House of Representatives

Explanatory Memorandum

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

Schedule 9 - Additional sentencing factors for certain offences

Criminal Code Act 1995

Item 1 - Subsection 272.30(1) of the Criminal Code

263. Item 1 inserts new additional factors for mandatory consideration at sentencing, including one aggravated factor and one relevant factor.

264. When sentencing a person convicted of an offence in Subdivision B of Division 272 of the Criminal Code (sexual offences against children outside Australia), the court must now take into account as an aggravating factor if the person in relation to whom the offence was committed was under 10 years of age at the time of offending.

265. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of the sentence of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending.

266. The court must now also take into account as a relevant factor the number of people involved in the offending. This recognises that in certain instances, offences against Subdivision B of Division 272 of the Criminal Code are potentially more serious and harmful to victims if multiple people are involved, so far as these matters are relevant and known to the court.

Item 2 - After subsection 272.30(1) of the Criminal Code

267. Item 2 inserts subsection 272.30(1A) which limits the court's requirement to consider the matters in paragraphs 272.30(1)(a) and (c) to occasions where the matters in those paragraphs are relevant and known to the court.

Item 3 - At the end of Subdivision C of Division 471 of the Criminal Code

268. Item 3 inserts section 471.29A in Division 471 of the Criminal Code (offences relating to use of postal or similar service involving sexual activity with person under 16). Subsection 471.29A(1) of the Criminal Code provides that a court, when determining the sentence or the order to be made against a person for an offence against Subdivision C of Division 471 of the Criminal Code, must consider:

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the age and maturity of the victim or intended victim of the offence, and

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if the victim or intended victim of the offence was under 10 when the offence was committed - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates, and

•

the number of people involved in the commission of the offence.

269. The intention behind this provision is to allow the court to consider the unique circumstances of any case. The age and maturity of the victim can be relevant factors when considering the impact that the offending has on a victim, as well as the relative culpability of an offender. It is not intended that the sexual history of the victim be taken into account when considering their maturity.

270. The seriousness of offending behaviour in Subdivision C of Division 471 of the Criminal Code will be aggravated where the victim or intended victim was under 10 years of age at the time of offending. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending.

271. The court must also take into account as a relevant sentencing factor the number of people involved in the offending. This recognises that, in certain instances, offences against Subdivision C of Division 471 of the Criminal Code are potentially more serious and harmful to victims if multiple people are involved.

272. Proposed section 471.29A of the Criminal Code provides that the court is required to take these factors into account as far as they may be known to the court. The factors in paragraphs 471.29A(1)(a) and (c) need only be considered if they are relevant, whereas the factor in paragraph 471.29A(1)(b), when known, must always be considered.

273. The provision is framed so that the prosecution can lead evidence to establish these factors through the course of the proceedings.

274. Proposed new subsection 471.29A(3) ensures that the matters mentioned in subsection 471.29A(1) are in addition to any other matters the court must take into account - for example, section 16A of the Crimes Act, which deals with matters the court must take into account when passing sentences for federal offences. This is intended to avoid doubt that existing sentencing factors apply to the relevant offences.

Item 4 - At the end of Subdivision F of Division 474 of the Criminal Code

275. Item 4 inserts section 474.29AA in Division 474 of the Criminal Code. Subsection 474.29AA(1) provides that a court, when determining the sentence or the order to be made against a person for an offence against Subdivision F of Division 474 of the Criminal Code (offences relating to use of carriage service involving sexual activity with person under 16), must consider:

•

the age and maturity of the victim or intended victim of the offence, and

•

if the victim or intended victim of the offence was under 10 when the offence was committed - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates, and

•

the number of people involved in the commission of the offence.

276. The intention behind this provision is to allow the court to consider the unique circumstances of any case. The age and maturity of the victim or intended victim can be relevant factors when considering the impact that the offending has on a victim, as well as the relative culpability of an offender. It is not intended that sexual history of the victim be taken into account when considering their maturity.

277. The seriousness of offending behaviour in Subdivision F of Division 474 of the Criminal Code will be aggravated where the victim or intended victim was under 10 years of age at the time of the offending. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending.

278. The court must also take into account, as a relevant sentencing factor, the number of people involved in the offending. This factor recognises that, in certain instances, offences against Subdivision F of Division 474 of the Criminal Code are potentially more serious and harmful to the victim if multiple people are involved.

279. Proposed section 474.29AA of the Criminal Code provides that the court is required to take these factors into account as far as they may be known to the court. The factors in proposed paragraphs 474.29AA(1)(a) and (c) need only be considered if they are relevant, whereas the factor in proposed paragraph 474.29AA(1)(b), when known, must always be considered.

280. The provision is framed so that the prosecution can lead evidence to establish these factors through the course of the proceedings.

281. Proposed subsection 474.29AA(3) of the Criminal Code ensures that the matters mentioned in subsections 474.29AA(1) and (2) are in addition to any other matters the court must take into account - for example, section 16A of the Crimes Act, which deals with matters the court must take into account when passing sentences for federal offences. This is intended to avoid doubt that existing sentencing factors apply to the relevant offences.

Item 5 - Application provision

282. Item 5 prescribes the application of the amendments made by Schedule 9. This provision ensures that the amendments made by Schedule 9 apply in determining the sentence to be passed (or order to be made) for a person for an offence that is committed on or after commencement of this item.