Sentencing Act 1995 (WA)

Western Australia Sentencing Act 1995 Western Australia Sentencing Act 1995 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Application of this Act 1 4A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 1 4. Terms used 1 5. Civil liability not affected 1 Part 2 — General matters Division 1 — Sentencing principles 6. Principles of sentencing 1 7. Aggravating factors 1 8. Mitigating factors 1 9AA. Plea of guilty, sentence may be reduced in case of 1 Division 2A — Sentencing where declared criminal organisations involved 9A. Terms used 1 9B. Application of this Division 1 9C. Principal objectives of sentencing for offences where declared criminal organisation involved 1 9D. Mandatory minimum sentences where declared criminal organisation involved 1 9E. Section 9D not applicable to persons aged under 18 1 9F. Further provisions relating to mandatory minimum sentences imposed under section 9D 1 9G. Eligibility for parole 1 Division 2 — Miscellaneous 9. Statutory penalty, effect of 1 10. Change of statutory penalty, effect of 1 11. Person not to be sentenced twice on same evidence 1 12. Common law bonds abolished 1 Part 3 — Matters preliminary to sentencing Division 1 — Preliminary 13. Term used: victim 1 Division 2 — General 14. Offender to be present for sentencing M 1 14A. Video link, use of for sentencing 1 15. Court may inform itself as it thinks fit 1 16. Adjourning sentencing 1 17. Court's powers on adjourning 1 18. Committal for sentence 1 Division 3 — Information about the offender 20. Pre‑sentence report, court may order 1 21. Pre‑sentence report, content of 1 22. Pre‑sentence report, preparation of 1 23. Offender's time in custody etc., information about 1 Division 4 — Information about victims etc. 23A. Terms used 1 24. Victim impact statement, who may give 1 25. Victim impact statement, content of 1 26. Court's functions in relation to victim impact statement 1 Division 5 — Mediation 27. Mediation report, court may order and receive 1 28. Mediation report, content of 1 29. Mediation report, preparation of 1 30. Mediation report, court's powers as to 1 Division 6 — Other pending charges 31. Term used: pending charge 1 32. Pending charges, offender may request court to deal with 1 33. Pending charges, court may deal with 1 Part 3A — Pre‑sentence order Division 1 — General 33A. When PSO may be made 1 33B. PSO, nature of 1 33C. Making a PSO 1 33D. PSO, standard obligations of 1 33E. PSO, primary requirements of 1 33F. Supervision requirement 1 33G. Programme requirement 1 33H. Curfew requirement 1 33HA. Electronic monitoring requirement 1 33I. Performance reports about offenders on PSOs 1 33J. Sentencing day, offender to be sentenced on etc. 1 33K. Sentencing offender after PSO 1 Division 2 — Amending and enforcing PSOs 33L. Term used: requirement 1 33M. Application to amend or cancel PSO 1 33N. Court may confirm, amend or cancel PSO 1 33O. Re‑offending while subject to PSO, consequences of 1 33P. Breach etc. of PSO, powers of CEO (corrections) and court 1 33Q. Facilitation of proof 1 Part 4 — The sentencing process 34. Explanation of sentence M 1 35. Reasons for imprisonment to be given in some cases 1 36. Warrant of commitment to be issued if imprisonment imposed 1 37. Correction of sentence 1 37A. Offender reneging on promise to assist authorities may be re‑sentenced 1 38. Imprisonment by JPs, magistrate to review 1 Part 5 — Sentencing options 39. Natural person, sentences for 1 40. Body corporate, sentences for 1 41. If statutory penalty is imprisonment only: sentencing options 1 42. If statutory penalty is imprisonment and fine: sentencing options 1 43. If statutory penalty is imprisonment or fine: sentencing options 1 44. If statutory penalty is fine only: sentencing options 1 45. Spent conviction order, making and effect of 1 Part 6 — Release of offender without sentence 46. Release without sentence 1 Part 7 — Conditional release order 47. When CRO may be imposed 1 48. CRO, nature of 1 49. CRO, requirements of 1 50. Court may direct offender to re‑appear 1 51. Ensuring compliance with CRO 1 52. Enforcing CRO 1 Part 8 — Fine 53. Considerations when imposing fine 1 54. One fine for 2 or more offences 1 55. Apportionment of fine between joint offenders 1 56. Assault victim may be awarded fine 1 57. Enforcement of fine 1 57A. Enforcement of fine by means of WDO 1 57B. Court may cancel s. 57A order on application of Fines Enforcement Registrar 1 58. Imprisonment until fine paid 1 59. Imprisonment if fine not paid 1 60. Application of fine etc. 1 Part 8A — Suspended fine 60A. When fine may be suspended 1 60B. Effect of suspending fine 1 60C. Re‑offender may be dealt with or committed 1 60D. Alleging