Subdiv 3Sentencing of serious child sex offenders for triggering child sex offences

Subdivision 3—Sentencing of serious child sex offenders for triggering child sex offences 48I—Sentencing of serious child sex offenders for triggering child sex offences (1) Subject to this Division, the following provisions apply in relation to the sentencing of a serious child sex offender for a triggering child sex offence: (a) the court sentencing the serious child sex offender must first determine whether— (i) a sentence of imprisonment is to be imposed in relation to the triggering child sex offence; and (ii) that sentence of imprisonment is to be wholly or partly served in a correctional facility, (and in doing so, the court must not have regard to the fact that a mandatory penalty of indeterminate duration may be imposed in relation to the triggering child sex offence); (b) if the court determines that a sentence of imprisonment is to be imposed in relation to the triggering child sex offence, and that sentence of imprisonment is to be wholly or partly served in a correctional facility, then— (i) the mandatory penalty for offence pursuant to section 5AB(1) of the Criminal Law Consolidation Act 1935 must be imposed; and This is a sentence of indeterminate duration. (ii) that sentence of imprisonment— (A) must not be suspended; and (B) must not be served on home detention; and (C) must be served in a correctional facility. (c) if the court determines that a sentence of imprisonment is not to be imposed in relation to the triggering child sex offence, then the court is to sentence the serious child sex offender in accordance with this Act as it applies generally in relation to an offence of the relevant kind. (2) If a court sentences a serious child sex offender to a sentence of indeterminate duration for a triggering child sex offence, the court— (a) must not fix a non‑parole period; and (b) must not reduce, substitute or mitigate the sentence in any way; and (c) must specify the term of imprisonment that would, but for this section, have been imposed on the serious child sex offender for the triggering child sex offence; and (d) must fix a minimum period of imprisonment (being a period not less than four‑fifths the length of the sentence referred to in paragraph (c)) that must be served before the serious child sex offender can apply for release on licence under section 48K; and (e) must fix a minimum period (being not less than 5 years or one‑fifth of the length of the sentence referred to in paragraph (c), whichever is the greater) that the serious child sex offender must spend on release on licence before the serious child sex offender can apply for extinguishment of a sentence under section 48M. (3) In determining a period of imprisonment under subsection (2) the court must not have regard to the matters set out in section 11(4), nor to the fact that the serious child sex offender will be sentenced to a sentence of indeterminate duration. (4) Nothing in this section limits Part 8A of the Criminal Law Consolidation Act 1935. Subdivision 4—Court may declare that Subdivision 3 does not apply to certain serious child sex offenders 48J—Court may declare that Subdivision 3 does not apply to certain serious child sex offenders (1) A court that is sentencing a serious child sex offender for a triggering child sex offence may declare that Subdivision 3 does not apply to the sentencing of the serious child sex offender for the offence if the court is satisfied that— (a) exceptional circumstances exist for doing so; and (b) it is not, in all the circumstances, appropriate that the person be sentenced in accordance with that Subdivision. (2) If a court makes a declaration under subsection (1) in relation to the sentencing of a serious child sex offender for a triggering child sex offence, this Act will be taken to apply in relation to the sentencing of the serious child sex offender for the offence as if the person were not, in fact, a serious child sex offender.