person.(4) A sentence imposed under this section does not affect the continuance of the area restriction order if it is still in force.(5) A police officer who believes on reasonable grounds that a person has breached an area restriction order may arrest that person without warrant.
PART 10 - Assessment, hospital and restriction orders
72. Court may make assessment order
A court that finds a person guilty of an offence may make an assessment order in respect of that person if –(a) the court is of the opinion that –(i) the person appears to be suffering from a mental disorder that may require treatment; and(ii) the treatment can be obtained by admission to and detention in an institution; and(iii) the person should be so admitted for the person's own health or safety or for the protection of members of the public; and(b) the court has received advice in writing from an approved medical practitioner of the institution to which it is proposed to admit the person that it has the facilities to undertake an assessment of the person's suitability for an order under section 75 .
73. What is an assessment order?
An assessment order is an order of the court that the person in respect of whom it is made be admitted to and detained in an institution, for a period not exceeding 72 hours specified in the order, to enable an assessment to be made of the person's suitability for an order under section 75 .
74. Termination of assessment order
(1) On the expiry of an assessment order, or at any time before that expiry if an approved medical practitioner applies, the court, after considering a report from the approved medical practitioner specifying the results of the assessment, may –(a) make an order under section 75 ; or(b) pass sentence on the person.(2) If the sentence referred to in subsection (1)(b) is a term of imprisonment, the court must deduct the period of time that the person was detained under the assessment order from that term.
75. Hospital order and restriction order
(1) If, on the trial of a person for an offence –(a) the person is found guilty; and(b) the court is satisfied, by the production of the report of a psychiatrist and any other evidence that it may require, that –(i) the person appears to be suffering from a mental disorder that requires treatment; and(ii) the treatment can be obtained by admission to and detention in an institution; and(iii) the person should be admitted as a patient for the person's own health or safety or for the protection of members of the public; and(c) the court has received a report in writing from an approved medical practitioner of the institution to which it is proposed to admit the person recommending the proposed admission –the court may –(d) instead of, or in addition to, any sentence it may impose, make a hospital order in respect of the person; and(e) if the court is the Supreme Court and a hospital order has been made, make a restriction order in respect of the offender.(2) The Supreme Court must not make a restriction order in respect of a person who, had he or she not been found to be suffering from a mental disorder, would not have been sentenced to a term of imprisonment.(3) If a magistrate is of the opinion, after taking into account the matters required to be considered in determining the order to be made, that a restriction order should be made in respect of an offender, the magistrate may refer the matter to the Supreme Court for determination.(4) On a referral of a matter to the Supreme Court under subsection (3) , the court must enquire into the circumstances of the case and it has the same powers to deal with the offender as if the offender had been dealt with in that court.
(1) A hospital order is an order that authorises the detention of the person to whom it relates in the institution specified in the order.(2) Section 66 of the Mental Health Act 1963 applies to the detention if the person's discharge from the institution is not subject to restriction within the meaning of Part IV of that Act.(3) Section 67 of the Mental Health Act 1963 applies to the detention if the person's discharge from the institution is subject to restriction within the meaning of Part IV of that Act.
77. What is a restriction order?
A restriction order is an order that provides that the discharge of the person to whom it relates is subject to the restrictions provided for in Part IV of the Mental Health Act 1963 .
78. Custody of admitted person
(1) A court, when making an order under this Part, may include in the order the names of the person or persons who are to be responsible for taking the offender –(a) to the institution named in the order; and(b) from the institution to the court in connection with the exercise by the court of its powers under this Part.(2) A copy of the order and the advice or report, as the case requires, of the psychiatrist is to accompany the offender to the institution named in the order.
(1) If a hospital order is made in respect of a person who is liable to serve a sentence of imprisonment, any powers and authorities that may be exercised in pursuance of that hospital order may be so exercised notwithstanding that the person is liable to serve that sentence of imprisonment or any sentence imposed so as to run concurrently or cumulatively with that sentence.(2) For the purposes of this section, if a hospital order is made on the conviction of a person for any offence or any offences and a sentence of imprisonment is also passed upon that person for that offence or any of those offences, that person is to be taken, at the time the hospital order is made, to be liable to serve that sentence of imprisonment.(3) Nothing in subsection (1) prevents –(a) the putting into execution in respect of a person in respect of whom a hospital order is in force, of any sentence of imprisonment passed on that person the execution of which has been suspended; or(b) the carrying out in respect of that person of any sentence, order or other determination of a court other than such a sentence as is referred to in that subsection.(4) If a hospital order has been made in respect of a person who is liable to serve a sentence of imprisonment, that person may, until admitted to an institution under that order, be detained or otherwise dealt with as if that hospital order had not been made.
