Part 1 Preliminary

1 Short title

This Act may be cited as the Sentencing Act 1997 .

2 Commencement

This Act commences on a day to be proclaimed.

3 Purpose of Act

The purpose of this Act is to –

(a) amend and consolidate the State's sentencing law; and

(b) promote the protection of the community as a primary consideration in sentencing offenders; and

(c) promote consistency in the sentencing of offenders; and

(d) establish fair procedures for –

(i) imposing sentences on offenders generally; and

(ii) imposing sentences on offenders in special cases; and

(iii) dealing with offenders who breach the conditions of sentences; and

(e) help prevent crime and promote respect for the law by allowing courts to –

(i) impose sentences aimed at deterring offenders and other persons from committing offences; and

(ii) impose sentences aimed at the rehabilitation of offenders; and

(iii) impose sentences that denounce the conduct of offenders; and

(f) promote public understanding of sentencing practices and procedures; and

(g) set out the objectives of sentencing and related orders; and

(h) recognise the interests of victims of offences.

4 Interpretation

In this Act, unless the contrary intention appears –

Administrator of Magistrates Courts means the person appointed as Administrator of Magistrates Courts under section 16 of the Magistrates Court Act 1987 ;

[Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] [Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] approved hospital has the same meaning as in the Mental Health Act 2013 ;

[Section 4 Amended by No. 22 of 1999, s. 4, Applied:01 Nov 1999]

[Section 4 Amended by No. 22 of 1999, s. 4, Applied:01 Nov 1999] [Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] approved medical practitioner means an approved medical practitioner within the meaning of the Mental Health Act 2013 ;

area restriction order means an order made under Division 3 of Part 9 ;

[Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] assessment order has the meaning given by section 73 ;

[Section 4 Amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] Australian driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

[Section 4 Amended by No. 76 of 2009, s. 31, Applied:01 Jan 2011]

[Section 4 Amended by No. 76 of 2009, s. 31, Applied:01 Jan 2011] authorised person means –

(a) the Director of Public Prosecutions or an Australian legal practitioner acting on behalf of the Director of Public Prosecutions, or

(b) a police officer; or

(c) an Australian legal practitioner employed in the responsible Department in relation to the Police Offences Act 1935 ; or

(d) a probation officer;

breach includes fail to comply;

[Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] [Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 4 Amended by No. 4 of 2023, s. 176, Applied:25 Sep 2023]

[Section 4 Amended by No. 4 of 2023, s. 176, Applied:25 Sep 2023] Chief Psychiatrist has the same meaning as in the Mental Health Act 2013 ;

[Section 4 Amended by No. 29 of 2019, s. 20, Applied:02 Oct 2019] [Section 4 Amended by No. 2 of 2023, s. 41, Applied:20 Apr 2023] [Section 4 Amended by No. 17 of 2024, s. 41, Applied:01 Nov 2024] child sexual offence means an offence, committed in relation to a person under the age of 18 years, against section 124 , 124A , 124B , 124C , 125 , 125A , 125B , 125C , 125D , 126 , 127 , 129 , 130 , 130A , 133 or 185 of the Criminal Code;

[Section 4 Amended by No. 51 of 2017, s. 4, Applied:14 Dec 2018] community correction order means a community correction order made under section 42AN ;

[Section 4 Amended by No. 51 of 2017, s. 4, Applied:14 Dec 2018] community service means work or other activity in the community under the direction of a probation officer or supervisor;

[Section 4 Amended by No. 51 of 2017, s. 4, Applied:14 Dec 2018] community service order means an order of a court that the offender in respect of whom it is made must perform some work or other activity in the community under the direction of a probation officer or supervisor, but does not include a community correction order;

compensation order means an order made under Division 2 of Part 9 ;

[Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] [Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014]

court means the Supreme Court, the Court of Criminal Appeal or a court of petty sessions;

DCS means Director of Corrective Services;

[Section 4 Amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ;

[Section 4 Amended by No. 16 of 2006, s. 36, Applied:01 Nov 2006] detention period has the same meaning as in the Youth Justice Act 1997 ;

DPP means Director of Public Prosecutions;

[Section 4 Amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000]

[Section 4 Amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

driving disqualification order means an order of a court under section 55 ;

[Section 4 Amended by No. 20 of 2016, s. 4, Applied:11 Jul 2016] drug treatment order means a drug treatment order made under section 27B ;

[Section 4 Amended by No. 16 of 2006, s. 36, Applied:01 Nov 2006] earliest release date has the same meaning as in the Youth Justice Act 1997 ;

enactment means –

(a) an Act; or

(b) any other instrument of a legislative character; or

(c) any provision or part of an Act or of any other instrument of a legislative character;

[Section 4 Amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] enforcement debtor means a person to whom an enforcement order has been issued under Part 5 of the Monetary Penalties Enforcement Act 2005 ;

escape offence means an offence under section 107 of the Criminal Code or an offence committed by a person who has escaped from lawful custody;

[Section 4 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] family violence offence means a family violence offence within the meaning of the Family Violence Act 2004 ;

[Section 4 Amended by No. 2 of 2017, s. 4, Applied:31 Mar 2017] fine means the sum of money payable by an offender under an order of a court made on the offender being found guilty, or convicted, of an offence and includes a sum of money payable as costs, a restitution order and a compensation order;

[Section 4 Amended by No. 51 of 2017, s. 4, Applied:14 Dec 2018] home detention order means a home detention order made under section 42AC ;

[Section 4 Amended by No. 21 of 1999, s. 47, Applied:01 Nov 1999] [Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] [Section 4 Amended by No. 22 of 1999, s. 4, Applied:01 Nov 1999]

[Section 4 Amended by No. 22 of 1999, s. 4, Applied:01 Nov 1999] [Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] mental illness means a mental illness within the meaning of the Mental Health Act 2013 ;

[Section 4 Amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] monetary penalty means a monetary penalty as defined in section 3 of the Monetary Penalties Enforcement Act 2005 ;

[Section 4 Amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000]

[Section 4 Amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] motor vehicle has the same meaning as in the Vehicle and Traffic Act 1999 ;

[Section 4 Amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] MPCSO means a Monetary Penalty Community Service Order issued under section 33 of the Monetary Penalties Enforcement Act 2005 ;

non-parole period, in relation to a sentence of imprisonment, means –

(a) in a case to which section 17(2)(a) or 18(1)(a) applies, the whole of the period of the sentence; or

(b) in a case to which section 17(2)(b) or 18(1)(b) applies, the period specified in the order made under that section; or

(c) [Section 4 Amended by No. 16 of 2006, s. 36, Applied:01 Nov 2006] in any other case, the non-parole period specified in section 68 of the Corrections Act 1997 ;

notification means notification in writing;

Parole Board means the Parole Board established under the Corrections Act 1997 ;

[Section 4 Amended by No. 48 of 2016, s. 4, Applied:08 Feb 2017] pre-sentence program means a program aimed at addressing the underlying causes of offending;

[Section 4 Amended by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008] [Section 4 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]

prison offence means an offence specified in Schedule 1 to the Corrections Act 1997 ;

probation officer means a probation officer within the meaning of the Corrections Act 1997 ;

probation order means an order of a court that the offender in respect of whom it is made be of good behaviour during the period of the order or do or refrain from doing such things as are specified in the order;

proper officer, in relation to a court, means the officer or officers of that court prescribed by the rules of that court for the purpose of the provision in which the term is used;

[Section 4 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] rehabilitation program means a structured treatment program designed to reduce the likelihood of a person who has committed a family violence offence re-offending;

[Section 4 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] rehabilitation program order means an order to attend and participate in a rehabilitation program and in doing so comply with the reasonable directions of a person employed or engaged to conduct such a program;

[Section 4 Amended by No. 21 of 1999, s. 47, Applied:01 Nov 1999] responsible medical officer means a person appointed as responsible medical officer under section 7 of the Criminal Justice (Mental Impairment) Act 1999 ;

restitution order means an order made under Division 1 of Part 9 ;

[Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] restriction order has the meaning given by section 77 ;

[Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] [Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] secure mental health unit has the same meaning as in the Mental Health Act 2013 ;

[Section 4 Amended by No. 72 of 2005, s. 128, Applied:20 Feb 2006] supervision order has the meaning given by section 77A ;

[Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] supervisor means a supervisor within the meaning of the Corrections Act 1997 ;

[Section 4 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] treatment order has the meaning given by section 76 .

5 Application of Act

This Act, other than Division 3 of Part 9 , does not apply to –

(a) [Section 5 Amended by No. 22 of 1999, s. 5, Applied:01 Feb 2000] the Magistrates Court (Youth Justice Division); or

(b) [Section 5 Amended by No. 22 of 1999, s. 5, Applied:01 Feb 2000] a court of summary jurisdiction within the meaning of the Justices Act 1959 that is hearing a charge against a person who has not attained the age of 18 years.

6 Act is not a code

This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders.

Part 2 General sentencing powers

7 Sentencing orders

A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence –

(a) record a conviction and order that the offender serve a term of imprisonment; or

(ab) [Section 7 Amended by No. 21 of 2007, s. 4, Applied:20 Aug 2007] [Section 7 Amended by No. 48 of 2016, s. 5, Applied:08 Feb 2017] if the court is constituted by a magistrate or is the Supreme Court or the Court of Criminal Appeal,, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or

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

(c) [Section 7 Amended by No. 22 of 1999, s. 6, Applied:01 Feb 2000] [Section 7 Amended by No. 51 of 2017, s. 5, Applied:14 Dec 2018] record a conviction and make a home detention order under section 42AC in respect of the offender, if the offender has attained the age of 18 years; or

(d) [Section 7 Amended by No. 22 of 1999, s. 6, Applied:01 Feb 2000] [Section 7 Amended by No. 51 of 2017, s. 5, Applied:14 Dec 2018] with or without recording a conviction, make a community correction order under section 42AN in respect of the offender, if the offender has attained the age of 18 years; or

(e) [Section 7 Amended by No. 2 of 2017, s. 5, Applied:31 Mar 2017] with or without recording a conviction, order the offender to pay a fine; or

(ea) [Section 7 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or

(eb) [Section 7 Amended by No. 48 of 2016, s. 5, Applied:08 Feb 2017] adjourn the proceedings, grant bail under the Bail Act 1994 and, by order, defer, in accordance with Division 1 of Part 8 , sentencing the offender until a date specified in the order; or

(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or

(g) record a conviction and order the discharge of the offender; or

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

(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment.

7A Adjournment for deferral of sentencing

[Section 7A Inserted by No. 48 of 2016, s. 6, Applied:08 Feb 2017]

(1)  Subject to section 57C(3) , proceedings in relation to an offence may not be adjourned under section 7(eb) for a period of more than 2 years from the date on which the order under section 7(eb) deferring the sentencing is made.

(2)  Section 7(eb) does not limit the power of a court to adjourn proceedings, grant bail in relation to a period of adjournment or defer sentencing an offender otherwise than under section 7(eb) .

