Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994

Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994

An Act to amend the Criminal Code in relation to sentences of life imprisonment and the sentencing of persons declared to be dangerous criminals, to provide for the resentencing of existing life prisoners 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

1.   Short title

This Act may be cited as the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 .

2.   Commencement

This Act commences on a day to be proclaimed.

PART 2 - Criminal Code Amended

PART 3 - Resentencing of existing life prisoners

7.   Interpretation: Part 3

In this Part –

applicant means an existing life prisoner who has applied to the Supreme Court to be resentenced under this Part;

existing life prisoner means a person who –

(a) is serving a life sentence and in respect of whom an order has not been made under section 12BA (1) of the Parole Act 1975 ; and

(b) is not on parole;

life sentence means a sentence of imprisonment for the term of a person's natural life and life imprisonment has a corresponding meaning;

original sentence, in relation to an existing life prisoner, means the life sentence that the prisoner is serving at the time the prisoner applies to be resentenced under this Part and originally sentenced has a corresponding meaning.

8.   Right to apply for resentencing

(1)  An existing life prisoner may apply to the Supreme Court to be resentenced.

(2)  An existing life prisoner who applies to be resentenced under this Part remains under the prisoner's original sentence until –

(a) if no appeal is lodged against the sentence imposed by way of resentencing – the end of the appeal period; or

(b) if an appeal is lodged against the sentence imposed by way of resentencing – the determination of the appeal.

9.   Resentencing

(1)  On an application under section 8 (1) the Supreme Court must resentence the applicant for the crime for which the applicant was originally sentenced to life imprisonment.

(2)  Notwithstanding subsection (1) , an application under section 8 (1) may be withdrawn or discontinued by leave of the court.

(3)  For the purposes of subsection (1) , the court has the same powers and duties it would have had if the applicant had been convicted by that court of the crime referred to in that subsection after the commencement of this Act.

(4)  [Section 9 Subsection (4) substituted by No. 44 of 2004, s. 26, Applied:16 Nov 2004] In resentencing an existing life prisoner under this Part –

(a) the court is not to take into account the applicant's conduct as a life prisoner under the original sentence; but

(b) the court may take into account the term of any other sentence of imprisonment that the applicant, since becoming a life prisoner, has been subject to.

(5)  [Section 9 Subsection (5) inserted by No. 44 of 2004, s. 26, Applied:16 Nov 2004] If the court exercises its discretion under subsection (4)(b) , it may order that the sentence it imposes under subsection (1) is to commence at a date later than the date on which the original sentence was imposed.

(6)  [Section 9 Subsection (6) inserted by No. 44 of 2004, s. 26, Applied:16 Nov 2004] Subsection (5) applies despite anything to the contrary in the Sentencing Act 1997 .

10.   Effect of resentencing

(1)  When an existing life prisoner is resentenced, either pursuant to an application under this Part or upon the determination of an appeal in respect of that application –

(a) the prisoner's original sentence is annulled; and

(b) subject to paragraph (c) , the sentence imposed on the prisoner by way of resentencing replaces that original sentence for all purposes; and

(c) [Section 10 Subsection (1) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] for the purposes of calculating, under the Prison Act 1977 , the prisoner's entitlement to a remission of the sentence imposed by way of resentencing, that sentence is taken to have been imposed on the date on which the prisoner was resentenced; and

(d) [Section 10 Subsection (1) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] for the purposes of calculating, under the Corrections Act 1997 , whether the prisoner's sentence imposed by way of resentencing has been completed, time during which the prisoner was released on parole before being resentenced is not to be taken into account.

(2)  Nothing in subsection (1) is to be taken as impugning the lawfulness of the prisoner's original sentence.

11.   Procedure

(1)  An application under section 8 (1) is to be in writing.

(2)  A copy of an application under section 8 (1) is to be served on the Director of Public Prosecutions.

(3)  The Director of Public Prosecutions, or Counsel on the Director of Public Prosecutions' behalf, must appear for the Crown at the hearing of an application under section 8 (1) .

(4)  A court hearing an application under section 8 (1) is to proceed as if it were sentencing the applicant for the first time for the offence for which the applicant was originally sentenced.

12.   Appeals

An applicant or the Attorney-General may, under section 401 of the Criminal Code , appeal against the sentence imposed under section 9 (1) as if that sentence were the applicant's original sentence.

PART 4 - Dangerous Criminals: Transitional Provisions

13.   Interpretation: Part 4

In this Part –

dangerous criminal means a person in respect of whom a declaration under section 392 (1) of the Criminal Code is in force;

unsentenced dangerous criminal means a dangerous criminal who –

(a) has not been sentenced to a term of imprisonment for the crime by reason of which he or she was declared to be a dangerous criminal; and

(b) is not on release on parole under the Parole Act 1975 .

14.   Right of unsentenced dangerous criminal to apply for sentencing

An unsentenced dangerous criminal may apply to the Supreme Court to be sentenced to a term of imprisonment for the crime for which he or she was declared to be a dangerous criminal.

15.   Sentencing of unsentenced dangerous criminals

(1)  On an application under section 14 the Supreme Court must sentence the applicant for the crime for which the applicant was declared to be a dangerous criminal.

(2)  Notwithstanding subsection (1) , an application under section 14 may be withdrawn or discontinued by leave of the court.

(3)  For the purposes of subsection (1) , the court has the same powers and duties it would have had if the applicant had been convicted by that court of the crime referred to in that subsection after the commencement of this Act.

(4)  In sentencing an applicant under this Part the court must not take into account the applicant's conduct as a prisoner during the period that the applicant has been a dangerous criminal.

(5)  Sections 11 and 12 apply to an application under this Part as if it were an application under Part 3 .

16.   Effect of unsentenced dangerous criminal remaining unsentenced

Until an unsentenced dangerous criminal is sentenced under this Part, the eligibility of that dangerous criminal to be –

(a) considered for release on parole; or

(b) released on parole –

is to be determined in accordance with the Parole Act 1975 as in force immediately before the commencement of this Act.

17.   Provision relating to dangerous criminals on parole

(1)  This section applies to a person who, on the commencement of this Act, is a dangerous criminal in respect of whom an order has been made under section 14 of the Parole Act 1975 as in force immediately before that commencement.

(2)  The Parole Act 1975 as in force immediately before the commencement of this Act continues to apply to a person to whom this section applies until the declaration by which the person acquired the status of a dangerous criminal is discharged under section 393 (3) of the Criminal Code .