House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General and Minister for Industrial Relations, the Hon Christian Porter MP)

Schedule 8 - Matters court has regard to when passing sentence etc.

Crimes Act 1914

Items 1 and 2 - Paragraph 16A(2)(g) and after paragraph 16A(2)(m)

251. These items introduce additional general sentencing factors to which the court must have regard when sentencing a federal offender. The existing paragraph 16A(2)(g) is expanded upon so that in addition to considering the fact that the person pleaded guilty to the charge in respect of the offence, regard is also to be had to the timing of that plea and the degree to which these factors resulted in any benefit to the community or to any victim of or witness to the offence.

252. The amendment to paragraph 16A(2)(g) is an acknowledgement that is it appropriate for offenders to be offered a reduction in their sentence for an early guilty plea, as early guilty pleas reduce the costs associated with prosecuting offenders and save victims and witnesses from the often harrowing experience of giving evidence and being cross-examined in open court.

253. Proposed paragraph 16A(2)(ma) introduces a new sentencing consideration regarding whether the person's standing in the community was used to aid in the commission of the offence. Where this is the case it is to be taken as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.

254. It is intended that this will capture scenarios where a person's professional or community standing is used as an opportunity for the offender to sexually abuse children. For example, this would cover a medical professional using their professional standing as a medical practitioner, or a person using celebrity status, to create opportunities to sexually abuse children.

Item 3 - After subsection 16A(2)

255. This item inserts subsection 16A(2AAA) which introduces a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing Commonwealth child sex offenders. This factor must be considered in addition to the general sentencing factors in subsection 16A(2), as part of the overall balancing exercise undertaken in order to determine a sentence of appropriate severity.

256. This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of 18 months to two years is required for offenders to be able to complete a relevant custodial sex offender treatment program.

257. The new subsection 16A(2AAA) of the Crimes Act requires the court to have regard to the objective of rehabilitation when determining the sentence to be passed or order to be made. Under proposed subsection 16A(2AAA) the court will have to consider if it would be appropriate to make orders imposing conditions about rehabilitation or treatment options. A further consideration is whether the sentence or non-parole period provides sufficient time for the person to undertake rehabilitation. For example, generally a non-parole period of 18 months to two years is necessary for offenders to complete a sex offender rehabilitation program while in prison.

258. In taking these matters into consideration the court is only required to have regard to what they consider appropriate, taking into account such matters as are relevant and known to the court. There is no requirement for the courts to conduct independent enquiries into rehabilitation options for a particular offender.

Item 4 - Subsection 16A(2A)

259. This item makes it clear that paragraph 16A(2)(ma) has primacy over 16A(2) of the Crimes Act. The prohibition in subsection 16A(2A) against taking into account any form of customary law or cultural practice as a reason for aggravating the seriousness of the criminal behaviour does not apply if this is what gave rise to the person's standing in the community and was used by the person to aid in the commission of the offence.

Item 5 - Subsection 16A(3)

260. Item 5 is a consequential amendment to item 3 of this Schedule. The purpose of subsection 16A(3) of the Crimes Act is to give further guidance to the courts in considering whether to impose an order under sections 19B, 20 and 20AB of the Crimes Act instead of imprisonment as the appropriate punishment. The matters that a court in this situation is to consider are the nature and severity of the conditions that may be imposed on the person.

Criminal Code Act 1995

Item 6 - Subsection 272.30(2) of the Criminal Code

261. Item 6 is a consequential amendment to item 3 of this Schedule. Subsection 272.30(2) of the Criminal Code sets out sentencing factors to be taken into consideration for an offence against subdivision B of Division 272 of the Criminal Code (sexual offences against children outside Australia), but makes it clear that these considerations are in addition to any other matters the court must take into account, including subsection 16A(2) of the Crimes Act. This item amends this to cover section 16A of the Crimes Act more broadly.

Item 7 - Application provision

262. This item provides that the amendments made by Schedule 8 apply in relation to determining a sentence to be passed, or an order to be made, in respect of a person for a federal offence, regardless of whether than person was charged with or convicted of the offence before or after commencement of this Schedule.