Part 3Custodial sentences

Part 3—Custodial sentences Division 1—Imprisonment 44—Commencement of sentences and non‑parole periods (1) If a court imposes a sentence of imprisonment and does not suspend the sentence under Part 4 Division 2, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced. (2) If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and— (a) make an appropriate reduction in the term of the sentence; or (b) direct that the sentence will be taken to have commenced— (i) on the day on which the defendant was taken into custody; or (ii) on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced. (3) If a court imposes a sentence of imprisonment on a defendant who is not present in court, the court must direct that the sentence is to commence— (a) on the day on which the defendant is taken into custody under the warrant of commitment issued in respect of the sentence; or (b) if the defendant is subject to some other sentence of imprisonment—on the completion of that other sentence of imprisonment or at some earlier time fixed by the court. (4) If a court fixes a non‑parole period, the court must specify the date on which the non‑parole period is to commence or is to be taken to have commenced. (5) If a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non‑parole period fixed by the court in respect of that sentence will be taken to have commenced on that day. (6) If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence will— (a) in the case of a defendant not then in custody—commence on the day on which the defendant is subsequently taken into custody for the offence; or (b) in the case of a defendant already in custody for the offence—be taken to have commenced on the day on which the defendant was last so taken into custody; or (c) in the case of a defendant in custody for some other offence—commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively under this Act or any other Act. 45—Cumulative sentences (1) Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative on any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant. (2) If a sentence of imprisonment is imposed for an offence committed by the defendant— (a) during a period of release on parole or conditional release; or (b) while serving a period of imprisonment under an order of the Parole Board for breach of parole conditions, the sentence will (except where 1 of the sentences to which the defendant is subject is life imprisonment) be cumulative on the sentence, or sentences, in respect of which the defendant was on parole. (3) A direction may be given under subsection (1) irrespective of the number of cumulative sentences that the defendant is already serving or will, in consequence of the direction, be liable to serve. (4) This section does not apply in relation to a youth unless the youth is sentenced as an adult. Division 2—Non‑parole periods 46—Application of Division to youths (1) The following provisions of this Division do not apply in relation to a youth unless the youth is sentenced as an adult: (a) section 47(5)(b); (b) section 47(5)(d); (c) section 47(6); (d) section 48. (2) The remaining provisions of this Division do not apply in relation to a youth unless the youth is sentenced as an adult, or is sentenced to detention to be served in a prison, or is otherwise transferred to or ordered to serve a period of detention in a prison. (3) Section 47 applies in relation to a person who is serving concurrent sentences of imprisonment and detention in a prison as if the person were serving concurrent sentences of imprisonment. 47—Duty of court to fix or extend non‑parole periods (1) Subject to this section, when a court, on convicting a person of an offence, sentences the person to imprisonment, the court must— (a) if the person is not subject to an existing non‑parole period—fix a non‑parole period; or (b) if the person is subject to an existing non‑parole period—review the non‑parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or (c) if the person is serving a minimum term imposed in respect of an offence under a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non‑parole period—fix a non‑parole period in respect of the sentence, or sentences, to be served on the expiry of that minimum term. (2) If the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non‑parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve. (3) If a prisoner is serving a sentence of imprisonment but is not subject to an existing non‑parole period, the sentencing court may, subject to subsection (5), fix a non‑parole period, on application by the prisoner or the presiding member of the Parole Board. (4) The fact that the prisoner has completed a non‑parole period previously fixed in respect of the same sentence of imprisonment, or that a court has previously declined to fix a non‑parole period in respect of that sentence, does not preclude an application under subsection (3). (5) The above provisions are subject to the following qualifications: (a) a non‑parole period may not be fixed— (i) in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than 12 months; or (ii) in respect of a person who is liable to serve a sentence in the community while subject to an intensive correction order; (b) if fixing a non‑parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non‑parole period prescribed in respect of the offence is 20 years; (c) if a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non‑parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed; (d) if fixing a non‑parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non‑parole period prescribed in respect of the offence is four‑fifths the length of the sentence; (e) a court may, by order, decline to fix a non‑parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of— (i) the gravity of the offence or the circumstances surrounding the offence; or (ii) the criminal record of the person; or (iii) the behaviour of the person during any previous period of release on parole or conditional release; or (iv) any other circumstance. (6) If— (a) a court sentences a person under section 26 to the 1 penalty for a number of offences; and (b) a mandatory minimum non‑parole period is prescribed (mandatory period) in respect of any of those offences, any non‑parole period to be fixed by the court under that section— (c) must be a period not less than the mandatory period prescribed in respect of the relevant offence; and (d) if there is more than 1 such offence in respect of which a mandatory period is prescribed—must be a period not less than the greater of any such mandatory period; and (e) must be commenced or be taken to have commenced on the date specified by the court (which may be the day on which the person was first taken into custody or a later date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the person is sentenced). See PNJ v The Queen [2009] HCA 6. (7) The DPP or the presiding member of the Parole Board or the Training Centre Review Board (as the case may require) may apply to the sentencing court for an order extending a non‑parole period fixed in respect of the sentence, or sentences, of a prisoner, whether the non‑parole period was fixed before or after the commencement of this Act. (8) The DPP must be notified of an application made by the presiding member of the Parole Board or Training Centre Review Board under this section. (9) In fixing or extending a non‑parole period, the court— (a) must, if the person in respect of whom the non‑parole period is to be fixed or extended is in prison or a training centre serving a sentence of imprisonment or detention, take into account the period already served; and (b) in the case of an application by the DPP or the presiding member of the Parole Board or Training Centre Review Board under subsection (7), must have regard to— (i) the likely behaviour of the person the subject of the application should the person be released from custody; and (ii) the necessity (if any) to protect some other person or persons generally should the person be released from custody; and (iii) the behaviour of the person while in custody (but only insofar as it may assist the court to determine how the person is likely to behave should the person be released); and (iv) such other matters as the court thinks relevant. (10) This section does not apply in relation to a person who is serving, or is liable to serve, a sentence of indeterminate duration. (11) The Parole Board or the Training Centre Review Board (as the case may require) must, at the request of a sentencing court, make a report to the court on any person in respect of whom the court proposes to fix or extend a non‑parole period. (12) For the purposes of this section— (a) a court that orders a suspended sentence of imprisonment to be carried into effect will be taken to have sentenced the person to whom the order relates to imprisonment; and (b) the person the subject of an application by the DPP or the presiding member of the Parole Board or Training Centre Review Board under this section is a party to the application and the DPP is a party to an application under subsection (3); and (c) a reference to an offence of murder includes— (i) an offence of conspiracy to murder; and (ii) an offence of aiding, abetting, counselling or procuring the commission of murder; and (d) the sentencing court means— (i) if the prisoner is subject to a single sentence of imprisonment, or a number of sentences imposed by the 1 court or by a number of courts of coordinate jurisdiction—that court, or a court of coordinate jurisdiction; or (ii) if the prisoner is subject to a number of sentences of imprisonment imposed by courts of different jurisdiction—the court of the highest jurisdiction or a court whose jurisdiction is coordinate with the jurisdiction of that court; and (e) a serious offence against the person means— (i) a major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity; or (ii) a conspiracy to commit an offence referred to in subparagraph (i); or (iii) aiding, abetting, counselling or procuring the commission of an offence referred to in subparagraph (i); and (f) a victim suffers total incapacity if the victim is permanently physically or mentally incapable of independent function. 48—Mandatory minimum non‑parole periods and proportionality (2) In fixing a non‑parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may— (a) if satisfied that a non‑parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non‑parole period as it thinks fit; or (b) in the circumstances (if any) prescribed by the regulations for the purposes of this paragraph, or otherwise in exceptional circumstances, fix a non‑parole period that is shorter than the prescribed period. (3) Without limiting subsection (2)(b), exceptional circumstances may include the following: (a) the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct; (ab) the offence was committed in circumstances of family violence (being circumstances in which the offender, or a member of the offender's family, was a victim of family violence committed by the victim of the offence); (b) if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea; (c) the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such cooperation. (3a) In deciding whether exceptional circumstances exist for the purposes of subsection (2)(b) in relation to an offence committed in circumstances of family violence, the court must have regard to any evidence of family violence admitted in the course of the trial for the relevant offence or otherwise before the court. (4) This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act. circumstances of family violence has the same meaning as in section 34V of the Evidence Act 1929; evidence of family violence has the same meaning as in section 34W of the Evidence Act 1929.