PART 11 - Sentencing procedure
Division 1 - Preliminary matters
80. Parties may address court on sentence
(1) Before a court passes sentence on an offender found guilty of an offence, both the prosecutor and the offender, or counsel on the offender's behalf, may address the court in relation to that sentence.(2) Without limiting the generality of subsection (1) , in an address pursuant to that subsection the prosecutor may do all or any of the following:(a) draw the attention of the court to any aggravating circumstances or the presence or absence of any extenuating circumstances in relation to the offence;(b) if the court has a choice with regard to the kind of sentence that it may impose for the offence, comment on the appropriateness of those kinds of sentence;(c) if the court has a choice with regard to those kinds of sentence, recommend that the court impose one of those kinds of sentence.(3) The failure by a prosecutor to exercise the right conferred by subsection (1) is not to be taken into account by a court in determining any appeal against the sentence or in determining any motion to review the sentence.
81. Court may receive information before sentencing
(1) Before a court passes sentence on an offender found guilty of an offence, it may receive such information, in oral or documentary form, as it thinks fit and in so doing it is not bound by the rules of evidence.(2) The court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court under subsection (1) .(3) Subsection (2) does not apply to information furnished by a medical practitioner that the court considers should not, in the interests of the offender, be disclosed to the offender.(4) If the offender challenges the truth of any information received by the court under subsection (1) , the court may require that information to be proved in like manner as if it were to be received at a trial.
82. Court may order pre-sentence report
(1) A court that finds an offender guilty of an offence may, before passing sentence –(a) receive an oral statement of a probation officer; or(b) order a pre-sentence report and adjourn the proceedings to enable the report to be prepared.(2) The court may direct that particular matters are to be investigated for the purposes of the pre-sentence report and may give such other directions as it considers necessary or appropriate in connection with the report.(3) If the matters the court wishes to have investigated include the medical, psychological or psychiatric condition of the offender, the court may further direct that the offender submit to an assessment for that purpose and the court may give such other directions in relation to the nature and means of obtaining the assessment as the court considers necessary or appropriate.(4) The author of a pre-sentence report –(a) may conduct any investigation that he or she thinks necessary or appropriate for the purposes of the report; and(b) must conduct any investigation required by the court in such manner as the court may direct.
83. Contents of pre-sentence report
(1) The pre-sentence report may set out all or any of the following matters which, on investigation, are ascertainable and appear to the author of the report to be relevant to the sentencing of the offender:(a) the age of the offender;(b) the social history and background of the offender;(c) the medical, psychological and psychiatric history and condition of the offender;(d) the offender's educational background;(e) the offender's employment history;(f) the circumstances of any other offences of which the offender has been found guilty and which are known to the court;(g) the extent to which the offender is complying with any sentence currently in force in respect of the offender;(h) the offender's financial circumstances;(i) any special needs of the offender;(j) any courses, programs, treatment, therapy or other assistance that could be available to the offender and from which he or she may benefit;(k) the nature and history of the relationship, if any, between the offender and the victim of the offence.(2) The author of the pre-sentence report must include in the report any other matter relevant to the sentencing of the offender that the court has directed be set out in the report.
84. Court may order mediation report
(1) Before a court passes sentence on an offender found guilty of an offence it may, if the victim agrees, order a mediation report and adjourn the proceedings to enable the report to be prepared.(2) A court that commits an offender to another court for sentencing may, if it thinks fit, order a mediation report for the assistance of that other court.(3) Whether or not a mediation report has been ordered, a court may receive such a report.(4) A court may rule that the whole or any part of a mediation report is inadmissible.
85. Contents of mediation report
(1) A mediation report is a written or oral report by a mediator about any mediation or attempted mediation between the offender and a victim.(2) In particular, a mediation report is to report on –(a) the attitude of the offender to mediation, to the victim and to the effects on the victim of the commission of the offence; and(b) any agreement between the offender and the victim as to actions to be taken by the offender by way of reparation.
