ByLawyers News and Updates

Bail and sentencing – WA

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Bail and sentencing options have changed with commencement of the final tranche of amendments under the Family Violence Legislation Reform Act 2024.

From 18 December 2024 Bail authorities can impose electronic monitoring as part of bail and sentencing conditions for certain family violence offenders. In some cases,  an electronic monitoring condition must be applied.

Bail

Schedule 1 of the Bail Act 1982 creates a rebuttable presumption against bail being granted for certain offences. For offences in these categories, the presumption can be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied that bail may properly be granted.

The amendments create new circumstances where the presumption applies, namely to family violence offences as defined in clause 3F(1A) and offenders who have been declared a serial family violence offender as defined in s 3 of the Act. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition.

Clause 3G creates a rebuttable presumption against bail for a person charged with a family violence offence (category A) as defined in the clause who is bound by a family violence restraining order that protects a victim of the current offence. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition. See Schedule 1 Part D and Part E.

Sentencing

When the court is sentencing:

  • for a family violence offence and the offender has been declared a serial family violence offender, if making a CSI the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances;
  • an offender who has been declared a serial family violence offender, if making a PSO the court must consider and may impose an electronic monitoring requirement for the term of the PSO, and must do so if the offence is a family violence offence;
  • an offender for a family violence offence or who has been declared a serial family violence offender, if when making a CBO or an ISO the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances.

Publication updates

The By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly. See Bail and Sentencing.

For information on legislative amendments and publication updates arising from the previously commenced parts of the amending Act, see the By Lawyers Restraining Order (WA) guide, and our previous News & Updates post

Discounts for guilty pleas – SA

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Provisions relating to discounts for guilty pleas have changed from 2 November, including for matters on foot as at that date.

The By Lawyers Magistrates Court – Criminal SA commentary has been amended accordingly. See particularly the section on Discounts on sentence for early pleas of guilty.

Section 39 of the Sentencing Act 2017 for summary and minor indictable offences treated summarily, and s 40 for other offences, provides that when passing sentence the court must take into account the fact that the offender pleaded guilty and when the offender pleaded guilty. The court can reduce the sentence it would have otherwise imposed up to certain percentages depending upon when the plea is entered.

Section 39(4) and s 40(5) Sentencing Act 2017 set out the considerations to which the court must have regard when determining an appropriate discount, including where the defendant is charged with or has pleaded guilty to more than one offence. Practitioners should note that some of those considerations now only apply to guilty pleas entered on or after 2 November 2020.

Specific percentage discounts for pleas of guilty are provided in the legislation for defendants pleading guilty to all types of offences in the Magistrates Court. To be eligible for the maximum reduction of the sentence that the court would otherwise have imposed, the defendant must enter the plea of guilty within four weeks of the first appearance.

In all cases, the considerations under s 39(4) and s 40(5) Sentencing Act 2017 include when the defendant first indicated an intention to plead guilty – it is therefore important, if seeking the maximum discount to indicate a likely plea of guilty to the court as soon as the instructions are to that effect, preferably on the first appearance, even if the actual plea cannot be entered until a later date due, for example, to negotiations over the facts.

Criminal & Traffic Law – Finalisation letters – NSW

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Enhancements to finalisation letters

The finalisation letters in the By Lawyers Criminal and Traffic Guides (NSW) have been enhanced.

The finalisation letters now cover all sentencing outcomes, including Community Correction Orders.

There are now separate finalisation letters in the Traffic guide for drink driving offences, which include an Interlock order as a sentencing outcome, and for general offences, which do not include the Interlock outcome.

In both guides there is now also a separate letter dealing with deferral of sentence under s 11 Crimes (Sentencing Procedure) Act 1999.

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