Sch. 3A cl. 1 inserted by No. 27/2018 s. 351(Sch. 4 cl. 21).
1 Saving of orders continued in effect after commencement by Serious Offenders Act 2018
Sch. 3A cl. 1(1) amended by No. 22/2020 s. 26(3).
(1) Despite the amendment of section 10AB by section 364 of the Serious Offenders Act 2018, section 10AB has effect, on and after the commencement day, as if a reference in that section to a supervision order or an interim supervision order within the meaning of the Serious Offenders Act 2018 included a reference to a supervision order or an interim supervision order that is continued in force by subclause 4(1) of Schedule 4 to the Serious Offenders Act 2018.
(2) In this clause—
commencement day means the day on which section 364 of the Serious Offenders Act 2018 comes into operation.
Sch. 4 repealed by No. 48/1997 s. 34, new Sch. 4 inserted by No. 31/2013 s. 11.
adjournment order means an adjournment order made under section 72 or 75;
commencement day means the day on which the Justice Legislation Amendment Act 2013 receives the Royal Assent;
community-based order means a community‑based order within the meaning of this Act as in force before the repeal day;
donation condition means a condition requiring an offender to pay an amount to an organisation that provides a charitable or community service or to the court for payment to such an organisation;
relevant order means—
(a) an adjournment order; or
(b) a community-based order;
repeal day means the date of commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011.
2 Validation of adjournment orders
(1) An adjournment order under section 72 or 75 made or purported to be made before the commencement day that required an offender to give an undertaking with a donation condition attached has, and is taken always to have had, the same force and effect as it would have had if sections 8 and 9 of the had been in operation when the order was made or purported to be made.
Justice Legislation Amendment Act 2013
(2) Any act or thing done or omitted to be done, whether under a power conferred by an enactment or otherwise, before or after the commencement day in reliance on or in relation to—
(a) an adjournment order that is validated by subclause (1); or
(b) a contravention or alleged contravention of an adjournment order that is validated by subclause (1)—
including any penalty imposed, has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences as if sections 8 and 9 of the Justice Legislation Amendment Act 2013 had been in operation when the adjournment order was made or purported to be made.
(3) A right or liability conferred or imposed in relation to, or affected by—
(a) an adjournment order that is validated by subclause (1); or
(b) a contravention or alleged contravention of an adjournment order that is validated by subclause (1)—
including any penalty imposed, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable as if sections 8 and 9 of the Justice Legislation Amendment Act 2013 had been in operation when the adjournment order was made or purported to be made.
3 Validation of community-based orders
(1) A community-based order made or purported to be made before the repeal day that had a donation condition attached has, and is taken always to have had, the same force and effect as it would have had if—
(a) section 8 of the Justice Legislation Amendment Act 2013 had been in operation when the order was made or purported to be made; and
(b) section 38 (as in force before the repeal day) had included the following provision at the time the order was made or purported to be made—
"(2A) A condition attached under subsection (1)(g) may include a condition requiring the offender to make a payment to an organisation that provides charitable or community service or to the court for payment to such an organisation.".
(2) Any act or thing done or omitted to be done, whether under a power conferred by an enactment or otherwise, before or after the repeal day in reliance on or in relation to—
(a) a community-based order that is validated by subclause (1); or
(b) a contravention or alleged contravention of a community-based order that is validated by subclause (1)—
including any penalty imposed, has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences as if section 8 of the Justice Legislation Amendment Act 2013 and the purported section 38(2A) referred to in subclause (1)(b) had been in operation when the community-based order was made or purported to be made.
(3) A right or liability conferred or imposed in relation to, or affected by—
(a) a community-based order that is validated by subclause (1); or
(b) a contravention or alleged contravention of a community-based order that is validated by subclause (1)—
including any penalty imposed, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable as if section 8 of the Justice Legislation Amendment Act 2013 and the purported section 38(2A) referred to in subclause (1)(b) had been in operation when the community-based order was made or purported to be made.
