Tasmania: Sentencing Act 1997 (Tas)

Sentencing Act 1997 An Act to amend and consolidate the law relating to the sentencing of offenders, to repeal the Penalties Remission Act 1934 and for related purposes [Royal Assent 22 December 1997] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Sentencing Act 1997 . 2. Commencement This Act commences on a day to be proclaimed. 3. Purpose of Act The purpose of this Act is to – (a) amend and consolidate the State's sentencing law; and (b) promote the protection of the community as a primary consideration in sentencing offenders; and (c) promote consistency in the sentencing of offenders; and (d) establish fair procedures for – (i) imposing sentences on offenders generally; and (ii) imposing sentences on offenders in special cases; and (iii) dealing with offenders who breach the conditions of sentences; and (e) help prevent crime and promote respect for the law by allowing courts to – (i) impose sentences aimed at deterring offenders and other persons from committing offences; and (ii) impose sentences aimed at the rehabilitation of offenders; and (iii) impose sentences that denounce the conduct of offenders; and (f) promote public understanding of sentencing practices and procedures; and (g) set out the objectives of sentencing and related orders; and (h) recognise the interests of victims of offences. 4. Interpretation In this Act, unless the contrary intention appears – Administrator of Magistrates Courts means the person appointed as Administrator of Magistrates Courts under section 16 of the Magistrates Court Act 1987 ; approved hospital has the same meaning as in the Mental Health Act 2013 ; approved medical practitioner means an approved medical practitioner within the meaning of the Mental Health Act 2013 ; area restriction order means an order made under Division 3 of Part 9 ; assessment order has the meaning given by section 73 ; Australian driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ; authorised person means – (a) the Director of Public Prosecutions or an Australian legal practitioner acting on behalf of the Director of Public Prosecutions, or (b) a police officer; or (c) an Australian legal practitioner employed in the responsible Department in relation to the Police Offences Act 1935 ; or (d) a probation officer; breach includes fail to comply; Chief Psychiatrist has the same meaning as in the Mental Health Act 2013 ; child sexual offence means an offence, committed in relation to a person under the age of 18 years, against section 124 , 124A , 124B , 124C , 125 , 125A , 125B , 125C , 125D , 126 , 127 , 129 , 130 , 130A , 133 or 185 of the Criminal Code; community correction order means a community correction order made under section 42AN ; community service means work or other activity in the community under the direction of a probation officer or supervisor; community service order means an order of a court that the offender in respect of whom it is made must perform some work or other activity in the community under the direction of a probation officer or supervisor, but does not include a community correction order; compensation order means an order made under Division 2 of Part 9 ; court means the Supreme Court, the Court of Criminal Appeal or a court of petty sessions; DCS means Director of Corrective Services; Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ; detention period has the same meaning as in the Youth Justice Act 1997 ; DPP means Director of Public Prosecutions; driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ; driving disqualification order means an order of a court under section 55 ; drug treatment order means a drug treatment order made under section 27B ; earliest release date has the same meaning as in the Youth Justice Act 1997 ; enactment means – (a) an Act; or (b) any other instrument of a legislative character; or (c) any provision or part of an Act or of any other instrument of a legislative character; enforcement debtor means a person to whom an enforcement order has been issued under Part 5 of the Monetary Penalties Enforcement Act 2005 ; escape offence means an offence under section 107 of the Criminal Code or an offence committed by a person who has escaped from lawful custody; family violence offence means a family violence offence within the meaning of the Family Violence Act 2004 ; fine means the sum of money payable by an offender under an order of a court made on the offender being found guilty, or convicted, of an offence and includes a sum of money payable as costs, a restitution order and a compensation order; home detention order means a home detention order made under section 42AC ; mental illness means a mental illness within the meaning of the Mental Health Act 2013 ; monetary penalty means a monetary penalty as defined in section 3 of the Monetary Penalties Enforcement Act 2005 ; motor vehicle has the same meaning as in the Vehicle and Traffic Act 1999 ; MPCSO means a Monetary Penalty Community Service Order issued under section 33 of the Monetary Penalties Enforcement Act 2005 ; non-parole period, in relation to a sentence of imprisonment, means – (a) in a case to which section 17(2)(a) or 18(1)(a) applies, the whole of the period of the sentence; or (b) in a case to which section 17(2)(b) or 18(1)(b) applies, the period specified in the order made under that section; or (c) in any other case, the non-parole period specified in section 68 of the Corrections Act 1997 ; notification means notification in writing; Parole Board means the Parole Board established under the Corrections Act 1997 ; pre-sentence program means a program aimed at addressing the underlying causes of offending; prison offence means an offence specified in Schedule 1 to the Corrections Act 1997 ; probation officer means a probation officer within the meaning of the Corrections Act 1997 ; probation order means an order of a court that the offender in respect of whom it is made be of good behaviour during the period of the order or do or refrain from doing such things as are specified in the order; proper officer, in relation to a court, means the officer or officers of that court prescribed by the rules of that court for the purpose of the provision in which the term is used; rehabilitation program means a structured treatment program designed to reduce the likelihood of a person who has committed a family violence offence re-offending; rehabilitation program order means an order to attend and participate in a rehabilitation program and in doing so comply with the reasonable directions of a person employed or engaged to conduct such a program; responsible medical officer means a person appointed as responsible medical officer under section 7 of the Criminal Justice (Mental Impairment) Act 1999 ; restitution order means an order made under Division 1 of Part 9 ; restriction order has the meaning given by section 77 ; secure mental health unit has the same meaning as in the Mental Health Act 2013 ; supervision order has the meaning given by section 77A ; supervisor means a supervisor within the meaning of the Corrections Act 1997 ; treatment order has the meaning given by section 76 . 