Crimes (Sentencing) Act 2005

This Act is the Crimes (Sentencing) Act 2005.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘parole order—see the Crimes (Sentence Administration) Act 2005, section 117.’ means that the term ‘parole order’ is defined in that section of that Act and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, section 133 deals with the meaning of offence penalties that are expressed in penalty units.

Chapter 2 Objects and important concepts

The objects of this Act include the following:

to promote respect for the law and the maintenance of a just and safe society;

to provide a range of sentencing options;

to maximise the opportunity for imposing sentences that are constructively adapted to individual offenders;

to promote flexibility in sentencing;

to consolidate legislation relating to the imposition of sentences.

A court may impose a sentence on an offender for 1 or more of the following purposes:

to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

to prevent crime by deterring the offender and other people from committing the same or similar offences;

to protect the community from the offender;

to promote the rehabilitation of the offender;

to make the offender accountable for his or her actions;

to denounce the conduct of the offender;

to recognise the harm done to the victim of the crime and the community.

To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

Note However, see s 133C in relation to the sentencing of a young offender.

In this Act:

offender—

means a person convicted or found guilty of an offence by a court, and includes a young offender; but

for—

part 4.2 (Pre-sentence reports)—see section 40; and

part 4.2A (Intensive correction assessments)—see section 46B; and

a treatment order provision—see section 46I; and

part 4.6 (Sentencing—schedule offence with criminal group)—see section 61B.

In this section:

treatment order provision means the following:

section 12A (Drug and alcohol treatment orders);

part 4.2B (Drug and alcohol treatment assessments);

part 5.4A (Drug and alcohol treatment orders).

Chapter 3 Sentencing and non-conviction options

Part 3.1 General

The penalty a court may impose for an offence is the penalty provided under this Act or any other territory law.

Chapter 4 (Sentencing procedures generally) applies to the imposition of all penalties imposed by a court, whether under this Act or otherwise.

Note 1 Under this Act, a court has the following sentencing and non-conviction options:

 imprisonment served by full-time detention at a correctional centre or detention place (see s 10, ch 5 and s 133H)

 imprisonment served by intensive correction (see s 11)

 suspension of a sentence of imprisonment (see s 12)

· drug and alcohol treatment order (see s 12A, pt 4.2B and pt 5.4A)

 good behaviour order (see s 13 and ch 6)

 fine order (see s 14 and s 15)

 driver licence disqualification order (see s 16)

 non-conviction order (see s 17 and s 18)

 reparation order (see s 19, s 20 and ch 7)

 non-association order (see pt 3.4)

 place restriction order (see pt 3.4)

 deferred sentence order (see s 27 and ch 8)

 therapeutic correction orders (young offenders only) (see pt 8A.2A)

 accommodation order (young offenders only) (see pt 8A.3).

Note 2 A court may also impose a combination sentence combining 2 or more of the options listed in note 1 (other than imprisonment served by intensive correction) or otherwise available under a territory law (see pt 3.6).

Part 3.2 Sentences of imprisonment

This section applies if a court is sentencing an offender convicted of an offence punishable by imprisonment.

The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

Note 1 An order sentencing an offender to imprisonment may be part of a combination sentence together with other sentencing options (see pt 3.6).

Note 2 See s 133G for additional matters that apply in sentencing a young offender to imprisonment.

If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless—

the court orders otherwise; or

the offender is released from full-time detention under this Act or another territory law.

Examples—par (a)

1 the court makes an intensive correction order

2 the court makes a suspended sentence order

Example—par (b) release on parole under the Crimes (Sentence Administration) Act 2005

Note For a young offender who is under 21 years old when the sentence is imposed, see s 133H.

If the court sentences the offender to imprisonment, the court must record the reasons for its decision.

Failure to comply with subsection (4) does not invalidate the sentence of imprisonment.

This section also applies subject to any contrary intention in the law that directly or indirectly creates the offence or directly or indirectly affects its scope or operation.

This section is subject to chapter 5 (Imprisonment).

This section applies if an adult offender is convicted of an offence and the court imposes a sentence of imprisonment.

If the sentence of imprisonment is for not more than 2 years the court may order that the sentence be served by intensive correction in the community (an intensive correction order).

The court may make an intensive correction order if the sentence of imprisonment is for more than 2 years but not more than 4 years, but only if the court considers it is appropriate to do so, having regard to—

the level of harm to the victim and the community caused by the offence; and

whether the offender poses a risk to 1 or more people or the community; and

the offender’s culpability for the offence having regard to all the circumstances.

Note An intensive correction order must not be combined with a sentence of full-time imprisonment, a suspended sentence of imprisonment or a good behaviour order (see s 29 (1) (b)).

An intensive correction order must include the core conditions mentioned in the Crimes (Sentence Administration) Act 2005, section 42.

An intensive correction order may include 1 or more of the following additional conditions that can reasonably be complied with within the term of the order:

a community service condition;

a rehabilitation program condition;

that the offender comply with a reparation order, a non‑association order or place restriction order;

a condition prescribed by regulation;

any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate.