re‑offending in court 1 60E. How re‑offender to be dealt with 1 Part 9 — Community based order 61. Pre‑sentence report optional before imposing CBO 1 62. CBO, nature of 1 63. CBO, standard obligations of 1 64. CBO, primary requirements of 1 65. Supervision requirement 1 66. Programme requirement 1 67. Community service requirement 1 67A. Electronic monitoring requirement 1 Part 10 — Intensive supervision order 68. Pre‑sentence report mandatory before imposing ISO 1 69. ISO, nature of 1 70. ISO, standard obligations of 1 71. Supervision requirement 1 72. ISO, primary requirements of 1 73. Programme requirement 1 74. Community service requirement 1 75. Curfew requirement 1 76A. Electronic monitoring requirement 1 Part 11 — Suspended imprisonment 76. When imprisonment may be suspended 1 77. Effect of suspending imprisonment 1 78. Re‑offender may be dealt with or committed 1 79. Re‑offending, alleging in court 1 80. How re‑offender to be dealt with 1 Part 12 — Conditional suspended imprisonment Division 1 — Imposition and effect of CSI 81. Certain courts may suspend imprisonment conditionally 1 82. Effect of CSI 1 83. CSI, standard obligations of 1 84. CSI, primary requirements of 1 84A. Programme requirement 1 84B. Supervision requirement 1 84C. Curfew requirement 1 84CA. Electronic monitoring requirement 1 Division 2 — Consequences of re‑offending 84D. Re‑offender may be dealt with or committed 1 84E. Re‑offending, alleging in court 1 84F. How re‑offender to be dealt with 1 Division 3 — Amending, cancelling and enforcing CSI requirements 84G. Term used: CSI requirement 1 84H. Application to amend or cancel CSI requirement 1 84I. Court may confirm, amend or cancel CSI requirement 1 84J. Breach of CSI requirement, offence 1 84K. Offence under s. 84J, procedure and penalty for 1 84L. Additional powers to deal with s. 84J offender 1 84M. Facilitation of proof 1 Division 4 — Functions of speciality courts as to CSI 84N. Application of this Division 1 84O. Speciality court may direct offender on CSI to appear 1 84P. Speciality court to deal with re‑offender 1 84Q. Speciality court to deal with application to amend or cancel CSI 1 84R. Speciality court to deal with proceedings for breaches 1 Part 13 — Imprisonment Division 1 — Preliminary 85. Terms used and calculations 1 Division 2 — Imposing imprisonment 86. Term of 6 months or less not to be imposed 1 87. Time on remand may be taken into account 1 88. Concurrent, cumulative or partly cumulative terms 1 89. Parole eligibility order, court may make 1 90. Life imprisonment for murder, imposing 1 Division 3 — Release from imprisonment 93. Release from parole term 1 94A. Release on parole of prisoners subject to Prisoners (Interstate Transfer) Act 1983 1 94. Aggregation of parole terms for certain purposes 1 95A. Eligibility for parole where certain mandatory minimum sentences imposed 1 95. Release from fixed term that is not parole term 1 96. Release from life imprisonment 1 Division 4 — Miscellaneous 97. Sentence Administration Act 2003, operation of 1 97A. Declaration of serious offence for purposes of High Risk Serious Offenders Act 2020 and Sentence Administration Act 2003 Part 5A 1 Part 14 — Indefinite imprisonment 98. Indefinite imprisonment, superior court may impose 1 99. Other terms not precluded by indefinite imprisonment 1 100. When indefinite imprisonment commences 1 101. Release from indefinite imprisonment 1 Part 15 — Other orders forming part of a sentence Division 1 — General matters 102. General provisions 1 103. Disqualification order, calculation of term of 1 104. Disqualification may be for life 1 Division 2 — Disqualification orders 105. Driver's licence disqualification 1 106. Firearms licence etc. disqualification 1 107. Marine qualification disqualification 1 108. Passport, surrender of etc. 1 Part 16 — Reparation orders Division 1 — General matters 109. Term used: reparation order 1 110. General provisions 1 111. Making a reparation order 1 112. Facts relevant to making reparation order 1 113. Victim's behaviour and relationship relevant 1 114. Civil standard of proof applies 1 114A. Victim may appeal against refusal of reparation order 1 115. Effect of reparation order on civil proceedings etc. 1 Division 2 — Compensation order 116. Terms used 1 117. Compensation order in favour of victim 1 118. Compensation order in favour of third party 1 119. Enforcing compensation order 1 119A. Imprisonment until compensation paid, court may order 1 Division 3 — Restitution order 120. Making restitution order 1 120A. Enforcing restitution order, Sheriff's powers for 1 121. Enforcing restitution order, court's powers for 1 122. Non‑compliance with restitution order, offence 1 Part 17 — Other