5. Application of Act This Act, other than Division 3 of Part 9 , does not apply to – (a) the Magistrates Court (Youth Justice Division); or (b) a court of summary jurisdiction within the meaning of the Justices Act 1959 that is hearing a charge against a person who has not attained the age of 18 years. 6. Act is not a code This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders. PART 2 - General sentencing powers 7. Sentencing orders A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence – (a) record a conviction and order that the offender serve a term of imprisonment; or (ab) if the court is constituted by a magistrate or is the Supreme Court or the Court of Criminal Appeal,, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or (b) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or (c) record a conviction and make a home detention order under section 42AC in respect of the offender, if the offender has attained the age of 18 years; or (d) with or without recording a conviction, make a community correction order under section 42AN in respect of the offender, if the offender has attained the age of 18 years; or (e) with or without recording a conviction, order the offender to pay a fine; or (ea) in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or (eb) adjourn the proceedings, grant bail under the Bail Act 1994 and, by order, defer, in accordance with Division 1 of Part 8 , sentencing the offender until a date specified in the order; or (f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or (g) record a conviction and order the discharge of the offender; or (h) without recording a conviction, order the dismissal of the charge for the offence; or (i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment. 7A. Adjournment for deferral of sentencing (1) Subject to section 57C(3) , proceedings in relation to an offence may not be adjourned under section 7(eb) for a period of more than 2 years from the date on which the order under section 7(eb) deferring the sentencing is made. (2) Section 7(eb) does not limit the power of a court to adjourn proceedings, grant bail in relation to a period of adjournment or defer sentencing an offender otherwise than under section 7(eb) . 8. Combined sentencing orders (1) A court that orders that an offender serve a term of imprisonment may also do any one or more of the following: (a) make a community correction order in respect of the offender, but only if the sentence of imprisonment is not for a term of more than 2 years; (b) . . . . . . . . (c) order the offender to pay a fine; (ca) make a rehabilitation program order in respect of the offender; (d) make a driving disqualification order in respect of the offender. (2) A court that makes a home detention order in respect of an offender may also do any one or more of the following: (a) make a community correction order in respect of the offender; (b) order the offender to pay a fine; (c) make a rehabilitation program order in respect of the offender; (d) make a driving disqualification order in respect of the offender. (3) A court that makes a community correction order in respect of an offender may also do any one or more of the following: (a) order the offender to pay a fine; (b) make a rehabilitation program order in respect of the offender; (c) if the court records a conviction, make a driving disqualification order in respect of the offender. (4) A court that orders an offender to pay a fine may also do either or both of the following: (a) make a rehabilitation program order in respect of the offender; (b) if the court records a conviction, make a driving disqualification order in respect of the offender. 9. Conviction or non-conviction In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including – (a) the nature and circumstances of the offence; and (b) the offender's antecedents and character; and (c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects. 10. Effect of finding of guilt without recording of conviction (1) Except as otherwise provided by this Act or any other enactment, a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose. (2) A finding of guilt without the recording of a conviction – (a) does not prevent a court from making any other order that it is authorised to make by this Act or any other enactment in consequence of the finding; and (b) has the same effect as if a conviction had been recorded for the purpose of – (i) appeals against sentence; or (ii) proceedings for variation or breach of sentence; or (iii) subsequent proceedings against the offender for the same offence; or (iv) enactments providing for the mandatory forfeiture of property on conviction; or (v) enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits. 11. Court may impose single, general or mixed sentence (1) A court may impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments – (a) one sentence for all of those offences; or (b) a separate sentence for each of those offences; or (c) one sentence for a group of those offences determined by the court and – (i) one sentence for all of the remaining offences; or (ii) a separate sentence for each of the remaining offences; or (iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group. (2) In imposing a single sentence on an offender for more than one offence, a court must not impose a penalty exceeding the sum of the maximum penalties that could otherwise have been imposed for those offences. (3) If a court imposes a single sentence on an offender for more than one child sexual offence, the court is to identify the sentence that would have been imposed for each child sexual offence, had separate sentences been imposed. 