Tasmania: Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017 (Tas)

Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017 An Act to amend the Sentencing Act 1997 to remove the power of courts to make community service orders and probation orders, to include a power for courts to make home detention orders and community correction orders, to restrict the power of courts to suspend certain sentences of imprisonment, to amend the Interstate Transfer (Community-based Sentences) Act 2009 , and for related purposes [Royal Assent 20 December 2017] Be it enacted by Her 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 Amendment (Phasing Out Of Suspended Sentences) Act 2017 . 2. Commencement (1) The provisions of this Act commence on a day or days to be proclaimed. (2) Despite subsection (1), sections 8, 10 and 19 may not be commenced except if – (a) a copy of a report in relation to a review under this section has been laid before both Houses of Parliament under subsection (8)(a); and (b) at least 10 sitting-days of each of the Houses of Parliament have expired since a notice of intention to commence sections 8, 10 and 19 was laid before both Houses of Parliament under subsection (8)(b); and (c) a motion to disallow the commencement of sections 8, 10 and 19 has not been passed by a House of Parliament under subsection (9). (3) The Minister may lay before each House of Parliament a draft of the terms of the review that has been prepared in consultation with the Sentencing Advisory Council. (4) A House of Parliament may pass a motion approving, or refusing to approve, a draft of the terms of the review that has been laid before the House of Parliament under subsection (3). (5) The Minister, by notice to the Sentencing Advisory Council, may request the Council to – (a) conduct a review, in accordance with the terms of the review contained in a draft of the terms of review that is approved by each House of Parliament under subsection (4); and (b) to provide a report in relation to the review by the day specified in the notice. (6) The Minister may only make a request under subsection (5) – (a) not less than 18 months after; and (b) not more than 2 years after – the day by which both section 14 and 15 of this Act have commenced. (7) The Sentencing Advisory Council is to provide to the Minister a report in relation to the review within the period specified, in accordance with subsection (5)(b), in the notice under subsection (5). (8) The Minister – (a) must, within 5 sitting-days after being provided with a report under subsection (7), lay a copy of the report before each House of Parliament; and (b) may, after or at the same time as a copy of a report is laid before a House of Parliament under paragraph (a), lay before that House of Parliament a notice of intention to commence sections 8, 10 and 19. (9) A House of Parliament may, within 10 sitting-days after a notice of intention to commence sections 8, 10 and 19 has been laid before the House of Parliament under subsection (8)(b), pass a motion disallowing the commencement of sections 8, 10 and 19. PART 2 - Sentencing Act 1997 Amended 3. Principal Act In this Part, the Sentencing Act 1997 is referred to as the Principal Act. 4. The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 . 5. The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 . 6. The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 . 7. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . [Uncommenced 8. Section 23A inserted Before section 24 of the Principal Act , the following section is inserted in Division 4: 23A. Limitations on ability to suspend sentences A court must not, except in exceptional circumstances, make an order suspending the whole or part of a sentence of imprisonment if the sentence of imprisonment is imposed in relation to – (a) an offence, or an attempt to commit an offence, against a provision, specified in Column 2 of Part 1 of Schedule 3, of an Act, or of the Criminal Code, as specified in Column 3 of Part 1 of Schedule 3; or (b) an offence, or an attempt to commit an offence, that is an offence – (i) against a provision, of the Misuse of Drugs Act 2001 , specified in Column 2 of Part 2 of Schedule 3; and (ii) that relates to a trafficable quantity, within the meaning of, and as determined under, that Act, of a controlled substance, within the meaning of that Act. ] 9. The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 . [Uncommenced 10. Section 27 amended (Breach of order suspending sentence) Section 27 of the Principal Act is amended as follows: (a) by omitting from subsection (4C)(c) "by order" and substituting "if there are exceptional circumstances, by order"; (b) by omitting from subsection (4C)(d) "make" and substituting "if there are exceptional circumstances, make"; (c) by omitting from subsection (4E)(c) "by order" and substituting "if there are exceptional circumstances, by order"; (d) by omitting from subsection (4E)(d) "make" and substituting "if there are exceptional circumstances, make"; (e) by inserting the following subsection after subsection (5) : (5A) Unless there are exceptional circumstances, a substituted sentence imposed under this section may not include an order suspending all or part of a sentence of imprisonment. ] 11. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . 12. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . 13. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . 14. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . 15. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . 16. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . 17. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . 18. The amendment effected by this section has been incorporated into the authorised version of the Sentencing Act 1997 . [Uncommenced 19. Schedule 3 inserted After Schedule 2 to the Principal Act , the following Schedule is inserted: SCHEDULE 3 - Non-suspension of sentence offences Section 23A PART 1 - Offences generally Column 1 - Description of offence Column 2 – Section Column 3 – Act Sexual intercourse with a young person under the age of 17 years Section 124 (1) Criminal Code Act 1924 Maintaining a sexual relationship with a young person under the age of 17 years Section 125A (2) Criminal Code Act 1924 Procuring unlawful sexual intercourse with young person Section 125C(2) Criminal Code Act 1924 Sexual intercourse with a person with a mental impairment Section 126 (1) Criminal Code Act 1924 Aggravated sexual assault Section 127A (1) Criminal Code Act 1924 Involving a person under the age of 18 years in the production of child exploitation material Section 130 Criminal Code Act 1924 Producing child exploitation material Section 130A Criminal Code Act 1924 Distributing child exploitation material Section 130B (1) Criminal Code Act 1924 Incest Section 133 (1) Criminal Code Act 1924 Murder Section 158 Criminal Code Act 1924 Manslaughter Section 159 (2) Criminal Code Act 1924 Being accessory after the fact to murder Section 161 Criminal Code Act 1924 Committing an unlawful act intended to cause grievous bodily harm Section 170 (1) Criminal Code Act 1924 Wounding [or causing grievous bodily harm] Section 172 Criminal Code Act 1924 Performing female genital mutilation Section 178A (1) Criminal Code Act 1924 Setting a spring-gun [or man-trap] [or allowing a spring-gun (or man-trap) to remain set] Section 179 (1) Criminal Code Act 1924 Rape Section 185 (1) Criminal Code Act 1924 Forcible abduction Section 186 (1) Criminal Code Act 1924 Abduction Section 186 (2) Criminal Code Act 1924 Abduction of a child Section 191(1) Criminal Code Act 1924 Kidnapping Section 191A Criminal Code Act 1924 Armed robbery Section 240(3) Criminal Code Act 1924 Aggravated armed robbery Section 240(4) Criminal Code Act 1924 Arson Section 268 Criminal Code Act 1924 Procuring or otherwise causing or permitting a child to provide sexual services in a sexual services business Section 9(1) Sex Industry Offences Act 2005 Receiving a fee or reward that a person knows &c. is derived, directly or indirectly, from sexual services provided by a child in a sexual services business Section 9(2) Sex Industry Offences Act 2005 PART 2 - Drug Offences where trafficable quantity Column 1 – Description of Offence Column 2 – Section Column 3 – Act Manufacturing controlled drug for sale Section 6(1) Misuse of Drugs Act 2001 Cultivating controlled plant for sale Section 7(1) Misuse of Drugs Act 2001 Possessing thing intended for use in manufacture of controlled substance for sale Section 8 Misuse of Drugs Act 2001 Possessing thing intended for use in cultivation of controlled plant for sale Section 9 Misuse of Drugs Act 2001 Manufacturing controlled precursor intended for use in manufacture of controlled drug for sale Section 10(1) or (2) Misuse of Drugs Act 2001 Selling controlled precursor for use in manufacturing controlled drug Section 11 Misuse of Drugs Act 2001 Trafficking in controlled substance Section 12(1) Misuse of Drugs Act 2001 Procuring child to traffic in controlled substance Section 13(1) Misuse of Drugs Act 2001 Supplying controlled drug to child Section 14 Misuse of Drugs Act 2001 Concealing, &c., property derived from drug offence Section 16 Misuse of Drugs Act 2001 Receiving property directly received from drug offence Section 17(1) Misuse of Drugs Act 2001 ] PART 3 - Interstate Transfer (Community-based Sentences) Act 2009 Amended 20. The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 . 21. The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 . 22. The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 . 23. The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 . 24. The amendments effected by this Part have been incorporated into the authorised version of the Interstate Transfer (Community-based Sentences) Act 2009 . PART 4 - Concluding Provision 25. Repeal of Act This Act is repealed on the three hundred and sixty fifth day from the day on which all of the provisions of this Act commence.