8 Combined sentencing orders

(1)  A court that orders that an offender serve a term of imprisonment may also do any one or more of the following:

(a) [Section 8 Subsection (1) amended by No. 22 of 1999, s. 7, Applied:01 Feb 2000] [Section 8 Subsection (1) amended by No. 51 of 2017, s. 6, Applied:14 Dec 2018] make a community correction order in respect of the offender, but only if the sentence of imprisonment is not for a term of more than 2 years;

(b) [Section 8 Subsection (1) amended by No. 22 of 1999, s. 7, Applied:01 Feb 2000] [Section 8 Subsection (1) amended by No. 51 of 2017, s. 6, Applied:14 Dec 2018] .  .  .  .  .  .  .  .  

(c) order the offender to pay a fine;

(ca) [Section 8 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 8 Subsection (1) amended by No. 51 of 2017, s. 6, Applied:14 Dec 2018] make a rehabilitation program order in respect of the offender;

(d) make a driving disqualification order in respect of the offender.

(2)  [Section 8 Subsection (2) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 8 Subsection (2) substituted by No. 51 of 2017, s. 6, Applied:14 Dec 2018] A court that makes a home detention order in respect of an offender may also do any one or more of the following:

(a) make a community correction order in respect of the offender;

(b) order the offender to pay a fine;

(c) make a rehabilitation program order in respect of the offender;

(d) make a driving disqualification order in respect of the offender.

(3)  [Section 8 Subsection (3) amended by No. 2 of 2017, s. 6, Applied:31 Mar 2017] [Section 8 Subsection (3) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 8 Subsection (3) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 8 Subsection (3) amended by No. 2 of 2017, s. 6, Applied:31 Mar 2017] [Section 8 Subsection (3) substituted by No. 51 of 2017, s. 6, Applied:14 Dec 2018] A court that makes a community correction order in respect of an offender may also do any one or more of the following:

(a) order the offender to pay a fine;

(b) make a rehabilitation program order in respect of the offender;

(c) if the court records a conviction, make a driving disqualification order in respect of the offender.

(4)  [Section 8 Subsection (4) substituted by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] A court that orders an offender to pay a fine may also do either or both of the following:

(a) [Section 8 Subsection (4) amended by No. 51 of 2017, s. 6, Applied:14 Dec 2018] make a rehabilitation program order in respect of the offender;

(b) [Section 8 Subsection (4) amended by No. 2 of 2017, s. 6, Applied:31 Mar 2017] if the court records a conviction, make a driving disqualification order in respect of the offender.

9 Conviction or non-conviction

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –

(a) the nature and circumstances of the offence; and

(b) the offender's antecedents and character; and

(c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects.

10 Effect of finding of guilt without recording of conviction

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

(2)  A finding of guilt without the recording of a conviction –

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

(b) has the same effect as if a conviction had been recorded for the purpose of –

(i) appeals against sentence; or

(ii) proceedings for variation or breach of sentence; or

(iii) subsequent proceedings against the offender for the same offence; or

(iv) enactments providing for the mandatory forfeiture of property on conviction; or

(v) enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits.

11 Court may impose single, general or mixed sentence

(1)  A court may impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments –

(a) one sentence for all of those offences; or

(b) a separate sentence for each of those offences; or

(c) one sentence for a group of those offences determined by the court and –

(i) one sentence for all of the remaining offences; or

(ii) a separate sentence for each of the remaining offences; or

(iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group.

(2)  In imposing a single sentence on an offender for more than one offence, a court must not impose a penalty exceeding the sum of the maximum penalties that could otherwise have been imposed for those offences.

(3)  [Section 11 Subsection (3) inserted by No. 29 of 2019, s. 21, Applied:02 Oct 2019] If a court imposes a single sentence on an offender for more than one child sexual offence, the court is to identify the sentence that would have been imposed for each child sexual offence, had separate sentences been imposed.

11A Matters to be taken or not taken into account in sentencing certain sexual offenders

[Section 11A Inserted by No. 36 of 2016, s. 4, Applied:07 Oct 2016]

(1)  In this section –

aggravating circumstance, in relation to a sexual offence, includes, but is not limited to, the following:

(a) the victim being under the care, supervision or authority of the offender;

(b) the victim being a person with a disability;

(c) the victim being under the age of 13 years;

(d) the offender committing the offence in whole or in part in the presence of any other person or persons, besides the victim;

(da) [Section 11A Subsection (1) amended by No. 2 of 2023, s. 42, Applied:20 Apr 2023] the victim being under the age of 18 years and the offender being a person in a position of authority in relation to the victim (regardless of whether the offence is under section 124A of the Criminal Code, or any other section of the Criminal Code);

(e) the offender subjecting the victim to violence or the threat of violence;

(f) the offender supplying the victim with alcohol or drugs with the intention of facilitating the commission of the offence;

(g) the offender making forced or uninvited entry into the victim's home or other premises;

(h) the offender doing, in the course of committing the sexual offence, an act likely to seriously and substantially degrade or humiliate the victim;

(i) the offender causing any other person or persons to carry out an act referred to in paragraph (e) , (f) , (g) or (h) of this definition;

disability means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;

[Section 11A Subsection (1) amended by No. 2 of 2023, s. 42, Applied:20 Apr 2023] person in a position of authority has the same meaning as in section 124A of the Criminal Code;

sexual offence means –

(a) [Section 11A Subsection (1) amended by No. 2 of 2023, s. 42, Applied:20 Apr 2023] [Section 11A Subsection (1) amended by No. 17 of 2024, s. 42, Applied:01 Nov 2024] a crime under section 124 , 124A , 124B , 124C , 125 , 125A , 125B , 125C , 126 , 127 , 127A , 129 , 130 , 130A , 133 or 185 of the Criminal Code ; or

(b) [Section 11A Subsection (1) amended by No. 21 of 2022, s. 33, Applied:22 Dec 2022] an attempt to commit a crime referred to in paragraph (a) of this definition; or

(c) [Section 11A Subsection (1) amended by No. 21 of 2022, s. 33, Applied:22 Dec 2022] a crime under section 170A of the Criminal Code, the commission of which involved an unlawful family violence act involving –

(i) a crime referred to in paragraph (a) of this definition; or

(ii) an attempt to commit a crime referred to in paragraph (a) of this definition.

(2)  In determining the appropriate sentence for an offender convicted of a sexual offence –

(a) the court is to take into account any aggravating circumstance in relation to the sexual offence; and

(b) the court is not to take into account the offender's good character or lack of previous convictions if the court is satisfied that the offender's alleged good character or lack of previous convictions was of assistance to the offender in the commission of the sexual offence.

(3)  [Section 11A Subsection (3) inserted by No. 29 of 2019, s. 22, Applied:02 Oct 2019] [Section 11A Subsection (3) substituted by No. 17 of 2024, s. 42, Applied:01 Nov 2024] In determining the appropriate sentence for an offender convicted of a child sexual offence –

(a) any alleged consent, or other alleged acquiescence, made or given by the victim is not a mitigating factor; and

(b) the sentencing patterns and practices at the time of sentencing are to be taken into account by the court.

11B Certain aggravating circumstances to be taken into account when sentencing offenders

[Section 11B Inserted by No. 1 of 2017, s. 4, Applied:31 Mar 2017] [Section 11B Substituted by No. 33 of 2025, s. 4, Applied:23 Dec 2025]

(1)  In determining the appropriate sentence for an offender, the court is to take into account, as an aggravating circumstance in relation to the offence, whether the offender was motivated to commit the offence, in whole or in part –

(a) as a result of hatred for, or prejudice against, any victim of the offence, due to that victim having a relevant attribute; or

(b) as a result of –

(i) hatred for, or prejudice against, a person or group of persons due to that person or group having a relevant attribute; and

(ii) the offender believing, at the relevant time, that a victim of the offence had the relevant attribute or was associated with the person or group referred to in subparagraph (i) .

(2)  For the purposes of this section, a person is taken to be motivated to commit an offence as a result of hatred for, or prejudice against, a person or group due to a relevant attribute if, at the time of committing the offence or immediately before or immediately after committing the offence, the person demonstrated, or expressed, hostility, malice or ill-will in respect of that attribute.

(3)  For the purposes of this section, a relevant attribute of a person or group may include, but is not limited to, one or more of the following attributes or characteristics:

(a) the race, ethnicity or nationality of the person or one or more group members;

(b) the age of the person or one or more group members;

(c) the religious belief or affiliation of the person or one or more group members;

(d) the language used to communicate by the person or one or more group members;

(e) the gender, or gender identity, of the person or one or more group members;

(f) the sexual orientation of the person or one or more group members;

(g) the sex characteristics of the person or one or more group members;

(h) a disability of the person or one or more group members including, but not limited to, physical, mental, cognitive, intellectual or sensory impairments, whether temporary or long-term;

(i) any other prescribed attribute, or prescribed characteristic, of the person or one or more group members.

(4)  This section does not apply in relation to an offence that was committed before the day on which this section commences.

11BA Vulnerability of victims to be taken into account when sentencing offenders

[Section 11BA Inserted by No. 33 of 2025, s. 4, Applied:23 Dec 2025]

(1)  In determining a sentence for an offence in accordance with this Act, a court must take into account whether the offender selected the victim due to the vulnerability or personal circumstances of the victim, whether actual or as perceived by the offender, including, but not limited to –

(a) the race, ethnicity or nationality of the victim; and

(b) the age of the victim; and

(c) the religious belief or affiliation of the victim; and

(d) the language used to communicate by the victim; and

(e) the gender, or gender identity, of the victim; and

(f) the sexual orientation of the victim; and

(g) the sex characteristics of the victim; and

(h) a disability of the victim including, but not limited to, physical, mental, cognitive, intellectual or sensory impairments, whether temporary or long-term; and

(i) the personal relationship between the victim and the offender; and

(j) any other prescribed attribute, or prescribed characteristic, of the victim.

(2)  If, in determining a sentence for an offence, a court is satisfied that the offender selected a victim due to the vulnerability or personal circumstances of the victim, whether actual or as perceived by the offender, the court is to consider that selection as an aggravating circumstance in relation to the offence.

(3)  This section does not apply in relation to an offence that was committed before the day on which this section commences.

11C Self-induced intoxication not to be mitigating factor in sentencing

[Section 11C Inserted by No. 10 of 2020, s. 6, Applied:01 Jul 2020]

(1)  In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(2)  Subsection (1) has effect despite any Act or rule of law to the contrary.