11A. Matters to be taken or not taken into account in sentencing certain sexual offenders (1) In this section – aggravating circumstance, in relation to a sexual offence, includes, but is not limited to, the following: (a) the victim being under the care, supervision or authority of the offender; (b) the victim being a person with a disability; (c) the victim being under the age of 13 years; (d) the offender committing the offence in whole or in part in the presence of any other person or persons, besides the victim; (da) the victim being under the age of 18 years and the offender being a person in a position of authority in relation to the victim (regardless of whether the offence is under section 124A of the Criminal Code, or any other section of the Criminal Code); (e) the offender subjecting the victim to violence or the threat of violence; (f) the offender supplying the victim with alcohol or drugs with the intention of facilitating the commission of the offence; (g) the offender making forced or uninvited entry into the victim's home or other premises; (h) the offender doing, in the course of committing the sexual offence, an act likely to seriously and substantially degrade or humiliate the victim; (i) the offender causing any other person or persons to carry out an act referred to in paragraph (e) , (f) , (g) or (h) of this definition; disability means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner; person in a position of authority has the same meaning as in section 124A of the Criminal Code; sexual offence means – (a) a crime under section 124 , 124A , 124B , 124C , 125 , 125A , 125B , 125C , 126 , 127 , 127A , 129 , 130 , 130A , 133 or 185 of the Criminal Code ; or (b) an attempt to commit a crime referred to in paragraph (a) of this definition; or (c) a crime under section 170A of the Criminal Code, the commission of which involved an unlawful family violence act involving – (i) a crime referred to in paragraph (a) of this definition; or (ii) an attempt to commit a crime referred to in paragraph (a) of this definition. (2) In determining the appropriate sentence for an offender convicted of a sexual offence – (a) the court is to take into account any aggravating circumstance in relation to the sexual offence; and (b) the court is not to take into account the offender's good character or lack of previous convictions if the court is satisfied that the offender's alleged good character or lack of previous convictions was of assistance to the offender in the commission of the sexual offence. (3) In determining the appropriate sentence for an offender convicted of a child sexual offence – (a) any alleged consent, or other alleged acquiescence, made or given by the victim is not a mitigating factor; and (b) the sentencing patterns and practices at the time of sentencing are to be taken into account by the court. 11B. Racial motivation to be taken into account in sentencing offenders In determining the appropriate sentence for an offender, the court is to take into account, as an aggravating circumstance in relation to the offence, whether the offence was motivated to any degree by – (a) hatred for or prejudice against, on racial grounds, any victim of the offence; or (b) hatred for or prejudice against, on racial grounds, a person or group of persons with whom at the relevant time any victim of the offence was associated or believed by the offender to have been associated. 11C. Self-induced intoxication not to be mitigating factor in sentencing (1) In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. (2) Subsection (1) has effect despite any Act or rule of law to the contrary. (3) In this section – drug includes – (a) a controlled substance within the meaning of the Misuse of Drugs Act 2001 ; and (b) a poison, drug of dependence or restricted substance, each within the meaning of the Poisons Act 1971 ; intoxication means intoxication because of the influence of alcohol, a drug or any other substance; self-induced intoxication, in relation to a person, means any intoxication of the person except intoxication that – (a) is involuntary; or (b) results from fraud, sudden or extreme emergency, accident, reasonable mistake, duress or force; or (c) results from the administration of a drug – (i) for which a prescription from a person authorised under an Act to prescribe the drug is required; and (ii) which is administered for the purpose, and in accordance with the dosage level, recommended by the person prescribing the drug or in the instructions, in relation to the drug, of the manufacturer of the drug; or (d) results from the administration of a drug – (i) for which no prescription is required; and (ii) which is administered for the purpose, and in accordance with the dosage level, recommended in the instructions, in relation to the drug, of the manufacturer of the drug. PART 3 - Custodial sentences Division 1 - General 12. Mitigation of imprisonment (1) In this section, custodial offence means an offence that is created under an enactment and has imprisonment as its only penalty. (2) If a court that sentences an offender for a custodial offence considers that the justice of the case will be better met by a non-custodial sentence than by imprisonment, the court may, notwithstanding the penalty provided for the offence, make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence. 13. Maximum prison term imposable by court of petty sessions for crime triable summarily The maximum term of imprisonment that a court of petty sessions may impose on an offender convicted of a crime that is triable summarily is – (a) 3 years for a first offence; or (b) 5 years for a second or subsequent offence. 14. Commencement of custodial sentence (1) Subject to sections 15 and 16 , a sentence of imprisonment commences on the day on which it is imposed unless the offender is not then in custody. (2) If the offender is not then in custody, the sentence of imprisonment commences on the day on which the offender is apprehended under a warrant to imprison issued in respect of the sentence. (3) If an offender who is sentenced to a term of imprisonment is allowed to be or go at large for any reason, the period between then and the day on which the offender is taken into custody to undergo the sentence does not count in calculating the term to be served and service of the sentence is suspended during that period. (4) If an offender who is lawfully imprisoned under a sentence escapes or fails to return after an authorised absence, the period between then and the day on which the offender surrenders or is apprehended does not count in calculating the term to be served and service of the sentence is suspended during that period. (5) Despite anything to the contrary in this Act or any other enactment or in any rule of law or practice, a sentence of imprisonment is to be calculated exclusive of any time during which service of it is suspended under subsection (3) or (4) . (6) If an offender to whom subsection (4) applies is, in the period during which service of the sentence is suspended under that subsection, imprisoned under another sentence, the unexpired portion of the suspended sentence takes effect – (a) if it is to be served cumulatively on the sentence the offender is then undergoing, on the day that sentence is completed; or (b) in any other case, at the end of the period of suspension. (7) If an offender who is sentenced to a term of imprisonment and allowed to be or go at large pending an appeal or the consideration of any question of law reserved or case stated is imprisoned under another sentence at the time when the appeal, question of law reserved or case stated is finally determined, the first-mentioned sentence or the unexpired portion of it takes effect – (a) if it is to be served cumulatively on the sentence the offender is then undergoing, on the day that sentence is completed; or (b) in any other case, on the day the appeal, question of law reserved or case stated is finally determined. (8) Subsection (7) applies unless the sentencing court or the court determining the appeal, question of law or case stated otherwise directs. 