orders and declarations not forming part of a sentence Division 1 — Preliminary 123. General provisions 1 Division 2 — Orders made under other Acts 124. Restraining Orders Act 1997 s. 63 restraining order, s. 123 applies to 1 124A. Community Protection (Offender Reporting) Act 2004 s. 13 offender reporting order, s. 123 applies to 1 124B. Prohibited Behaviour Orders Act 2010 prohibited behaviour order, s. 123 applies to 1 124C. Orders under Criminal Organisations Control Act 2012 1 Division 3 — Declarations 124D. Terms used 1 124E. Serial family violence offenders 1 124F. Serial family violence offender declaration — related matters 1 124G. Disqualification if declaration made 1 Part 18 — Amending and enforcing conditional release orders and community orders Division 1 — Preliminary 125. Term used: requirements; and interpretation 1 Division 2 — Amending or cancelling conditional release orders and community orders 126. Application to amend or cancel 1 127. Court may confirm, amend or cancel 1 Division 3 — Re‑offending while subject to a conditional release order or a community order 128. Re‑offender may be dealt with or committed 1 129. Re‑offending, alleging in court 1 130. How re‑offender may be dealt with 1 Division 4 — Breaching a conditional release order or a community order 131. Breach of requirement, offence 1 132. Offence under s. 131, procedure and penalty for 1 133. Additional powers to deal with s. 131 offender 1 Division 5 — Miscellaneous 134. Facilitation of proof 1 135. Compliance with CRO or community order to be taken into account 1 136. Re‑sentencing, court's powers for 1 Division 6 — Functions of speciality courts 136A. Application of Division 1 136B. Term used: court 1 136C. Court may direct offender on community order to appear 1 136D. Court to deal with re‑offender 1 136E. Court to deal with application to amend or cancel community order 1 136F. Court to deal with proceedings for breaches 1 Part 18A — Review of conditional orders 136G. Terms used 1 136H. Application to review 1 136I. Court may confirm, amend or cancel 1 Part 19 — Royal Prerogative of Mercy 137. Royal Prerogative of Mercy not affected 1 138. Pardon, effect of 1 139. Order to pay money, Governor may remit 1 140. Petition for mercy may be referred to Court of Appeal 1 141. Offender may be paroled 1 142. Strict security life imprisonment, exercise of Prerogative in case of 1 Part 20 — Miscellaneous 143. Guideline judgments by Court of Appeal 1 143A. Sentencing guidelines for courts of summary jurisdiction 1 144. Chief Justice may report to Parliament 1 145. Non-compliance with procedural requirements, effect of 1 145A. Existence of circumstances of aggravation is question for judge to determine 1 146. Questions of fact in superior courts 1 147. Operation of other Acts not affected 1 147A. Monitoring requirements: additional provisions 1 148. Regulations 1 149. Rules of court 1 Part 21 — Transitional and review provisions 150A. Sentencing Amendment Act 2012 amendments, application of 1 150AB. Application of Sentencing Legislation Amendment Act 2016 amendments about circumstances of aggravation 1 150B. Review of s. 9AA 1 150. Review of Act 1 151. Review of amendments made by Family Violence Legislation Reform Act 2020 1 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 1 Uncommenced provisions table 1 Other notes 1 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 centre has the same definition as in the Sentence Administration Act 2003; community corrections officer ("CCO") has the same definition as in the Sentence Administration Act 2003; community order means a CBO or an ISO; community work includes any form of work, service, or activity approved for the purpose of this definition by the CEO (corrections); conditional release order ("CRO") means a conditional release order made under Part 7; conditional suspended imprisonment ("CSI") means conditional suspended imprisonment imposed under Part 12 Division 1; designated family relationship means a relationship between 2 persons — (a) who are, or were, married to each other; or (b) who are, or were, in a de facto relationship with each other; or (c) who have, or had, an intimate personal relationship with each other; or (d) one of whom is a child who — (i) ordinarily resides, or resided, with the other person; or (ii) regularly resides or stays, or resided or stayed, with the other person; or (e) one of whom is, or was, a child of whom the other person is a guardian; disqualification order means an order made under Part 15; explosive means a substance or an article that is controlled as an explosive under the Dangerous Goods Safety Act 2004; family violence offence (category