(3)  In this section –

drug includes –

(a) a controlled substance within the meaning of the Misuse of Drugs Act 2001 ; and

(b) a poison, drug of dependence or restricted substance, each within the meaning of the Poisons Act 1971 ;

intoxication means intoxication because of the influence of alcohol, a drug or any other substance;

self-induced intoxication, in relation to a person, means any intoxication of the person except intoxication that –

(a) is involuntary; or

(b) results from fraud, sudden or extreme emergency, accident, reasonable mistake, duress or force; or

(c) results from the administration of a drug –

(i) for which a prescription from a person authorised under an Act to prescribe the drug is required; and

(ii) which is administered for the purpose, and in accordance with the dosage level, recommended by the person prescribing the drug or in the instructions, in relation to the drug, of the manufacturer of the drug; or

(d) results from the administration of a drug –

(i) for which no prescription is required; and

(ii) which is administered for the purpose, and in accordance with the dosage level, recommended in the instructions, in relation to the drug, of the manufacturer of the drug.

Part 3 Custodial sentences

Division 1 General

12 Mitigation of imprisonment

(1)  In this section,

custodial offence means an offence that is created under an enactment and has imprisonment as its only penalty.

(2)  If a court that sentences an offender for a custodial offence considers that the justice of the case will be better met by a non-custodial sentence than by imprisonment, the court may, notwithstanding the penalty provided for the offence, make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence.

13 Maximum prison term imposable by court of petty sessions for crime triable summarily

The maximum term of imprisonment that a court of petty sessions may impose on an offender convicted of a crime that is triable summarily is –

(a) [Section 13 Amended by No. 27 of 2020, s. 32, Applied:01 Jul 2021] 3 years for a first offence; or

(b) [Section 13 Amended by No. 12 of 2000, s. 5, Applied:28 Apr 2000] 5 years for a second or subsequent offence.

14 Commencement of custodial sentence

(1)  Subject to sections 15 and 16 , a sentence of imprisonment commences on the day on which it is imposed unless the offender is not then in custody.

(2)  If the offender is not then in custody, the sentence of imprisonment commences on the day on which the offender is apprehended under a warrant to imprison issued in respect of the sentence.

(3)  If an offender who is sentenced to a term of imprisonment is allowed to be or go at large for any reason, the period between then and the day on which the offender is taken into custody to undergo the sentence does not count in calculating the term to be served and service of the sentence is suspended during that period.

(4)  If an offender who is lawfully imprisoned under a sentence escapes or fails to return after an authorised absence, the period between then and the day on which the offender surrenders or is apprehended does not count in calculating the term to be served and service of the sentence is suspended during that period.

(5)  Despite anything to the contrary in this Act or any other enactment or in any rule of law or practice, a sentence of imprisonment is to be calculated exclusive of any time during which service of it is suspended under subsection (3) or (4) .

(6)  If an offender to whom subsection (4) applies is, in the period during which service of the sentence is suspended under that subsection, imprisoned under another sentence, the unexpired portion of the suspended sentence takes effect –

(a) if it is to be served cumulatively on the sentence the offender is then undergoing, on the day that sentence is completed; or

(b) in any other case, at the end of the period of suspension.

(7)  If an offender who is sentenced to a term of imprisonment and allowed to be or go at large pending an appeal or the consideration of any question of law reserved or case stated is imprisoned under another sentence at the time when the appeal, question of law reserved or case stated is finally determined, the first-mentioned sentence or the unexpired portion of it takes effect –

(a) if it is to be served cumulatively on the sentence the offender is then undergoing, on the day that sentence is completed; or

(b) in any other case, on the day the appeal, question of law reserved or case stated is finally determined.

(8)  Subsection (7) applies unless the sentencing court or the court determining the appeal, question of law or case stated otherwise directs.

15 Custodial sentence: whether concurrent or cumulative

(1)  [Section 15 Subsection (1) amended by No. 16 of 2006, s. 37, Applied:01 Nov 2006] Except as provided in this section, an offender who is sentenced to a term of imprisonment must serve the sentence concurrently with any uncompleted sentence of imprisonment or detention period that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise.

(1A)  [Section 15 Subsection (1A) inserted by No. 16 of 2006, s. 37, Applied:01 Nov 2006] If a court –

(a) sentences an offender to a term of imprisonment and the offender is already serving or liable to serve a detention period; and

(b) determines that the sentence of imprisonment ought not to be served concurrently with the uncompleted detention period –

the court may order that the sentence of imprisonment commence on the earliest release date in respect of the detention period.

(2)  An offender who is sentenced to a term of imprisonment for an escape offence or for non-payment of a fine must serve the sentence cumulatively on any uncompleted sentence of imprisonment, other than a sentence of life imprisonment, that the offender is then serving or liable to serve.

(3)  An offender who is sentenced to a term of imprisonment for a prison offence must serve the sentence cumulatively on any uncompleted sentence of imprisonment that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise because of exceptional circumstances.

(4)  If a court sentences an offender to a term of imprisonment for an offence against a law of Tasmania and the offender is already serving or liable to serve a sentence of imprisonment for an offence against a law of the Commonwealth, the court must direct when the new term of imprisonment is to commence.

(5)  For the purposes of subsection (4) , the new term of imprisonment is to commence no later than immediately after –

(a) the completion of the sentence for the Commonwealth offence if a non-parole period or pre-release period, as defined in Part 1B of the Crimes Act 1914 of the Commonwealth, was not fixed in respect of it; or

(b) the end of that period if a non-parole period or pre-release period was fixed.

(6)  [Section 15 Subsection (6) amended by No. 44 of 2004, s. 46, Applied:16 Nov 2004] This section has effect despite anything to the contrary in this Act or any other enactment other than section 9(5) of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 .

16 Time held in custody before trial, &c., to be taken into account

(1)  [Section 16 Subsection (1) substituted by No. 17 of 1999, s. 4, Applied:14 May 1999] A court that is sentencing an offender to a term of imprisonment for an offence –

(a) must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence; and

(b) may order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed.

(2)  Subsection (1) does not apply to –

(a) a period of custody of less than one day; or

(b) a sentence of imprisonment of less than one day; or

(c) [Section 16 Subsection (2) amended by No. 31 of 2004, s. 8, Applied:27 Oct 2004] a sentence of imprisonment that has been wholly suspended or the suspended part of a partly suspended sentence of imprisonment.

(d) [Section 16 Subsection (2) amended by No. 31 of 2004, s. 8, Applied:27 Oct 2004] .  .  .  .  .  .  .  .

16A Mandatory imprisonment for offence causing serious bodily harm to police officer

[Section 16A Inserted by No. 26 of 2014, s. 4, Applied:17 Dec 2014]

(1)  Despite section 7 , if –

(a) a person is convicted of an offence, against a provision of an Act, committed in relation to a police officer while the police officer was on duty; and

(b) the police officer suffered serious bodily harm caused by, or arising from, the offence –

a court that convicts the person, and a court that imposes a sentence upon the conviction of the person, in respect of the offence must, unless there are exceptional circumstances, order the person to serve in respect of the offence a term of imprisonment of not less than 6 months.

(2)  For the purposes of this section, an offence is to be taken to be committed in relation to a police officer only if the person who committed the offence knows, or ought reasonably be expected to know, that bodily harm to a police officer may be caused by, or arise from, the offence.

(3)  Subsection (1) applies in relation to an offence against a provision of an Act even if the Act –

(a) does not indicate that the offence is punishable by imprisonment; or

(b) indicates that the offence is punishable by imprisonment for a term of less than 6 months –

but, in either such case, the term of imprisonment that is, in accordance with subsection (1) , to be imposed in respect of the offence is to be 6 months.

(4)  If an order has been made, in accordance with subsection (1) , that a person must serve in respect of an offence a term of imprisonment of not less than 6 months, a court must not –

(a) make any other order in respect of the offence; or

(b) amend an order in respect of the offence –

if the effect of that other order or amendment would be that the person is not imprisoned for a term of at least 6 months in respect of the offence.

(5)  Section 10(2)(b)(v) does not apply in relation to an offence to which subsection (1) applies, to the extent that section 10(2)(b)(v) might otherwise be taken to require subsections (1) and (3) to apply to an offence in relation to which a finding of guilt has been made but a conviction has not been recorded.

(6)  Nothing in this section, apart from subsection (7) , is to be taken to prevent the application of section 11 in relation to an offence to which subsection (1) applies.

(7)  Subsection (3) and section 11(2) are each not to be taken to prevent the making of an order imposing, in respect of an offence to which subsection (1) applies, a term of imprisonment of more than 6 months if the order is imposed, in accordance with section 11(1) , in respect of more than one offence, including but not limited to more than one offence to which subsection (1) applies.

(8)  Section 12 does not apply in relation to an offence to which subsection (1) applies.

(9)  Nothing in this section, apart from subsections (4) and (8) , is to be taken to prevent a court making, in respect of an offence to which subsection (1) applies, an order (including an order imposing a penalty) that is an order in addition to an order imposing in respect of the offence a term of imprisonment in accordance with this section.

16B Presumption of mandatory imprisonment for offence causing serious bodily harm to frontline worker

[Section 16B Inserted by No. 29 of 2024, s. 4, Applied:13 Dec 2024]

(1)  In this section –

child safety officer means a person who is a State Service officer, or a State Service employee, employed or appointed under the Children, Young Persons and Their Families Act 1997 to provide services related to the protection of children;

correctional services officer means –

(a) a correctional officer, within the meaning of the Corrections Act 1997 ; and

(b) a probation officer; and

(c) a person who is a State Service officer, or a State Service employee, and who administers or provides all or part of a program that is –

(i) a community corrections program referred to in section 88 of the Corrections Act 1997 ; or

(ii) provided for the purposes of this Act to persons who are subject to community correction orders; and

(d) a person who is a State Service officer, or a State Service employee, and whose duties include one or more of the following:

(i) monitoring persons who are subject to home detention orders;

(ii) having regular contact with persons who are subject to home detention orders;

(iii) supervising persons who have the duties referred to in subparagraph (i) or (ii) ; and

(e) a person who is a State Service officer, or a State Service employee, and who, pursuant to section 66(2) of the Corrections Act 1997 , is made available to, and serves, the Parole Board; and

(f) any other person who is appointed or employed for the purposes of the Corrections Act 1997 ;

emergency service officer means –

(a) a person employed or appointed under the Fire Service Act 1979 ; or

(b) a person employed or appointed under the Ambulance Service Act 1982 ; or

(c) an emergency management worker referred to in paragraph (a) , (b) , (c) or (d) of the definition of emergency management worker in section 3 of the Emergency Management Act 2006 who is not a police officer; or

(d) an emergency management worker referred to in paragraph (e) of the definition of emergency management worker in section 3 of the Emergency Management Act 2006 in relation to –

(i) an authorised use of emergency powers under section 40 of the Emergency Management Act 2006 ; or

(ii) a declared state of emergency under section 42 of the Emergency Management Act 2006 ;

frontline worker means –

(a) a child safety officer; and

(b) a correctional services officer; and

(c) a health and safety officer; and

(d) a public officer; and

(e) a retail or hospitality worker; and

(f) a security officer; and

(g) a transport worker;

health and safety officer means the following persons:

(a) an emergency service officer;

(b) a health worker;

(c) an inspector appointed under Part 9 of the Work Health and Safety Act 2012 ;

health worker means the following persons:

