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This Act may be cited as the Sentencing Act 1995.
The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation.
Subject to this section, this Act applies to all persons convicted of an offence whether or not the offence was committed before this Act comes into operation.
In the case of a person who is a young person as defined in the Young Offenders Act 1994, subsection (1) is subject to sections 46 and 46A of the Young Offenders Act 1994.
This Act does not apply to or in respect of a person being punished —
by the Supreme Court or any other court for or as for contempt of court; or
under section 63 of the District Court of Western Australia Act 1969, section 29 of the Children’s Court of Western Australia Act 1988 or section 16 of the Magistrates Court Act 2004; or
for contempt of a House of Parliament.
[Section 3 amended: No. 59 of 2004 s. 141.]
The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act.
[Section 4A inserted: No. 20 of 2013 s. 123.]
In this Act —
approved electronic monitoring device means —
an electronic monitoring device that has been approved by the CEO (corrections); and
any equipment, wires or other items associated with a device under paragraph (a);
bail means bail under the Bail Act 1982;
breach, in relation to an order made under this Act, means to contravene any requirement or obligation of the order or any direction made by the court imposing the order;
CEO (corrections) means the chief executive officer of the Public Sector agency principally assisting the Minister administering Part 8 of the Sentence Administration Act 2003 in its administration;
community based order (“CBO”) means a community based order made under Part 9;
community corrections centre has the same definition as in the Sentence Administration Act 2003;
community corrections officer (“CCO”) has the same definition as in the Sentence Administration Act 2003;
community order means a CBO or an ISO;
community work includes any form of work, service, or activity approved for the purpose of this definition by the CEO (corrections);
conditional release order (“CRO”) means a conditional release order made under Part 7;
conditional suspended imprisonment (“CSI”) means conditional suspended imprisonment imposed under Part 12 Division 1;
designated family relationship means a relationship between 2 persons —
who are, or were, married to each other; or
who are, or were, in a de facto relationship with each other; or
who have, or had, an intimate personal relationship with each other; or
one of whom is a child who —
ordinarily resides, or resided, with the other person; or
regularly resides or stays, or resided or stayed, with the other person;
or
one of whom is, or was, a child of whom the other person is a guardian;
disqualification order means an order made under Part 15;
explosive means a substance or an article that is controlled as an explosive under the Dangerous Goods Safety Act 2004;
family violence offence (category A) means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444;
family violence offence (category B) means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is —
an offence against the Restraining Orders Act 1997 section 61(1) or (1A); or
an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444;
family violence restraining order has the meaning given in the Restraining Orders Act 1997 section 3(1);
intensive supervision order (“ISO”) means an intensive supervision order made under Part 10;
offence means an offence under a written law;
offender means a person convicted of an offence;
parole eligibility order has the meaning given in section 89(1);
prescribed means prescribed in the regulations;
pre‑sentence order (“PSO”) means a pre‑sentence order made under Part 3A;
Prisoners Review Board means the Prisoners Review Board established under the Sentence Administration Act 2003;
serial family violence offender means a person who is a serial family violence offender under section 124E;
speciality court means a court —
that is prescribed; and
that is sitting at a place prescribed; and
that is dealing with offenders of a class prescribed,
by the regulations and that is constituted by a judicial officer who is approved by the judicial officer who heads the court so prescribed;
spent conviction order has the meaning given by section 45(2);
statutory penalty, in relation to an offence, means the penalty specified by a written law for the offence;
superior court means the Supreme Court or the District Court;
written reasons includes reasons that are —
given orally and subsequently transcribed; and
given orally but also recorded electronically in a format that enables them to be subsequently transcribed.
For the purposes of the definition of designated family relationship in subsection (1), an intimate personal relationship exists between 2 persons (including persons of the same sex) if —
the persons are engaged to be married to each other, including a betrothal under cultural or religious tradition; or
the persons date each other, or have a romantic involvement with each other, whether or not a sexual relationship is involved.
In deciding whether an intimate personal relationship exists under subsection (1A)(b), the following may be taken into account —
the circumstances of the relationship, including, for example, the level of trust and commitment;
the length of time the relationship has existed;
the frequency of contact between the persons;
the level of intimacy between the persons.
In this Act these abbreviations are used:
CBO for community based order;
CCO for community corrections officer;
CRO for conditional release order;
CSI for conditional suspended imprisonment;
DPP for Director of Public Prosecutions of the State;
ISO for intensive supervision order;
PSO for pre‑sentence order.
