House of Representatives

Explanatory Memorandum

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

Schedule 10 - Cumulative sentences

Crimes Act 1914

283. This Schedule inserts a presumption in favour of cumulative sentences when sentencing Commonwealth child sex offenders and the respective requirements in applying that presumption.

Item 1 - Before subsection 19(1)

284. This item inserts the sub heading "General requirements" before subsection 19(1) of the Crimes Act to aid the readability of the section. Its inclusion indicates that the requirements under existing subsections 19(1) - (4) apply to sentencing all federal offenders. This requires that the courts follow the general rules concerning commencement dates and preventing gaps between sentences.

Item 2 - At the end of section 19

285. This item inserts proposed subsections 19(5) - (7) which provide additional requirements the court must have regard to when sentencing Commonwealth child sex offenders. Proposed subsection 19(5) requires that when sentencing an offender for a Commonwealth child sex offence a court must not make an order that has the effect that a term of imprisonment for that offence would be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment. This presumption in favour of cumulative sentences only operates where a person is being sentenced for multiple Commonwealth child sex offences or Commonwealth child sex offences in addition to a state or territory registrable child sex offence.

286. The objective of the presumption is to act as a yardstick against which to examine a proposed sentence of an offender for multiple child sex offences to ensure that the effective sentence represents a tougher response to the objective seriousness of the sexual abuse of children. It benefits circumstances such as where offences are committed against separate victims over an extended period of time. The proposed subsection 19(6) provides an exception to this rule where the court is satisfied that imposing a sentence in a different manner (such as partly cumulatively or concurrently) would be of a severity appropriate in all the circumstances.

287. The proposed subsection 19(6) recognises there will be circumstances where the application of this presumption would result in an unacceptable outcome. Accordingly, discretion is retained for the court to consider the outcome for all the offences in totality and, if appropriately satisfied, order the sentence in a different manner provided that the sentence overall is still of a severity appropriate in all the circumstances.

288. However, the proposed subsection 19(7) requires that where a court under subsection 19(6) is satisfied that the sentences do not need to be served cumulatively, the court must explain the reasons for being so satisfied and ensure that the reasons are entered in the records of the court. Given the significant difference that decisions of the court on this aspect can make to the total length of the sentence imposed on an offender - and the justice outcome for the victim - it is important that the court is required to explain its reasons.

Item 3 - Application provision

289. This item provides that the presumption in favour of cumulative sentencing applies to sentencing orders made on or after the commencement of this Schedule where the offences to which the sentences relate were committed on or after that commencement.