Critical Changes to Criminal & Sentencing Law
The beginning of the legal year has seen the introduction of new legislation, which fundamentally changes aspects of the criminal law. The following is a summary of recent changes in the criminal law:
Assaults relating to Custodial Officers
The Crimes Legislation Amendment Act 2016 came into effect on 6 February 2017. It expands upon previous changes to section 10AA of the Sentencing Act 1991, which dictates that people sentenced for an offence against emergency workers on duty must receive a term of imprisonment and dictates mandatory non-parole periods of between 2 and 5 years. The Amendment now adds custodial officers to the section so that offences against custodial officers are also dealt with under this section.
For young offenders, the Court is required to impose a youth justice centre order of not less than between 2 and 3 years. The period of a sentence or youth justice centre order will depend on the offence committed. The Court may only diverge from these mandatory provisions if it finds that ‘special reasons’ exist. See note below.
Changes to the Community Corrections Order Scheme
As of Monday 20 March 2017, the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 will come into effect. At present, a person may be sentenced to a community corrections order and a period of up to two years imprisonment in the same sentence. The amendment will reduce the period of imprisonment to 12 months before the accused person is able to also receive a community corrections order in the same sentence. The Act also provides that a CCO cannot be combined with a sentence of imprisonment, where a non-parole period is ordered. The maximum duration of a CCO has now been limited to 5 years.
Importantly, this change does not discern between offences committed before the commencement of this amendment and those committed afterwards. Accordingly, anyone currently undergoing prosecution or plea proceedings are subject to this amendment, even though the offences were committed before it was proclaimed.
In addition, as of 20 March 2017, the following offences will not attract a community corrections order:
Category 1 Offences
- Intentionally causing serious injury in circumstances of gross violence
- Recklessly causing injury in circumstances of gross violence
- Rape by compelling sexual penetration
- Incest (victim under 18)
- Incest – de facto (victim under 18)
- Sexual penetration of a child under the age of 12
- Persistent sexual abuse of a child under the age of 16
- Trafficking in a large commercial quantity of a drug of dependence
- Cultivation of a large commercial quantity of a narcotic plant
Category 2 Offences (unless there are special reasons for doing so):
- Child homicide
- Intentionally causing serious injury
- Kidnapping (common law)
- Arson causing death
- Trafficking in a commercial quantity of a drug of dependence
- Cultivation of a commercial quantity of a narcotic plant
- Providing documents or information facilitating terrorist acts.
Carjacking and Home Invasion
The Crimes Amendment (Carjacking and Home Invasion) Act 2016 creates new offences applicable to the acts of ‘carjacking’ and ‘home invasion’. Car jacking is accompanied by a 15 year maximum penalty and home invasion (an entirely separate offence to aggravated burglary) is accompanied by a 25 year maximum. The legislation also creates the additional offences of ‘aggravated home invasion’ and ‘aggravated car jacking’. In addition, the Amendment dictates that any person sentenced for the offences of aggravated home invasion or aggravated car jacking, must receive a term of imprisonment, inclusive of a non-parole period of not less than 3 years, unless that Court finds that a ‘special reason’ exists. With regard to bail when charged with these offences, the offences of ‘aggravated car jacking’ and ‘aggravated home invasion’ place the accused person in a show cause situation, having been added to section 4(4) of the Bail Act 1977.
Note: ‘Special Reasons’
Where a practitioner is considering whether ‘special reasons’ exist (as described above), they should have regard to the case of DPP -v- Hudgson  VSCA 254, where the Court of Appeal entered into a discussion as to the meaning of special reasons, which was considered in the context of mandatory minimum sentences imposed pursuant to section 10A of the Sentencing Act 1991. It found that the onus to prove special reasons is a heavy one and ‘not capable of being lightly discharged’.