4 Additional provisions relating to rights of appeal
(1) Without limiting clause 2(3) or 3(3), the rights and liabilities conferred or imposed in relation to a relevant order include rights of appeal.
(2) This Schedule does not affect the right of any person to appeal against a sentence that includes a relevant order on any other ground.
5 Rights in specific proceedings not affected
This Schedule does not affect the rights of the parties in the proceedings known as Brittain v Mansour [2013] VSC 50 in the Supreme Court of Victoria.
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 19 March 1991
Legislative Council: 30 May 1991
The long title for the Bill for this Act was "A Bill to revise and restate the sentencing powers of courts, to provide sentencing principles to be applied by courts in sentencing offenders, to repeal the Penalties and Sentences Act 1985, to vary the penalties that may be imposed in respect of offences under the Crimes Act 1958, to make consequential amendments to various Acts and for other purposes.".
The Sentencing Act 1991 was assented to on 25 June 1991 and came into operation on 22 April 1992: Government Gazette 15 April 1992 page 898.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Sentencing Act 1991 by Acts and subordinate instruments.
| Assent Date: | 16.4.91 |
| Commencement Date: | S. 20(3) on 5.8.91: Government Gazette 24.7.91 p. 2026 |
Sentencing Act 1991, No. 49/1991
| Assent Date: | 25.6.91 |
| Commencement Date: | S. 180 inserted on 25.4.20 by No. 11/2020 s. 42: s. 2 (as amended by No. 27/2020 s. 41) |
| Note: | S. 180 repealed Pt 13 (ss 170–180) on 26.4.21 |
Crimes (Rape) Act 1991, No. 81/1991
| Assent Date: | 3.12.91 |
| Commencement Date: | Ss 7, 8 on 16.4.91: s. 2(2); ss 1–4, 6, 9, 10 on 1.1.92: Government Gazette 18.12.91 p. 3486; s. 5 on 1.2.92: Government Gazette 22.1.92 p. 114 |
Crimes (Confiscation of Profits) (Amendment) Act 1991, No. 90/1991
| Assent Date: | 10.12.91 |
| Commencement Date: | All of Act (except ss 26, 37) on 1.9.92; ss 26, 37 on 6.12.92: Government Gazette 12.8.92 p. 2179 |
Sentencing (Amendment) Act 1993, No. 41/1993
| Assent Date: | 1.6.93 |
| Commencement Date: | Ss 1, 2 on 1.6.93: s. 2(1); rest of Act (except ss 13, 15) on 15.8.93; ss 13, 15 on 1.11.93: Government Gazette 12.8.93 p. 2244 |
Health and Community Services (General Amendment) Act 1993, No. 42/1993
| Assent Date: | 1.6.93 |
| Commencement Date: | S. 60 on 21.8.94: Government Gazette 18.8.94 p. 2240 |
Crimes (Criminal Trials) Act 1993, No. 60/1993
| Assent Date: | 8.6.93 |
| Commencement Date: | Ss 1–3 on 8.6.93: s. 2(1); s. 27 on 21.6.93: Special Gazette (No. 40) 17.6.93 p. 1; rest of Act on 1.7.93: Government Gazette 1.7.93 p. 1735 |
Medical Practice Act 1994, No. 23/1994
| Assent Date: | 17.5.94 |
| Commencement Date: | Ss 1, 2 on 17.5.94: s. 2(1); rest of Act on 1.7.94: Government Gazette 23.6.94 p. 1672 |
| Assent Date: | 5.12.95 |
| Commencement Date: | Ss 1, 2 on 5.12.95: s. 2(1); s. 60 on 26.5.96: Government Gazette 9.5.96 p. 1099; rest of Act on 1.7.96: Government Gazette 27.6.96 p. 1593 |
| Assent Date: | 2.7.96 |
