Sentencing Act 1995

This Act may be cited as the Sentencing Act 1995.

The various provisions of this Act shall come into operation on such date or dates as is or are fixed by the Administrator by notice in the Gazette.

Aboriginal experience report, for Part 6, Division 3A, see section 107B.

aggravated property offence, see section 78AA.

approved member, for Part 6, Division 3A, see section 107A.

approved monitoring device, see section 165 of the Correctional Services Act 2014.

approved project means a rehabilitation program or work, or both, approved by the Commissioner under the Correctional Services Act 2014.

CEO (Youth Justice) means the Chief Executive Officer (as defined in section 19 of the Public Sector Employment and Management Act 1993) of the Agency responsible for youth justice.

coercive control, see section 5B of the Domestic and Family Violence Act 2007.

Commissioner means the Commissioner of Correctional Services.

community correction order means a community correction order made under Part 3, Division 4.

community court sentencing procedure, for Part 6, Division 3A, see section 107A.

community youth justice officer, see section 5(1) of the Youth Justice Act 2005.

Court of Criminal Appeal means the Supreme Court constituted in accordance with section 407 of the Criminal Code.

custodial correctional facility, see section 11(1)(a) of the Correctional Services Act 2014.

domestic relationship, see section 9 of the Domestic and Family Violence Act 2007.

domestic violence, see section 5 of the Domestic and Family Violence Act 2007.

domestic violence order means an order made in the nature of a domestic violence order under the Domestic and Family Violence Act 2007.

driver's licence means a licence to drive a motor vehicle granted under the Motor Vehicles Act 1949.

family relationship, see section 10 of the Domestic and Family Violence Act 2007.

fine means the sum of money payable by an offender under an order of a court made on the offender being convicted or found guilty of an offence and includes costs but does not include money payable by way of restitution or compensation.

home detention condition means a condition in an intensive community correction order that an offender must:

(a) reside or remain in premises or a place specified in the order for:

(i) a period of at least 12 hours per day for each day the condition is in force; or

(ii) a period of time per day determined by the Commissioner for each day the condition is in force; and

(b) not leave the premises or place specified in the order for the period mentioned in paragraph (a) except at the times and for the periods as specified in the order or as otherwise permitted by the Commissioner or a probation and parole officer; and

hospital, see section 5 of the Medical Services Act 1982.

identification information, for Part 5, Division 1AA, see section 228A of the Criminal Code.

impose a minimum sentence, for Part 3, Division 6A, see section 78CA.

impose a term of actual imprisonment, for Part 3, Division 6A, see section 78CB.

indefinite sentence means a sentence of imprisonment for an indefinite term that:

(a) is to be reviewed under Part 3, Division 5, Subdivision 4; and

(b) is to continue until a court orders that the indefinite term of imprisonment is discharged.

instalment order means an order made under Part 3, Division 3 that a fine be paid by 2 or more instalments and includes such an order as varied under that Division.

intensive community correction order means an intensive community correction order made under Part 3, Division 5, Subdivision 2.

Law and Justice Group, for Part 6, Division 3A, see section 107C(2).

motor vehicle, see section 5(1) of the Motor Vehicles Act 1949.

nominal sentence means a sentence specified in an order under section 65(5).

non-association order, see section 97A(2)(a).

non-parole period, in relation to a sentence of imprisonment, means a period, fixed by or under Part 3, Division 5, Subdivision 3, during which an offender is not eligible to be released on parole.

operational period, in relation to a sentence of imprisonment suspended under section 40, means the period specified under section 40(6).

offender means a person found guilty of an offence.

offensive weapon, for Part 3, Division 6A, see section 78C.

physical harm, for Part 3, Division 6A, see section 78C.

place restriction order, see section 97A(2)(b).

prescribed program, for a community correction order or an intensive community correction order, means a course, training, education or similar activity prescribed by regulation for the order.

pre-sentence report, for Part 3, Division 4 and Part 3, Division 5, Subdivision 2, means a report by the Commissioner under section 103 or 105.

