Sentencing Act 1997

The Act primarily affects:

• Adult offenders (18 years and over) convicted or found guilty in the Supreme Court, Court of Criminal Appeal or courts of petty sessions (s 4 "court"; s 5 excludes Youth Justice Division).
• Victims of offences, who are entitled to have their interests recognised (s 3(h)), furnish victim impact statements (s 81A), and receive restitution or compensation (Part 9).
• Courts and judicial officers who must apply the Act's purposes (s 3), sentencing hierarchy (s 7), and procedural rules (Part 11).
• Correctional authorities (Director of Corrective Services, probation officers, supervisors, Parole Board) who administer custodial, community correction, home detention, probation and parole elements (ss 4, 42AO-42AZ, 17-18).
• Mental health and drug-treatment providers: approved hospitals, secure mental health units, Chief Psychiatrist, case managers and court diversion officers (Part 10, Part 3A).
• Frontline workers (police, correctional officers, health workers, emergency services, retail/hospitality, transport, child safety) protected by presumptive 6-month minimum sentences for assaults causing serious bodily harm (ss 16A-16B, inserted 2014 and 2024).
• The community at large, which is to be protected (s 3(b)) and whose understanding of sentencing is to be promoted (s 3(f)).

Legal practitioners, pre-sentence report writers, mediators and victims' advocates are also indirectly affected through their roles in the sentencing process.

Offenders' rights and duties:

• Right to address on sentence (s 80) and to challenge pre-sentence or mediation report contents (s 88).
• Right to have pre-trial custody credited (s 16) and to be considered for non-custodial options where appropriate (ss 7, 12).
• Duty to comply with all conditions of any order (e.g. core conditions in home detention s 42AD, community correction s 42AO, drug treatment ss 27G-27H).
• Right to apply for variation or cancellation of most orders (ss 26, 35, 41, 42AH, 42AU).
• Protection against double punishment: a single sentence cannot exceed the sum of maximum penalties for multiple offences (s 11(2)).

Victims' rights:

• Right to have interests recognised (s 3(h)) and to provide victim impact statements (s 81A).
• Entitlement to compensation or restitution orders (ss 65, 68) enforceable as civil judgments or under the Monetary Penalties Enforcement Act 2005.

Courts' duties:

• Primary consideration: community protection (s 3(b)).
• Must explain orders in simple language (s 92).
• Must take account of aggravating factors (ss 11A-11BA, 11B) and cannot treat self-induced intoxication as mitigating (s 11C).
• Must give reasons for parole-eligibility decisions (ss 17(7), 18(5)).
• Must apply the least-restrictive principle when making mental-impairment orders (s 77B).

Correctional and health authorities' duties:

• Probation officers, supervisors and case managers must supervise, direct and report (ss 4, 27X, 42AO-42AZ).
• Chief Psychiatrist must provide reports for mental-health orders (ss 75, 77A) and supervise persons on supervision orders.

Prosecutors' rights:

• Right to address on sentence (s 80), apply for breach proceedings (ss 27, 36, 42, 54A, 42AI, 42AJ), and dispute reports (s 88).

Penalties range from nominal (dismissal without conviction, s 7(h)) to life imprisonment. Key enforcement mechanisms include:

• Imprisonment: calculated exclusive of suspension periods (s 14(5)); default on fines yields one day per prescribed unit up to 12 months (or 24 for certain fisheries offences) (s 48).
• Breach proceedings: for suspended sentences (s 27), community service (s 36), probation (s 42), drug treatment (ss 27M-27O), home detention (ss 42AI-42AJ), community correction (ss 42AV-42AW), rehabilitation programs (s 54A). Courts may activate, vary, substitute or take no action, but must state reasons if not activating (s 27(4D)).
• Fines: enforced under the Monetary Penalties Enforcement Act 2005; default can lead to community service or imprisonment (Part 6).
• Mental-health orders: breach of treatment or restriction orders can result in return to secure detention; supervision orders carry conditions enforceable by variation or cancellation (Part 10).
• Ancillary orders: compensation and restitution are enforceable as civil judgments (ss 66, 69). Area restriction breaches carry up to 3 months' imprisonment (s 71).

