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.

Sentencing amendments – Criminal law – NSW

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Important sentencing amendments commenced in NSW courts on 24 September 2018, under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 which amends the Crimes (Sentencing Procedure) Act 1999.

The cumulative effect of the amendments is a significant overhaul of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced. The stated intent of the sentencing amendments is to reduce the number of offenders in custody by replacing largely unsupervised sentencing options with highly supervised ones, thereby having fewer people in gaol for breaches of bonds/orders. Whether the legislation achieves its aims remains to be seen, but practitioners need to be on top of the changes from today.

The amendments include:

Intensive Correction Orders (already existing) – substantially augmented and strengthened.

  • Available for all offenders sentenced to any custodial penalty up to 2 years (except for certain serious offences).
  • Mandatory supervision for all Intensive Correction Orders and can include conditions such as home detention.
  • Home Detention abolished as a stand-alone penalty.
  • Suspended sentence (s 12 bond) abolished.
  • Pre-sentence report (now called an Assessment report) mandatory.

Community Correction Orders introduced – replaces bonds under s 9

  • Good Behaviour Bonds (s 9) abolished.
  • Mandatory supervision for all Community Correction Orders and can include conditions such as community work.
  • Community Service Orders abolished.
  • Pre-sentence report (now called an Assessment report) not mandatory.

Community Release Orders introduced – replaces bonds under s 10(1)(b)

  • Bonds under s 10(1)(b) (without conviction) abolished.
  • Community Release Orders can be without conviction at the court’s discretion.
  • Conditions available for Intensive Correction Orders and Community Correction Orders are not available for Community Release Orders.
  • Pre-sentence report (now called an Assessment report) not mandatory.
  • Presumption that domestic violence offenders will receive only custody, or a supervised order, not Community Release Orders.

The By Lawyers Criminal (NSW) Guide has been updated to deal with these amendments in an easily understandable way.

NSW Traffic – Local Court – sentencing options

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The commentary in the By Lawyers Guide to Traffic Offences – Local Court (NSW) now has a more detailed treatment of the sentencing options which are available to Magistrates when dealing with traffic offences.

Included is a summary of the upcoming sentencing amendments, which are expected to commence in September 2018. This is important information for practitioners to consider when advising clients who may currently be facing court, as bonds which are entered into under the current provisions will convert to be orders under the new provisions  – and any breaches will be dealt with under the new provisions.

NSW – Criminal – Proposed 2018 sentencing amendments

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The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Crimes (High Risk Offenders) Amendment Act 2017 and the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 are awaiting proclamation, but are expected to commence in May 2018. The cumulative effect of the amendments is a very significant overhaul of criminal procedure in the Local Court and of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced.

These changes are likely to cause some disturbance and take a while to work themselves out. They may or may not achieve their objectives, but regardless the impact is potentially significant. The commentary will be updated when the legislation commences.

For a full summary of the proposed changes, see the heading “2018 proposed sentencing amendments” in the Criminal NSW commentary.

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