probation and parole officer, see section 4 of the Correctional Services Act 2014.

proper officer, in relation to a court, means the officer of the court prescribed by the rules of the court or by regulation for the provision in which the term is used.

prosecutor includes the Director of Public Prosecutions.

registrar means, as the case requires, a Registrar of the Supreme Court or a registrar of the Local Court.

rehabilitation program in relation to domestic and family violence means a program declared under section 85A(1) of the Domestic and Family Violence Act 2007.

sexual offence means an offence specified in Schedule 3.

undertaking means a written undertaking in the prescribed form given by an offender to a court to conform to an order and to conditions of an order of the court.

victim, for Part 5, Division 1AA, see section 228A of the Criminal Code.

violent offence means the following:

Note for subsection (1)

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

(2) In this Act, a reference to a right of appeal includes a right to apply to obtain leave to appeal.

This Act applies to all courts other than the Youth Justice Court continued in existence by the Youth Justice Act 2005.

(1) The only purposes for which sentences may be imposed on an offender are the following:

(a) to punish the offender to an extent or in a way that is just in all the circumstances;

(b) to provide conditions in the court's order that will help the offender to be rehabilitated;

(c) to discourage the offender or other persons from committing the same or a similar offence;

(d) to make it clear that the community, acting through the court, does not approve of the sort of conduct in which the offender was involved;

(f) a combination of 2 or more of the purposes referred to in this subsection.

Note for subsection (1)(e)

This includes the protection of any person who is in a family relationship or a domestic relationship with the offender.

(a) the maximum and any minimum penalty prescribed for the offence; and

(b) the nature of the offence and how serious the offence was, including any physical, psychological or emotional harm done to a victim; and

(i) whether the victim contracted a sexually transmissible medical condition as a result of the offence; and

(ii) whether the offender was aware at the time of the offence that he or she had a medical condition that could be sexually transmitted; and

(da) any harm done to a community as a result of the offence (whether directly or indirectly); and

(f) the presence of any aggravating or mitigating factor concerning the offender; and

(h) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

(ha) the conduct of the offender during the proceedings, including the extent to which the offender complied with a requirement imposed on the offender under Part IV, Division 2A of the Local Court (Criminal Procedure) Act 1928; and

(j) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

(k) time spent in custody by the offender for the offence before being sentenced, including time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act 1982 that contained a provision mentioned in section 27A(1)(iaa), (iab) or (ia) of that Act; and

(m) sentences imposed on, and served by, the offender in a State or another Territory of the Commonwealth for an offence committed at, or about the same time, as the offence with which the court is dealing; and

(n) sentences already imposed on the offender that have not been served; and

(p) sentences that the offender is liable to serve because of the revocation of orders made under this or any other Act for contraventions of conditions by the offender; and

(q) if the offender is the subject of a community correction order or an intensive community correction order, the offender's compliance with the order; and

(r) anything else prescribed by this Act to which the court is required to have regard; and

(a) a certificate by a medical practitioner that a person has (or had at a stated time) a sexually transmissible medical condition is evidence of the existence of that condition; and

(b) the contraction by the victim of the medical condition is to be taken to be a result of the offence if:

(i) a certificate is tendered that the offender had at the relevant time a sexually transmissible medical condition; and

(ii) evidence is given that the victim contracted the medical condition at a time that is consistent with the medical condition being transmitted from the offender.

(3A) Despite subsection (2)(e), in sentencing an offender for an offence against Part V, Division 2 or Part VIA of the Criminal Code, a court must disregard the good character of the offender if:

(a) the person against whom the offence was committed was, at the time the offence was committed, under 18 years of age; and

(b) the court is satisfied that the offender's alleged good character was of assistance to the offender in the commission of the offence.

Examples for subsection (3A)(b)

1 The offender's good character was one reason the offender was selected to supervise children at a camp. The offender began to establish a relationship with children at the camp to obtain their compliance in sexual activities.