86. Preparation of mediation report
The Secretary of the Department is to ensure that –(a) appropriate people are available to conduct mediations; and(b) any mediation between offenders and victims occurs, and a mediation report is prepared, as soon as practicable after such a report is ordered.
87. Distribution of pre-sentence and mediation reports
(1) A pre-sentence report or mediation report is to be filed with the court no later than the time directed by the court.(2) The court may make such orders regarding the distribution and security of the report as it considers necessary or appropriate.(3) Unless the court orders otherwise, the author of the report must give a copy of the report, a reasonable time before sentencing is to take place, to –(a) the prosecutor; and(b) the legal practitioner representing the offender or, if the offender is unrepresented, the offender.
88. Disputed pre-sentence and mediation reports
(1) The prosecution or the defence may dispute the whole or any part of a pre-sentence report or mediation report.(2) If the whole or any part of a pre-sentence report or mediation report is disputed, the court must not take the report or the part in dispute into consideration in determining sentence unless the party disputing the report or the part has had the opportunity to lead evidence on the disputed matters and to cross-examine the author of the report on the disputed matters.
89. Disposal of other pending charges
(1) If a court finds a person guilty of an offence (in this section called "the principal offence") and the court is satisfied that –the court may, with the consent of the prosecution, before passing sentence, ask the offender whether the offender admits having committed any or all of the listed offences and wishes them to be taken into account by the court when passing sentence for the principal offence.(a) there has been filed in court a document in the prescribed form showing a list of other offences, whether indictable or summary, not being or including treason or murder, that the offender is believed to have committed; and(b) a copy of that document has been provided to the offender; and(c) in all the circumstances it is proper to do so –(2) A document referred to in subsection (1) is to be signed by –(a) the DPP or prosecuting counsel on the DPP's behalf; and(b) the offender.(3) If the offender admits to having committed any or all of the listed offences and wishes them to be taken into account, the court may, if it thinks fit, do so but it must not impose a sentence in respect of the principal offence in excess of the maximum sentence that might have been imposed if no listed offence had been taken into account.(4) If an offence is taken into account under this section, the court may make any order that it would have been empowered to make under Part 9 had the offender been convicted before the court of the offence but it must not otherwise impose any separate punishment for the offence.(5) An order made under subsection (4) in respect of an offence taken into account may be appealed against as if it had been made on the conviction of the offender for that offence.(6) Notwithstanding subsection (3) , a court must not take into account any charge of an indictable offence that it would not have jurisdiction to try even with the consent of the person charged with that offence.(7) The court must certify, on the relevant part of the document referred to in subsection (1)(a) , any listed offences that have been so taken into account and the principal offence in respect of which this has been done.(8) Proceedings are not to be taken or continued in respect of any listed offence certified under subsection (7) unless each finding of guilt of a principal offence in respect of which it has been taken into account has been quashed or set aside.(9) An admission made under and for the purposes of this section is not admissible in evidence in any proceeding taken or continued in respect of the offence to which it relates.(10) A person is not to be taken, for any purpose, to have been convicted of an offence that has been taken into account under this section by reason only that it has been so taken into account.(11) Whenever, in or in relation to any criminal proceeding, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a person has been found guilty of an offence, reference may likewise be made to, or evidence may likewise be given of, the taking into account under this section of any other offence or offences when sentence was imposed in respect of the offence of which the person was found guilty.(12) The fact that an offence has been taken into account under this section may be proved in the same manner as the finding of guilt for the principal offence in respect of which it has been taken into account may be proved.
Division 2 - Sentencing and related matters
90. Time and place of sentencing
(1) The sentence for an offence may be imposed in open court at any time and at any place in Tasmania.(2) The judge or magistrate presiding at the trial of an offence or receiving a plea of guilty to an offence, or any other judge or magistrate empowered to impose sentence, may, when he or she considers it desirable in the interests of justice so to do, and from time to time if necessary –(a) fix, or indicate by reference to a fact or event, the time when sentence is to be imposed; and(b) fix the place where sentence is to be imposed.(3) The judge or magistrate who is to impose sentence for an offence may –(a) remand the offender in custody; or(b) admit the offender to bail; or(c) orally order the defendant to appear before the court at the time and place to which the proceedings are adjourned.(4) A person who is to be sentenced for an offence is, while in custody pending sentencing, taken to be in the lawful custody of the DCS.
