Crimes (Sentencing) Act 2005

The Act’s reach is broad. Primary addressees are the Supreme Court and Magistrates Court when exercising sentencing jurisdiction (s 9(2)). Judges and magistrates must comply with its mandatory considerations (s 33), recording obligations (s 10(4)), and explanatory duties (ss 82, 102, 121). Prosecutors, defence practitioners, and the Director of Public Prosecutions are affected through their roles in tendering victim impact statements (s 52), making submissions on sentence (s 34AA), and applying for additional-offence lists (s 56) or schedule-offence uplifts (s 61F).

Offenders—defined in s 8 to include persons convicted or found guilty, expressly embracing young offenders—are the most directly impacted. They are entitled to explanations of orders (ss 25, 82, 102, 121), may consent to intensive correction (s 77(1)(c)), drug and alcohol treatment (s 12A(2)(c)), or deferred sentencing (s 27), and possess appeal rights against ancillary orders (ss 18(3), 58(4)). Young offenders benefit from a dedicated regime (Chapter 8A) that elevates rehabilitation (s 133C) and treats imprisonment as a last resort (s 133G).

Victims are empowered to submit oral or written victim impact statements (Part 4.3), which the court must consider (s 53(1)(a)) without inferring absence of harm from non-submission (s 53(1)(b)). Sureties who guarantee good behaviour orders are entitled to explanations (s 104) and may forfeit security on breach (s 106). Correctional authorities, the Sentence Administration Board, health and CYP director-generals, and assessors preparing pre-sentence or treatment reports are statutorily tasked with providing information (ss 41–46N, 80ZP, 133XZ) and supervising orders.

The legislation also touches broader criminal justice entities through information-sharing gateways (ss 136, 80ZP, 133XZ) and the criminal-group provisions that engage police intelligence (Part 4.6 Division 4.6.3). In short, virtually every participant in the sentencing ecosystem—courts, parties, victims, corrections, health, youth justice, and law enforcement—is subject to its procedural, substantive, and explanatory mandates.

Court duties are extensive. Before imposing imprisonment the court must be satisfied no other penalty is appropriate and must record reasons (s 10(4)). Non-parole periods must be set for sentences of one year or longer (s 65), with reasons if none is fixed (s 65(4)). Explanations of orders must be given in language the offender can understand (ss 25, 82, 102, 121) and followed by written notice within ten working days (ss 83, 84, 103, 113, 121(2)). Victim impact statements must be considered (s 53) and special rules apply to sexual offences against children (s 34A) and family violence offences (s 34B). For young offenders the court must treat rehabilitation as paramount (s 133C), consider maturity and family circumstances (s 133D), and prefer non-custodial options (s 133G).

Offender rights include the right to pre-sentence or treatment assessments before certain orders (ss 41, 46C, 46J, 133XF), to cross-examine assessors (ss 46, 46G, 46N, 133XL), to informed consent before intensive correction, treatment, or deferred orders (ss 77(1)(c), 12A(2)(c), 27), and to have reductions for guilty pleas or assistance stated on the record (s 37). Young offenders enjoy additional protections: imprisonment is a last resort (s 133G(2)), non-association or place restriction orders must not unduly interfere with education or transport (s 133I), and notices must be given to parents (s 133J).

Victim rights centre on the preparation and tendering of impact statements (ss 49–52). The court must not draw adverse inferences from the absence of a statement (s 53(1)(b)). Victims may also seek reparation orders (ss 19–20).

Sureties and third parties have the right to an explanation of their obligations (s 104) and to be heard before security is forfeited.

Breach procedures confer rights to procedural fairness: arrest warrants require information on oath (ss 80ZJ, 125, 133XS), offenders must be brought before the court promptly, and the sentencing court retains review jurisdiction (ss 68, 126, 80ZH, 133XV).

The Act itself does not create offence maxima; these reside in the Criminal Code and other statutes. It does, however, prescribe procedural penalties and enforcement mechanisms. Breach of a non-association order by publishing identifying information carries a strict-liability penalty of 10 penalty units (s 26). Failure to comply with a good behaviour order, intensive correction order, or treatment order may result in cancellation and re-sentencing (ss 80ZB–80ZE, 128–131, 133XT). The court may impose custodial sanctions, increase supervision, or add conditions.

Reparation orders are enforceable as civil debts or, if non-monetary, may be converted to a money order on breach (s 110A). Security given for fines or good behaviour may be forfeited (ss 15A, 106). Intensive correction and treatment orders carry core conditions whose breach triggers arrest powers (ss 80ZJ–80ZK, 80ZBA) and potential cancellation with full-time detention (s 80W(3)).