15. Custodial sentence: whether concurrent or cumulative (1) Except as provided in this section, an offender who is sentenced to a term of imprisonment must serve the sentence concurrently with any uncompleted sentence of imprisonment or detention period that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise. (1A) If a court – (a) sentences an offender to a term of imprisonment and the offender is already serving or liable to serve a detention period; and (b) determines that the sentence of imprisonment ought not to be served concurrently with the uncompleted detention period – the court may order that the sentence of imprisonment commence on the earliest release date in respect of the detention period. (2) An offender who is sentenced to a term of imprisonment for an escape offence or for non-payment of a fine must serve the sentence cumulatively on any uncompleted sentence of imprisonment, other than a sentence of life imprisonment, that the offender is then serving or liable to serve. (3) An offender who is sentenced to a term of imprisonment for a prison offence must serve the sentence cumulatively on any uncompleted sentence of imprisonment that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise because of exceptional circumstances. (4) If a court sentences an offender to a term of imprisonment for an offence against a law of Tasmania and the offender is already serving or liable to serve a sentence of imprisonment for an offence against a law of the Commonwealth, the court must direct when the new term of imprisonment is to commence. (5) For the purposes of subsection (4) , the new term of imprisonment is to commence no later than immediately after – (a) the completion of the sentence for the Commonwealth offence if a non-parole period or pre-release period, as defined in Part 1B of the Crimes Act 1914 of the Commonwealth, was not fixed in respect of it; or (b) the end of that period if a non-parole period or pre-release period was fixed. (6) This section has effect despite anything to the contrary in this Act or any other enactment other than section 9(5) of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 . 16. Time held in custody before trial, &c., to be taken into account (1) A court that is sentencing an offender to a term of imprisonment for an offence – (a) must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence; and (b) may order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed. (2) Subsection (1) does not apply to – (a) a period of custody of less than one day; or (b) a sentence of imprisonment of less than one day; or (c) a sentence of imprisonment that has been wholly suspended or the suspended part of a partly suspended sentence of imprisonment. (d) . . . . . . . . 16A. Mandatory imprisonment for offence causing serious bodily harm to police officer (1) Despite section 7 , if – (a) a person is convicted of an offence, against a provision of an Act, committed in relation to a police officer while the police officer was on duty; and (b) the police officer suffered serious bodily harm caused by, or arising from, the offence – a court that convicts the person, and a court that imposes a sentence upon the conviction of the person, in respect of the offence must, unless there are exceptional circumstances, order the person to serve in respect of the offence a term of imprisonment of not less than 6 months. (2) For the purposes of this section, an offence is to be taken to be committed in relation to a police officer only if the person who committed the offence knows, or ought reasonably be expected to know, that bodily harm to a police officer may be caused by, or arise from, the offence. (3) Subsection (1) applies in relation to an offence against a provision of an Act even if the Act – (a) does not indicate that the offence is punishable by imprisonment; or (b) indicates that the offence is punishable by imprisonment for a term of less than 6 months – but, in either such case, the term of imprisonment that is, in accordance with subsection (1) , to be imposed in respect of the offence is to be 6 months. (4) If an order has been made, in accordance with subsection (1) , that a person must serve in respect of an offence a term of imprisonment of not less than 6 months, a court must not – (a) make any other order in respect of the offence; or (b) amend an order in respect of the offence – if the effect of that other order or amendment would be that the person is not imprisoned for a term of at least 6 months in respect of the offence. (5) Section 10(2)(b)(v) does not apply in relation to an offence to which subsection (1) applies, to the extent that section 10(2)(b)(v) might otherwise be taken to require subsections (1) and (3) to apply to an offence in relation to which a finding of guilt has been made but a conviction has not been recorded. (6) Nothing in this section, apart from subsection (7) , is to be taken to prevent the application of section 11 in relation to an offence to which subsection (1) applies. (7) Subsection (3) and section 11(2) are each not to be taken to prevent the making of an order imposing, in respect of an offence to which subsection (1) applies, a term of imprisonment of more than 6 months if the order is imposed, in accordance with section 11(1) , in respect of more than one offence, including but not limited to more than one offence to which subsection (1) applies. (8) Section 12 does not apply in relation to an offence to which subsection (1) applies. (9) Nothing in this section, apart from subsections (4) and (8) , is to be taken to prevent a court making, in respect of an offence to which subsection (1) applies, an order (including an order imposing a penalty) that is an order in addition to an order imposing in respect of the offence a term of imprisonment in accordance with this section. 