Subdiv 2General sentencing powers

Subdivision 2—General sentencing powers 23—Discharge without penalty (1) If a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose a penalty, the court may— (a) without recording a conviction—dismiss the charge; or (b) on recording a conviction—discharge the defendant without penalty. (2) If a court finds a person guilty of an offence and— (a) the defendant has spent time in custody in respect of the offence; and (b) the court is satisfied there is good reason not to impose any further penalty on the defendant, the court may— (c) without recording a conviction—dismiss the charge; or (d) on recording a conviction—discharge the defendant without further penalty. (3) A court may exercise the powers conferred by this section despite any minimum penalty fixed by an Act or statutory instrument. 24—Imposition of penalty without conviction If a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both, and the court is of the opinion— (a) that the defendant is unlikely to commit such an offence again; and (b) that, having regard to— (i) the character, antecedents, age, or physical or mental condition, of the defendant; or (ii) the fact that the offence was trifling; or (iii) any other extenuating circumstances, good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction. 25—Court may reduce, add or substitute certain penalties (1) Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence and after having regard to— (a) the character, antecedents, age, or physical or mental condition, of the defendant; or (b) the fact that the offence was trifling; or (c) any other extenuating circumstances, the court thinks that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty. (2) Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided for the offence under the Act, the court may— (a) impose another type of sentence for the sentence prescribed under the Act for the offence; or (b) impose more than 1 type of sentence as the court thinks appropriate in the circumstances. (3) For the purposes of subsection (2)— (a) if the Act prescribes a sentence of imprisonment only for the offence, the court may instead impose— (i) a sentence of imprisonment (including a community based custodial sentence or a suspended sentence); or (ii) a fine; or (iii) a sentence of community service; or (iv) both a fine and a sentence of community service; or (b) if the Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose— (i) a sentence of imprisonment (including a community based custodial sentence or a suspended sentence) only; or (ii) a fine only; or (iii) a sentence of community service; or (iv) both a fine and a sentence of community service; or (c) if the Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose— (i) a sentence of community service; or (ii) both a fine and a sentence of community service; or (d) if the Act prescribes a fine only for the offence, the court may instead impose a sentence of community service. (4) In this section— community based custodial sentence means— (a) a sentence on home detention under a home detention order; or (b) a sentence to be served in the community while subject to intensive correction under an intensive correction order; suspended sentence means a sentence of imprisonment that is suspended on condition that the defendant enter into a bond under Part 4 Division 2. 26—Sentencing for multiple offences (1) If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates. (1a) If— (a) the person being sentenced is a serious child sex offender; and (b) any of the offences for which the person is being sentenced is a triggering child sex offence; and (c) the person is sentenced to a sentence of indeterminate duration in relation to that triggering child sex offence, then subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences). (2) If any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences). (2a) If any of the offences in respect of which a single sentence is being imposed under this section— (a) involve different victims; or (b) were committed on different occasions, the court must indicate the sentence that would have been imposed in respect of each such offence had this provision not been applied. prescribed designated offence has the same meaning as in section 96. 27—Non‑association or place restriction orders may be issued on sentence (1) A court may, on sentencing a person for a prescribed offence, exercise the powers of the Magistrates Court to issue against the defendant a non‑association order or a place restriction order under the Criminal Procedure Act 1921 as if a complaint had been made under that Act against the defendant in relation to that conviction (and if the person is already subject to such an order, the court may vary or revoke that order as if an application for variation or revocation of the order had been made under that Act, regardless of whether the order was made by it or by some other court). (2) A non‑association order or a place restriction order issued or varied under this section on sentencing a person for a prescribed offence— (a) has effect as such an order under the Criminal Procedure Act 1921; and (b) is not a sentence for the purposes of this Act but may be taken into account in determining the sentence for the prescribed offence. prescribed offence has the same meaning as in Part 4 Division 5 of the Criminal Procedure Act 1921. 28—Intervention orders may be issued on finding of guilt or sentencing (1) A court may, on finding a person guilty of an offence or on sentencing a person for an offence, exercise the powers of the Magistrates Court to issue against the defendant a restraining order under the Criminal Procedure Act 1921 or an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 as if an application had been made under the relevant Act against the defendant in relation to the matters alleged in the proceedings for the offence. (2) Before issuing an order under this section, the court must consider whether, if the whereabouts of the person for whose benefit the order would be issued are not known to the defendant, the issuing of the order would be counterproductive. (3) If a court, in accordance with this section, determines to exercise the powers of the Magistrates Court to issue a restraining order under section 99AAC of the Criminal Procedure Act 1921, section 99KA of that Act applies to proceedings relating to the restraining order as if— (a) the court were the Magistrates Court; and (b) the proceedings were child protection restraining order proceedings within