This Act sets out how courts must sentence convicted persons in the State: it defines sentencing principles, procedural steps (pre‑sentence reports, victim impact statements), alternative orders (pre‑sentence orders and community orders), mandatory minimums and parole restrictions for offences tied to declared criminal organisations, and a regime to declare serial family violence offenders that triggers licence cancellations. Courts decide sentences; corrections agencies implement reports, monitoring and breaches; offenders face monitoring, licence loss, custody or fines, shifting incentives and compliance burdens.
The Sentencing Act 1995 (WA) (the Act) consolidates and amends the law relating to the sentencing of offenders for offences under Western Australian written laws. At its core, it establishes a structured hierarchy of sentencing principles, procedural safeguards and available dispositions designed to ensure sentences are commensurate with offence seriousness while promoting consistency, rehabilitation where appropriate, and community protection.
Section 6(1) mandates that a sentence "must be commensurate with the seriousness of the offence", with seriousness determined under s.6(2) by reference to the statutory penalty, circumstances of commission (including victim vulnerability), aggravating factors (s.7) and mitigating factors (s.8). Imprisonment is a sentence of last resort: s.6(4) prohibits it unless the offence's seriousness justifies it or community protection requires it. The Act expressly preserves the totality principle (s.6(3)(b)) and requires courts to have regard to guideline judgments issued by the Court of Appeal under s.143 (s.6(5)).
The legislation enumerates a graduated range of sentencing options in Part 5. For natural persons these are, in ascending order of severity: release without sentence (Part 6), conditional release orders (CROs) (Part 7), fines (Part 8, including suspended fines in Part 8A), community based orders (CBOs) (Part 9), intensive supervision orders (ISOs) (Part 10), suspended imprisonment (Part 11), conditional suspended imprisonment (CSI) (Part 12) and immediate imprisonment (Part 13). Sections 39-44 prescribe which options are available depending on the statutory penalty, with a "ladder" principle in s.39(3) requiring courts to use the least severe appropriate option. Bodies corporate are limited to fines or no sentence (s.40).
Procedural machinery is detailed in Parts 3 and 4. Courts may order pre-sentence reports (ss.20-22), victim impact statements (ss.24-26) or mediation reports (ss.27-30). Pending charges may be dealt with by superior courts on request (ss.32-33). Pre-sentence orders (PSOs) in Part 3A allow deferral of final sentence for up to two years while an offender addresses criminogenic needs under supervision, programme or curfew requirements. Sentencing explanations are mandatory (s.34), as are reasons for imposing imprisonment of 12 months or less (s.35).
Current sections
Direct links to the current provisions in Sentencing Act 1995.
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Part 1
Preliminary
Part 1 — Preliminary
Short title 2
Commencement 2
Application of this Act 2
4A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 2
Terms used 3
Civil liability not affected 7
Part 2
General matters
Part 2 — General matters
Div 1
Sentencing principles
Division 1 — Sentencing principles
Principles of sentencing 8
Aggravating factors 9
Mitigating factors 9
9AA. Plea of guilty, sentence may be reduced in case of 11
Div 2A
Sentencing where declared criminal organisations involved
Division 2A — Sentencing where declared criminal organisations involved
9A. Terms used 12
9B. Application of this Division 12
9C. Principal objectives of sentencing for offences where declared criminal organisation involved 13
9D. Mandatory minimum sentences where declared criminal organisation involved 13
9E. Section 9D not applicable to persons aged under 18 15
9F. Further provisions relating to mandatory minimum sentences imposed under section 9D 15
9G. Eligibility for parole 16
Div 2
Miscellaneous
Division 2 — Miscellaneous
Statutory penalty, effect of 17
Change of statutory penalty, effect of 18
Person not to be sentenced twice on same evidence 18
Common law bonds abolished 19
Part 3
Matters preliminary to sentencing
Part 3 — Matters preliminary to sentencing
Term used: victim 20
Division 2 — General
Offender to be present for sentencing M 20
14A. Video link, use of for sentencing 21
Court may inform itself as it thinks fit 22
Adjourning sentencing 22
Court’s powers on adjourning 23
Committal for sentence 23
Div 3
Information about the offender
Division 3 — Information about the offender
Pre‑sentence report, court may order 24
Pre‑sentence report, content of 24
Pre‑sentence report, preparation of 25
Offender’s time in custody etc., information about 26
Div 4
Information about victims etc.
Division 4 — Information about victims etc.