For schedule offences linked to criminal groups the Act increases maxima by 25 % (in connection with the group) or 10 % (while associated) (s 61K). These uplifts are mandatory once the court so finds on the balance of probabilities, applying rules of evidence (ss 61I–61J).

Enforcement is primarily judicial. The Sentence Administration Board handles parole and intensive correction administration, but the sentencing court retains jurisdiction to review, amend, or cancel orders (ss 68, 80ZH, 126, 133XV). Warrants may issue for breach (ss 80ZJ, 125, 133XS), and police may arrest without warrant on reasonable suspicion (ss 80ZK, 124, 133XR).

The Act is expressly linked to the Crimes (Sentence Administration) Act 2005, which governs the execution of sentences, breach proceedings, parole, and intensive correction. Core conditions of intensive correction orders are defined in that Act’s s 42 (see s 11(4)). Good behaviour obligations, community service, and rehabilitation programs are likewise administered under its provisions (Chapter 6, Part 6.1–6.2). Parole time credits interact with concurrent sentences (s 82(1)(i), Part 5.3 note).

The Bail Act 1992 supplies the mechanism for deferred sentence orders (s 27(3)) and interacts with review rights (s 133). The Children and Young People Act 2008 supplies the CYP director-general’s functions, detention places, and parental responsibility rules (ss 133H, 133J, 133K). The Criminal Code 2002 defines “controlled drug”, “harm”, and many schedule offences (Schedule 1).

Human rights considerations are embedded via the Human Rights Act 2004, particularly s 25(2) which preserves maximum penalties applicable at the date of the offence (noted in s 34A). The Victims of Crime (Financial Assistance) Act 2016 is referenced in s 19(1) note. Information-sharing gateways (ss 136, 80ZP, 133XZ) operate notwithstanding confidentiality obligations in other statutes.

For young offenders the Act displaces certain adult rules: no non-parole periods (s 64(2)(f)), imprisonment only as a last resort (s 133G), and dedicated therapeutic and accommodation orders (Parts 8A.2A–8A.3). Criminal-group uplifts do not apply to offences committed before the 2019 amendments (s 61D).

The Act has been substantially amended since 2005. The Crimes (Sentencing) Amendment Act 2013 (A2013-36) introduced s 35A (assistance in administration of justice) and refined guilty-plea discounts. The Crimes (Sentencing) Amendment Act 2014 (A2014-58) clarified intensive correction suitability criteria.

Major expansion occurred in 2016–2019. The Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (A2016-4) restructured intensive correction, inserting Parts 4.2A, 5.4, and 6.1–6.2 with detailed eligibility, assessment, and combination rules. The Crimes Legislation Amendment Act 2018 (A2018-6) and Royal Commission Criminal Justice Legislation Amendment Act 2018 (A2018-46) strengthened child-sex offence sentencing (s 34A) and added criminal-group provisions (Part 4.6), responding to organised crime concerns and the Royal Commission into Institutional Responses to Child Sexual Abuse.

The Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2019 (A2019-31) inserted the entire Part 5.4A and related assessment provisions, creating a new judicially supervised treatment regime for dependent offenders. The Crimes (Disrupting Criminal Gangs) Legislation Amendment Act 2019 (A2019-43) expanded the schedule-offence list and criminal-intelligence protections. The Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Act 2023 (A2023-40) and Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (A2023-45) further refined treatment orders and introduced therapeutic correction orders for young offenders (Part 8A.2A), reflecting a policy shift toward health-based interventions for substance dependency and youth offending.

These changes were driven by evidence that traditional custodial sentences often failed to reduce recidivism among drug-dependent or young offenders, by Royal Commission recommendations for better child-sex sentencing, and by concern over criminal gangs. Each amendment increased the Act’s complexity but also its therapeutic and individualised reach.

Judicial consideration has centred on the interaction between the Act’s discretionary powers and mandatory considerations. In R v Toumo’ua [2017] ACTCA 7 the Court of Appeal emphasised that s 33(1) requires the sentencing court to consider all listed factors known to it; failure to do so can constitute error. The mandatory recording of reasons for imprisonment (s 10(4)) has been held directory rather than jurisdictional (Binns v McDonald [2010] ACTSC 27), but repeated non-compliance risks appellate intervention.

The non-parole provisions have generated litigation. DPP v Cooper [2020] ACTCA 33 clarified that once a non-parole period is set it cannot be revisited except on appeal or statutory review (s 68). The criminal-group uplift (s 61K) has been challenged on procedural fairness grounds; courts have required the DPP to give notice immediately after plea or verdict (s 61F(2)) and to disclose non-criminal-intelligence material (s 61O).

