Div 4Serious repeat adult offenders and recidivist young offenders

Division 4—Serious repeat adult offenders and recidivist young offenders 52—Interpretation In this Division— community based custodial sentence has the same meaning as in section 25; conviction means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded; serious offence means— (a) a serious firearm offence within the meaning of Division 3; or (b) any of the following offences if the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years: (i) an offence under Part 5 Division 2 or 3 of the Controlled Substances Act 1984; (ii) an offence under a law of the Commonwealth dealing with the unlawful importation of drugs into Australia; (iii) an offence involving a terrorist act (within the meaning of Part 5.3 of the Criminal Code of the Commonwealth); (iv) an offence under Part 3 of the Criminal Law Consolidation Act 1935; (v) an offence under section 137 of the Criminal Law Consolidation Act 1935; (vi) an offence under section 170 of the Criminal Law Consolidation Act 1935; (vii) an aggravated offence under section 170A of the Criminal Law Consolidation Act 1935; (viii) an offence under section 85(1) of the Criminal Law Consolidation Act 1935; (ix) an offence under section 85B of the Criminal Law Consolidation Act 1935; (x) a serious and organised crime offence (within the meaning of the Criminal Law Consolidation Act 1935); (xa) an offence against section 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act 2009; (xi) an offence under a corresponding previous enactment substantially similar to an offence referred to in a preceding subparagraph; (xii) a conspiracy to commit, or an attempt to commit, an offence referred to in a preceding subparagraph; (xiii) an offence under the law of another State or a Territory involving conduct that would, if committed in this State, be a serious offence, provided that an offence listed in paragraph (a) or (b) is not a serious offence unless a sentence of imprisonment (other than a wholly suspended sentence or a sentence that consists only of a community based custodial sentence) has been, or is to be, imposed for the offence; serious repeat offender—see section 53; serious sexual offence means a serious offence that is— (a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 60, 63, 63B(1), 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935 where the victim was under the age of 14 years at the time of the offence; or (ab) an offence under section 63B(3) of the Criminal Law Consolidation Act 1935 where— (i) the victim was under the age of 14 years at the time of the offence; or (ii) the victim was a fictitious person represented to the defendant as a real person whom the defendant believed to be under the age of 14 years at the time of the offence; or (b) an offence under section 51 of the Criminal Law Consolidation Act 1935; or (c) an offence under a corresponding previous enactment substantially similar to an offence referred to in a preceding paragraph; or (d) an attempt to commit or an assault with intent to commit an offence referred to in a preceding paragraph; or (e) an offence under the law of another State or a Territory involving conduct that would, if committed in this State, be a serious sexual offence. 53—Serious repeat offenders (1) A person (including a youth that is being dealt with as an adult) is, by force of this subsection, taken to be a serious repeat offender if the person has committed and been convicted of— (a) at least 3 serious offences committed on separate occasions (whether or not the same offence on each occasion); or (b) at least 2 serious sexual offences committed on separate occasions (whether or not the same offence on each occasion). (2) For the purposes of this section, when determining the number of occasions on which a person has committed a particular kind of offence— (a) offences committed by the person as a youth are not to be included unless the youth was dealt with as an adult; and (b) the offence for which the person is being sentenced is to be included if it is of the relevant kind. 54—Sentencing of serious repeat offenders (1) The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender): (a) the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; (b) any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence. (2) However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that— (a) the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and (b) it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender. 55—Recidivist young offenders (1) A youth is, by force of this subsection, taken to be a recidivist young offender if the youth has been convicted of— (a) at least 3 serious offences committed on separate occasions (whether or not the same offence on each occasion); or (b) at least 2 serious sexual offences committed on separate occasions (whether or not the same offence on each occasion). (2) For the purposes of this section, when determining the number of occasions on which a person has committed a particular kind of offence— (a) only offences committed by the person as a youth are to be included (but such offences are to be included regardless of whether the youth was dealt with as an adult or as a youth); and (b) the offence for which the person is being sentenced is to be included if it is of the relevant kind. (3) If a court convicts a youth who is a recidivist young offender of a serious offence (including an offence that resulted in the youth being a recidivist young offender)— (a) the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (but, in the case of the Youth Court, the limitations relating to a sentence of detention under section 23 of the Young Offenders Act 1993 apply to the sentence that may be imposed by the Youth Court on the recidivist young offender); and (b) any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence. (4) Subsection (3) does not apply in relation to a youth if— (a) Part 3 Division 2A applies to the youth; and (b) the youth being sentenced is a serious child sex offender; and (c) the youth is being sentenced for a triggering child sex offence. (5) If a court that is sentencing a youth who is a recidivist young offender for an offence is satisfied that special circumstances exist and that it is, in all the circumstances, not appropriate that the youth be treated as a recidivist young offender, the court may declare— (a) that sections 39, 41 and 41A of the Young Offenders Act 1993 are to apply to the youth as if they were not a recidivist young offender; and (b) if the youth is being sentenced for a serious offence—that subsection (3) does not apply to the youth.