| Commencement Date: | Pt 9 (ss 19–21) on 2.7.96: s. 2(1) |
Corrections (Amendment) Act 1996, No. 45/1996
| Assent Date: | 26.11.96 |
| Commencement Date: | S. 18(Sch. 2 items 11.1–11.15) on 6.2.97: Government Gazette 6.2.97 p. 257 |
Victims of Crime Assistance Act 1996, No. 81/1996
| Assent Date: | 17.12.96 |
| Commencement Date: | Ss 74, 75 on 1.7.97: s. 2(3) |
Police and Corrections (Amendment) Act 1997, No. 26/1997
| Assent Date: | 20.5.97 |
| Commencement Date: | S. 54 on 22.5.97: Government Gazette 22.5.97 p. 1131 |
Sentencing and Other Acts (Amendment) Act 1997, No. 48/1997
| Assent Date: | 11.6.97 |
| Commencement Date: | Ss 3, 4(b)–(e), 5–7, 8(2)(b)(c), 10, 11, 13(1), 14, 16–18, 19(1), 20, 22, 25, 27–34 on 1.9.97: s. 2(2); ss 9, 13(2)–(4), 15, 19(2)(3), 21, 26 on 20.11.97: Government Gazette 20.11.97 p. 3169; ss 4(a), 8(1)(2)(a), 12, 23, 24 on 15.12.97: Government Gazette 11.12.97 p. 3365 |
Sentencing (Amendment) Act 1997, No. 69/1997
| Assent Date: | 18.11.97 |
| Commencement Date: | Ss 17, 19, 21 on 1.9.97: s. 2(2); ss 4–6, 9–16, 18, 20 on 18.11.97: s. 2(1); ss 7, 8 on 11.12.97: Government Gazette 11.12.97 p. 3365 |
Confiscation Act 1997, No. 108/1997
| Assent Date: | 23.12.97 |
| Commencement Date: | Ss 148, 149, 156 on 1.7.98: Government Gazette 25.6.98 p. 1561 |
Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998
| Assent Date: | 26.5.98 |
| Commencement Date: | S. 7(Sch. 1) on 1.7.98: s. 2(2) |
Road Safety (Amendment) Act 1998, No. 57/1998
| Assent Date: | 13.10.98 |
| Commencement Date: | Ss 26, 27 on 1.5.99: Government Gazette 18.3.99 p. 665 |
| Assent Date: | 8.6.10 |
| Commencement Date: | S. 5 on 26.6.10: Government Gazette 24.6.10 p. 1274; ss 3, 4, 6–8, 10–12, 14, 15, 17, 23, 24, 28, 29 on 1.1.11: Government Gazette 28.10.10 p. 2583; ss 16, 19, 25–27 on 1.1.12: s. 2(5); ss 9, 13, 18, 20–22 never proclaimed, repealed by No. 65/2011 s. 99 |
Severe Substance Dependence Treatment Act 2010, No. 43/2010
| Assent Date: | 10.8.10 |
| Commencement Date: | S. 48 on 1.3.11: s. 2(2) |
Personal Safety Intervention Orders Act 2010, No. 53/2010
| Assent Date: | 7.9.10 |
| Commencement Date: | S. 224 on 1.12.10: Government Gazette 14.10.10 p. 2405; s. 221(Sch. item 10) on 5.9.11: Special Gazette (No. 271) 23.8.11 p. 1 |
| Assent Date: | 19.10.10 |
| Commencement Date: | Ss 3(a), 12, 27 on 1.5.11: Special Gazette (No. 125) 19.4.11 p. 1; s. 21 on 1.1.12: s. 2(2); ss 3(b)–(e), 4–11, 13–20, 22–26 never proclaimed, repealed by No. 65/2011 ss 71–92 |
Sentencing Further Amendment Act 2011, No. 9/2011
| Assent Date: | 12.4.11 |
| Commencement Date: | Ss 6, 7 on 1.1.12: s. 2(3) |
Statute Law Revision Act 2011, No. 29/2011
| Assent Date: | 21.6.11 |
| Commencement Date: | S. 3(Sch. 1 item 84) on 22.6.11: s. 2(1) |
Sentencing Legislation Amendment (Abolition of Home Detention) Act 2011, No. 48/2011
| Assent Date: | 22.9.11 |
| Commencement Date: | Ss 12–24 on 16.1.12: Special Gazette (No. 423) 21.12.11 p. 4 |
Sentencing Amendment (Community Correction Reform) Act 2011, No. 65/2011 (as amended by Nos 26/2012, 43/2012, 32/2013, 56/2013)
| Assent Date: | 22.11.11 |