91. Sentence by another judge or magistrate
(1) This section applies if, on the trial of an offence –(a) a verdict of guilty has been found or a plea of guilty has been received but no judgment or sentence has been given or passed on it; and(b) the judge or magistrate who presided at the trial or received the plea goes out of office or it appears probable that, because of incapacitating illness or other serious cause, he or she will be unable to give judgment or pass sentence within a reasonable time.(2) If this section applies, any other judge of the Supreme Court or magistrate, as the case requires, may, in open court –(a) take all necessary steps preliminary to the giving of judgment or the passing of sentence; and(b) give judgment or pass sentence.(3) In all cases where it is possible to do so, the judge or magistrate referred to in subsection (1)(b) is to be consulted before judgment is given or sentence is passed.(4) Non-compliance with subsection (3) does not affect the validity of the judgment or sentence.(5) The question whether it appears probable that a judge or magistrate will be unable, for the reasons referred to in subsection (1)(b) , to give judgment or pass sentence within a reasonable time is to be decided by the Chief Justice or the Chief Magistrate, as the case requires, and that decision is final.(6) If, on the trial of an offence –any other judge of the Supreme Court or any other magistrate, as the case requires, may give the judgment or pass the sentence determined by the judge or magistrate who presided at the trial or received the plea.(a) a verdict of guilty has been found or a plea of guilty has been received; and(b) all steps preliminary to the giving of judgment or the passing of sentence have been taken but no judgment or sentence has been given or passed –(7) If, at any time before the commencement of the trial of an indictable offence, including one heard summarily, the accused person pleads guilty, any judge of the Supreme Court or any magistrate, as the case requires, other than the one receiving the plea may take all necessary steps preliminary to the giving of judgment or passing of sentence and may give judgment or pass sentence.(8) A judgment given or sentence passed under subsection (2) , (6) or (7) has, for all purposes, the same effects and consequences as if it had been given or passed by the judge or magistrate who presided at the trial or received the plea.
92. Court must explain certain orders
(1) In this section,order means an order that has conditions attached to it or which requires an offender to give an undertaking.(2) If a court makes an order in relation to an offender it must explain, or cause to be explained, to the offender in simple language –(a) the purpose and effect of the order; and(b) the consequences that may follow if the offender fails, without reasonable excuse, to comply with the order; and(c) the way in which the order may be varied.
93. Sentence not invalidated by failure to comply with procedural requirements
(1) The failure of a court to give reasons or to comply with any other procedural requirement of this Act in sentencing an offender does not invalidate a sentence imposed by it.(2) Nothing in subsection (1) prevents a court on an appeal against sentence from reviewing a sentence imposed by a court in circumstances where there has been a failure that is referred to in that subsection.
(1) In this section –compensation levy means a compensation levy within the meaning of the Victims of Crime Compensation Act 1994 ;sentence includes a forfeiture, compensation levy, compensation order, restitution order, exclusion order, disqualification and loss or suspension of a licence or privilege.(2) Subject to subsections (3) and (4) , a sentence passed by a court on an offender may be varied or rescinded by the court –(a) on its own motion within the period of 28 days after the sentence was passed; or(b) on an application made within that period by the prosecutor or offender.(3) A court must not vary or rescind a sentence under this section unless it has determined that –(a) the sentence is contrary to the law; or(b) the court failed to impose a sentence that was in conformity with the law; or(c) the sentence included an order that was based on, or contained, an error of fact; or(d) the offender's circumstances were wrongly stated or not accurately presented to the court and it is in the interests of justice to vary or rescind the sentence.(4) A sentence is not to be varied or rescinded under this section except by the court constituted as it was when the sentence was passed, and after it has given the parties an opportunity to be heard.(5) Nothing in this section affects the operation of Chapter XLVI of the Criminal Code or Part XI of the Justices Act 1959 .
95. Appeal against sentence imposed on variation or breach
A person who is sentenced by a court in proceedings for variation or breach of a sentencing order has a right of appeal against that sentence as if –(a) the court had, immediately before imposing that sentence, found the person guilty, or convicted the person, of the offence in respect of which the sentencing order was originally made; and(b) the sentence were a sentence imposed on that finding of guilt or conviction.
PART 12 - Miscellaneous
96. Disqualification of offender holding public office
An offender who has been sentenced to imprisonment for a term exceeding 2 years and who has not undergone the punishment to which he or she has been sentenced or such other punishment as may have been lawfully substituted for that punishment, or has not received a free pardon, is incapable, while subject to any such sentence, of holding a public office in this State.