16B. Presumption of mandatory imprisonment for offence causing serious bodily harm to frontline worker (1) In this section – child safety officer means a person who is a State Service officer, or a State Service employee, employed or appointed under the Children, Young Persons and Their Families Act 1997 to provide services related to the protection of children; correctional services officer means – (a) a correctional officer, within the meaning of the Corrections Act 1997 ; and (b) a probation officer; and (c) a person who is a State Service officer, or a State Service employee, and who administers or provides all or part of a program that is – (i) a community corrections program referred to in section 88 of the Corrections Act 1997 ; or (ii) provided for the purposes of this Act to persons who are subject to community correction orders; and (d) a person who is a State Service officer, or a State Service employee, and whose duties include one or more of the following: (i) monitoring persons who are subject to home detention orders; (ii) having regular contact with persons who are subject to home detention orders; (iii) supervising persons who have the duties referred to in subparagraph (i) or (ii) ; and (e) a person who is a State Service officer, or a State Service employee, and who, pursuant to section 66(2) of the Corrections Act 1997 , is made available to, and serves, the Parole Board; and (f) any other person who is appointed or employed for the purposes of the Corrections Act 1997 ; emergency service officer means – (a) a person employed or appointed under the Fire Service Act 1979 ; or (b) a person employed or appointed under the Ambulance Service Act 1982 ; or (c) an emergency management worker referred to in paragraph (a) , (b) , (c) or (d) of the definition of emergency management worker in section 3 of the Emergency Management Act 2006 who is not a police officer; or (d) an emergency management worker referred to in paragraph (e) of the definition of emergency management worker in section 3 of the Emergency Management Act 2006 in relation to – (i) an authorised use of emergency powers under section 40 of the Emergency Management Act 2006 ; or (ii) a declared state of emergency under section 42 of the Emergency Management Act 2006 ; frontline worker means – (a) a child safety officer; and (b) a correctional services officer; and (c) a health and safety officer; and (d) a public officer; and (e) a retail or hospitality worker; and (f) a security officer; and (g) a transport worker; health and safety officer means the following persons: (a) an emergency service officer; (b) a health worker; (c) an inspector appointed under Part 9 of the Work Health and Safety Act 2012 ; health worker means the following persons: (a) a person who is a registered health practitioner or student within the meaning of the Health Practitioner Regulation National Law (Tasmania); (b) a person employed or engaged by a hospital – (i) as a hospital attendant; or (ii) as a medical orderly; hospital means – (a) a private hospital within the meaning of the Health Service Establishments Act 2006 ; and (b) a State-funded hospital; passenger transport service driver means a driver undertaking the provision of one or more of the following services within the meaning of the Passenger Transport Services Act 2011 : (a) an on-demand passenger transport service; (b) a regular passenger service; premises includes land, and any part of any premises or land, private premises and a public place; private premises means premises that are not a public place; public officer includes any person, who is not a police officer, acting in good faith in the execution, or intended execution, of an Act, or a public duty or authority, who, in so acting, enters onto premises; public place has the same meaning as in the Police Offences Act 1935 ; retail or hospitality worker means a person whose duties, in respect of the employment of the person, primarily involve working in an area, to which the public have access, of – (a) a shop; or (b) a food business, within the meaning of the Food Act 2003 , of a commercial nature; security officer means a person who is a crowd control agent, crowd controller, security agent or security guard within the meaning of the Security and Investigations Agents Act 2002 ; shop means the whole or part of a building, place, stall, structure, tent, vehicle or yard in or on which goods are sold, or offered or exposed for sale, by retail, including by auction; transport worker means the following persons: (a) a passenger transport service driver; (b) a driver undertaking the provision of one or more of the following services within the meaning of the Taxi and Hire Vehicle Industries Act 2008 : (i) a luxury hire car service; (ii) a restricted hire vehicle service; (c) a master or pilot of a domestic commercial vessel, used in connection with a commercial or governmental activity, within the meaning of the Commonwealth domestic commercial vessel national law, as applied by the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2013 . (2) In determining whether a person is a health worker, retail or hospitality worker or transport worker for the purposes of this section, it does not matter whether or not the person is an agent, bailee or employee in respect of that role. (3) Despite section 7 , if – (a) a person is convicted of an offence, against a provision of an Act, committed in relation to a frontline worker while the frontline worker was working as a frontline worker; and (b) the frontline worker suffered serious bodily harm caused by, or arising from, the offence – the court that convicts the person of, or imposes on the person a sentence upon the conviction for, the offence is to order the person to serve a term of imprisonment of not less than 6 months in respect of the offence, unless subsection (5) applies. (4) For the purposes of this section, an offence is to be taken to have been committed in relation to a frontline worker only if the person who committed the offence knew, or ought reasonably be expected to have known, that bodily harm to a frontline worker may be caused by, or arise from, the offence. (5) Despite subsection (3) , the court must not impose a term of imprisonment, in accordance with that subsection, on an offender if – (a) the offender had not attained the age of 18 years at the time at which the offence was committed; or (b) the offender has impaired mental functioning that is causally linked to the offence and that – (i) ought to be regarded as reducing the offender's culpability for the offence; or (ii) is likely to result in the imprisonment of the offender being more difficult for the offender, or more of a risk to the health or wellbeing of the offender, than would be the case for an offender who did not have such impaired mental functioning; or (c) in the opinion of the court, the imposition of such a sentence would be unjust when considering the circumstances of the offence or the offender. (6) Subsection (3) applies in relation to an offence against a provision of