Examples in this Act are provided to assist understanding and do not form part of the Act.
In this Act a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of —
the whole of the term or terms; or
part of the term or terms.
[Section 4 amended: No. 50 of 2003 s. 4, 14, 23 and 29(3); No. 84 of 2004 s. 65; No. 27 of 2004 s. 6(1) and (2); No. 65 of 2006 s. 45; No. 45 of 2016 s. 61; No. 13 of 2020 s. 4; No. 30 of 2020 s. 14; No. 28 of 2024 s. 61.]
This Act (other than section 115) does not affect any civil liability incurred in respect of an act or omission that constitutes an offence.
A sentence imposed on an offender must be commensurate with the seriousness of the offence.
The seriousness of an offence must be determined by taking into account —
the statutory penalty for the offence; and
the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
any aggravating factors; and
any mitigating factors.
Subsection (1) does not prevent the reduction of a sentence because of —
any mitigating factors; or
any rule of law as to the totality of sentences.
A court must not impose a sentence of imprisonment on an offender unless it decides that —
the seriousness of the offence is such that only imprisonment can be justified; or
the protection of the community requires it.
A court sentencing an offender must take into account any relevant guidelines in a guideline judgment given under section 143.
For the purpose of subsection (4), an order under section 58 that a person be imprisoned is not a sentence of imprisonment.
[Section 6 amended: No. 23 of 2001 s. 12.]
Aggravating factors are factors which, in the court’s opinion, increase the culpability of the offender.
An offence is not aggravated by the fact that —
the offender pleaded not guilty to it; or
the offender has a criminal record; or
a previous sentence has not achieved the purpose for which it was imposed.
If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then —
an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
Mitigating factors are factors which, in the court’s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
The possibility that an order might be made in respect of the offender under the High Risk Serious Offenders Act 2020 is not a mitigating factor.
The fact that criminal property confiscation has occurred or may occur is not a mitigating factor.
However, except in the case of derived property, facilitation by the offender of criminal property confiscation is a mitigating factor.
The following are not mitigating factors —
the fact that an exclusion order (as defined in the Liquor Control Act 1988 section 152NC) might be or has been made in respect of the offender, or the consequences for the offender of the order being made;
the fact that the offender is or will be an excluded offender (as defined in the Liquor Control Act 1988 section 152NZJ(2)), or the consequences for the offender of being an excluded offender under that Act.
The following are not mitigating factors —
the fact that the offender is or will be a reportable offender under the Community Protection (Offender Reporting) Act 2004;
the consequences for the offender of being a reportable offender under the Community Protection (Offender Reporting) Act 2004.
If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.
In this section —
criminal property confiscation means —
confiscation of derived property or any other property under section 6, 7 or 8 of the Criminal Property Confiscation Act 2000; or
confiscation or forfeiture to the State of derived property under any other written law;
derived property means property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence.
[Section 8 amended: No. 29 of 1998 s. 15; No. 26 of 2004 s. 7; No. 41 of 2006 s. 71(1) and 79; No. 42 of 2012 s. 3; No. 17 of 2016 s. 54; No. 29 of 2020 s. 121; No. 44 of 2022 s. 24; No. 35 of 2024 s. 66.]
In this section —
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if —
the offender had been found guilty after a plea of not guilty; and
there were no mitigating factors;
victim has the meaning given in section 13.
If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) —
by more than 25%; or
by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
[Section 9AA inserted: No. 42 of 2012 s. 4.]
In this Division —
COC Act means the Criminal Organisations Control Act 2012;
COC Act offence means an offence under the COC Act Part 4;
declared criminal organisation has the meaning given in the Criminal Organisations Control Act 2012 section 3(1);
relevant indictable offence means an indictable offence listed in Schedule 1A Part 1;
relevant simple offence means a simple offence listed in Schedule 1A Part 2.
A term used in this Division and also in the COC Act has the same meaning in this Division as it has in that Act, unless the term is defined in this Act or the context requires otherwise.
[Section 9A inserted: No. 49 of 2012 s. 181(2).]
This Division overrides —
Division 1; and
The Criminal Code sections 3(5) and 5(8).
[Section 9B inserted: No. 49 of 2012 s. 181(2).]