Part 3 - Sentences; Division 2 - Custodial orders - Subdivision (1) - Imprisonment Flashcards
9 — Aggregate sentence of imprisonment
Can court make one?
(1) If offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.
(1A) But court must not impose aggregate sentence if —
● (a) Offender is a serious offender and any of the offences is a relevant offence
● (ab) Offences comprise at least one offence that is a standard sentence offence
● (b) Offences comprise at least one offence committed whilst on parole and one offence committed at another time.
Conditions on making one
(2) Term of agg sentence must not exceed TES that could have been imposed if court had imposed separate sentences of imprisonment for each offence
(3) If court proposes to impose aggregate sentence, must before doing so announce in open court in language likely to be readily understood by the offender—
● (a) The decision to impose an agg sentence and the reasons for doing so; and
● (b) The effect of the proposed agg sentence
(4) If court imposes an agg sentence of imprisonment in respect of 2+ offences, the court—
● (a) is not required to identify separate events giving rise to specific charges; and
● (b) is not required to announce—
○ (i) the sentences that would have been imposed for each offence had separate sentences been imposed; or
○ (ii) whether those sentences would have been imposed concurrently or cumulatively.
(4A) For the avoidance of doubt, an agg sentence of imprisonment may be imposed in respect of convictions for offences the subject of a rolled-up charge/representative charge.
A representative charge is a charge in an indictment for an offence that is representative of a number of offences of the same type alleged to have been committed by the accused. A rolled-up charge is a charge in an indictment that alleges that the accused has committed more than one offence of the same type between specified dates.
11 — Fixing of non-parole period by sentencing court
● (1) If court sentences offender to be imprisoned for (a) term of his/her natural life; or (b) term of 2 years or more, court has to fix a NPP unless it considers nature of offence or past history of the offender make the fixing of a NPP inappropriate
● (2) If imprisons for at least 1 year but less than 2 years, it’s optional (may fix NPP)
● (2A) No NPP for imprisonment combined w/CCO
● (3) NPP must be at least 6 months less than the term of the sentence
● (4) If court sentences offender to be imprisoned in respect of 2+ offences, any NPP fixed under subs (1)/(2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.
11A — Fixing of non-parole period for standard sentence offence (note we don’t need to know standard sentence scheme, go to section if it comes up)
11A — Fixing of non-parole period for standard sentence offence (note we don’t need to know standard sentence scheme, go to section if it comes up)
S 16 — Sentences—whether concurrent or cumulative - Part 1
(1) Subject to (1A), every term of imprisonment to be served concurrently with other of sentences of imprisonment or detention in YJC or YRC (whether sentences imposed at same time or not) unless court orders otherwise.
(1A) The above doesn’t apply to a term of imprisonment imposed:
● (a) In default of payment of a fine or sum of money
● (b) on a prisoner in respect of a prison offence or an escape offence
● (c) Serious offender for a relevant offence
● (d) Any offence committed whilst released under a parole order
● (e) Offence committed while released on bail for another offence
● (ea) Offence against s 31C of CA (discharging firearm reckless to safety of police officer) in circs where conduct created a risk to the physical safety of the victim or any member of the public
● (f) Young offender bc of the operation of s33(1A) (basically escape from or damage to a remand centre, YJC or YRC)
● (g)-(k) The driving emergency worker offences under the CA
● (l) Common assault in circs referred to in s320A(1) or (2) of CA - police, offensive weapons etc.
(2) Every term of imprisonment imposed on a person in default of payment of a fine or sum of money must, unless otherwise directed by the court, be served—
● (a) Cumulatively on any other uncompleted sentence or sentences of imp. Or detention in a YJC/YRC imposed on that person in default of payment of fine or $sum
● (b) BUT Concurrently with any other uncompleted sentence or sentences of imprisonment Or detention imposed on that person.
Whether the other sentence was or those sentences were, imposed before or at the same time as them.
(2A) Reference to imprisonment incl. imprisonment under Part 14 of Fines Reform Act 2014
(3) Every term of imprisonment imposed on a prisoner by court in respect of prison offence or escape offence must, unless otherwise directed by court because of existence of exceptional circumstances, be served cumulatively on any other sentences of
S 16 — Sentences—whether concurrent or cumulative - Part 2
(3B) Subject to (3BA), every term of imprisonment imposed on a person for an offence committed on parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
(3BA) Corrections Act qualification.
(3C) Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
(3D) Every term of imprisonment imposed on person for offence against ss 317AC, 317AD, 317AE, 317AF or 317AG of the Crimes Act 1958 [the EW offences] must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
(3E) Ditto for 31C/ s320A(1)/(2) of CA – cumulatively on any other uncompleted sentences of imprisonment
(4) Note there’s a Cth interaction sub-provision → go to it if needed.
(6) This section has effect despite anything to the contrary in any Act.
→ a lot of detail in this section generally → go to it if needed.
18 — Time held in custody before trial etc. to be deducted from sentence
(1) If an offender is in respect of an offence sentenced to imprisonment or to a period of detention in an approved mental health service under a hospital security order, any period during which he or she was held in custody in relation to—
● (a) proceedings for the offence; or
● (b) proceedings arising from those proceedings including any period pending the determination of an appeal—
must be reckoned as a period of imprisonment or detention already served under sentence unless sentencing court or court fixing a NPP in respect of sentence otherwise orders.
(2) above doesn’t apply to (a) custody of less than one day (b) detention in designated mental health service of less than one day; or (d) to period of custody already reckoned as time served.
(3) If offender held in custody (a) informant or arrester, if present, must inform court of length of that period of custody (b) if not present, court may take/receive other evidence (whether oral/written and whether on oath/by affirmation/otherwise) of length of custody period.
(4) if offender held in custody, court must declare the reckoned period as time served and cause to be noted in court records the fact of declaration’s making and its details.
(5) record must be indorsed by relevant person. (6) If person charged with series of offences committed on different occasions and has been in continuous custody since arrest, period of custody for (1) must be reckoned from time of his/her arrest even if he/she not convicted of offence with respect to which he/she was first arrested or of other offences in the series.
(7) court can correct the declared period on application if it was in error. (8) application can be made by (a) offender, (b) DPP, if sentencing court was SCV or CCV, (c) informant or police prosecutor, if sentencing court was MCV.