the meaning of that section. (4) An order issued under this section— (a) has effect— (i) as a restraining order under the Criminal Procedure Act 1921; or (ii) as a final intervention order issued by the court under the Intervention Orders (Prevention of Abuse) Act 2009, as the case may require; and (b) is not a sentence for the purposes of this Act. (5) A court must, on finding a person guilty of a sexual offence or on sentencing a person for a sexual offence— (a) consider whether or not an order should be issued under this section; and (b) if the court determines that an order should not be issued under this section—give reasons for that determination (and the determination is subject to appeal as if it were an order of the court made on sentence). (6) In this section— sexual offence means— (a) rape; or (b) compelled sexual manipulation; or (c) indecent assault; or (d) any offence involving unlawful sexual intercourse or an act of gross indecency; or (e) incest; or (f) any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or (g) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or (h) an attempt to commit, or assault with intent to commit, any of the offences referred to in a preceding paragraph. 29—Deferral of sentence for rehabilitation and other purposes (1) A court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date, and granting bail to the defendant in accordance with the Bail Act 1985— (a) for the purpose of assessing the defendant's capacity and prospects for rehabilitation; or (b) for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or (c) for the purpose of assessing the defendant's eligibility for participation in an intervention program; or (d) for the purpose of allowing the defendant to participate in an intervention program; or (e) for any other purpose the court considers appropriate in the circumstances. (2) As a general rule, proceedings may not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 12 months from the date of the finding of guilt (the usual maximum). (3) A court may adjourn proceedings for a period exceeding the usual maximum if the defendant is, or will be, participating in an intervention program and the court is satisfied that— (a) the defendant has, by participating in, or agreeing to participate in, the intervention program, demonstrated a commitment to addressing the problems out of which the defendant's offending arose; and (b) if the proceedings were not adjourned for such a period— (i) the defendant would be prevented from completing, or participating in, the intervention program; and (ii) the defendant's rehabilitation would be prejudiced. (4) In considering whether to adjourn proceedings for a period exceeding the usual maximum, a court is not bound by the rules of evidence and may (in particular) inform itself on the basis of a written or oral report from a person who may be in a position to provide relevant information. (5) A person who provides information to the court by way of a written or oral report is liable to be cross‑examined on any of the matters contained in the report. (6) If a statement of fact or opinion in a report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath. (7) This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment. 30—Mental impairment (1) A court that finds a defendant guilty of a summary or minor indictable offence may release the defendant without conviction or penalty if satisfied— (a) that the defendant— (i) suffers from a mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of the offence; and (ii) has completed, or is participating to a satisfactory extent in, a suitable intervention program; and (iii) recognises that the defendant suffers from the mental impairment and is making a conscientious attempt to overcome behavioural problems associated with it; and (b) that the release of the defendant under this subsection would not involve an unacceptable risk to the safety of a particular person or the community. (2) A court may, at any time before a charge of a summary or minor indictable offence has been finally determined, dismiss the charge if satisfied— (a) that the defendant— (i) suffers from a mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of the offence; and (ii) has completed, or participated to a satisfactory extent in, a suitable intervention program; and (iii) recognises that the defendant suffers from the mental impairment and is making a conscientious attempt to overcome behavioural problems associated with it; and (b) that dismissal of the charge under this subsection would not involve an unacceptable risk to the safety of a particular person or the community; and (c) that the court would not, if a finding of guilt were made, make an order requiring the defendant to pay compensation for injury, loss or damage resulting from the offence. (3) If the defendant is participating in, but has not completed, an intervention program, the court may, instead of dismissing the charge under subsection (2), release the defendant on an undertaking— (a) to complete the intervention program; and (b) to appear before the court for determination of the charge— (i) after the defendant has completed the intervention program; or (ii) if the defendant fails to complete the intervention program. (4) In deciding whether to exercise its powers under this section, the court— (a) may act on the basis of information that it considers reliable without regard to the rules of evidence; and (b) should, if proposing to dismiss a charge under subsection (2) or release a defendant on an undertaking under subsection (3), consider any information about the interests of possible victims that is before it (but is not obliged to inform itself on the matter). court means— (a) the Magistrates Court; or (b) the Youth Court; or (c) any other court authorised by regulation to exercise the powers conferred by this section; mental impairment means an impaired intellectual or mental function resulting from a mental illness, an intellectual disability, a personality disorder, or a brain injury or neurological disorder (including dementia); suitable intervention program, in respect of a defendant, means an intervention program that, in the opinion of the court, provides— (a) supervised treatment; or (b) supervised rehabilitation; or (c) supervised behaviour management; or (d) supervised access to support services; or (e) a combination of any 1 or more of the above, that is suited to address the particular behavioural problems of the defendant relating to the defendant's mental impairment.