23A. Terms used 26
Victim impact statement, who may give 28
Victim impact statement, content of 28
Court’s functions in relation to victim impact statement 28
Div 5
Mediation
Division 5 — Mediation
Mediation report, court may order and receive 29
Mediation report, content of 29
Mediation report, preparation of 30
Mediation report, court’s powers as to 30
Div 6
Other pending charges
Division 6 — Other pending charges
Term used: pending charge 30
Pending charges, offender may request court to deal with 30
Pending charges, court may deal with 31
Part 3A
Pre‑sentence order
Part 3A — Pre‑sentence order
Division 1 — General
33A. When PSO may be made 32
33B. PSO, nature of 33
33C. Making a PSO 34
33D. PSO, standard obligations of 35
33E. PSO, primary requirements of 36
33F. Supervision requirement 36
33G. Programme requirement 37
33H. Curfew requirement 38
33HA. Electronic monitoring requirement 42
33I. Performance reports about offenders on PSOs 44
33J. Sentencing day, offender to be sentenced on etc. 44
33K. Sentencing offender after PSO 45
Division 2 — Amending and enforcing PSOs
33L. Term used: requirement 46
33M. Application to amend or cancel PSO 46
33N. Court may confirm, amend or cancel PSO 47
33O. Re‑offending while subject to PSO, consequences of 48
33P. Breach etc. of PSO, powers of CEO (corrections) and court 50
33Q. Facilitation of proof 51
Part 4
The sentencing process
Part 4 — The sentencing process
Explanation of sentence M 52
Reasons for imprisonment to be given in some cases 52
Warrant of commitment to be issued if imprisonment imposed 53
Correction of sentence 53
37A. Offender reneging on promise to assist authorities may be re‑sentenced 54
Imprisonment by JPs, magistrate to review 55
Part 5
Sentencing options
Part 5 — Sentencing options
Natural person, sentences for 57
Body corporate, sentences for 58
If statutory penalty is imprisonment only: sentencing options 59
If statutory penalty is imprisonment and fine: sentencing options 60
If statutory penalty is imprisonment or fine: sentencing options 61
If statutory penalty is fine only: sentencing options 62
Spent conviction order, making and effect of 63
Part 6
Release of offender without sentence
Part 6 — Release of offender without sentence
Release without sentence 66
Part 7
Conditional release order
Part 7 — Conditional release order
When CRO may be imposed 67
CRO, nature of 67
CRO, requirements of 67
Court may direct offender to re‑appear 68
Ensuring compliance with CRO 68
Enforcing CRO 70
Part 8
Fine
Part 8 — Fine
Considerations when imposing fine 72
One fine for 2 or more offences 72
Apportionment of fine between joint offenders 73
Assault victim may be awarded fine 73
Enforcement of fine 73
57A. Enforcement of fine by means of WDO 74
57B. Court may cancel s. 57A order on application of Fines Enforcement Registrar 75
Imprisonment until fine paid 76
Imprisonment if fine not paid 77
Application of fine etc. 79
Part 8A
Suspended fine
Part 8A — Suspended fine
60A. When fine may be suspended 81
60B. Effect of suspending fine 81
60C. Re‑offender may be dealt with or committed 81
60D. Alleging re‑offending in court 83
60E. How re‑offender to be dealt with 84
Part 9
Community based order
Part 9 — Community based order
Pre‑sentence report optional before imposing CBO 86
CBO, nature of 86
CBO, standard obligations of 87
CBO, primary requirements of 87
Supervision requirement 88
Programme requirement 89
Community service requirement 90
67A. Electronic monitoring requirement 91
Part 10
Intensive supervision order
Part 10 — Intensive supervision order
Pre‑sentence report mandatory before imposing ISO 94
ISO, nature of 94
ISO, standard obligations of 95
Supervision requirement 95
ISO, primary requirements of 96
Programme requirement 97
Community service requirement 98
Curfew requirement 99
76A. Electronic monitoring requirement 102
Part 11
Suspended imprisonment
Part 11 — Suspended imprisonment
When imprisonment may be suspended 106
Effect of suspending imprisonment 106
Re‑offender may be dealt with or committed 107
Re‑offending, alleging in court 108
How re‑offender to be dealt with 110
Part 12
Conditional suspended imprisonment
Part 12 — Conditional suspended imprisonment
Division 1 — Imposition and effect of CSI
Certain courts may suspend imprisonment conditionally 112
Effect of CSI 113
CSI, standard obligations of 113
CSI, primary requirements of 114
84A. Programme requirement 114
84B. Supervision requirement 116
84C. Curfew requirement 117
84CA. Electronic monitoring requirement 120