(a) a person who is a registered health practitioner or student within the meaning of the Health Practitioner Regulation National Law (Tasmania);

(b) a person employed or engaged by a hospital –

(i) as a hospital attendant; or

(ii) as a medical orderly;

hospital means –

(a) a private hospital within the meaning of the Health Service Establishments Act 2006 ; and

(b) a State-funded hospital;

passenger transport service driver means a driver undertaking the provision of one or more of the following services within the meaning of the Passenger Transport Services Act 2011 :

(a) an on-demand passenger transport service;

(b) a regular passenger service;

premises includes land, and any part of any premises or land, private premises and a public place;

private premises means premises that are not a public place;

public officer includes any person, who is not a police officer, acting in good faith in the execution, or intended execution, of an Act, or a public duty or authority, who, in so acting, enters onto premises;

public place has the same meaning as in the Police Offences Act 1935 ;

retail or hospitality worker means a person whose duties, in respect of the employment of the person, primarily involve working in an area, to which the public have access, of –

(a) a shop; or

(b) a food business, within the meaning of the Food Act 2003 , of a commercial nature;

security officer means a person who is a crowd control agent, crowd controller, security agent or security guard within the meaning of the Security and Investigations Agents Act 2002 ;

shop means the whole or part of a building, place, stall, structure, tent, vehicle or yard in or on which goods are sold, or offered or exposed for sale, by retail, including by auction;

transport worker means the following persons:

(a) a passenger transport service driver;

(b) a driver undertaking the provision of one or more of the following services within the meaning of the Taxi and Hire Vehicle Industries Act 2008 :

(i) a luxury hire car service;

(ii) a restricted hire vehicle service;

(c) a master or pilot of a domestic commercial vessel, used in connection with a commercial or governmental activity, within the meaning of the Commonwealth domestic commercial vessel national law, as applied by the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2013 .

(2)  In determining whether a person is a health worker, retail or hospitality worker or transport worker for the purposes of this section, it does not matter whether or not the person is an agent, bailee or employee in respect of that role.

(3)  Despite section 7 , if –

(a) a person is convicted of an offence, against a provision of an Act, committed in relation to a frontline worker while the frontline worker was working as a frontline worker; and

(b) the frontline worker suffered serious bodily harm caused by, or arising from, the offence –

the court that convicts the person of, or imposes on the person a sentence upon the conviction for, the offence is to order the person to serve a term of imprisonment of not less than 6 months in respect of the offence, unless subsection (5) applies.

(4)  For the purposes of this section, an offence is to be taken to have been committed in relation to a frontline worker only if the person who committed the offence knew, or ought reasonably be expected to have known, that bodily harm to a frontline worker may be caused by, or arise from, the offence.

(5)  Despite subsection (3) , the court must not impose a term of imprisonment, in accordance with that subsection, on an offender if –

(a) the offender had not attained the age of 18 years at the time at which the offence was committed; or

(b) the offender has impaired mental functioning that is causally linked to the offence and that –

(i) ought to be regarded as reducing the offender’s culpability for the offence; or

(ii) is likely to result in the imprisonment of the offender being more difficult for the offender, or more of a risk to the health or wellbeing of the offender, than would be the case for an offender who did not have such impaired mental functioning; or

(c) in the opinion of the court, the imposition of such a sentence would be unjust when considering the circumstances of the offence or the offender.

(6)  Subsection (3) applies in relation to an offence against a provision of an Act even if the Act –

(a) does not indicate that the offence is punishable by imprisonment; or

(b) indicates that the offence is punishable by imprisonment for a term of less than 6 months –

but, in either such case, the term of imprisonment that is, in accordance with subsection (3) , to be imposed in respect of the offence is to be 6 months.

(7)  Nothing in this section is to be taken to prevent the application of section 11 in relation to an offence to which subsection (3) applies, including if –

(a) the sentence for the offence is a term of imprisonment of not less than 6 months; and

(b) in accordance with section 11 , that sentence also applies to another offence which may, or may not, be an offence to which subsection (3) applies.

(8)  For the avoidance of doubt –

(a) subsection (3) does not provide for a mandatory penalty on conviction, in respect of an offence to which that subsection applies, for the purposes of section 10(2)(b)(v) ; and

(b) nothing in this section prevents a court from making, in respect of an offence to which subsection (3) applies, any order (including an order imposing a penalty) that is in addition to an order imposing a term of imprisonment in respect of the offence.

Division 2 Parole

17 Court may bar or limit eligibility for parole

(1)  This section does not apply to a sentence of imprisonment for the term of an offender's natural life.

(2)  A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order –

(a) that the offender is not eligible for parole in respect of that sentence; or

(b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.

(2A)  [Section 17 Subsection (2A) inserted by No. 51 of 2017, s. 7, Applied:14 Dec 2018] A court that imposes a sentence of imprisonment on an offender may not make an order under subsection (2)(b) in respect of the offender if the court –

(a) makes in respect of the offender a community correction order; and

(b) orders that the operational period, within the meaning of section 42AM , of the community correction order is to commence at the end of the sentence of imprisonment.

(3)  The period specified in an order under subsection (2)(b) is not to be less than one-half of the period of that sentence.

(3A)  [Section 17 Subsection (3A) inserted by No. 25 of 2002, s. 4, Applied:01 Oct 2002] Where a court imposes a sentence of imprisonment and does not make an order under subsection (2) , the offender is not eligible for parole in respect of that sentence.

(4)  In exercising its discretion under subsection (2) , a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:

(a) the nature and circumstances of the offence;

(b) the offender's antecedents or character;

(c) any other sentence to which the offender is subject.

(5)  An order under subsection (2) forms, for all purposes, part of the sentence to which it relates.

(6)  [Section 17 Subsection (6) substituted by No. 25 of 2002, s. 4, Applied:01 Oct 2002] An offender in respect of whom –

(a) an order has been made under subsection (2)(a) ; or

(b) subsection (3A) applies –

is not eligible to be released on parole in respect of his or her sentence.

(7)  [Section 17 Subsection (7) inserted by No. 25 of 2002, s. 4, Applied:01 Oct 2002] A court must give reasons for making an order under subsection (2) .

(8)  [Section 17 Subsection (8) inserted by No. 25 of 2002, s. 4, Applied:01 Oct 2002] If the whole or part of a sentence of imprisonment is suspended, only the operative sentence is to be taken into account for the purposes of this section.

(9)  [Section 17 Subsection (9) inserted by No. 25 of 2002, s. 4, Applied:01 Oct 2002] In subsection (8) ,

operative sentence means that part of a sentence of imprisonment which has not been suspended.

18 Court to make order on eligibility of life prisoner for parole

(1)  A court that sentences an offender to imprisonment for the term of the offender's natural life, either on the conviction of the offender or on the determination of an appeal, must order –

(a) that the offender is not eligible for parole in respect of that sentence; or

(b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.

(2)  For the purposes of subsection (1) , a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have particular regard to all or any of the following:

(a) the nature and circumstances of the offence;

(b) the offender's antecedents or character;

(c) any other sentence to which the offender is subject.

(3)  An order made under subsection (1) forms, for all purposes, part of the sentence to which it relates.

(4)  An offender in respect of whom an order has been made under subsection (1)(a) is not eligible to be released on parole in respect of the offender's sentence.

(5)  [Section 18 Subsection (5) inserted by No. 25 of 2002, s. 5, Applied:01 Oct 2002] A court must give reasons for making an order under this section.

Division 3

[Division 3 of Part 3 Repealed by No. 2 of 2021, Sched. 2, Applied:13 Dec 2021]

19.

[Section 19 Repealed by No. 2 of 2021, Sched. 2, Applied:13 Dec 2021]

20.

[Section 20 Repealed by No. 2 of 2021, Sched. 2, Applied:13 Dec 2021]

21.

[Section 21 Repealed by No. 2 of 2021, Sched. 2, Applied:13 Dec 2021]

22.

[Section 22 Repealed by No. 2 of 2021, Sched. 2, Applied:13 Dec 2021]

23.

[Section 23 Repealed by No. 2 of 2021, Sched. 2, Applied:13 Dec 2021]

Division 4 Suspended sentences

24 Suspended sentence to be conditional

[Section 24 Substituted by No. 76 of 2009, s. 31, Applied:01 Jan 2011]

(1)  If a court makes an order suspending the whole or a part of a sentence of imprisonment, the order is subject to the condition that the offender does not commit another offence punishable by imprisonment during the period the order is in force.

(2)  In addition to the conditions specified in subsection (1) , an order suspending the whole or a part of a sentence of imprisonment may be subject to any one or more of the following conditions:

(a) [Section 24 Subsection (2) amended by No. 51 of 2017, s. 9, Applied:14 Dec 2018] that the offender is to perform community service for the number of hours, specified in the order, that are within a period specified in the order;

(b) that the offender is subject to the supervision of a probation officer;

(c) that the offender is required to undertake a rehabilitation program;

(d) any other condition as the court considers necessary or expedient.

(3)  A condition imposed under subsection (1) or (2) may in itself be made subject to any condition as the court considers necessary or expedient.

(4)  [Section 24 Subsection (4) amended by No. 51 of 2017, s. 9, Applied:14 Dec 2018] If a suspended sentence is, before the commencement of section 27Y , made conditional on the performance of community service, the following sections apply with such modifications as are necessary and, in particular, a reference to a community service order in those sections is taken to be a reference to the condition imposing community service:

(a) section 28(b) , (c) , (d) , (e) , (f) and (g) ;

(b) sections 30 , 31 , 32 and 33 ;

(c) section 34(a) ;

(d) section 36A .

(5)  [Section 24 Subsection (5) amended by No. 51 of 2017, s. 9, Applied:14 Dec 2018] If a suspended sentence is, before the commencement of Part 5B , made conditional on supervision of the offender by a probation officer, the following sections apply with such modifications as are necessary and, in particular, a reference to a probation order in those sections is taken to be a reference to the condition imposing probation:

(a) section 37(1)(b) , (c) , (d) , (e) , (f) and (g) ;

(b) section 37(2) and (3) ;

(c) sections 38 , 39 and 40 .

(5A)  [Section 24 Subsection (5A) inserted by No. 51 of 2017, s. 9, Applied:14 Dec 2018] If a suspended sentence is, after the commencement of Part 5B , made conditional on the performance of community service, the following sections apply with such modifications as are necessary and, in particular, a reference to a community correction order in those sections is taken to be a reference to the condition imposing community service:

(a) section 42AO(b) , (c) , (d) , (e) and (f) ;

(b) section 42AP(1)(d) ;

(c) section 42AQ(1) , (2) and (3) ;

(d) sections 42AR , 42AS and 42AT ;

(e) sections 42AX and 42AZ .