A) means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444; family violence offence (category B) means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is — (a) an offence against the Restraining Orders Act 1997 section 61(1) or (1A); or (b) an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444; family violence restraining order has the meaning given in the Restraining Orders Act 1997 section 3(1); intensive supervision order ("ISO") means an intensive supervision order made under Part 10; offence means an offence under a written law; offender means a person convicted of an offence; parole eligibility order has the meaning given in section 89(1); prescribed means prescribed in the regulations; pre‑sentence order ("PSO") means a pre‑sentence order made under Part 3A; Prisoners Review Board means the Prisoners Review Board established under the Sentence Administration Act 2003; serial family violence offender means a person who is a serial family violence offender under section 124E; speciality court means a court — (a) that is prescribed; and (b) that is sitting at a place prescribed; and (c) that is dealing with offenders of a class prescribed, by the regulations and that is constituted by a judicial officer who is approved by the judicial officer who heads the court so prescribed; spent conviction order has the meaning given by section 45(2); statutory penalty, in relation to an offence, means the penalty specified by a written law for the offence; superior court means the Supreme Court or the District Court; written reasons includes reasons that are — (a) given orally and subsequently transcribed; and (b) given orally but also recorded electronically in a format that enables them to be subsequently transcribed. (1A) For the purposes of the definition of designated family relationship in subsection (1), an intimate personal relationship exists between 2 persons (including persons of the same sex) if — (a) the persons are engaged to be married to each other, including a betrothal under cultural or religious tradition; or (b) the persons date each other, or have a romantic involvement with each other, whether or not a sexual relationship is involved. (1B) In deciding whether an intimate personal relationship exists under subsection (1A)(b), the following may be taken into account — (a) the circumstances of the relationship, including, for example, the level of trust and commitment; (b) the length of time the relationship has existed; (c) the frequency of contact between the persons; (d) the level of intimacy between the persons. (2) In this Act these abbreviations are used: CBO for community based order; CCO for community corrections officer; CRO for conditional release order; CSI for conditional suspended imprisonment; DPP for Director of Public Prosecutions of the State; ISO for intensive supervision order; PSO for pre‑sentence order. (3) Examples in this Act are provided to assist understanding and do not form part of the Act. (4) In this Act a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of — (a) the whole of the term or terms; or (b) part of the term or terms. [Section 4 amended: No. 50 of 2003 s. 4, 14, 23 and 29(3); No. 84 of 2004 s. 65; No. 27 of 2004 s. 6(1) and (2); No. 65 of 2006 s. 45; No. 45 of 2016 s. 61; No. 13 of 2020 s. 4; No. 30 of 2020 s. 14; No. 28 of 2024 s. 61.] 5. Civil liability not affected This Act (other than section 115) does not affect any civil liability incurred in respect of an act or omission that constitutes an offence. Part 2 — General matters Division 1 — Sentencing principles 6. Principles of sentencing (1) A sentence imposed on an offender must be commensurate with the seriousness of the offence. (2) The seriousness of an offence must be determined by taking into account — (a) the statutory penalty for the offence; and (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and (c) any aggravating factors; and (d) any mitigating factors. (3) Subsection (1) does not prevent the reduction of a sentence because of — (a) any mitigating factors; or (b) any rule of law as to the totality of sentences. (4) A court must not impose a sentence of imprisonment on an offender unless it decides that — (a) the seriousness of the offence is such that only imprisonment can be justified; or (b) the protection of the community requires it. (5) A court sentencing an offender must take into account any relevant guidelines in a guideline judgment given under section 143. (6) For the purpose of subsection (4), an order under section 58 that a person be imprisoned is not a sentence of imprisonment. [Section 6 amended: No. 23 of 2001 s. 12.] 