Division 2 — Consequences of re‑offending
84D. Re‑offender may be dealt with or committed 123
84E. Re‑offending, alleging in court 124
84F. How re‑offender to be dealt with 125
Division 3 — Amending, cancelling and enforcing CSI requirements
84G. Term used: CSI requirement 127
84H. Application to amend or cancel CSI requirement 127
84I. Court may confirm, amend or cancel CSI requirement 127
84J. Breach of CSI requirement, offence 128
84K. Offence under s. 84J, procedure and penalty for 129
84L. Additional powers to deal with s. 84J offender 130
84M. Facilitation of proof 131
Division 4 — Functions of speciality courts as to CSI
84N. Application of this Division 132
84O. Speciality court may direct offender on CSI to appear 132
84P. Speciality court to deal with re‑offender 133
84Q. Speciality court to deal with application to amend or cancel CSI 133
84R. Speciality court to deal with proceedings for breaches 134
Part 13
Imprisonment
Part 13 — Imprisonment
Terms used and calculations 135
Division 2 — Imposing imprisonment
Term of 6 months or less not to be imposed 137
Time on remand may be taken into account 138
Concurrent, cumulative or partly cumulative terms 138
Parole eligibility order, court may make 140
Life imprisonment for murder, imposing 142
Division 3 — Release from imprisonment
Release from parole term 143
94A. Release on parole of prisoners subject to Prisoners (Interstate Transfer) Act 1983 143
Aggregation of parole terms for certain purposes 144
95A. Eligibility for parole where certain mandatory minimum sentences imposed 146
Release from fixed term that is not parole term 147
Release from life imprisonment 147
Division 4 — Miscellaneous
Sentence Administration Act 2003, operation of 148
97A. Declaration of serious offence for purposes of High Risk Serious Offenders Act 2020 and Sentence Administration Act 2003 Part 5A 148
Part 14
Indefinite imprisonment
Part 14 — Indefinite imprisonment
Indefinite imprisonment, superior court may impose 151
Other terms not precluded by indefinite imprisonment 152
When indefinite imprisonment commences 152
Release from indefinite imprisonment 152
Part 15
Other orders forming part of a sentence
Part 15 — Other orders forming part of a sentence
Division 1 — General matters
General provisions 153
Disqualification order, calculation of term of 153
Disqualification may be for life 153
Division 2 — Disqualification orders
Driver’s licence disqualification 153
Disqualification and suspension of firearm authority 155
Marine qualification disqualification 157
Passport, surrender of etc. 158
Part 16
Reparation orders
Part 16 — Reparation orders
Division 1 — General matters
Term used: reparation order 160
General provisions 160
Making a reparation order 160
Facts relevant to making reparation order 161
Victim’s behaviour and relationship relevant 162
Civil standard of proof applies 162
114A. Victim may appeal against refusal of reparation order 162
Effect of reparation order on civil proceedings etc. 163
Division 2 — Compensation order
Terms used 163
Compensation order in favour of victim 164
Compensation order in favour of third party 164
Enforcing compensation order 165
119A. Imprisonment until compensation paid, court may order 165
Division 3 — Restitution order
Making restitution order 166
120A. Enforcing restitution order, Sheriff’s powers for 167
Enforcing restitution order, court’s powers for 167
Non‑compliance with restitution order, offence 168
Part 17
Other orders and declarations not forming part of a sentence
Part 17 — Other orders and declarations not forming part of a sentence
General provisions 169
Division 2 — Orders made under other Acts
Restraining Orders Act 1997 s. 63 restraining order, s. 123 applies to 169
124A. Section 123 applies to certain orders under Community Protection (Offender Reporting) Act 2004 170
124B. Prohibited Behaviour Orders Act 2010 prohibited behaviour order, s. 123 applies to 170
124C. Orders under Criminal Organisations Control Act 2012 170
Division 3 — Declarations
124D. Terms used 171
124E. Serial family violence offenders 171
124F. Serial family violence offender declaration — related matters 174
124G. Disqualification if declaration made 175
Part 18
Amending and enforcing conditional release orders and community orders
Part 18 — Amending and enforcing conditional release orders and community orders
Term used: requirements; and interpretation 176
Division 2 — Amending or cancelling conditional release orders and community orders