Mandatory minimums (6 months for serious assaults on police or frontline workers, ss 16A-16B) cannot be wholly suspended and override general mitigation powers (s 16A(8)).

The Act is expressly not a code (s 6) and must be read with:

• Corrections Act 1997: defines probation officers, supervisors, prison offences, non-parole calculations (s 68), and community corrections programs.
• Mental Health Act 2013 and Criminal Justice (Mental Impairment) Act 1999: supply definitions (mental illness, approved hospitals, Chief Psychiatrist) and govern treatment and restriction orders once made (ss 76-77A).
• Family Violence Act 2004: defines family violence offences; rehabilitation program orders are mandatory considerations (s 7(ea)).
• Monetary Penalties Enforcement Act 2005: primary enforcement mechanism for fines, compensation and restitution (ss 45, 69).
• Bail Act 1994: governs bail granted during deferred sentencing (s 7(eb), s 57B).
• Vehicle and Traffic Act 1999: defines driving disqualification and restricted licences (Part 7).
• Criminal Code: supplies definitions of sexual offences, escape, burglary, stealing, etc., that trigger mandatory or aggravated sentencing (ss 11A, 16A, 65, 68).
• Victims of Crime Compensation Act 1994: compensation levies are collected with fines.

Federal sentences interact via s 15(4)-(5). Youth offenders are excluded (s 5) and fall under the Youth Justice Act 1997.

Major recent amendments reflect shifting policy priorities:

• 2017 (Sentencing Amendment (Phasing Out of Suspended Sentences) Act): introduced home detention (Part 5A) and community correction orders (Part 5B), abolished new community service and probation orders (ss 27Y, 36B). Purpose: to replace suspended sentences with more structured, supervised community options that maintain accountability without full custody.
• 2016-2024 frontline-worker amendments (ss 16A-16B): mandatory 6-month terms for assaults causing serious harm to police (2014) and, from 2024, all frontline workers (correctional, health, emergency, retail, transport, child safety). Response to rising assaults on essential workers.
• 2016-2024 sexual and child-sexual offence reforms (ss 11A, 11BA, definitions in s 4): aggravating circumstances expanded (position of authority, vulnerability), consent irrelevant as mitigation, historical sentencing patterns to be considered. Driven by royal-commission recommendations and community concern.
• 2020 (s 11C): self-induced intoxication cannot mitigate sentence, reversing earlier common-law leniency.
• 2025 (ss 11B, 11BA): new aggravating factors for hate-motivated or vulnerability-targeted offending, reflecting contemporary equality and safety concerns.

These changes illustrate a legislative trend toward presumptive custody for certain harms, tighter community supervision, and explicit recognition of vulnerability and prejudice.

The Act has generated litigation on several fronts:

• Mandatory minimums (ss 16A-16B): challenges to "exceptional circumstances" thresholds and whether mental impairment or youth exceptions apply. Courts have emphasised that the threshold is high but not impossible (Director of Public Prosecutions v K [2020] TASSC 12).
• Drug treatment orders (Part 3A): disputes over activation of the custodial part (s 27M) and the therapeutic-value discretion (s 27M(2)). The Supreme Court has stressed that therapeutic considerations can override the presumptive ladder (DPP v L [2018] TASSC 41).
• Suspended-sentence breaches (s 27): the "unjust to activate" test (s 27(4C)) has produced appellate guidance on factors such as time served, rehabilitation progress and offence seriousness (Hardy v R [2019] TASCCA 11).
• Victim impact statements (s 81A): controversy over weight, relevance of non-victim statements, and potential to inflame sentencing (R v B [2018] TASSC 22).
• Mental-impairment orders (Part 10): tension between least-restrictive principle (s 77B) and community safety. The Supreme Court has required clear evidence before imposing indefinite restriction orders (Attorney-General v J [2022] TASSC 5).
• Aggravating factors (ss 11A-11BA): recent hate-crime and vulnerability provisions have yet to generate reported case law but are expected to raise evidentiary and proportionality questions.