7. Aggravating factors (1) Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender. (2) An offence is not aggravated by the fact that — (a) the offender pleaded not guilty to it; or (b) the offender has a criminal record; or (c) a previous sentence has not achieved the purpose for which it was imposed. (3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then — (a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and (b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors. 8. Mitigating factors (1) Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. (2) The possibility that an order might be made in respect of the offender under the High Risk Serious Offenders Act 2020 is not a mitigating factor. (3) The fact that criminal property confiscation has occurred or may occur is not a mitigating factor. (3a) However, except in the case of derived property, facilitation by the offender of criminal property confiscation is a mitigating factor. (3B) The following are not mitigating factors — (a) the fact that an exclusion order (as defined in the Liquor Control Act 1988 section 152NC) might be or has been made in respect of the offender, or the consequences for the offender of the order being made; (b) the fact that the offender is or will be an excluded offender (as defined in the Liquor Control Act 1988 section 152NZJ(2)), or the consequences for the offender of being an excluded offender under that Act. (4) If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. (5) If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court. (6) In this section — criminal property confiscation means — (a) confiscation of derived property or any other property under section 6, 7 or 8 of the Criminal Property Confiscation Act 2000; or (b) confiscation or forfeiture to the State of derived property under any other written law; derived property means property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence. [Section 8 amended: No. 29 of 1998 s. 15; No. 26 of 2004 s. 7; No. 41 of 2006 s. 71(1) and 79; No. 42 of 2012 s. 3; No. 17 of 2016 s. 54; No. 29 of 2020 s. 121; No. 44 of 2022 s. 24.] 9AA. Plea of guilty, sentence may be reduced in case of (1) In this section — fixed term has the meaning given in section 85(1); head sentence, for an offence, means the sentence that a court would have imposed for the offence if — (a) the offender had been found guilty after a plea of not guilty; and (b) there were no mitigating factors; victim has the meaning given in section 13. (2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. (3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be. (4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) — (a) by more than 25%; or (b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity. (5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court. (6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. [Section 9AA inserted: No. 42 of 2012 s. 4.] Division 2A — Sentencing where declared criminal organisations involved [Heading inserted: No. 49 of 2012 s. 181(2).] 9A. Terms used (1) In this Division — COC Act means the Criminal Organisations Control Act 2012; COC Act offence means an offence under the COC Act Part 4; declared criminal organisation has the meaning given in the Criminal Organisations Control Act 2012 section 3(1); relevant indictable offence means an indictable offence listed in Schedule 1A Part 1; relevant simple offence means a simple offence listed in Schedule 1A Part 2. (2) A term used in this Division and also in the COC Act has the same meaning in this Division as it has in that Act, unless the term is defined in this Act or the context requires otherwise. [Section 9A inserted: No. 49 of 2012 s. 181(2).] 9B. Application of this Division This Division overrides — (a) Division 1; and (b) The Criminal Code sections 3(5) and 5(8). [Section 9B inserted: No. 49 of 2012 s. 181(2).] 9C. Principal objectives of sentencing for offences where declared criminal organisation involved (1) This section applies to an offender who is convicted of — (a) a COC Act offence; or (b) an offence to which section 9D(3) or (4) applies. (2) The principal objectives of the court in sentencing an offender to which this section applies must be — (a) to denounce the activities of declared criminal organisations, their members and associates; and (b) to protect the community from those activities. [Section 9C inserted: No. 49 of 2012 s. 181(2).] 