Examples—conditions for s (5) (e)

1 that the offender undertake medical treatment and supervision (eg by taking medication and cooperating with medical assessments)

2 that the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer

3 that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling

4 that the offender not drive a motor vehicle or consume alcohol or non‑prescription drugs or medications

5 that the offender regularly attend alcohol or drug management programs

Note For core conditions of an intensive correction order, see the Crimes (Sentence Administration) Act 2005, s 42.

An intensive correction order may also include a curfew condition if the court is satisfied that each adult who is living at the curfew place or has parental responsibility or guardianship for a person who is living at the curfew place consents to the curfew.

This section is subject to chapter 5 (Imprisonment).

This section applies if—

an offender is convicted of an offence; and

the court sentences the offender to imprisonment for the offence.

The court may make an order (a suspended sentence order) suspending all or part of the sentence of imprisonment.

If the court makes a suspended sentence order, the court must also make a good behaviour order for the period during which the sentence is suspended or for any longer period that the court considers appropriate.

Note A suspended sentence order may be part of a combination sentence together with other sentencing options (see pt 3.6).

If the court makes a suspended sentence order fully suspending the sentence of imprisonment, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.

Note 1 For notice of a partly suspended sentence of imprisonment, see s 84.

Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).

Failure to comply with subsection (4) does not invalidate the suspended sentence order.

This section is subject to the following provisions:

section 13 (Good behaviour orders);

chapter 5 (Imprisonment);

chapter 6 (Good behaviour orders).

To avoid doubt, a sentence of imprisonment suspended under the custodial part of a drug and alcohol treatment order is not a suspended sentence order.

This section applies if—

an offender pleads guilty to an eligible offence; and

Note A reference to an offender in this section does not include a young offender (see s 8 (1) (b)).

the Supreme Court convicts the offender of the eligible offence and sentences the offender to a term of imprisonment for—

if the offender is convicted of 1 eligible offence only—at least 1 year but not more than 4 years; or

if the offender is convicted of more than 1 eligible offence—a total period of at least 1 year but not more than 4 years; and

the offender is not subject to a sentencing order for another offence.

The court may make an order (a drug and alcohol treatment order) that suspends a sentence of imprisonment for an eligible offence on condition that the offender agrees to complete a treatment program, but only if—

the court is satisfied on the balance of probabilities that—

the offender is dependent on alcohol or a controlled drug; and

the offender’s dependency substantially contributed to the commission of the offence; and

the offender will live in the ACT for the term of the sentence except as directed by the court; and

the court considers the order appropriate, taking into account—

the relevant sentencing considerations applying to the offender; and

any information given to the court relating to the concerns of a victim about the victim’s safety or welfare; and

the matters set out under section 80O; and

Note Section 80O sets out the object of a drug and alcohol treatment order.

the offender gives informed consent to the order being made after the offender is given—

a clear explanation of the treatment order that contains sufficient information to enable the offender to make a balanced judgment about whether or not to consent to serve the sentence under the order; and

an opportunity to ask any questions about the order, and those questions have been answered and the offender appears to have understood the answers.

A drug and alcohol treatment order, in suspending a sentence of imprisonment, must—

if the sentence is taken to have started on a day before the day the sentence is imposed—suspend the remaining part of the sentence beginning on the day the sentence is imposed; or

in any other case—fully suspend the sentence.

To remove any doubt––

the offender must not be subject to more than 1 treatment order at any particular time; and

a treatment order may apply to more than 1 eligible offence dealt with in the same sentencing proceeding; and

sentences for multiple offences may be served concurrently or consecutively (or partly concurrently and partly consecutively), subject to subsection (1) (b).

Note Words in the singular number include the plural (see Legislation Act, s 145 (b)).

The court must not impose a lesser sentence of imprisonment on the offender than the circumstances of the offence would ordinarily require only to allow the court to make a treatment order.

If the court makes a treatment order, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.

Failure to comply with subsection (6) does not invalidate the treatment order.

This section is subject to part 5.4A (Drug and alcohol treatment orders).

Note A treatment order may not be made in relation to an offender who is under 18 years old (see s 46I).

In this section:

eligible offence means an offence that is not—

a serious violence offence; or

a sexual offence.

sentencing order means any of the following:

an order for imprisonment by full-time detention;

a suspended sentence order;

an intensive correction order;

a deferred sentence order;

a parole order;

an order under a law in force in Australia that corresponds to an order mentioned in paragraphs (a) to (e).

serious violence offence means an offence against any of the following provisions of the Crimes Act 1900:

section 12 (Murder);

section 15 (Manslaughter);

section 19 (Intentionally inflicting grievous bodily harm);

section 20 (Recklessly inflicting grievous bodily harm).

sexual offence means an offence against the Crimes Act 1900, part 3.

treatment program—see section 80Z (1) (a).

Part 3.3 Non-custodial sentences