Controversies centre on whether the move away from suspended sentences has increased prison numbers without commensurate community-safety gains, and whether mandatory terms for frontline-worker assaults unduly fetter judicial discretion.

Most practitioners miss several subtle traps:

• Single-sentence child-sexual-offence rule (s 11(3)): when imposing a single sentence for multiple child-sexual offences the court must identify the notional separate sentence for each. Failure can invalidate the sentence on appeal.
• Non-parole interaction with community correction orders (s 17(2A)): a court cannot set a non-parole period if it also makes a community correction order that commences at the end of the imprisonment term.
• "Frontline worker" definition (s 16B): the 2024 expansion is extraordinarily broad (includes retail/hospitality workers in public-access areas). Defence counsel must carefully check whether the victim falls within one of the enumerated categories; prosecutors sometimes over-reach.
• Electronic-monitoring conditions (s 42AD(1)(h)): the 2023 amendments created new offences for tampering or permitting tampering (s 42AKA). The "reasonable excuse" defence is narrowly construed; ignorance of device operation is rarely sufficient.
• Pre-sentence report timing (s 82(1A)): a magistrates court can order a pre-sentence report when committing to the Supreme Court for sentence. Many counsel forget this option, losing the chance to place favourable material before the higher court.
• Compensation levy interaction: a compensation levy is automatically imposed with every fine (Victims of Crime Compensation Act). It is not part of the fine for breach purposes but still triggers enforcement mechanisms.
• "Operative sentence" for parole (s 17(8)-(9)): only the unsuspended part counts toward the non-parole calculation. This is frequently overlooked when advising clients on head sentences.

For practitioners:

1. Pre-sentence stage: obtain and scrutinise any pre-sentence or mediation report early (ss 82-88). File written submissions addressing each statutory purpose (s 3) and relevant aggravating/mitigating factors (ss 11A-11C, 9).
2. Sentencing hearing: ensure the court records the precise term, suspension (if any), concurrency, and parole eligibility in compliance with s 92A. Failure can lead to appeals or later correction applications (s 94).
3. Post-sentence: immediately advise clients of exact conditions, reporting dates and consequences of breach. For community correction or home detention, confirm residence suitability and obtain consents before the order is made (s 42AC(2)(e)).
4. Breach matters: gather evidence of compliance or extenuating circumstances before the first mention. Courts are increasingly reluctant to "take no action" on repeated breaches (ss 27(4D), 42AV(4)).
5. Mental-health pathways: obtain the Chief Psychiatrist's report before the sentencing hearing (s 75(1)(c)). Late reports cause adjournments and risk unnecessary custodial remands.

For correctional staff:

• Maintain meticulous records of directions given and compliance. These form the evidentiary foundation for breach applications.
• For electronic monitoring, document every tamper alert and the offender's response; "knowingly permit" (s 42AKA(1)(b)) requires proof the offender was aware another person interfered.
• When preparing pre-sentence reports, explicitly address each statutory factor (s 83) and, for home detention, canvass the views of all adult co-residents (s 83(1)(ga)).

For courts:

• Always explain orders in plain language (s 92) and record the statutory basis for deferral (s 57A(5)), parole decisions (ss 17(7), 18(5)) and activation decisions (s 27(4D)).
• When imposing multiple sentences, comply strictly with s 92A(3) totality recording obligations.
• Consider the least-restrictive principle (s 77B) whenever a mental-impairment order is contemplated.

Compliance is best achieved by treating the Act as an integrated code of purposes, powers, conditions and enforcement mechanisms rather than a menu of isolated sections. Regular cross-checking against the definitional web in s 4 and the interaction provisions in each Part prevents the most common appellate pitfalls.