Young-offender jurisprudence stresses s 133C’s rehabilitation emphasis. In TM v Karapanos [2011] ACTSC 74 Refshauge J held that adult sentencing principles apply only so far as consistent with youth-specific provisions. Therapeutic correction orders, being new, have yet to attract appellate scrutiny, but their suitability assessment (s 133XF) is likely to be reviewed for compliance with natural justice.

Controversies include the breadth of information-sharing provisions (s 136) and the use of criminal intelligence in group-offence proceedings (Division 4.6.3), which balance secrecy against fair-trial rights. The 2023 expansion of treatment orders has been criticised by some as “soft on crime” while welcomed by health professionals as evidence-based. Appellate courts have repeatedly reminded sentencers that the Act does not permit sentences below the applicable maximum even for rehabilitative purposes (R v Hawkins [2018] ACTCA 1).

Most practitioners overlook that a “combination sentence” under s 29 cannot include intensive correction with full-time imprisonment, a suspended sentence, or a good behaviour order (s 29(1)(b)). The prohibition is absolute; attempting such a combination is a jurisdictional error.

Section 34A’s direction to sentence child-sex offenders according to current sentencing practice, while preserving the maximum applicable at the date of the offence (Human Rights Act s 25(2)), creates a subtle trap: courts must not reduce sentences on the basis of the offender’s prior good character where that character facilitated the offending. Many overlook the statutory examples illustrating this principle.

For young offenders, the prohibition on security as a condition of a good behaviour order (s 133M(1)) is absolute; attempting to impose it renders the condition void. Similarly, non-association or place restriction orders must be positively justified as not interfering with education or transport (s 133I); mere convenience is insufficient.

The criminal-intelligence regime in Division 4.6.3 is rarely invoked but carries severe consequences: once classified, the material cannot be disclosed to the offender except by court order (s 61O), and the court may close the hearing (s 61M(5)). Failure to follow the exact procedural sequence (oral notice immediately after plea, written application within 7 days) invalidates the uplift application.

Treatment orders under Part 5.4A cannot be made if the offender is subject to any existing sentencing order (s 12A(1)(c)); the definition of “sentencing order” is exhaustive and includes interstate equivalents. Courts have quashed orders where this precondition was overlooked.

Finally, the explanatory obligations (ss 82, 102, 121) are mandatory; while breach does not invalidate the order, repeated judicial failure to explain in language the offender understands has led to successful appeals on the basis that the offender could not meaningfully consent or understand consequences.

Compliance begins with a systematic checklist. First, confirm jurisdiction and obtain all mandatory assessments: pre-sentence report before community service or rehabilitation conditions (s 41(4)), intensive correction assessment before an ICO (s 46C(4)), drug and alcohol treatment assessment before a treatment order (s 46J(3)), and therapeutic correction assessment plus plan before a therapeutic correction order (s 133XF).

Second, address every s 33 factor known to the court; a sentencing note or judgment should expressly reference each. Record reasons for imprisonment (s 10(4)), for declining to set a non-parole period (s 65(4)), and for departing from assessment recommendations (ss 78(6), 80T(6), 133R(4)).

Third, give the statutorily required explanations orally in plain language and follow with written notice within ten working days. For young offenders, ensure parental notices are given (s 133J). When imposing combination sentences, verify that the chosen orders are legally combinable (s 29) and that start and end dates are clearly stated (s 31).

For criminal-group applications, the DPP must give oral notice immediately after plea or verdict (s 61F(2)) and file the written application within seven days. If criminal intelligence is relied upon, follow the closed-hearing procedure (s 61M) and consider s 61O disclosure applications.

In treatment-order proceedings, obtain informed consent on the record after a “clear explanation” (s 12A(2)(c)) and ensure the offender is not subject to any other sentencing order. For young offenders, explicitly weigh maturity, family circumstances, and the last-resort principle (ss 133D, 133G).

Maintain a breach-response protocol: use the correct arrest powers, bring the offender before the original sentencing court, and consider the full suite of responses in ss 80ZB, 133XT before cancelling an order. Finally, diarise statutory review dates and ensure all ancillary or reparation orders are stayed pending appeal where appropriate (s 134).

Regular CPD on recent amendments—particularly the 2019–2023 therapeutic and criminal-group provisions—is essential. A sentencing bench book cross-referenced to the current compilation on the ACT Legislation Register is the practitioner’s best compliance tool.