Application to amend or cancel 177
Court may confirm, amend or cancel 177
Division 3 — Re‑offending while subject to a conditional release order or a community order
Re‑offender may be dealt with or committed 178
Re‑offending, alleging in court 179
How re‑offender may be dealt with 181
Division 4 — Breaching a conditional release order or a community order
Breach of requirement, offence 182
Offence under s. 131, procedure and penalty for 183
Additional powers to deal with s. 131 offender 184
Division 5 — Miscellaneous
Facilitation of proof 185
Compliance with CRO or community order to be taken into account 186
Re‑sentencing, court’s powers for 186
Division 6 — Functions of speciality courts
136A. Application of Division 187
136B. Term used: court 187
136C. Court may direct offender on community order to appear 188
136D. Court to deal with re‑offender 188
136E. Court to deal with application to amend or cancel community order 189
136F. Court to deal with proceedings for breaches 189
Part 18A
Review of conditional orders
Part 18A — Review of conditional orders
136G. Terms used 190
136H. Application to review 190
136I. Court may confirm, amend or cancel 191
Part 19
Royal Prerogative of Mercy
Part 19 — Royal Prerogative of Mercy
Royal Prerogative of Mercy not affected 192
Pardon, effect of 192
Order to pay money, Governor may remit 192
Petition for mercy may be referred to Court of Appeal 192
Offender may be paroled 193
Strict security life imprisonment, exercise of Prerogative in case of 193
Part 20
Miscellaneous
Part 20 — Miscellaneous
Guideline judgments by Court of Appeal 195
143A. Sentencing guidelines for courts of summary jurisdiction 195
Chief Justice may report to Parliament 196
Non-compliance with procedural requirements, effect of 196
145A. Existence of circumstances of aggravation is question for judge to determine 196
Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.
Western Australia
Sentencing Act 1995
Western Australia
Sentencing Act 1995
Contents
Part 1 — Preliminary
Short title 2
Commencement 2
Application of this Act 2
4A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 2
Terms used 3
Civil liability not affected 7
Part 2 — General matters
Division 1 — Sentencing principles
Principles of sentencing 8
Aggravating factors 9
Mitigating factors 9
9AA. Plea of guilty, sentence may be reduced in case of 11
Division 2A — Sentencing where declared criminal organisations involved
9A. Terms used 12
9B. Application of this Division 12
9C. Principal objectives of sentencing for offences where declared criminal organisation involved 13
9D. Mandatory minimum sentences where declared criminal organisation involved 13
9E. Section 9D not applicable to persons aged under 18 15
9F. Further provisions relating to mandatory minimum sentences imposed under section 9D 15
9G. Eligibility for parole 16
Division 2 — Miscellaneous
Statutory penalty, effect of 17
Change of statutory penalty, effect of 18
Person not to be sentenced twice on same evidence 18
Common law bonds abolished 19
Part 3 — Matters preliminary to sentencing
Division 1 — Preliminary
Term used: victim 20
Division 2 — General
Offender to be present for sentencing M 20
14A. Video link, use of for sentencing 21
Court may inform itself as it thinks fit 22
Adjourning sentencing 22
Court’s powers on adjourning 23
The Act contains offence-specific regimes. Division 2A of Part 2 (ss.9A-9G) imposes mandatory minimum sentences for "relevant indictable offences" or "relevant simple offences" (listed in Schedule 1A) committed at the direction of, in association with, or for the benefit of a declared criminal organisation under the Criminal Organisations Control Act 2012. For indictable offences dealt with on indictment the minimum is 15 years (if life is available) or 75% of the statutory maximum (or two years if no imprisonment is otherwise available). These minima cannot be suspended (s.9F(1)) and parole eligibility is excluded (s.9G(1)). Section 9E excludes juveniles. Family violence provisions (inserted by the Family Violence Legislation Reform Act 2020) mandate electronic monitoring on PSOs, CBOs, ISOs or CSI where the offence is a family violence offence (category A or B) and the offender is subject to a family violence restraining order or is a serial family violence offender (ss.33HA, 67A, 76A, 84CA). Serial family violence offender declarations under Part 17 Division 3 (ss.124D-124G) trigger automatic disqualification from firearms and explosives authorities.