(5B)  [Section 24 Subsection (5B) inserted by No. 51 of 2017, s. 9, Applied:14 Dec 2018] If a suspended sentence is, after the commencement of Part 5B , made conditional on supervision of the offender by a probation officer, the following sections apply with such modifications as are necessary and, in particular, a reference to a community correction order in those sections is taken to be a reference to the condition imposing probation:

(a) section 42AO(b) , (c) , (d) , (e) and (f) ;

(b) section 42AP(1)(b) , (c) , (e) , (f) , (g) , (i) and (j) ;

(c) section 42AQ(1) , (2) and (3) ;

(d) section 42AR .

(6)  Nothing in this section is intended to affect the operation of section 8(1) .

25 Effect of suspended sentence

(1)  A partly suspended sentence of imprisonment is taken for all purposes to be a sentence of imprisonment for the whole term stated by the court.

(2)  A wholly suspended sentence of imprisonment is taken to be a sentence of imprisonment for the purposes of all enactments other than enactments providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits.

(3)  If, under section 27 , an offender is ordered to serve the whole or part of a wholly suspended sentence of imprisonment then, for the purposes of any enactment providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits, the offender is taken to have been sentenced to imprisonment on the day on which the order was made under that section.

(4)  An offender in respect of whom a suspended sentence has been imposed is not required to serve the sentence or part sentence held in suspense unless the offender is ordered to do so under section 27 .

26 Variation of order conditionally suspending sentence

(1)  A court that has made an order suspending a sentence of imprisonment on conditions may, on application under this subsection –

(a) vary the order; or

(b) cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just convicted the offender of that offence or those offences.

(2)  Before the court varies or cancels the order it must be satisfied that –

(a) the circumstances of the offender have materially altered since the order was made, as a result of which the offender will not be able to comply with any one or more of the conditions of the order; or

(b) the offender is no longer willing to comply with the order.

(3)  If the court cancels the order it must, in determining how to deal with the offender, take into account the extent to which the offender had complied with the order before its cancellation.

(4)  An application under subsection (1) may be made by –

(a) the offender or DPP if the sentencing court was the Supreme Court; or

(b) the offender, complainant or police prosecutor if the sentencing court was a court of petty sessions.

(5)  Notice of an application under subsection (1) by an offender is to be given to –

(a) the DPP if the sentencing court was the Supreme Court; or

(b) the complainant or police prosecutor if the sentencing court was a court of petty sessions.

(6)  Notice of an application under subsection (1) by a complainant or police prosecutor or the DPP is to be given to the offender.

(7)  The court may order that a warrant to arrest be issued against the offender if the offender does not attend before the court on the hearing of the application.

27 Breach of order suspending sentence

(1)  [Section 27 Subsection (1) substituted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If it appears to an authorised person that, during the period an order suspending a sentence of imprisonment is in force in relation to an offender, the offender has breached a condition of the suspended sentence, the authorised person may apply to the court, which made the order suspending the sentence of imprisonment, for an order under this section.

(2)  [Section 27 Subsection (2) amended by No. 76 of 2009, s. 32, Applied:01 Jan 2011] The authorised person must give notice of the application under subsection (1) to the offender.

(3)  [Section 27 Subsection (3) substituted by No. 20 of 2013, s. 85, Applied:20 Jun 2013] The court may issue a warrant for the arrest of the offender if –

(a) the offender fails to appear at the hearing of the application; or

(b) the court is satisfied that reasonable efforts to give the offender notice of the application have been made but those efforts have been unsuccessful.

(4)  [Section 27 Subsection (4) substituted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If a court finds an offender guilty of an offence punishable by imprisonment committed during the period an order suspending a sentence of imprisonment is in force in respect of the offender (in this section called the "new offence"), an authorised person –

(a) may make an oral application to the court, while the offender is before the court in relation to the new offence, for an order under this section; and

(b) is to provide the offender in writing with the grounds for the oral application, if directed to do so by the court.

(4A)  [Section 27 Subsection (4A) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If an application is made under subsection (4) to a court that is not the court that imposed the suspended sentence on the offender, the court hearing the application may do either of the following:

(a) deal with the application under this section;

(b) adjourn the application to the court that imposed the suspended sentence and either grant the offender bail or remand the offender in custody.

(4B)  [Section 27 Subsection (4B) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it.

(4C)  [Section 27 Subsection (4C) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead –

(a) activate part of the sentence that is held in suspense and order the offender to serve it; or

(b) order that a sentence (in this section called the "substituted sentence") take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or

(d) make no order in respect of the suspended sentence.

(4D)  [Section 27 Subsection (4D) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If the court decides not to exercise the power referred to in subsection (4B) it must state the reasons for so deciding.

(4E)  [Section 27 Subsection (4E) inserted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If, on the hearing of an application under this section, the court is satisfied that the offender has breached, without reasonable excuse, a condition of the suspended sentence other than by committing a new offence, the court may –

(a) activate all or part of the sentence that is held in suspense and order the offender to serve it; or

(b) order that a sentence (in this section called the "substituted sentence") take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the breach; or

(d) make no order in respect of the suspended sentence.

(5)  A substituted sentence may be any sentence that the court could have imposed on the offender had it just found the offender guilty of the offence in respect of which the suspended sentence was imposed, but no greater term of imprisonment is to be imposed by the substituted sentence than was imposed by the suspended sentence.

(6)  If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served –

(a) immediately; and

(b) cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court.

(6A)  [Section 27 Subsection (6A) amended by No. 76 of 2009, s. 32, Applied:01 Jan 2011] [Section 27 Subsection (6A) inserted by No. 25 of 2002, s. 6, Applied:01 Oct 2002] If, under subsection (4B) , (4C) or (4E) , a court orders a sentence to take effect –

(a) the sentence is taken to be a sentence imposed on the offender as if the court had just found the offender guilty of the offence in respect of which the suspended sentence was imposed; and

(b) section 17 applies to that sentence.

(6B)  [Section 27 Subsection (6B) amended by No. 76 of 2009, s. 32, Applied:01 Jan 2011] [Section 27 Subsection (6B) inserted by No. 25 of 2002, s. 6, Applied:01 Oct 2002] If, under subsection (4C) or (4E) , a court orders that a substituted sentence is to take effect, section 17 applies to the substituted sentence.

(7)  [Section 27 Subsection (7) substituted by No. 76 of 2009, s. 32, Applied:01 Jan 2011] If it is not possible for the court to immediately deal with an application under subsection (1) or (4) in respect of the offender, the court may –

(a) adjourn the proceedings; and

(b) either grant the offender bail or remand the offender in custody.

Part 3A Drug treatment orders

[Part 3A Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

27A Interpretation of Part

[Section 27A Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007] In this Part, unless the contrary intention appears –

case manager means a person appointed or authorised under section 27X as a case manager for the purposes of this Part;

core conditions of a drug treatment order – see sections 27E and 27G ;

[Section 27A Amended by No. 48 of 2016, s. 7, Applied:08 Feb 2017]

[Section 27A Amended by No. 48 of 2016, s. 7, Applied:08 Feb 2017] court means a court constituted by a magistrate, the Supreme Court or the Court of Criminal Appeal;

court diversion officer means a person appointed or authorised under section 27X as a court diversion officer for the purposes of this Part;

custodial part, of a drug treatment order – see sections 27E and 27F ;

drug treatment order assessment report or "report" means a report under section 27D ;

family violence order means a family violence order within the meaning of the Family Violence Act 2004 ;

imprisonable offence means an offence that is punishable by a sentence of imprisonment;

interim family violence order means an interim family violence order within the meaning of the Family Violence Act 2004 ;

police family violence order means a police family violence order within the meaning of the Family Violence Act 2004 ;

program conditions of a drug treatment order – see sections 27E and 27H ;

sexual offence means –

(a) [Section 27A Amended by No. 2 of 2023, s. 43, Applied:20 Apr 2023] [Section 27A Amended by No. 17 of 2024, s. 43, Applied:01 Nov 2024] a crime under section 122 , 124 , 124A , 124B , 124C , 125 , 125A , 126 , 127 , 127A , 129 , 133 or 185 of the Criminal Code ; or

(b) a crime under section 298 , 299 or 300 of the Criminal Code relating to a crime specified in paragraph (a) ; or

(c) an offence under section 35(3) of the Police Offences Act 1935 ;

treatment and supervision part, of a drug treatment order – see section 27E .

27AB Court constituted by magistrate may refer sentencing to other magistrate

[Section 27AB Inserted by No. 48 of 2016, s. 8, Applied:08 Feb 2017] Despite any other provision of this or any other Act, if an offender, who is before a court that is to sentence the offender and is constituted by a magistrate, has pleaded guilty to, or been found guilty of, an offence, and the magistrate is of the opinion that the court should consider making a drug treatment order –

(a) the magistrate may refer the offence to another magistrate for sentencing; and

(b) the magistrate may provide, to the magistrate to whom the sentencing is referred, the information, in relation to the offender and the offence, that the magistrate thinks fit; and

(c) any sentence imposed by the magistrate to whom an offence is referred under paragraph (a) has for all purposes the same effects and consequences as if it had been passed by the magistrate who presided at the hearing or trial, or received the plea, in relation to the offence.

27B Court may make drug treatment order

[Section 27B Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  A court may make a drug treatment order in respect of an offender if –

(a) it finds the offender guilty of one or more imprisonable offences other than –

(i) sexual offences; or

(ii) offences involving the infliction of actual bodily harm that, in the court's opinion, was not minor harm; and

(b) it is satisfied on the balance of probabilities that –

(i) the offender has a demonstrable history of illicit drug use; and

(ii) illicit drug use contributed to the commission of the imprisonable offence or offences; and

(c) it considers that, were it not making the drug treatment order –

(i) it would have sentenced the offender to a term of imprisonment; and

(ii) it would not have suspended the sentence, either in whole or in part; and

(d) it has received and considered a drug treatment order assessment report on the offender; and

(e) the offender is not subject to –

(i) [Section 27B Subsection (1) amended by No. 48 of 2016, s. 9, Applied:08 Feb 2017] .  .  .  .  .  .  .  .  

(ii) a parole order under the Corrections Act 1997 ; or

(iii) another drug treatment order; and

(f) no proceedings are pending against the offender, in any court, for –

(i) sexual offences; or

(ii) offences involving the infliction of actual bodily harm.

(2)  The court may make the drug treatment order regardless of whether –

(a) the offender's illicit drug use contributed to the offender breaching, on one or more previous occasions, a sentencing order or bail conditions; or

(b) the offender has been previously sentenced to one or more terms of imprisonment.

(3)  However, the court must not make the drug treatment order unless –

(a) it is satisfied in all the circumstances that it is appropriate to do so; and

(b) it is satisfied that the facilities likely to be used for the treatment and supervision part of the order are reasonably accessible to the offender; and

(ba) [Section 27B Subsection (3) amended by No. 48 of 2016, s. 9, Applied:08 Feb 2017] it is satisfied that –

(i) there are sufficient staff, in respect of a facility that is likely to be used for the treatment and supervision part of the order, to be able to provide the treatment and supervision; and

(ii) there will be sufficient staff and resources to enable treatment and supervision of the offender to be provided when he or she is not being treated in the facility; and

(c) the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order.