| Commencement Date: | Ss 3(13), 53 on 23.11.11: s. 2(1); s. 5(4) on 1.1.12: s. 2(2); ss 3(1)–(12)(14), 4, 5(1)–(3), 6–48, 50–52, 54, 68 on 16.1.12: Special Gazette (No. 423) 21.12.11 p. 3; ss 55, 58, 59, 70 on 1.5.13: Special Gazette (No. 156) 23.4.13 p. 1; ss 56, 57, 60, 69 on 30.6.13: Special Gazette (No. 156) 23.4.13 p. 1; s. 49 on 30.9.13: s. 2(4); ss 61–67 never proclaimed, repealed by No. 56/2013 s. 35(1) |
Courts and Sentencing Legislation Amendment Act 2012, No. 26/2012
| Assent Date: | 29.5.12 |
| Commencement Date: | Ss 26–70 on 16.7.12: Special Gazette (No. 237) 3.7.12 p. 1 |
Statute Law Revision Act 2012, No. 43/2012
| Assent Date: | 27.6.12 |
| Commencement Date: | S. 3(Sch. item 46) on 28.6.12: s. 2(1) |
Road Safety and Sentencing Acts Amendment Act 2012, No. 45/2012
| Assent Date: | 17.8.12 |
| Commencement Date: | S. 12 on 16.1.12: s. 2(3); ss 6, 9, 11, 13 on 17.8.12: s. 2(1); ss 7, 8, 10 on 18.8.12: s. 2(2) |
| Assent Date: | 4.6.13 |
| Commencement Date: | Ss 8–11 on 4.6.13: s. 2(1) |
Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, No. 32/2013 (as amended by No. 77/2013)
| Assent Date: | 4.6.13 |
| Commencement Date: | Ss 3–5, 33–36, 38–42 on 5.6.13: s. 2(1); s. 37 on 30.6.13: Special Gazette (No. 226) 25.6.13 p. 1; ss 23–26 on 27.7.13: Special Gazette (No. 226) 25.6.13 p. 1; ss 6, 7 on 1.9.13: Special Gazette (No. 284) 13.8.13 p. 1; ss 27, 30–32 on 30.9.13: Special Gazette (No. 284) 13.8.13 p. 1; ss 28, 29 on 20.12.13: Special Gazette (No. 449) 17.12.13 p. 1; ss 46–50, 56–58 on 19.4.14: Special Gazette (No. 122) 15.4.14 p. 2; ss 8–22 on 1.9.14: s. 2(5) |
Corrections Amendment (Breach of Parole) Act 2013, No. 46/2013
| Assent Date: | 10.9.13 |
| Commencement Date: | S. 5 on 1.7.14: s. 2(2) |
Road Safety and Sentencing Acts Amendment Act 2013, No. 56/2013
| Assent Date: | 24.9.13 |
| Commencement Date: | Ss 33, 38 on 25.9.13: s. 2(1); ss 31, 32, 37 on 30.9.13: s. 2(2) |
Statute Law Revision Act 2013, No. 70/2013
| Assent Date: | 19.11.13 |
| Commencement Date: | S. 3(Sch. 1 item 49) on 1.12.13: s. 2(1) |
| Assent Date: | 17.12.13 |
| Commencement Date: | S. 50 on 18.12.13: s. 2(1); s. 47 on 19.4.14: s. 2(2); s. 46 on 2.9.14: Special Gazette (No. 295) 2.9.14 p. 1 |
Crimes Amendment (Grooming) Act 2014, No. 7/2014
| Assent Date: | 25.2.14 |
| Commencement Date: | S. 5(2) on 9.4.14: Special Gazette (No. 112) 8.4.14 p. 1 |
Summary Offences and Sentencing Amendment Act 2014, No. 15/2014
| Assent Date: | 18.3.14 |
| Commencement Date: | Ss 7, 8 on 1.9.14: s. 2(2) |
Legal Profession Uniform Law Application Act 2014, No. 17/2014
| Assent Date: | 25.3.14 |
| Commencement Date: | S. 160(Sch. 2 item 88) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1 |
Mental Health Act 2014, No. 26/2014
| Assent Date: | 8.4.14 |
| Commencement Date: | Ss 429–435 on 1.7.14: s. 2(1) |
Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014
| Assent Date: | 3.6.14 |
| Commencement Date: | S. 10(Sch. items 151.1–151.5, 151.7, 151.8) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2; s. 10(Sch. item 151.6) on 1.9.14: Special Gazette (No. 200) 24.6.14 p. 2 |
Fines Reform Act 2014, No. 47/2014
