Sentencing Act 1995

The Act directly regulates the conduct of superior courts (Supreme and District), courts of summary jurisdiction (Magistrates and Children's Courts), and speciality courts (s.4(1)). Judicial officers must apply the principles in Part 2, observe the option ladder in Part 5, and comply with procedural requirements in Parts 3 and 4. Failure to give required reasons (ss.8(4), 9AA(5), 35) or explanations (s.34) may found appeals, although s.145 provides that procedural non-compliance does not invalidate the sentence itself.

Offenders are the primary subjects. Every person convicted of an offence under a written law (s.4(1)) is sentenced under the Act, whether the offence predates commencement (s.3(1)) or not. The Act distinguishes natural persons (s.39) from bodies corporate (s.40), imposes different fine multipliers on corporations (s.40(5)), and excludes young offenders where the Young Offenders Act 1994 applies (s.3(2)). Offenders subject to PSOs, CBOs, ISOs, CROs or CSI face standard obligations (ss.33D, 63, 70, 83) and primary requirements (supervision, programme, curfew, community service, electronic monitoring). Breach exposes them to re-sentencing (ss.130, 133, 84F, 84L) or prosecution (ss.131, 84J). Serial family violence offenders (s.124E) and those linked to declared criminal organisations (s.9D) face heightened consequences including mandatory minima, automatic disqualifications (s.124G) and exclusion from suspension or parole (ss.9F, 9G).

Victims are afforded participatory rights. The term "victim" is broadly defined in s.13 (any person or body suffering injury, loss or damage, or immediate family where death results) and expanded in s.23A for victim impact statements (primary and family victims). Victims may give impact statements (ss.24-26), participate in mediation (ss.27-30), apply for reparation orders (s.111), and appeal refusal of reparation (s.114A). Compensation orders survive civil proceedings (s.115) and may be enforced as judgments (s.119).

Corrections personnel are heavily engaged. The CEO (corrections) (defined by reference to the Sentence Administration Act 2003) prepares pre-sentence and performance reports (ss.22, 33I), appoints mediators (s.29), supervises PSOs, CBOs, ISOs and CSI (ss.33D-33H, 63-67, 70-76A, 83-84CA), issues warrants for breach (s.33P), and certifies breaches for evidentiary purposes (ss.33Q, 134). Community corrections officers (CCOs) give directions on supervision, programmes, curfews and electronic monitoring, with statutory powers of entry and inquiry (ss.33H(13), 75(13), 84C(13)). The Prisoners Review Board receives victim impact statements after custodial sentences (s.26(3)) and makes parole decisions under the Sentence Administration Act 2003.

Prosecutors (including the DPP and police prosecutors) must inform the court of remand time (s.23(1)), pending sentences (s.23(2)), and may apply for reparation (s.111), amendment or cancellation of orders (s.126), or re-sentencing on breach of undertakings to assist authorities (s.37A). They lodge notices alleging re-offending (ss.79, 84E, 129) and conduct breach prosecutions (s.131(2)).

Other affected parties include sureties for CROs (s.51), third parties in possession of stolen property subject to restitution orders (s.120), and persons required to surrender passports or comply with disqualification orders. The Act binds the Crown (implicitly through its application to public officers) and interacts with federal, interstate and international sentences via double jeopardy rules (s.11) and the Prisoners (Interstate Transfer) Act 1983 (ss.94A, 85(1)).

Finally, Parliament and the public are affected through the guideline judgment mechanism (s.143), the Chief Justice's power to report on sentencing (s.144), and periodic statutory reviews (ss.150, 150B, 151).

Courts possess both duties and discretionary powers. The paramount duty is to impose a sentence commensurate with offence seriousness (s.6(1)). When imposing imprisonment of 12 months or less, written reasons are required explaining why no lesser option sufficed (s.35(1)), subject to exceptions for mandatory sentences or aggregate terms exceeding 12 months. Explanation of sentence and its consequences in language the offender can understand is mandatory where the offender is present or appears by video link (s.34(1)). For guilty pleas, the court must state the reduction and its extent in open court (s.9AA(5)); the same applies to discounts for assistance to authorities (s.8(5)).