27C Purpose of drug treatment order

[Section 27C Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007] A drug treatment order is a sentencing order that aims to do one or more of the following in respect of an offender with a demonstrable history of illicit drug use:

(a) provide an alternative sanction to imprisonment;

(b) through an integrated, supervised and reviewable treatment regime, facilitate the offender's rehabilitation and reintegration into the community;

(c) reduce the incentive for the offender to resort to criminal activity;

(d) reduce risks to the offender's health and well-being.

27D Drug treatment order assessment report

[Section 27D Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  A court that is considering making a drug treatment order in respect of a defendant must –

(a) order a drug treatment order assessment report on the defendant; and

(b) adjourn the proceedings to enable a court diversion officer to provide the report.

(2)  The purpose of the report is to establish whether the defendant is a suitable subject for a drug treatment order, and, if so, make recommendations to the court on what program conditions to attach to the treatment and supervision part of the order.

(3)  The report may set out such of the following matters as, on investigation, appear to its authors to be relevant to its purpose and are readily ascertainable:

(a) the age of the defendant;

(b) the social history and background of the defendant;

(c) the defendant's history of drug use;

(d) the defendant's medical, psychological and psychiatric history and condition, including details of any treatment the defendant has undergone for drug or alcohol dependency;

(e) the defendant's educational background;

(f) the defendant's employment history;

(g) the circumstances of any other offences, known to the court, of which the defendant has been found guilty;

(h) the extent of the defendant's compliance with any sentence currently in force in respect of the defendant;

(i) the defendant's financial circumstances;

(j) any special needs of the defendant.

(4)  The report is to include such other matters, relevant to the defendant, as the court may direct.

(5)  Also, if the authors of the report consider that the defendant may be a suitable subject for a drug treatment order, the report is to advise on programs, courses and treatments that may be able to address the defendant's drug use problem and other social needs.

(6)  The authors of the report must file it with the court within such time as the court directs.

(7)  Within a reasonable time after the report is filed, and before the drug treatment order is made, the court must ensure that a copy of the report is given to –

(a) the prosecutor; and

(b) the defendant's legal representative or, if the defendant is not legally represented, the defendant.

(8)  The prosecution or defence may dispute all or any part of the report.

(9)  If the whole or any part of the report is disputed, the court must not take the disputed report or disputed part into consideration in making the drug treatment order unless the disputing party has been given the opportunity to –

(a) cross-examine the authors of the report on the disputed matters; and

(b) lead evidence on the disputed matters.

(10)  If the court grants the defendant bail on an adjournment under subsection (1)(b) , it must, for the purpose of facilitating the provision of the report, impose a condition of bail requiring the defendant to –

(a) report to a court diversion officer, or to a specified person or body, within a specified period; and

(b) comply with any requirements of the court diversion officer or specified person or body.

27E Parts of drug treatment order

[Section 27E Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  A drug treatment order has –

(a) a custodial part; and

(b) a treatment and supervision part.

(2)  The custodial part consists of the sentence of imprisonment imposed under section 27F .

(3)  The treatment and supervision part consists of –

(a) the core conditions attached under section 27G ; and

(b) the program conditions attached under section 27H .

(4)  The treatment and supervision part operates until it is cancelled under section 27L , 27O or 27Q .

(5)  However, section 27R applies if the treatment and supervision part is not, within 2 years after the making of the drug treatment order, cancelled under section 27L , 27O or 27Q .

27F Custodial part of drug treatment order and its activation

[Section 27F Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  A court that is making a drug treatment order must impose on the offender the sentence of imprisonment it would have imposed were it not making the order.

(2)  The sentence of imprisonment so imposed is the custodial part of the drug treatment order.

(3)  However, the offender is not required to serve all or any of the custodial part of the drug treatment order unless it is activated by some other order under this Part.

(4)  The court must not fix a non-parole period for the sentence of imprisonment imposed under subsection (1) .

27G Core conditions of drug treatment order

[Section 27G Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  A court that is making a drug treatment order must attach the following conditions to the treatment and supervision part of the order:

(a) the offender must not, in Tasmania or elsewhere, commit another imprisonable offence;

(b) [Section 27G Subsection (1) amended by No. 48 of 2016, s. 10, Applied:08 Feb 2017] the offender must attend a court whenever the court directs;

(c) the offender must report to a court diversion officer at a specified place within 2 clear working days after the order is made;

(d) [Section 27G Subsection (1) amended by No. 48 of 2016, s. 10, Applied:08 Feb 2017] the offender must undergo such treatment for the offender's illicit drug use problem as is specified in the order or from time to time specified by a court;

(e) the offender must report to, and accept visits from –

(i) the offender's case manager; or

(ii) court diversion officers;

(f) the offender must, unless there are special circumstances, give the offender's case manager at least 2 clear working days' notice before any change of address;

(g) [Section 27G Subsection (1) amended by No. 48 of 2016, s. 10, Applied:08 Feb 2017] the offender must not leave Tasmania except with the permission, granted either generally or in a particular case, of a court;

(h) [Section 27G Subsection (1) amended by No. 48 of 2016, s. 10, Applied:08 Feb 2017] the offender must comply with all lawful directions of a court;

(i) the offender must comply with all reasonable directions of the offender's case manager and court diversion officers concerning the core conditions and program conditions of the order.

(2)  Also, if the offence in respect of which the drug treatment order is made is a family violence offence, the court must attach the following additional conditions to the order:

(a) the offender must not commit another family violence offence;

(b) the offender must comply with any family violence order, interim family violence order or police family violence order;

(ba) [Section 27G Subsection (2) amended by No. 29 of 2016, Sched. 1, Applied:25 Nov 2017] the offender must comply with any recognised DVO, within the meaning of the Domestic Violence Orders (National Recognition) Act 2016 in force under that Act;

(c) the offender must attend and undergo assessment for, and treatment under, rehabilitation programs as directed by court diversion officers;

(d) the offender, if directed to undergo any rehabilitation programs, must attend and satisfactorily complete those programs and comply with the reasonable directions of the persons employed or engaged to conduct them.

(3)  Conditions attached to the drug treatment order under subsection (1) or (2) are the core conditions of the order.

(4)  While the treatment and supervision part of the drug treatment order is operating, the offender must comply with its core conditions.

(5)  [Section 27G Subsection (5) amended by No. 48 of 2016, s. 10, Applied:08 Feb 2017] A court may issue a warrant for the arrest of the offender if, on any occasion, he or she fails to comply with the condition referred to in subsection (1)(b) .

(6)  [Section 27G Subsection (6) inserted by No. 48 of 2016, s. 10, Applied:08 Feb 2017] A court or a justice may remand in custody an offender arrested under a warrant issued under subsection (5) to appear before a court as soon as practicable.

27H Program conditions of drug treatment order

[Section 27H Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  A court that is making a drug treatment order may attach one or more of the following conditions to the treatment and supervision part of the order:

(a) the offender must submit to drug testing as specified in the order;

(b) the offender must submit to detoxification or other treatment, whether or not residential in nature, as specified in the order;

(c) the offender must attend vocational, educational, employment, rehabilitation or other programs specified in the order;

(d) the offender must submit to medical, psychiatric or psychological treatment specified in the order;

(e) the offender must not associate with persons or classes of persons specified in the order;

(f) the offender must reside at such place, and for such period, as is specified in the order;

(g) the offender must do or not do anything else that the court considers necessary or appropriate concerning –

(i) the offender's illicit drug use; or

(ii) the personal factors that the court considers contributed to the offender's criminal behaviour.

(2)  Conditions attached to the drug treatment order under subsection (1) are the program conditions of the order.

(3)  The court must attach at least one program condition to the drug treatment order but not more than it considers necessary to achieve the purpose for which the order is made.

(4)  While the treatment and supervision part of the drug treatment order is operating, the offender must comply with its program conditions.

27I Case conferences

[Section 27I Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27I Subsection (1) amended by No. 48 of 2016, s. 11, Applied:08 Feb 2017] [Section 27I Subsection (1) amended by No. 48 of 2016, s. 11, Applied:08 Feb 2017] A court constituted by a magistrate may convene a case conference from time to time to find out how an offender subject to a drug treatment order (including such an order made by a court not constituted by a magistrate) is progressing.

(2)  The case conference –

(a) may be held in such place as the court considers suitable; but

(b) is not to be held by way of, or as part of, proceedings in an open court.

(3)  The following persons may attend the case conference:

(a) the offender's legal representative;

(b) the offender's case manager;

(c) a prosecutor;

(d) any court diversion officer who has had dealings with the offender in connection with the order;

(e) at the request of or with the consent of the court, any other person.

(4)  The court, by whatever means it considers most suitable, may direct the offender or any other person to attend the case conference and the offender or other person must comply with that direction.

(5)  Where proceedings for any offence are being heard by a magistrate, no objection can be taken to the magistrate on the ground that he or she has previously convened a case conference in relation to the offender.

27J Variation of drug treatment order on assessment of progress

[Section 27J Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27J Subsection (1) amended by No. 48 of 2016, s. 12, Applied:08 Feb 2017] [Section 27J Subsection (1) amended by No. 48 of 2016, s. 12, Applied:08 Feb 2017] A court constituted by a magistrate may from time to time vary the treatment and supervision part of a drug treatment order (including such an order made by a court not constituted by a magistrate) if it considers it appropriate to do so based on its assessment of the offender's progress.

(2)  The court may act under subsection (1) on its own motion or on the application of –

(a) the offender or the offender's legal representative; or

(b) a police officer or prosecutor; or

(c) a court diversion officer.

(3)  When acting under subsection (1) , the court must ensure that the offender is present.

(4)  Under subsection (1) , the court may do any one or more of the following:

(a) add or remove program conditions;

(b) vary core or program conditions, other than the core condition attached under section 27G(1)(a) , for example to adjust –

(i) the frequency of treatment; or

(ii) the degree of supervision; or

(iii) the frequency of drug testing; or

(iv) the type or frequency of vocational, educational, employment or other programs that the offender must attend;

(c) add, if applicable, core conditions of the kind referred to in section 27G(2) .

27K Compliance reward

[Section 27K Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27K Subsection (1) amended by No. 48 of 2016, s. 13, Applied:08 Feb 2017] A court, on its own motion, may from time to time confer a reward on an offender who has been fully or substantially complying with the conditions of a drug treatment order (including such an order made by another court) by doing one or more of the following:

(a) varying the treatment and supervision part of the order;

(b) varying or cancelling an order under section 27M(1)(c) ;

(c) making an order that some or all of a period for which the custodial part of the drug treatment order is activated under section 27M(1)(d) , but which the offender is yet to serve in a prison, is no longer activated;

(d) conferring on the offender any other reward that the court considers appropriate.