an Act even if the Act – (a) does not indicate that the offence is punishable by imprisonment; or (b) indicates that the offence is punishable by imprisonment for a term of less than 6 months – but, in either such case, the term of imprisonment that is, in accordance with subsection (3) , to be imposed in respect of the offence is to be 6 months. (7) Nothing in this section is to be taken to prevent the application of section 11 in relation to an offence to which subsection (3) applies, including if – (a) the sentence for the offence is a term of imprisonment of not less than 6 months; and (b) in accordance with section 11 , that sentence also applies to another offence which may, or may not, be an offence to which subsection (3) applies. (8) For the avoidance of doubt – (a) subsection (3) does not provide for a mandatory penalty on conviction, in respect of an offence to which that subsection applies, for the purposes of section 10(2)(b)(v) ; and (b) nothing in this section prevents a court from making, in respect of an offence to which subsection (3) applies, any order (including an order imposing a penalty) that is in addition to an order imposing a term of imprisonment in respect of the offence. Division 2 - Parole 17. Court may bar or limit eligibility for parole (1) This section does not apply to a sentence of imprisonment for the term of an offender's natural life. (2) A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order – (a) that the offender is not eligible for parole in respect of that sentence; or (b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. (2A) A court that imposes a sentence of imprisonment on an offender may not make an order under subsection (2)(b) in respect of the offender if the court – (a) makes in respect of the offender a community correction order; and (b) orders that the operational period, within the meaning of section 42AM , of the community correction order is to commence at the end of the sentence of imprisonment. (3) The period specified in an order under subsection (2)(b) is not to be less than one-half of the period of that sentence. (3A) Where a court imposes a sentence of imprisonment and does not make an order under subsection (2) , the offender is not eligible for parole in respect of that sentence. (4) In exercising its discretion under subsection (2) , a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following: (a) the nature and circumstances of the offence; (b) the offender's antecedents or character; (c) any other sentence to which the offender is subject. (5) An order under subsection (2) forms, for all purposes, part of the sentence to which it relates. (6) An offender in respect of whom – (a) an order has been made under subsection (2)(a) ; or (b) subsection (3A) applies – is not eligible to be released on parole in respect of his or her sentence. (7) A court must give reasons for making an order under subsection (2) . (8) If the whole or part of a sentence of imprisonment is suspended, only the operative sentence is to be taken into account for the purposes of this section. (9) In subsection (8) , operative sentence means that part of a sentence of imprisonment which has not been suspended. 18. Court to make order on eligibility of life prisoner for parole (1) A court that sentences an offender to imprisonment for the term of the offender's natural life, either on the conviction of the offender or on the determination of an appeal, must order – (a) that the offender is not eligible for parole in respect of that sentence; or (b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. (2) For the purposes of subsection (1) , a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have particular regard to all or any of the following: (a) the nature and circumstances of the offence; (b) the offender's antecedents or character; (c) any other sentence to which the offender is subject. (3) An order made under subsection (1) forms, for all purposes, part of the sentence to which it relates. (4) An offender in respect of whom an order has been made under subsection (1)(a) is not eligible to be released on parole in respect of the offender's sentence. (5) A court must give reasons for making an order under this section. Division 3 - . . . . . . . . 19. . . . . . . . . 20. . . . . . . . . 21. . . . . . . . . 22. . . . . . . . . 23. . . . . . . . . Division 4 - Suspended sentences 24. Suspended sentence to be conditional (1) If a court makes an order suspending the whole or a part of a sentence of imprisonment, the order is subject to the condition that the offender does not commit another offence punishable by imprisonment during the period the order is in force. (2) In addition to the conditions specified in subsection (1) , an order suspending the whole or a part of a sentence of imprisonment may be subject to any one or more of the following conditions: (a) that the offender is to perform community service for the number of hours, specified in the order, that are within a period specified in the order; (b) that the offender is subject to the supervision of a probation officer; (c) that the offender is required to undertake a rehabilitation program; (d) any other condition as the court considers necessary or expedient. (3) A condition imposed under subsection (1) or (2) may in itself be made subject to any condition as the court considers necessary or expedient. (4) If a suspended sentence is, before the commencement of section 27Y , made conditional on the performance of community service, the following sections apply with such modifications as are necessary and, in particular, a reference to a community service order in those sections is taken to be a reference to the condition imposing community service: (a) section 28(b) , (c) , (d) , (e) , (f) and (g) ; (b) sections 30 , 31 , 32 and 33 ; (c) section 34(a) ; (d) section 36A . (5) If a suspended sentence is, before the commencement of Part 5B , made conditional on supervision of the offender by a probation officer, the following sections apply with such modifications as are necessary and, in particular, a reference to a probation order in those sections is taken to be a reference to the condition imposing probation: (a) section 37(1)(b) , (c) , (d) , (e) , (f) and (g) ; (b) section 37(2) and (3) ; (c) sections 38 , 39 and 40 . (5A) If a suspended sentence is, after the commencement of Part 5B , made conditional on the performance of community service, the following sections apply with such modifications as are necessary and, in particular, a reference to a community correction order in those sections is taken to be a reference to the condition imposing community service: (a) section 42AO(b) , (c) , (d) , (e) and (f) ; (b) section 42AP(1)(d) ; (c) section 42AQ(1) , (2) and (3) ; (d) sections 42AR , 42AS and 42AT ; (e) sections 42AX and 42AZ . (5B) If a suspended sentence is, after the commencement of Part 5B , made conditional on supervision of the offender by a probation officer, the following sections apply with such modifications as are necessary and, in particular, a reference to a community correction order in those sections is taken to be a reference to the condition imposing probation: (a) section 42AO(b) , (c) , (d) , (e) and (f) ; (b) section 42AP(1)(b) , (c) , (e) , (f) , (g) , (i) and (j) ; (c) section 42AQ(1) , (2) and (3) ; (d) section 42AR . (6) Nothing in this section is intended to affect the operation of section 8(1) . 