Release from imprisonment is governed by Part 13. Terms of six months or less are prohibited except in limited cases (s.86). Remand time may be back-dated (s.87). Concurrent, cumulative or partly cumulative terms are addressed in s.88, with a presumption of concurrency displaced only by express order. Parole eligibility orders are available for fixed terms of six months or more (s.89), subject to exceptions for prescribed terms and judicial discretion based on offence seriousness, record or prior non-compliance. Life sentences for murder require a minimum non-parole period of 15 years (aggravated home burglary) or 10 years, or a never-to-be-released order (s.90). Release mechanisms for parole terms, fixed non-parole terms and life sentences are cross-referenced to the Sentence Administration Act 2003 (ss.93-96).
Reparation is dealt with in Part 16. Compensation orders (ss.117-119A) and restitution orders (ss.120-122) may be made in addition to sentence on the civil standard of proof (s.114). Victim behaviour or relationship with the offender may reduce or preclude reparation (s.113). Part 15 permits disqualification orders for driver's licences (s.105), firearms (s.106), marine qualifications (s.107) or passport restrictions (s.108) as part of sentence. Part 17 allows ancillary orders such as restraining orders or prohibited behaviour orders that do not form part of the sentence (s.123).
Enforcement of community orders, CROs and CSI is centralised in Parts 18 and 18A. Breaches are offences (ss.131, 84J) carrying fines up to $1 000 and potential re-sentencing. Courts may amend or cancel orders on application (ss.126-127, 136I) or for re-offending (ss.128-130, 84D-84F). Speciality courts have dedicated functions (ss.136A-136F). The Royal Prerogative of Mercy is expressly preserved (Part 19).
The Act is not a code; s.147 states that its operation does not affect other laws. Guideline judgments (s.143) and Chief Justice reports to Parliament (s.144) provide systemic oversight. Non-compliance with procedural requirements does not invalidate sentences (s.145).
In short, the Act supplies the architecture for every sentencing decision in Western Australia, from first principles through to enforcement and ancillary orders, while maintaining deliberate linkages to the Sentence Administration Act 2003 for post-sentence administration.
Who it affects
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).
Key duties and rights
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)).
Penalties and enforcement
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).
How it interacts with other laws
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).
Recent changes and why
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).
Court challenges and controversies
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.
Gotchas
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.
How to comply
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.
150A. Sentencing Amendment Act 2012 amendments, application of 199
150AB. Application of Sentencing Legislation Amendment Act 2016 amendments about circumstances of aggravation 199
150B. Review of s. 9AA 200
Review of Act 200
Review of amendments made by Family Violence Legislation Reform Act 2020 200
Schedule 1A — Relevant indictable and simple offences for purposes of Part 2 Division 2A
Part 1 — Relevant indictable offences
Part 2 — Relevant simple offences
Schedule 1 — Acts, fines under which are not to be credited to the Consolidated Account
Notes
Compilation table 223
Uncommenced provisions table 232
Other notes 232
Defined terms
Western Australia
Sentencing Act 1995
An Act to consolidate and amend the law relating to the sentencing of offenders.
Part 1 — Preliminary
1. Short title
This Act may be cited as the Sentencing Act 1995.
2. Commencement
The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation.
3. Application of this Act
(1) Subject to this section, this Act applies to all persons convicted of an offence whether or not the offence was committed before this Act comes into operation.
(2) In the case of a person who is a young person as defined in the Young Offenders Act 1994, subsection (1) is subject to sections 46 and 46A of the Young Offenders Act 1994.
(3) This Act does not apply to or in respect of a person being punished —
(a) by the Supreme Court or any other court for or as for contempt of court; or
(b) under section 63 of the District Court of Western Australia Act 1969, section 29 of the Children’s Court of Western Australia Act 1988 or section 16 of the Magistrates Court Act 2004; or
(c) for contempt of a House of Parliament.
[Section 3 amended: No. 59 of 2004 s. 141.]
4A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies
The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act.
[Section 4A inserted: No. 20 of 2013 s. 123.]
4. Terms used
(1) In this Act —
approved electronic monitoring device means —
(a) an electronic monitoring device that has been approved by the CEO (corrections); and
(b) any equipment, wires or other items associated with a device under paragraph (a);
bail means bail under the Bail Act 1982;
breach, in relation to an order made under this Act, means to contravene any requirement or obligation of the order or any direction made by the court imposing the order;
CEO (corrections) means the chief executive officer of the Public Sector agency principally assisting the Minister administering Part 8 of the Sentence Administration Act 2003 in its administration;
community based order (“CBO”) means a community based order made under Part 9;
community corrections c
This is an opening excerpt, not the complete document.