97. Saving of royal prerogative of mercy
This Act does not affect in any manner the royal prerogative of mercy.
98. Penalty for offence may be remitted
(1) The Governor may –(a) remit, in whole or in part, a sum of money that is imposed under an enactment as a penalty or forfeiture; and(b) order the discharge from prison of a person who is imprisoned for non-payment of a sum of money so imposed.(2) Subsection (1) has effect even if the sum is, in whole or in part, payable to a party other than the Crown.(3) Where a sum of money imposed on a person under an enactment as a penalty or forfeiture is remitted by the Governor, the sum, if already paid, is to be repaid to that person as soon as practicable and, in default of such repayment, the sum is recoverable by that person in a court of competent jurisdiction.(4) The provisions of subsection (3) are in addition to, and not in substitution for, the right of the person referred to in that subsection to apply to the Supreme Court for a writ of mandamus to compel repayment of the sum of money.(5) A notification, signed by any Minister, that a sum of money has been remitted by the Governor is –(a) sufficient evidence that the sum has been so remitted; and(b) sufficient authority to repay the sum to the person from whom it was recovered.
99. Effect of alteration in statutory penalty
(1) If an enactment increases the penalty for an offence or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provisions of the enactment effecting the increase.(2) If an enactment reduces the penalty for an offence or the maximum or minimum penalty for an offence, the reduction extends to offences committed before the commencement of the provisions of the enactment effecting the reduction for which no penalty had been imposed at that commencement.
100. Old offence relevant in determining previous conviction
(1) A finding of guilt or conviction for an old offence counts as a finding of guilt or conviction for a new offence for the purpose of determining whether or not a person has previously been found guilty or convicted of the new offence.(2) For the purposes of this section an old offence is an offence under a repealed enactment that is constituted by the same acts, omissions, matters, circumstances or things as an offence (in this section calledthe new offence) under an enactment that substantially re-enacts, whether in the same language or not, the repealed enactment.(3) Unless the contrary intention appears in the enactment creating the new offence, this section has effect even if the new offence differs from the old offence in –(a) its penalty; or(b) the procedure applicable to its prosecution; or(c) its classification; or(d) its name.
101. Abolition of common law bonds
A court does not have jurisdiction to release a convicted offender on a recognisance or bond to be of good behaviour and to appear for sentence when called on.
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , regulations may be made for or in relation to all or any of the following:(a) the supply of copies of sentencing orders to specified persons and the obligations of offenders subject to those orders;(b) the conditions, operation and control of community service orders and probation orders;(c) the payment of fines by or on behalf of offenders required to perform community service orders;(d) applications for variation or breach of sentencing orders.(3) Regulations made under this Act may contain provisions of a savings and transitional nature consequent on the enactment of this Act.(4) A provision of a regulation made pursuant to subsection (3) may, if the regulation so provides, take effect on the day referred to in section 2 or a later date.
See Schedule 1 .
The savings and transitional provisions set out in Schedule 2 have effect.
105. Penalties Remission Act 1934 repealed
The Penalties Remission Act 1934 is repealed.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Justice; and(b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice.
SCHEDULE 1 - Consequential amendmentsThe amendments effected by Section 103 and this Schedule have been incorporated into the authorised version of the appropriate Acts.
SCHEDULE 2 - Savings and transitional
1. In this Schedule –commencement day means the day referred to in section 2 ;sentencing order includes a compensation order and restitution order.
2. This Act applies to any sentencing order made on or after the commencement day, irrespective of when the offence to which the sentencing order relates was committed.
3. A person in respect of whom a sentencing order is in force immediately before the commencement day continues to be subject to the requirements of that sentencing order in all respects as if this Act had not been enacted, but that sentencing order may be cancelled or varied, and any failure to comply with it may be dealt with, under this Act as if it were a sentencing order made on or after the commencement day.
4. For the purposes of this section a sentencing order made by an appellate court on or after the commencement day on setting aside a sentencing order made before that day is taken to have been made at the time the original sentencing order was made.
5. Notwithstanding the repeal by this Act of section 92C of the Justices Act 1959 as in force immediately before the commencement day, a proclamation made under that section remains in force and is valid for the purposes of section 47 of this Act until it is revoked by a proclamation made under that section of this Act.