25. Effect of suspended sentence (1) A partly suspended sentence of imprisonment is taken for all purposes to be a sentence of imprisonment for the whole term stated by the court. (2) A wholly suspended sentence of imprisonment is taken to be a sentence of imprisonment for the purposes of all enactments other than enactments providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits. (3) If, under section 27 , an offender is ordered to serve the whole or part of a wholly suspended sentence of imprisonment then, for the purposes of any enactment providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits, the offender is taken to have been sentenced to imprisonment on the day on which the order was made under that section. (4) An offender in respect of whom a suspended sentence has been imposed is not required to serve the sentence or part sentence held in suspense unless the offender is ordered to do so under section 27 . 26. Variation of order conditionally suspending sentence (1) A court that has made an order suspending a sentence of imprisonment on conditions may, on application under this subsection – (a) vary the order; or (b) cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just convicted the offender of that offence or those offences. (2) Before the court varies or cancels the order it must be satisfied that – (a) the circumstances of the offender have materially altered since the order was made, as a result of which the offender will not be able to comply with any one or more of the conditions of the order; or (b) the offender is no longer willing to comply with the order. (3) If the court cancels the order it must, in determining how to deal with the offender, take into account the extent to which the offender had complied with the order before its cancellation. (4) An application under subsection (1) may be made by – (a) the offender or DPP if the sentencing court was the Supreme Court; or (b) the offender, complainant or police prosecutor if the sentencing court was a court of petty sessions. (5) Notice of an application under subsection (1) by an offender is to be given to – (a) the DPP if the sentencing court was the Supreme Court; or (b) the complainant or police prosecutor if the sentencing court was a court of petty sessions. (6) Notice of an application under subsection (1) by a complainant or police prosecutor or the DPP is to be given to the offender. (7) The court may order that a warrant to arrest be issued against the offender if the offender does not attend before the court on the hearing of the application. 27. Breach of order suspending sentence (1) If it appears to an authorised person that, during the period an order suspending a sentence of imprisonment is in force in relation to an offender, the offender has breached a condition of the suspended sentence, the authorised person may apply to the court, which made the order suspending the sentence of imprisonment, for an order under this section. (2) The authorised person must give notice of the application under subsection (1) to the offender. (3) The court may issue a warrant for the arrest of the offender if – (a) the offender fails to appear at the hearing of the application; or (b) the court is satisfied that reasonable efforts to give the offender notice of the application have been made but those efforts have been unsuccessful. (4) If a court finds an offender guilty of an offence punishable by imprisonment committed during the period an order suspending a sentence of imprisonment is in force in respect of the offender (in this section called the "new offence"), an authorised person – (a) may make an oral application to the court, while the offender is before the court in relation to the new offence, for an order under this section; and (b) is to provide the offender in writing with the grounds for the oral application, if directed to do so by the court. (4A) If an application is made under subsection (4) to a court that is not the court that imposed the suspended sentence on the offender, the court hearing the application may do either of the following: (a) deal with the application under this section; (b) adjourn the application to the court that imposed the suspended sentence and either grant the offender bail or remand the offender in custody. (4B) If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it. (4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead – (a) activate part of the sentence that is held in suspense and order the offender to serve it; or (b) order that a sentence (in this section called the "substituted sentence") take effect in place of the suspended sentence; or (c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or (d) make no order in respect of the suspended sentence. (4D) If the court decides not to exercise the power referred to in subsection (4B) it must state the reasons for so deciding. (4E) If, on the hearing of an application under this section, the court is satisfied that the offender has breached, without reasonable excuse, a condition of the suspended sentence other than by committing a new offence, the court may – (a) activate all or part of the sentence that is held in suspense and order the offender to serve it; or (b) order that a sentence (in this section called the "substituted sentence") take effect in place of the suspended sentence; or (c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the breach; or (d) make no order in respect of the suspended sentence. (5) A substituted sentence may be any sentence that the court could have imposed on the offender had it just found the offender guilty of the offence in respect of which the suspended sentence was imposed, but no greater term of imprisonment is to be imposed by the substituted sentence than was imposed by the suspended sentence. (6) If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served – (a) immediately; and (b) cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court. (6A) If, under subsection (4B) , (4C) or (4E) , a court orders a sentence to take effect – (a) the sentence is taken to be a sentence imposed on