(2)  Under subsection (1)(a) , the court may do one or more of the following:

(a) add or remove program conditions;

(b) vary core or program conditions, other than the core condition attached under section 27G(1)(a) , for example to reduce –

(i) the frequency of treatment; or

(ii) the degree of supervision; or

(iii) the frequency of drug testing.

27L Cancellation reward

[Section 27L Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27L Subsection (1) amended by No. 48 of 2016, s. 14, Applied:08 Feb 2017] A court, on its own motion, may cancel a drug treatment order (including such an order made by another court) as a reward if it is satisfied that –

(a) the offender has been fully or substantially complying with the conditions of the order; and

(b) the continuation of the order is no longer necessary to meet the purposes for which it was made; and

(c) the period of imprisonment that the offender would have had to serve had the order been fully activated at the time of sentencing has expired.

(2)  To avoid doubt, if a drug treatment order is cancelled under this section, any earlier orders activating the custodial part of the order cease to have effect forthwith.

27M Contravention of order

[Section 27M Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27M Subsection (1) amended by No. 48 of 2016, s. 15, Applied:08 Feb 2017] If a court is satisfied that an offender has failed to comply with a condition of a drug treatment order (including such an order made by another court), other than by committing an offence punishable by a term of imprisonment exceeding 12 months, the court must take one of the following actions:

(a) confirm the treatment and supervision part of the drug treatment order;

(b) vary the treatment and supervision part of the drug treatment order;

(c) make an order requiring the offender to perform up to 20 hours of community work under the supervision of the offender's case manager;

(d) subject to section 27N , order that the custodial part of the drug treatment order is activated for a specified period, of not less than one day and not more than 7 days, to be served in prison.

(2)  In deciding which action to take under subsection (1) , the court must –

(a) consider each of the actions in the order in which they appear; and

(b) [Section 27M Subsection (2) amended by No. 48 of 2016, s. 15, Applied:08 Feb 2017] only take the first action that it considers to be appropriate in the circumstances –

[Section 27M Subsection (2) amended by No. 48 of 2016, s. 15, Applied:08 Feb 2017] unless the court is satisfied, having regard to information available to the court as to the therapeutic value of the actions that it may take under subsection (1) , that taking another action under subsection (1) is more likely to achieve the purpose or purposes of a drug treatment order set out in section 27C .

(3)  However, the court may only act under subsection (1)(d) if it is satisfied beyond reasonable doubt that the offender has failed to comply with the relevant condition.

(3A)  [Section 27M Subsection (3A) inserted by No. 48 of 2016, s. 15, Applied:08 Feb 2017] Despite subsection (3) , the court may take action under subsection (1)(d) despite only being satisfied on the balance of probabilities that the offender has failed to comply with the relevant condition, if the court is satisfied, having regard to information available to the court as to the therapeutic value of taking such action, that it is appropriate to do so.

(4)  To act under subsection (1)(a) , (b) or (c) , the court need only be satisfied on the balance of probabilities that the offender has failed to comply with the relevant condition.

(5)  Under subsection (1)(b) , the court may do one or more of the following:

(a) add or remove program conditions;

(b) vary core or program conditions, other than the core condition attached under section 27G(1)(a) , for example to increase –

(i) the frequency of treatment; or

(ii) the degree of supervision; or

(iii) the frequency of drug testing;

(c) add, if applicable, core conditions of the kind referred to in section 27G(2) .

(6)  If the court is satisfied on the balance of probabilities that an offender who is subject to an order under subsection (1)(c) has failed to comply with the order, the court may take any action under subsection (1) .

(7)  The court may act under subsection (1) or (6) on its own motion or on the application of –

(a) a police officer or prosecutor; or

(b) a court diversion officer.

(8)  [Section 27M Subsection (8) inserted by No. 29 of 2018, s. 6, Applied:10 Dec 2018] Section 36A applies, with such adaptation and modification as necessary, to an offender performing community work as required by an order made under subsection (1)(c) as if that order were a community service order.

27N Imprisonment

[Section 27N Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  An offender is only required to serve a period of imprisonment pursuant to an order under section 27M(1)(d) once the total of the custodial periods activated under all such orders in respect of the offender, and which he or she is yet to serve, exceeds 13 days exclusive of any de-activated parts of those custodial periods.

(2)  If a court makes an order under section 27M(1)(d) that will have the effect of activating the accumulated custodial periods of a drug treatment order, it may, to give effect to the order under section 27M(1)(d) , issue a warrant for the imprisonment of the offender.

(3)  In this section –

custodial period, of a drug treatment order, means the period, of imprisonment, for which the custodial part of the order is activated under section 27M(1)(d) ;

de-activated part, of a custodial period of a drug treatment order, means such part of the custodial period as is no longer activated because of an order under section 27K(1)(c) .

27O Commission of certain offences

[Section 27O Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27O Subsection (1) amended by No. 48 of 2016, s. 16, Applied:08 Feb 2017] If a court is satisfied beyond reasonable doubt that an offender has failed to comply with a condition of a drug treatment order (including such an order made by another court) by committing an offence punishable by a term of imprisonment exceeding 12 months, the court must –

(a) take one of the actions under section 27M(1) as though the offender had failed to comply with any other condition of the order; or

(b) cancel the treatment and supervision part of the order and, after taking into account the extent of the offender's compliance with that part –

(i) make an order activating some or all of the custodial part of the drug treatment order; or

(ii) [Section 27O Subsection (1) amended by No. 48 of 2016, s. 16, Applied:08 Feb 2017] subject to subsection (2A) , cancel the custodial part of the drug treatment order and, other than by making an order under section 7(a) , deal with the offender for each offence in respect of which the drug treatment order was made in any way in which it could deal with the offender had it just found the offender guilty of each such offence.

(2)  The court may act under subsection (1) on its own motion or on the application of –

(a) a police officer or prosecutor; or

(b) a court diversion officer.

(2A)  [Section 27O Subsection (2A) inserted by No. 48 of 2016, s. 16, Applied:08 Feb 2017] A court constituted by a magistrate may only take action under subsection (1)(b)(ii) in relation to a drug treatment order if the court made the order.

(3)  Before the court cancels the treatment and supervision part of the drug treatment order under subsection (1) , whether or not it also cancels the custodial part, it must give the offender an opportunity to make a submission on the matter.

(4)  To avoid doubt, if under this section the court cancels the treatment and supervision part or custodial part of the drug treatment order, any earlier orders activating the custodial part of the drug treatment order cease to have effect forthwith.

27P Hearing and determining certain offences

[Section 27P Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  This section applies if an offender subject to a drug treatment order is charged with an offence, whether committed before or after the making of the order, and –

(a) a court finds the offender guilty of the offence; and

(b) for the offence, the court imposes a sentence of imprisonment on the offender; and

(c) the court does not suspend the sentence, either in whole or in part; and

(d) the length of the sentence is less than the remaining length of the custodial part of the drug treatment order; and

(e) the offence is one for which the court could have made a drug treatment order if the offender were not already subject to such an order.

(2)  The court, in imposing the sentence, may order that it is subsumed within the custodial part of the drug treatment order.

(3)  However, unless subsection (2) applies, the court must cancel the treatment and supervision part of the drug treatment order under paragraph (b) of section 27O(1) and take an action under subparagraph (i) or (ii) of that paragraph.

(4)  [Section 27P Subsection (4) inserted by No. 48 of 2016, s. 17, Applied:08 Feb 2017] Despite subsection (3) , a court constituted by a magistrate may only take, in accordance with that subsection, an action under section 27O(1)(b)(ii) in relation to a drug treatment order if the court made the order.

27Q Cancellation

[Section 27Q Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27Q Subsection (1) amended by No. 48 of 2016, s. 18, Applied:08 Feb 2017] A court may cancel the treatment and supervision part of a drug treatment order made by the court if it is satisfied on the balance of probabilities that –

(a) before the order was made, the offender's circumstances were not accurately presented to the court or the authors of the relevant drug treatment order assessment report; or

(b) the offender will be unable to comply with a condition of the order because his or her circumstances have materially changed since it was made; or

(c) the offender is no longer willing to comply with one or more conditions of the order; or

(d) the continuation of the treatment and supervision part of the order is unlikely to achieve one or more of the purposes for which the order was made.

(2)  When cancelling the treatment and supervision part of the order under subsection (1) , the court, after taking into account the extent of the offender's compliance with that part, must –

(a) make an order activating some or all of the custodial part of the drug treatment order; or

(b) cancel the custodial part of the drug treatment order and, other than by making an order under section 7(a) , deal with the offender for each offence in respect of which the drug treatment order was made in any way in which it could deal with the offender had it just convicted him or her of each such offence.

(3)  The court may act under subsection (1) or (2) on its own motion or on the application of –

(a) the offender; or

(b) a police officer or prosecutor; or

(c) a court diversion officer.

(4)  Before the court cancels the treatment and supervision part of the drug treatment order, whether or not it also cancels the custodial part, it must give the offender an opportunity to make a submission on the matter.

(5)  When making an order under subsection (2)(a) , the court may fix a non-parole period for the sentence of imprisonment, or partial sentence of imprisonment, activated by the order.

(6)  Subsection (5) has effect notwithstanding any other provision of this Part.

(7)  To avoid doubt, if under this section the court cancels the treatment and supervision part or custodial part of the drug treatment order, any earlier orders activating the custodial part of the drug treatment order cease to have effect forthwith.

27QA Referral of matters to other courts

[Section 27QA Inserted by No. 48 of 2016, s. 19, Applied:08 Feb 2017]

(1)  Despite any other provision of this or any other Act, if –

(a) a drug treatment order that is in force in relation to an offender has been made by a court constituted by a magistrate, by the Supreme Court or by the Court of Criminal Appeal; and

(b) the offender is before the Supreme Court or the Court of Criminal Appeal –

the Supreme Court or the Court of Criminal Appeal, as the case may be, may, if it is of the opinion that a court constituted by a magistrate ought to consider whether to deal with the offender under a provision of this Part, remand the offender on bail, or in custody, to appear before a court constituted by a magistrate.

(2)  Despite any other provision of this or any other Act, if –

(a) a drug treatment order that is in force in relation to an offender has been made by the Supreme Court or the Court of Criminal Appeal; and

(b) the offender is before a court constituted by a magistrate –

the court constituted by a magistrate may, if it is of the opinion that the Supreme Court ought to consider whether to deal with the offender under a provision of this Part, remand the offender on bail, or in custody, to appear before the Supreme Court.

(3)  If an offender is remanded by a court (the transferring court) to appear before another court (the receiving court) in accordance with this section –

(a) the receiving court is to consider whether to deal with the offender under a provision of this Part; and

(b) if the receiving court considers that –

(i) it ought to deal with the offender under a provision of this Part, the receiving court may take any action in relation to the offender that it may take under the provision; or

(ii) it is not appropriate for the offender to be dealt with by the receiving court, the receiving court may remand the offender on bail, or in custody, to appear before the transferring court to be dealt with as if the offender had not been remanded to appear before the receiving court.