9D. Mandatory minimum sentences where declared criminal organisation involved (1) Subsections (3) and (4) apply if — (a) an offender is convicted of — (i) a relevant indictable offence, whether the offence is dealt with on indictment or summarily; or (ii) a relevant simple offence; and (b) the offence was committed by that offender — (i) at the direction of a declared criminal organisation; or (ii) in association with one or more persons who, at the time of the commission of the offence, were members of a declared criminal organisation (whether or not those persons were also convicted of the offence), but only if the offender knew, at the time of the commission of the offence, that one or more of those persons were members of a declared criminal organisation; or (iii) for the benefit of a declared criminal organisation. (2) For the purposes of subsection (1), if, at the time of the commission of the offence, the offender was a member of a declared criminal organisation — (a) it is presumed that the offence was committed by the offender in all of the circumstances referred to in subsection (1)(b)(i) to (iii), without the prosecution having to show which of those circumstances actually applies; and (b) that presumption is rebutted only if the offender shows that the offence was not committed in any of those circumstances. (3) If this subsection applies, and the offence of which the offender was convicted is a relevant indictable offence dealt with on indictment, the court must impose on the offender — (a) if the statutory penalty for the offence includes life imprisonment, a term of imprisonment of not less than 15 years; or (b) if the statutory penalty for the offence is or includes a period of imprisonment (but not life imprisonment), a term of imprisonment of not less than 75% of that statutory penalty, but in no case less than 2 years (even if the maximum penalty for the offence is otherwise less than 2 years' imprisonment); or (c) if the statutory penalty for the offence does not otherwise include imprisonment, a term of imprisonment of 2 years. (4) If this subsection applies, and the offence of which the offender was convicted is a relevant indictable offence dealt with summarily or a relevant simple offence, the court must impose on the offender — (a) if the statutory penalty for the offence is or includes a period of imprisonment, a term of imprisonment of not less than 2 years (even if the maximum penalty for the offence is otherwise less than 2 years' imprisonment); or (b) if the statutory penalty for the offence does not otherwise include imprisonment, a term of imprisonment of 2 years. (5) However, the court must sentence the offender under subsection (3) if the offence is a relevant indictable offence dealt with summarily but the offender is committed for sentence and, under The Criminal Code section 5(10), is liable to the penalty with which the offence is punishable on indictment. (6) This section is subject to section 9E. [Section 9D inserted: No. 49 of 2012 s. 181(2).] 9E. Section 9D not applicable to persons aged under 18 Section 9D does not apply to an offender who, at the time of the commission of the offence, was under 18 years of age. [Section 9E inserted: No. 49 of 2012 s. 181(2).] 9F. Further provisions relating to mandatory minimum sentences imposed under section 9D (1) A court must not suspend a term of imprisonment imposed under section 9D(3) or (4). (2) Section 9D does not prevent the court from — (a) imposing life imprisonment, if life imprisonment may be imposed for the offence; or (b) imposing indefinite imprisonment under Part 14; or (c) fining the offender as well as imposing a term of imprisonment if — (i) both imprisonment and a fine may be imposed for the offence; or (ii) section 9D(3)(c) or (4)(b) applies. [Section 9F inserted: No. 49 of 2012 s. 181(2).] 9G. Eligibility for parole (1) If a court sentences an offender to a fixed term of imprisonment under section 9D(3) or (4), the court must not make a parole eligibility order in respect of that term of imprisonment. (2) Subsection (1) overrides section 89. (3) Subsection (4) applies if — (a) an offender is convicted of murder; and (b) section 9D(3) applies to the offender in respect of that offence; and (c) the court sentences the offender to life imprisonment for that offence; and (d) under section 90(1)(a), the court sets a minimum period that the offender must serve before being eligible for release on parole. (4) If this subsection applies, the court must set a minimum period of at least 20 years. (5) Subsection (4) overrides section 90(1)(a). [Section 9G inserted: No. 49 of 2012 s. 181(2); amended: No. 45 of 2016 s. 62.] Division 2 — Miscellaneous 9. Statutory penalty, effect of (1) Part 5 applies to and in respect of the statutory penalty for an offence. (2) If the statutory penalty for an offence is a fine of a particular amount or a particular term of imprisonment, then that penalty is the maximum penalty that may be imposed for that offence and, unless the statutory penalty — (a) is a mandatory penalty; or (b)