the offender as if the court had just found the offender guilty of the offence in respect of which the suspended sentence was imposed; and (b) section 17 applies to that sentence. (6B) If, under subsection (4C) or (4E) , a court orders that a substituted sentence is to take effect, section 17 applies to the substituted sentence. (7) If it is not possible for the court to immediately deal with an application under subsection (1) or (4) in respect of the offender, the court may – (a) adjourn the proceedings; and (b) either grant the offender bail or remand the offender in custody. PART 3A - Drug treatment orders 27A. Interpretation of Part In this Part, unless the contrary intention appears – case manager means a person appointed or authorised under section 27X as a case manager for the purposes of this Part; core conditions of a drug treatment order – see sections 27E and 27G ; court means a court constituted by a magistrate, the Supreme Court or the Court of Criminal Appeal; court diversion officer means a person appointed or authorised under section 27X as a court diversion officer for the purposes of this Part; custodial part, of a drug treatment order – see sections 27E and 27F ; drug treatment order assessment report or "report" means a report under section 27D ; family violence order means a family violence order within the meaning of the Family Violence Act 2004 ; imprisonable offence means an offence that is punishable by a sentence of imprisonment; interim family violence order means an interim family violence order within the meaning of the Family Violence Act 2004 ; police family violence order means a police family violence order within the meaning of the Family Violence Act 2004 ; program conditions of a drug treatment order – see sections 27E and 27H ; sexual offence means – (a) a crime under section 122 , 124 , 124A , 124B , 124C , 125 , 125A , 126 , 127 , 127A , 129 , 133 or 185 of the Criminal Code ; or (b) a crime under section 298 , 299 or 300 of the Criminal Code relating to a crime specified in paragraph (a) ; or (c) an offence under section 35(3) of the Police Offences Act 1935 ; treatment and supervision part, of a drug treatment order – see section 27E . 27AB. Court constituted by magistrate may refer sentencing to other magistrate Despite any other provision of this or any other Act, if an offender, who is before a court that is to sentence the offender and is constituted by a magistrate, has pleaded guilty to, or been found guilty of, an offence, and the magistrate is of the opinion that the court should consider making a drug treatment order – (a) the magistrate may refer the offence to another magistrate for sentencing; and (b) the magistrate may provide, to the magistrate to whom the sentencing is referred, the information, in relation to the offender and the offence, that the magistrate thinks fit; and (c) any sentence imposed by the magistrate to whom an offence is referred under paragraph (a) has for all purposes the same effects and consequences as if it had been passed by the magistrate who presided at the hearing or trial, or received the plea, in relation to the offence. 27B. Court may make drug treatment order (1) A court may make a drug treatment order in respect of an offender if – (a) it finds the offender guilty of one or more imprisonable offences other than – (i) sexual offences; or (ii) offences involving the infliction of actual bodily harm that, in the court's opinion, was not minor harm; and (b) it is satisfied on the balance of probabilities that – (i) the offender has a demonstrable history of illicit drug use; and (ii) illicit drug use contributed to the commission of the imprisonable offence or offences; and (c) it considers that, were it not making the drug treatment order – (i) it would have sentenced the offender to a term of imprisonment; and (ii) it would not have suspended the sentence, either in whole or in part; and (d) it has received and considered a drug treatment order assessment report on the offender; and (e) the offender is not subject to – (i) . . . . . . . . (ii) a parole order under the Corrections Act 1997 ; or (iii) another drug treatment order; and (f) no proceedings are pending against the offender, in any court, for – (i) sexual offences; or (ii) offences involving the infliction of actual bodily harm. (2) The court may make the drug treatment order regardless of whether – (a) the offender's illicit drug use contributed to the offender breaching, on one or more previous occasions, a sentencing order or bail conditions; or (b) the offender has been previously sentenced to one or more terms of imprisonment. (3) However, the court must not make the drug treatment order unless – (a) it is satisfied in all the circumstances that it is appropriate to do so; and (b) it is satisfied that the facilities likely to be used for the treatment and supervision part of the order are reasonably accessible to the offender; and (ba) it is satisfied that – (i) there are sufficient staff, in respect of a facility that is likely to be used for the treatment and supervision part of the order, to be able to provide the treatment and supervision; and (ii) there will be sufficient staff and resources to enable treatment and supervision of the offender to be provided when he or she is not being treated in the facility; and (c) the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order. 27C. Purpose of drug treatment order A drug treatment order is a sentencing order that aims to do one or more of the following in respect of an offender with a demonstrable history of illicit drug use: (a) provide an alternative sanction to imprisonment; (b) through an integrated, supervised and reviewable treatment regime, facilitate the offender's rehabilitation and reintegration into the community; (c) reduce the incentive for the offender to resort to criminal activity; (d) reduce risks to the offender's health and well-being. 27D. Drug treatment order assessment report (1) A court that is considering making a drug treatment order in respect of a defendant must – (a) order a drug treatment order assessment report on the defendant; and (b) adjourn the proceedings to enable a court diversion officer to provide the report. (2) The purpose of the report is to establish whether the defendant is a suitable subject for a drug treatment order, and, if so, make recommendations to the court on what program conditions to attach to the treatment and supervision part of the order. (3) The report may set out such of the following matters as, on investigation, appear to its authors to be relevant to its purpose and are readily ascertainable: (a) the age of the defendant; (b) the social history and background of the defendant; (c) the defendant's history of drug use;