(4)  Without limiting the generality of subsection (3)(b)(i) , the action that a receiving court may take under subsection (3)(b)(i) includes, if an application to the transferring court in relation to the offender has not been disposed of by the transferring court, any action that the receiving court could take if the application had been made to the receiving court.

27R Second anniversary review

[Section 27R Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  This section applies if the treatment and supervision part of a drug treatment order is not cancelled under section 27L , 27O or 27Q within the 2-year period immediately following the making of the order.

(2)  [Section 27R Subsection (2) amended by No. 48 of 2016, s. 20, Applied:08 Feb 2017] As soon as practicable after the 2-year period, a court constituted by a magistrate must review the treatment and supervision part to determine whether, notwithstanding any other provision of this Part, it should continue to operate.

(3)  The court may conduct the review in the same manner as a case conference convened under section 27I and, if it does so, subsections (2) , (3) and (4) of that section apply, with necessary modifications, to the review.

(4)  [Section 27R Subsection (4) substituted by No. 48 of 2016, s. 20, Applied:08 Feb 2017] On completion of a review in relation to a drug treatment order, the court must –

(a) if the court that made the order was constituted by a magistrate, cancel the treatment and supervision part of the order and exercise the court's powers under section 27Q(2) ; or

(b) if the Supreme Court or the Court of Criminal Appeal made the order, provide to the court that made the order a report in relation to the review.

(5)  [Section 27R Subsection (5) inserted by No. 48 of 2016, s. 20, Applied:08 Feb 2017] A court that is provided under subsection (4)(b) with a report in relation to an order must cancel the treatment and supervision part of the order and exercise the court's powers under section 27Q(2) .

27S Motions to review

[Section 27S Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27S Subsection (1) amended by No. 48 of 2016, s. 21, Applied:08 Feb 2017] On the hearing of a motion to review a sentencing order made by a court constituted by a magistrate, the Supreme Court may itself make a drug treatment order.

(2)  For a sentencing order made by a court constituted by a magistrate, Part XI of the Justices Act 1959 applies with the following modifications:

(a) a motion to review does not lie against –

(i) a refusal to make a drug treatment order; or

(ii) a finding that an offender has failed to comply with a condition of a drug treatment order; or

(iii) the variation of the treatment and supervision part of a drug treatment order; or

(iv) the cancellation of the treatment and supervision part, or the custodial part, of a drug treatment order;

(b) if a motion to review concerns the custodial part of a drug treatment order, and not its treatment and supervision part, the motion does not operate as a stay of the treatment and supervision part of the order unless the Supreme Court so orders.

(3)  For the purposes of section 7 , an order under this Part activating some or all of the custodial part of a drug treatment order is taken to be a sentencing order.

(4)  [Section 27S Subsection (4) amended by No. 48 of 2016, s. 21, Applied:08 Feb 2017] If, on the hearing of a motion to review a sentencing order made by a court constituted by a magistrate, the Supreme Court considers that the making of a drug treatment order may be appropriate, it may make such an order under this Part or, with or without directions, refer the matter to that court to consider the making of such an order.

(5)  If a court to which a matter is referred under subsection (4) determines not to make a drug treatment order, it must remit the matter to the Supreme Court for the making of an order under section 7 .

(6)  If a court to which a matter is referred under subsection (4) makes a drug treatment order –

(a) the order has effect for section 7 as if it were a sentencing order made by the Supreme Court on the hearing of the motion to review; but

(b) for all other purposes has effect as an order made by a magistrate.

27T Immunity from prosecution for certain drug offences

[Section 27T Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  A person is not liable to be prosecuted for an offence involving controlled drugs within the meaning of the Misuse of Drugs Act 2001  –

(a) as a result of any admission made in connection with any assessment of the eligibility of the person for the making of a drug treatment order; or

(b) as a result of any admission made in connection with the assessment by a court, or at a case conference convened by that court under section 27I , of the person's progress under a drug treatment order.

(2)  However, subsection (1) does not prevent a prosecution for any offence involving controlled drugs within the meaning of the Misuse of Drugs Act 2001 if there is evidence, other than the admission or evidence obtained as a result of the admission, to support a charge.

(3)  The admission, and any evidence obtained as a result of the admission, is not admissible against the person in a prosecution referred to in subsection (2) .

27U Information sharing

[Section 27U Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007] A person who is a personal information custodian within the meaning of the Personal Information Protection Act 2004 is not taken to contravene that Act by reason only of collecting, using or disclosing or otherwise dealing with personal information for the purposes of this Part.

27V Random drug testing

[Section 27V Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007] If a drug treatment order includes a program condition relating to the requirement for random drug testing, the offender's case manager may decide when and where the offender is to report from time to time for such testing.

27W Disclosure of compliance information

[Section 27W Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  [Section 27W Subsection (1) amended by No. 48 of 2016, s. 22, Applied:08 Feb 2017] A judge, magistrate, court diversion officer or case manager may request any person involved in the treatment or supervision of the offender to disclose any compliance information in the person's possession and the person must comply with that request.

(2)  Subsection (1) has effect notwithstanding the Personal Information Protection Act 2004 or any legislation relating to the confidentiality or privacy of information.

(3)  Where a person discloses compliance information in good faith under this section –

(a) the person does not, by reason of that disclosure, incur any criminal, civil or administrative liability; and

(b) the person is not, by reason of that disclosure –

(i) taken to have breached any rule of law or practice that would otherwise prohibit the person from disclosing the compliance information; or

(ii) taken to have broken any professional or other oath, or breached any professional or other code, standard or guideline of ethics or etiquette that might otherwise bar the person from, or condemn the person for, disclosing the compliance information; or

(iii) liable to condemnation or disciplinary action by any professional body or other person.

(4)  In this section –

compliance information means information about an offender's compliance with the conditions of a drug treatment order.

27X Court diversion officers and case managers

[Section 27X Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007]

(1)  The Secretary may –

(a) appoint a State Service officer or State Service employee employed in the Department to be a court diversion officer or case manager for the purposes of this Part; and

(b) with the consent of the Head of another State Service Agency, appoint a State Service officer or State Service employee employed in that Agency to be a court diversion officer or case manager for the purposes of this Part.

(2)  A person appointed as a court diversion officer or case manager under this section may hold that office in conjunction with State Service employment.

(3)  The Secretary may authorise a person who is not a State Service officer or State Service employee to perform the functions and exercise the powers of a court diversion officer or case manager for the purposes of this Part.

Part 4 Community service orders

27Y No new community service orders to be made

[Section 27Y Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007] [Section 27Y Substituted by No. 18 of 2008, s. 43, Applied:26 Jun 2008] [Section 27Y Repealed by No. 20 of 2016, s. 5, Applied:11 Jul 2016] [Section 27Y Inserted by No. 21 of 2007, s. 5, Applied:20 Aug 2007] [Section 27Y Substituted by No. 18 of 2008, s. 43, Applied:26 Jun 2008] [Section 27Y Repealed by No. 20 of 2016, s. 5, Applied:11 Jul 2016] Despite any other provision of this Act, a court may not impose a community service order on an offender after the day on which Part 5B commences.

28 Conditions of community service order

A community service order is subject to the following conditions:

(a) the offender must not commit an offence punishable by imprisonment while the order is in force;

(b) the offender must report within one clear working day to a probation officer or supervisor, at the place specified in the order;

(c) the offender must satisfactorily perform community service, as directed by a probation officer or supervisor, for the number of hours specified in the order;

(d) the offender must comply with the reasonable directions of a probation officer or supervisor;

(e) the offender must give notification to a probation officer of any change of address or employment before, or within 2 clear working days after, the change;

(f) the offender must not leave or stay outside Tasmania without the permission of a probation officer;

(g) the offender must attend educational and other programs as directed by a probation officer.

29 Court may consider compliance with previous order

In determining whether to make a community service order in respect of an offender, a court may have regard to the extent to which the offender complied with any previous community service order.

30 Multiple community service orders

(1)  A court may make –

(a) 2 or more community service orders in respect of an offender in relation to 2 or more offences; and

(b) a community service order in respect of an offender who is already subject to a community service order.

(2)  If a court makes separate community service orders in relation to 2 or more offences committed by an offender, the conditions of the orders are concurrent unless the court directs otherwise.

(3)  The conditions of a community service order made in respect of a person are, unless the court making the order directs otherwise, concurrent with those of any other community service order in force in respect of that person.

31 Limitation on number of hours of community service

(1)  The maximum number of hours that a court may order community service to be performed under a community service order imposed in respect of one offence is 240.

(2)  The maximum number of hours that a court may order community service to be performed under a community service order imposed in respect of 2 or more offences is 240.

(3)  A court that makes a community service order in respect of an offender who is already subject to such an order must not require the offender to do community service for a number of hours that, aggregated with the number of hours of community service remaining to be completed under the subsisting order, would exceed 240.

(4)  [Section 31 Subsection (4) amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] This section does not apply to an MPCSO.

32 Attendance at educational program

If an offender who is subject to a community service order attends an educational or other program in accordance with the directions of a probation officer, the time that the offender spends attending that program is taken to be performance of community service under the order.

33 Community service for benefit of victim of offence

(1)  A probation officer may arrange for an offender who is subject to a community service order to perform community service for the benefit of the victim of the offender's offence.

(2)  Community service that an offender performs under subsection (1) is taken to be performance of community service under the order.

34 Duration of community service order

A community service order remains in force until the first of the following occurs:

(a) the offender finishes performing community service in accordance with the order for the number of hours specified in the order;

(b) [Section 34 Amended by No. 51 of 2017, s. 12, Applied:14 Dec 2018] the order is cancelled under section 35 or 36 or under another provision of this Act.

35 Review of community service order

(1)  An offender who is subject to a community service order, or an authorised person, may apply to have the order reviewed.

(2)  The application is to be made to the court that made the community service order.

(3)  A copy of the application and notification of the time and place of the hearing of the application is to be served, at least 7 days before the hearing, on –

(a) the offender if the applicant is an authorised person; or

(b) the DPP and the offender's probation officer if the application is made by the offender to the Supreme Court; or

(c) the complainant or police prosecutor, and the offender's probation officer, if the application is made by the offender to a court of petty sessions.

(4)  If the applicant is an authorised person, the court may issue a warrant to arrest the offender if –

(a) the offender fails to appear at the hearing of the application; or

(b) reasonable efforts have been made to serve the application on the offender but have been unsuccessful.

(5)  Subject to subsection (6) , at the hearing of the application, the court may –

(a) vary the community service order; or

(b) cancel the community service order and deal with the offender for the offence or offences in respect of which it was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences.

(6)  The court must not vary or cancel the community service order unless it is satisfied that –

(a) changes in the offender's circumstances since the making of the order have rendered the offender unable to comply with any one or more of the conditions of the order; or

(b) the offender is no longer willing or able to comply with the order.

(7)  In determining how to deal with an offender following the cancellation by it of a community service order, the court must take into account the extent to which the offender had complied with the order before its cancellation.