| Assent Date: | 1.7.14 |
| Commencement Date: | Ss 305–312 on 31.12.17: Special Gazette (No. 443) 19.12.17 p. 1 |
| Assent Date: | 12.8.14 |
| Commencement Date: | Ss 3–10 on 2.11.14: Special Gazette (No. 350) 7.10.14 p. 1 |
Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014
| Assent Date: | 26.8.14 |
| Commencement Date: | Ss 169, 170 on 2.9.14: Special Gazette (No. 295) 2.9.14 p. 1; ss 48, 49 on 1.10.14: Special Gazette (No. 330) 23.9.14 p. 1 |
Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014, No. 61/2014
| Assent Date: | 9.9.14 |
| Commencement Date: | S. 170 on 1.3.16: s. 2(3) |
Crimes Amendment (Abolition of Defensive Homicide) Act 2014, No. 63/2014
| Assent Date: | 9.9.14 |
| Commencement Date: | Ss 5(3), 7(18)(19) on 1.11.14: Special Gazette (No. 350) 7.10.14 p. 1; s. 7(17) on 2.11.14: s. 2(2) |
Sentencing Amendment (Emergency Workers) Act 2014, No. 69/2014 (as amended by Nos 72/2014, 79/2014)[20]
| Assent Date: | 23.9.14 |
| Commencement Date: | Ss 6, 16–19 on 29.9.14: Special Gazette (No. 330) 23.9.14 p. 1; ss 3, 4, 5(2)–(4), 7 on 2.11.14: Special Gazette (No. 330) 23.9.14 p. 1; s. 5(1) never proclaimed, repealed by No. 72/2014 s. 13(1) |
Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014, No. 72/2014
| Assent Date: | 30.9.14 |
| Commencement Date: | Ss 6–9 on 1.11.14: s. 2(4); ss 10, 11 on 1.11.14: s. 2(2) |
Crimes Amendment (Sexual Offences and Other Matters) Act 2014, No. 74/2014
| Assent Date: | 21.10.14 |
| Commencement Date: | Ss 17–19 on 1.7.15: s. 2(3) |
Justice Legislation Amendment (Confiscation and Other Matters) Act 2014, No. 79/2014
| Assent Date: | 21.10.14 |
| Commencement Date: | S. 71 on 22.10.14: s. 2(1); s. 64 on 1.11.14: s. 2(5); ss 55–58 on 2.11.14: Special Gazette (No. 400) 29.10.14 p. 2; s. 63 on 2.11.14: s. 2(6) |
| Assent Date: | 15.8.17 |
| Commencement Date: | Ss 3–11, 43 on 29.11.17: Special Gazette (No. 406) 28.11.17 p. 1; ss 17–23, 38–42 on 1.2.18: Special Gazette (No. 28) 30.1.18 p. 1 |
Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, No. 38/2017
| Assent Date: | 29.8.17 |
| Commencement Date: | S. 93 on 30.8.17: s. 2(1) |
Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, No. 43/2017
| Assent Date: | 26.9.17 |
| Commencement Date: | Ss 58, 64(1) on 30.11.17: Special Gazette (No. 406) 28.11.17 p.1; ss 20, 21 on 26.2.18: Special Gazette (No. 406) 28.11.17 p. 1; ss 45–47, 50, 51 on 5.4.18: Special Gazette (No. 136) 27.3.18 p. 1; s. 8 on 1.6.18: s. 2(2) |
Serious Sex Offenders (Detention and Supervision) Amendment (Governance) Act 2017, No. 57/2017
| Assent Date: | 8.11.17 |
| Commencement Date: | S. 52 on 27.2.18: Special Gazette (No. 49) 13.2.18 p. 1 |
Fines Reform Amendment Act 2017, No. 59/2017
| Assent Date: | 5.12.17 |
| Commencement Date: | Ss 127–132 on 6.12.17: s. 2(1) |
Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017, No. 65/2017
| Assent Date: | 19.12.17 |
| Commencement Date: | Ss 15–19 on 5.4.18: Special Gazette (No. 136) 27.3.18 p. 1 |
Bail Amendment (Stage Two) Act 2018, No. 3/2018
| Assent Date: | 27.2.18 |
| Commencement Date: | S. 29 on 5.4.18: Special Gazette (No. 136) 27.3.18 p. 1 |