2 A child's parent trusted the offender to care for the child because of the offender's authority in their community. The offender held authority in the community in part due to the offender's good character. The offender sexually abused the child including while the child was in the offender's care.

(a) may have regard to any co-operation by the offender in resolving any action taken against the offender under the Criminal Property Forfeiture Act 2002 in relation to the offence or offences for which the offender is being sentenced; and

(aa) may have regard to a forfeiture order under the Liquor Act 2019 to the extent that the property that is subject to the order relates to the offence or offences for which the offender is being sentenced; and

(b) may have regard to a forfeiture order under the Criminal Property Forfeiture Act 2002 to the extent that the order relates to property that is crime-used property (within the meaning of that Act) in relation to the offence or offences for which the offender is being sentenced; and

(c) must not make any allowance for any other property that has been or may be forfeited to the Territory by operation of the Criminal Property Forfeiture Act 2002 or in any proceedings under that Act in which the offender is, was or may be a respondent.

(5) In addition to subsections (2) and (4), in sentencing an offender in relation to an offence that involves domestic violence, a court must have regard to whether there is an unacceptable risk that the offender may commit domestic violence against a person.

(6) If the court is satisfied there is an unacceptable risk that the offender may commit domestic violence against a person, in sentencing the offender in relation to the offence that involves domestic violence, the court must:

(a) have regard to whether making an order in relation to the offender, including whether a condition of the order, would mitigate any unacceptable risk of the offender committing domestic violence against a person; and

(b) have regard to whether a domestic violence order should be made against the offender to mitigate any unacceptable risk of the offender committing domestic violence against a person; and

(c) if the court makes a domestic violence order against the offender – ensure any order or a condition of the order is consistent with any conditions of the domestic violence order; and

(d) if a domestic violence order is in force against the offender at the time of the sentencing:

(i) have regard to whether any conditions or the duration of the order should be varied; and

(ii) ensure any order or a condition of the order is consistent with any conditions of the domestic violence order.

In determining the character of an offender, a court may consider, among other things:

(a) the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender; and

(c) any significant contributions made by the offender to the community.

(1) Without limiting section 5(2)(f), any of the following circumstances in relation to the commission of an offence may be regarded as an aggravating factor for that section:

(a) the offender committed the offence in company with one or more persons;

(fa) if the offender and the victim are, or were at the time of the commission of the offence, in a domestic relationship:

(i) the offence included domestic violence in the nature of conduct that is physically or sexually abusive; or

(iii) the offence included domestic violence in the nature of exposing a child to conduct that constitutes domestic violence;

(ga) a victim of the offence was a police officer or emergency worker in the execution of the officer's or worker's duty at the time the offence was committed;

emergency worker, see section 187(2) of the Criminal Code.

Where a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and this Part, make one or more of the following sentencing orders:

(a) without recording a conviction, order the dismissal of the charge for the offence;

(b) without recording a conviction, order the release of the offender;

(e) with or without recording a conviction, order the offender to pay a fine;

(f) with or without recording a conviction, make a community correction order for the offender;

(fa) with or without recording a conviction, make a community correction order for the offender and order the offender to pay a fine;

(g) record a conviction and order that the offender serve a term of imprisonment that is suspended by it wholly or partly;

(h) record a conviction and make an intensive community correction for the offender;

(k) impose any sentence or make any order authorised by this or any other Act.

(1) In deciding whether or not to record a conviction, a court must have regard to the circumstances of the case including:

(a) the character, antecedents, age, health or mental condition of the offender; and

(b) the extent, if any, to which the offence is of a trivial nature; and

(c) the extent, if any, to which the offence was committed under extenuating circumstances.

(2) Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.

(a) does not prevent a court from making any other order that it is authorised to make in consequence of the finding by this or any other Act; and

(b) has the same effect as if one had been recorded for the purpose of:

(iv) subsequent proceedings against the offender for the same offence.

An order may be made under this Division:

A court which finds a person guilty of an offence may, without recording a conviction, dismiss the charge.

A court may discharge a person whom it has convicted of an offence.