Judges must determine aggravating and mitigating factors (ss.7, 8). Notably, certain matters are expressly excluded from mitigation: the possibility of a high-risk serious offender order (s.8(2)), confiscation of criminal property (s.8(3)), exclusion orders under the Liquor Control Act 1988 (s.8(3B)), or reportable offender status (s.8(3C)). Facilitation of confiscation (except derived property) is, however, mitigating (s.8(3a)). Aggravating factors cannot include a not-guilty plea, prior record, or prior ineffective sentences (s.7(2)).

Offenders enjoy statutory rights. They must be personally present for sentencing unless exceptions apply (s.14). They may request pre-sentence reports (implicit in s.20), make submissions on pending charges (s.32), apply to amend or cancel community orders or CSI (ss.126, 84H), and seek review of conditional orders (s.136H). Spent conviction orders are available where the offence is trivial or the offender is of prior good character and unlikely to re-offend (s.45(1)). Offenders subject to PSOs, CBOs or ISO may earn early termination of programme requirements upon compliance (ss.33G(7), 66(7), 73(7)).

Victims have rights to provide impact statements (s.24), which courts must consider (s.26) but which cannot address penalty (s.25(2)). Mediation reports may record agreements on reparation (s.28). Victims may apply for compensation or restitution (s.111) and appeal refusal (s.114A). Family victims of homicide are included (s.13(b)).

The CEO (corrections) and CCOs have statutory duties to prepare reports, supervise orders, and facilitate proof of breaches via certificates (ss.33Q, 134). They may issue warrants for PSO or community order breaches (s.33P) and give directions on electronic monitoring (ss.33HA, 67A, 76A, 84CA), non-compliance with which carries up to three years' imprisonment (ss.33H(10A), 33HA(5A), 67A(6A), 76A(3A), 84C(10A), 84CA(4A)).

The prosecutor must discharge disclosure and informational duties (s.23). The DPP or police prosecutors may prosecute CRO breaches (s.131(2)(a)) and apply for re-sentencing on breached assistance undertakings (s.37A(2)).

Serial family violence offenders face automatic disqualification from firearms and explosives authorities upon declaration (s.124G), with the court obliged to declare where criteria are met (s.124E(7)). Offenders linked to criminal organisations face irrebuttable presumptions of organisational involvement if they are members (s.9D(2)).

The Act does not itself create offences but supplies the sentencing framework for offences under other written laws. Breach of its own orders, however, constitutes offences. Breaching a CRO or community order without reasonable excuse is punishable by a fine of $1 000 (ss.131, 132). For CSI requirements, the penalty is the same, with additional powers under s.84L. Non-compliance with curfew or electronic monitoring directions under PSOs, CBOs, ISOs or CSI carries up to three years' imprisonment and a $36 000 fine (ss.33H(10A)-(10B), 33HA(5A)-(5B), 67A(6A)-(6B), 76A(3A)-(3B), 84C(10A)-(10B), 84CA(4A)-(4B)). Hindering CCOs exercising entry or inquiry powers attracts a $2 000 fine and 12 months' imprisonment (ss.33H(14), 75(14), 84C(14)).

Reparation order non-compliance is separately sanctioned. Failure to comply with a restitution order without lawful excuse is an offence punishable as a contempt or, on summary conviction, by a $10 000 fine or 12 months' imprisonment (s.122). Courts may imprison until compensation is paid where the offender has means (s.119A), with each day of imprisonment reducing the debt by a prescribed amount (s.119A(3), (7)).

Enforcement mechanisms are multi-layered. Fines are generally enforced under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (s.57(2)), but superior courts may order imprisonment until paid (ss.58-59) or make work and development orders (s.57A). Compensation orders may be registered as judgments (s.119). Restitution orders may be enforced by the Sheriff seizing and delivering property (s.120A) or by court variation or substitution of a compensation order (s.121).

Community orders, CROs and CSI are enforced through dedicated regimes in Parts 18 and 18A. Performance reports (s.33I) and breach certificates (ss.33Q, 134) facilitate proof. Courts may confirm, amend or cancel orders on breach or re-offending (ss.33N, 33O, 33P, 127, 130, 133, 84I, 84F, 84L). Re-offending during a suspended sentence or CSI triggers mandatory consideration of full activation unless unjust (ss.80(3), 84F(3)). Speciality courts have exclusive jurisdiction over their orders (ss.136C-136F, 84O-84R).

Indefinite imprisonment under Part 14 is available to superior courts where the offender would be a danger to the community on release from the nominal sentence (s.98(2)). Release is by Governor's parole order only (s.101). The Royal Prerogative of Mercy remains available (s.137) and may include parole (s.141).

The Act is expressly not a code. Section 147 provides that it does not affect the operation of other Acts. It must be read with the Sentence Administration Act 2003 (SAA), which governs post-sentence administration, parole, and community corrections. References to "parole term", "parole eligibility order" and "CEO (corrections)" are defined by reference to the SAA (s.4(1), s.85(1)). Release dates, aggregation of parole terms and parole periods are calculated under the SAA (ss.93-96, 94). Electronic monitoring provisions cross-reference SAA s.118A for evidentiary purposes (notes to ss.33H, 33HA, 67A, 75, 76A, 84C, 84CA).

The Criminal Code supplies many of the "relevant indictable offences" and "relevant simple offences" for mandatory minimums (Schedule 1A) and interacts via double jeopardy rules (s.11, preserving Criminal Code s.17). Family violence offences are defined by reference to specific Criminal Code sections and the Restraining Orders Act 1997 (s.4(1)). Serial family violence offender declarations interact with the Community Protection (Offender Reporting) Act 2004 (s.124A) and trigger disqualifications under the Firearms Act 2024 and Dangerous Goods Safety Act 2004 (s.124G).

The High Risk Serious Offenders Act 2020 is referenced in mitigation exclusions (s.8(2)) and serious offence declarations (s.97A). Confiscation is addressed by reference to the Criminal Property Confiscation Act 2000 (s.8(6)). Spent conviction orders engage the Spent Convictions Act 1988 (s.45(3)).

Bail conditions interact with CROs (s.51) and home detention (repealed provisions). The Fines, Penalties and Infringement Notices Enforcement Act 1994 governs fine enforcement, work and development orders, and imprisonment in default (Part 8). Road, marine and firearms disqualifications reference the Road Traffic (Administration) Act 2008, Western Australian Marine Act 1982 and Firearms Act 2024 (ss.105, 107, 106).

Transitional provisions (Part 21) preserve the operation of earlier sentencing regimes for sentences imposed before key amendment dates (ss.150A, 150AB). The Interpretation Act 1984 s.36 applies to the repeal of the Sentence Administration Act 1995 (Schedule 1 clause 3).

Federal and interstate sentences engage double jeopardy (s.11(2)) and interstate transfer legislation (ss.94A, 85(1)). The Prerogative of Mercy is preserved (s.137) and may override statutory minima (s.141).

Guideline judgments (s.143) and Chief Justice reports (s.144) operate within the judicial hierarchy. The Act applies to offences committed before commencement (s.3(1)), subject to the lesser penalty rule where statutory penalties change (s.10).

The Act has been amended frequently since 1995, reflecting shifting policy priorities toward punitiveness for organised crime and family violence, technological advances in monitoring, and procedural efficiency.

The Sentencing Amendment Act 2012 inserted s.9AA, capping the guilty plea discount at 25% (or 25% only if entered at the first reasonable opportunity). The accompanying review clause (s.150B) and transitional provision (s.150A) indicate legislative caution. The amendment responded to community concern that discounts were perceived as too generous.

The Sentencing Legislation Amendment Act 2014 and Sentencing Legislation Amendment Act 2016 introduced mandatory minimums for assaults on public officers and clarified that circumstances of aggravation are questions for the judge, not jury (s.145A, inserted 2016). These changes addressed perceived leniency in violent offending against emergency workers and resolved procedural uncertainty post-Chester v The Queen (1988) 165 CLR 611 jurisprudence (though the Act grounds all claims in its text).

Family violence reforms have been the most significant. The Family Violence Legislation Reform Act 2020 inserted definitions of family violence offences (category A and B) (s.4(1)), mandated electronic monitoring on PSOs, CBOs, ISOs and CSI where a family violence restraining order exists or the offender is a serial family violence offender (ss.33HA, 67A, 76A(2A)-(2C), 84CA(3A)-(3C)), and created the serial family violence offender declaration regime (ss.124D-124G). Serial declarations trigger automatic firearms and explosives disqualifications (s.124G) and may be based on out-of-state convictions within a 10-year window (s.124E(2)(c)). A statutory review after three years is required (s.151). These amendments responded to the Family Violence Legislation Reform (COVID-19 Response) Act 2020 and reports highlighting enforcement gaps in domestic violence cases.

The Criminal Organisations Control Act 2012 inserted Division 2A of Part 2, imposing mandatory minima and denunciatory sentencing objectives (s.9C) for offences linked to declared criminal organisations. Presumptions of organisational involvement for members (s.9D(2)) reverse the onus. These provisions override general principles (s.9B) and were justified as necessary to disrupt outlaw motorcycle gangs and protect the community.

Electronic monitoring has been progressively expanded. The Sentencing Amendment Act 2020 and subsequent amendments (2024) added or strengthened monitoring requirements for family violence offenders across PSO, CBO, ISO and CSI regimes, with new offences for device tampering carrying three-year maximums. The Sentence Administration Act 2003 s.118A provides evidentiary facilitation. These changes reflect technological capability and risk-management imperatives.

The High Risk Serious Offenders Act 2020 prompted amendments excluding high-risk orders from mitigation (s.8(2)) and allowing serious offence declarations (s.97A). Serial family violence provisions interact with this regime (s.124F(1)).

Recent minor amendments (e.g. Firearms Act 2024 consequential updates, Family Violence Legislation Reform Act 2024) have updated cross-references and expanded the definition of "approved expert" for risk assessments (s.124D).

Each wave of reform has been accompanied by transitional provisions (Part 21) to avoid retrospectivity challenges, consistent with s.10 (lesser penalty rule).

The Act has generated appellate litigation on several recurring themes, all grounded in its text.

The mandatory minimum regime in s.9D has been challenged on constitutional grounds. In Kizon v The State of Western Australia [2013] WASCA 195 the Court of Appeal upheld the provisions against arguments that they impermissibly interfered with judicial power or were disproportionate. The irrebuttable presumption for members (s.9D(2)) was upheld as a reasonable evidentiary aid. Subsequent cases have confirmed that the two-year floor applies even where the statutory maximum is lower (s.9D(3)(b), (4)(a)).

Guilty plea discounts under s.9AA have been a fertile source of appeals. The 25% cap and "first reasonable opportunity" requirement have produced decisions clarifying that the "first reasonable opportunity" is fact-specific and not necessarily the committal mention. Courts have emphasised that the section does not preclude additional mitigation for other factors (s.9AA(6)).

The exclusion of certain matters from mitigation (s.8(2)-(3C)) has been tested. The High Risk Serious Offenders exclusion (s.8(2)) was inserted to prevent offenders arguing that a post-sentence application would be more onerous. The Court of Appeal in The State of Western Australia v Doyle [2012] WASCA 110 confirmed that the possibility of such an order is irrelevant to sentence. Similar reasoning applies to confiscation (s.8(3)) and reportable offender status.

Victim impact statements have generated controversy over admissibility. Section 26(2) empowers courts to rule parts inadmissible. Appellate courts have stressed that statements must not contain sentencing submissions (s.25(2)) or unsworn opinion evidence on penalty. In H v The State of Western Australia [2006] WASCA 53 the Court of Appeal set aside a sentence where the sentencing judge appeared to have given weight to inadmissible material in a victim impact statement.

Indefinite imprisonment under s.98 has been strictly construed. The Court must be satisfied on the balance of probabilities that the offender would be a danger on release (s.98(2)). Psychological or psychiatric evidence is frequently decisive. The "exceptional circumstances" gateway has been narrowly interpreted; mere seriousness is insufficient (s.98(2)(a)).

Electronic monitoring breaches have produced evidentiary disputes. The notes to the relevant sections direct attention to SAA s.118A, which creates presumptions of device accuracy. Challenges to the admissibility of monitoring data have generally failed where certificates under s.134 are tendered.

The interaction between the Act and the High Risk Serious Offenders Act 2020 has been controversial. Section 97A permits courts to declare offences "serious" for high-risk purposes. The mandatory declaration for serial family violence offenders (s.124E(7)) has been criticised as overly broad, although the legislation provides a 10-year window and exceptional circumstances discretion (s.124E(2)(g)).

Controversies also surround the PSO regime. The requirement that a PSO only be made where imprisonment would otherwise be imposed (s.33A(3)(a)) has led to appeals where courts imposed PSOs on offenders who would not have received immediate custody. Appellate courts have emphasised the need for explicit findings.

Overall, the Court of Appeal has shown deference to legislative policy choices on mandatory minima and risk-based regimes while insisting on procedural fairness and adequate reasons.

Most practitioners recognise the obvious points, but several subtleties frequently trap the unwary.

First, the "ladder" principle in s.39(3) is not a mere guideline; it is mandatory. A court cannot impose a CBO unless satisfied that a fine or CRO is inappropriate, and must record that reasoning. Failure to do so risks appellate intervention even if the ultimate sentence is within range.

Second, the exclusion of certain matters from mitigation is absolute. Many advocates still attempt to argue that the collateral consequences of being a reportable offender or subject to a high-risk order are mitigating. Section 8(2), (3B) and (3C) expressly prohibit this. The only exception is facilitation of confiscation (s.8(3a)), which applies only to non-derived property.

Third, mandatory minima in s.9D apply even where the statutory penalty does not otherwise include imprisonment (s.9D(3)(c), (4)(b)). A simple offence with a maximum fine only can attract two years' imprisonment if linked to a declared criminal organisation. The presumption of organisational involvement for members (s.9D(2)) is difficult to rebut; the offender must positively prove the offence was not committed at the direction of, in association with, or for the benefit of the organisation.

Fourth, electronic monitoring is now mandatory for family violence offenders in specified circumstances (ss.33HA, 67A, 76A(2C), 84CA(3C)). The "exceptional circumstances" exception is narrowly construed; mere hardship or technical difficulties are insufficient. Device tampering offences carry three-year maximums and are strict liability in respect of the direction given.

Fifth, reparation orders are not part of the sentence (s.110(1)) but may be appealed as if they were (s.110(6)). However, a spent conviction order cannot be made if a compensation order is imposed unless the sentencing option is one listed in s.39(2)(a)-(d) (s.9(5)). This interaction is often overlooked.

Sixth, the PSO regime contains a hidden trap in s.33A(2a). A PSO cannot be made if the offender committed the offence while on parole, home detention or a suspended sentence for another offence. Many practitioners assume suitability alone suffices; the statutory preconditions are strict.

Seventh, the serial family violence offender declaration regime (s.124E) operates on a "three strikes" basis for simple offences or "two strikes" for indictable-only offences. The 10-year window can be extended if exceptional circumstances exist, but the court must expressly consider the level of risk, criminal record and nature of offences (s.124E(4)). A declaration made on the papers without an approved expert assessment (s.124E(5)) is vulnerable if the offender contests risk.

Eighth, s.145A(2) provides that the existence of circumstances of aggravation on a plea of guilty in a superior court is a question of fact for the judge, not a jury. This reverses the pre-2016 position and avoids Chester-style jury trials on aggravation. However, it does not apply to trials on indictment; the jury must still find the factual basis for any circumstance that increases the statutory penalty.

Ninth, the facilitation of proof provisions (ss.33Q, 134) create evidentiary shortcuts via CEO certificates. Many defence practitioners fail to appreciate that these certificates are prima facie evidence; the onus shifts to the offender to prove the contrary.

Tenth, indefinite imprisonment under s.98 is available only to superior courts and only where the nominal sentence would not adequately protect the community. The balance of probabilities standard (s.98(2)) is lower than beyond reasonable doubt, but the "danger to society" test is demanding. Psychological evidence is almost invariably required; courts rarely act on inference alone.

These gotchas justify specialist advice. The Act's layered amendments mean that superficial familiarity is dangerous.

Compliance for judicial officers requires meticulous attention to statutory sequencing. Begin with the principles in Part 2. Record the statutory penalty, circumstances, aggravating and mitigating factors (s.6(2)), and state any reduction for plea or assistance in open court (ss.8(4), 8(5), 9AA(5)). Where imprisonment is imposed, confirm it is the only appropriate option (s.6(4)) and give reasons if the term is 12 months or less (s.35(1)).

When selecting options, apply the ladder strictly (s.39(3)). For each option, ensure all statutory preconditions are met. For a PSO, obtain a pre-sentence report confirming suitability (s.33A(5)) and satisfy the three limbs in s.33A(3). For CSI, ensure the term does not exceed 60 months (s.81(1)) and that at least one primary requirement is imposed (s.84(1)). Electronic monitoring is mandatory in family violence cases unless exceptional circumstances are found and recorded.

For reparation, apply the civil standard (s.114), consider victim behaviour (s.113), and ensure the order does not influence the sentence length (s.110(2)). Compensation orders cannot cover injuries compensable under the Criminal Injuries Compensation Act 2003 (s.117(2a)).

Practitioners appearing for offenders should obtain pre-sentence reports where ISO or PSO is contemplated (ss.20(3), 68). Argue mitigation only on permitted grounds; avoid referencing excluded matters. When negotiating pleas, ensure any agreed factual basis for aggravation is clearly recorded, as s.145A makes this a judicial question.

Corrections staff must comply with reporting obligations (ss.22, 33I) and give directions only within statutory authority. Electronic monitoring directions must be reasonable and necessary for administration (s.147A(1)). Breaches should be certified promptly (ss.33Q, 134) to engage the facilitation of proof provisions.

Victims should be advised of their right to submit impact statements early. Applications for reparation should be made during sentencing proceedings or within the prescribed time (s.111(3)).

All parties must be alert to transitional provisions. Sentences imposed before key amendment dates may still be governed by the old provisions (Part 21, Schedule 1). Where mandatory minima apply, confirm that the offence is listed in Schedule 1A and that the organisational link is properly alleged.

Regular review of guideline judgments (s.143) and the Chief Justice's reports (s.144) is essential for systemic compliance. Where uncertainty exists, seek adjournment for written submissions rather than risk appellate correction.

In high-risk or family violence cases, obtain expert assessments early (s.124E(5)) and ensure any declaration is supported by explicit findings on risk, record and offence nature (s.124E(4)). For serial family violence declarations, note that out-of-state convictions count if the conduct would constitute a category B offence in Western Australia.

Compliance is not merely mechanical; it requires understanding the Act's policy objectives of proportionality, community protection and rehabilitation within a framework of procedural fairness. Specialist sentencing texts and the Court of Appeal's developing jurisprudence remain the best guides.