| Assent Date: | 25.9.18 |
| Commencement Date: | Ss 73(2), 83, 84 on 26.9.18: s. 2(2); ss 73(1), 74–82 on 28.10.18: Special Gazette (No. 480) 16.10.18 p. 1 |
Justice Legislation Amendment (Police and Other Matters) Act 2019, No. 3/2019
| Assent Date: | 13.3.19 |
| Commencement Date: | Ss 84–88 on 14.3.19: s. 2(1); ss 7, 8, 21 on 5.6.19: Special Gazette (No. 215) 4.6.19 p. 1 |
Transport Legislation Amendment (Better Roads Victoria and Other Amendments) Act 2019, No. 7/2019
| Assent Date: | 26.3.19 |
| Commencement Date: | Ss 29–31 on 1.12.19: s. 2(3) |
Guardianship and Administration Act 2019, No. 13/2019
| Assent Date: | 4.6.19 |
| Commencement Date: | S. 221(Sch. 1 item 46) on 1.3.20: s. 2(2) |
Section 5 of the Sentencing and Other Acts (Amendment) Act 1997, No. 48/1997 (repealed) inserted two new guidelines into section 5 of the Sentencing Act 1991.
Section 5(2AA)(a) is declaratory of the common law position that the court must not have regard in sentencing an offender to any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind. Such executive action would include any action which the Adult Parole Board might take in respect of a sentence.
Section 5(2AA)(b) directs the court, when considering sentencing an offender, not to have regard to any sentencing practices which arose out of the application of section 10 of the SentencingAct 1991.
Section 10(1) was in the following terms:
"When sentencing an offender to a term of imprisonment a court must consider whether the sentence it proposes would result in the offender spending more time in custody, only because of the abolition of remission entitlements by section 3(1) of the Corrections (Remissions) Act 1991, than he or she would have spent had he or she been sentenced before the commencement of that section for a similar offence in similar circumstances."
If section 10(1) applied, section 10(2) required the court to reduce the sentence it would otherwise have passed by one third. Section 10 of the SentencingAct 1991 sunsetted on 22 April 1997. The sunset clause was in the following terms:
"It is intended that the expiry of this section will not of itself have any effect on sentencing practices and that after the expiry a court will, as required by section 5(2)(b), have regard to sentencing practices current immediately before then as if this section had not expired."
In R vBoucher [1995] 1 VR 110, section 10 was interpreted to apply only to offences where the maximum penalty had remained unaltered by the SentencingAct 1991. The court took the view that Parliament had already taken into account the abolition of remissions when formulating the new penalties. This led to inconsistent and anomalous sentencing practices, which had the effect of distorting the scale of effective maximum penalties.
Section 5(2AA)(b) requires the court to disregard any sentencing practices which developed from the application of section 10 of the Sentencing Act 1991. This is intended to include the principles expressed in Boucher's case.
S. 5(2E): Section 29 of the Constitution (Court of Appeal) Act 1994, No. 109/1994 reads as follows: