Sentencing Amendment (Sentencing Standards) Act 2017
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Sentencing Amendment (Sentencing Standards)
Act 2017
No. 34 of 2017
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 2
Part 2—Repeal of the baseline sentencing scheme 3
Division 1—Amendment of the Sentencing Act 1991 3
3 Definitions 3
4 Sentencing guidelines 3
5 Sentencing for a baseline offence 3
6 Median sentence 3
7 Content of guideline judgment 3
8 Aggregate sentence of imprisonment 3
9 Fixing of non-parole period for baseline offence 3
10 Aggregate fines 3
11 Transitional provisions—Sentencing Amendment
(Baseline Sentences) Act 2014 4
Division 2—Amendment of the Crimes Act 1958 4
12 Definitions 4
13 Punishment for murder 4
14 Culpable driving causing death 4
Division 3—Amendment of the Drugs, Poisons and Controlled
Substances Act 1981 4
15 Definitions 4
16 Trafficking in a drug or drugs of dependence—large
commercial quantity 4
Part 3—Standard sentence scheme 5
Division 1—Amendment of the Sentencing Act 1991 5
17 Definitions 5
18 Sentencing guidelines 5
19 New sections 5A and 5B inserted 5
20 Content of guideline judgment 8
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21 Aggregate sentence of imprisonment 8
22 New section 11A inserted 8
23 Aggregate fines 10
Division 2—Amendment of the Crimes Act 1958 10
24 Definition inserted 10
25 Standard sentence for murder 10
26 Standard sentence for rape 11
27 Standard sentence for sexual penetration of a child under the
age of 12 12
28 Standard sentence for sexual penetration of a child under the
age of 16 12
29 Standard sentence for sexual assault of a child under the age
of 16 12
30 Standard sentence for sexual activity in the presence of a child
under the age of 16 13
31 Standard sentence for causing a child under the age of 16 to be
present during sexual activity 13
32 Standard sentence for persistent sexual abuse of a child under
the age of 16 13
33 Standard sentence for sexual penetration of a child or lineal
descendant 14
34 Standard sentence for sexual penetration of a step-child 14
35 Standard sentence for culpable driving causing death 15
Division 3—Amendment of the Drugs, Poisons and Controlled
Substances Act 1981 15
36 Definition inserted 15
37 Standard sentence for trafficking in a large commercial quantity
of a drug or drugs of dependence 15
Part 4—Guideline judgments 16
38 Definition 16
39 New section 6ABA inserted 16
40 Content of guideline judgment 17
41 Procedural requirements 17
Part 5—Miscellaneous 19
42 New section 162 inserted 19
43 Amendment of Schedule 1 20
Part 6—Repeal of amending Act 21
44 Repeal of amending Act 21
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Endnotes 22
1 General information 22
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Sentencing Amendment (Sentencing
Standards) Act 2017 †
No. 34 of 2017
[Assented to 15 August 2017]
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The purposes of this Act are—
(a) to amend the Sentencing Act 1991—
(i) to repeal the baseline sentencing
scheme; and
(ii) to provide for standard sentences for
indictable offences; and
Victoria
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Part 1—Preliminary
Sentencing Amendment (Sentencing Standards) Act 2017
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(iii) to enhance the scheme in that Act for
the giving of guideline judgments; and
(iv) to amend the definition of arson
offence for the purposes of Part 2A of
that Act (serious offenders); and
(b) to amend the Crimes Act 1958—
(i) to remove references to the baseline
sentencing scheme; and
(ii) to fix a standard sentence for—
(A) murder; and
(B) a range of sexual offences; and
(C) culpable driving causing death;
and
(c) to amend the Drugs, Poisons and
Controlled Substances Act 1981—
(i) to remove references to the baseline
sentencing scheme; and
(ii) to fix a standard sentence for trafficking
in a large commercial quantity of a
drug or drugs of dependence.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 April 2018, it comes into
operation on that day.
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Part 2—Repeal of the baseline sentencing scheme
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Part 2—Repeal of the baseline
sentencing scheme
Division 1—Amendment of the Sentencing Act 1991
3 Definitions
In section 3(1) of the Sentencing Act 1991, the
definitions of baseline offence, baseline sentence
and median sentence are repealed.
4 Sentencing guidelines
Section 5(2)(ab) of the Sentencing Act 1991 is
repealed.
5 Sentencing for a baseline offence
Section 5A of the Sentencing Act 1991 is
repealed.
6 Median sentence
Section 5B of the Sentencing Act 1991 is
repealed.
7 Content of guideline judgment
Section 6AC(ea) of the Sentencing Act 1991 is
repealed.
8 Aggregate sentence of imprisonment
Section 9(1A)(ab) of the Sentencing Act 1991 is
repealed.
9 Fixing of non-parole period for baseline offence
Section 11A of the Sentencing Act 1991 is
repealed.
10 Aggregate fines
Section 51(1A) of the Sentencing Act 1991 is
repealed.
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Part 2—Repeal of the baseline sentencing scheme
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11 Transitional provisions—Sentencing Amendment
(Baseline Sentences) Act 2014
Section 155 of the Sentencing Act 1991 is
repealed.
Division 2—Amendment of the Crimes Act 1958
12 Definitions
In section 2A(1) of the Crimes Act 1958, the
definition of baseline sentence is repealed.
13 Punishment for murder
(1) Section 3(2) and (3) of the Crimes Act 1958 is
repealed.
(2) The note at the foot of section 3 of the Crimes
Act 1958 is repealed.
14 Culpable driving causing death
Section 318(1A) of the Crimes Act 1958 is
repealed.
Division 3—Amendment of the Drugs, Poisons and
Controlled Substances Act 1981
15 Definitions
In section 4(1) of the Drugs, Poisons and
Controlled Substances Act 1981, the definition
of baseline sentence is repealed.
16 Trafficking in a drug or drugs of dependence—large
commercial quantity
Section 71(2) of the Drugs, Poisons and
Controlled Substances Act 1981 is repealed.
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Part 3—Standard sentence scheme
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Part 3—Standard sentence scheme
Division 1—Amendment of the Sentencing Act 1991
17 Definitions
In section 3(1) of the Sentencing Act 1991 insert
the following definitions—
"standard sentence, in relation to an offence,
means the period specified by an Act as the
standard sentence for the offence;
Note
See section 5A.
standard sentence offence means an offence for
which an Act specifies a standard sentence;
Note
See section 5A.".
18 Sentencing guidelines
After section 5(2)(a) of the Sentencing Act 1991
insert—
"(ab) the standard sentence, if any, for the offence;
and".
19 New sections 5A and 5B inserted
After section 5 of the Sentencing Act 1991
insert—
"5A Standard sentence scheme
(1) If the Act that creates an offence, or
prescribes the maximum penalty for an
offence, specifies a period as the standard
sentence for the offence, then—
(a) the offence is a standard sentence
offence; and
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Part 3—Standard sentence scheme
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(b) the period specified as the standard
sentence for the offence is the sentence
for an offence that, taking into account
only the objective factors affecting the
relative seriousness of that offence, is
in the middle of the range of
seriousness.
(2) An offence of conspiracy to commit,
incitement to commit or attempting to
commit a standard sentence offence is itself
not a standard sentence offence.
(3) For the purposes of subsection (1)(b),
objective factors affecting the relative
seriousness of an offence are to be
determined—
(a) without reference to matters personal
to a particular offender or class of
offenders; and
(b) wholly by reference to the nature of the
offending.
5B Sentencing for a standard sentence
offence
(1) This section applies in relation to sentencing
an offender for a standard sentence offence
unless—
(a) the offender was under the age of 18
at the time of the commission of the
offence; or
(b) the offence is heard and determined
summarily; or
(c) section 162 makes this section
inapplicable because of when the
offence is alleged to have been
committed.
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Part 3—Standard sentence scheme
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(2) In sentencing an offender for a standard
sentence offence, a court—
(a) must take the standard sentence into
account as one of the factors relevant to
sentencing; and
(b) despite section 5(2)(b), must only have
regard to sentences previously imposed
for the offence as a standard sentence
offence in relation to the sentencing for
which this section applied.
(3) Subsection (2)—
(a) does not limit the matters that a court
is otherwise required or permitted to
take into account in determining the
appropriate sentence for a standard
sentence offence; and
(b) is not intended to affect the approach to
sentencing known as instinctive
synthesis.
(4) A court that sentences an offender for a
standard sentence offence must at the time of
doing so state the reasons for—
(a) imposing that sentence; and
(b) any non-parole period fixed in
accordance with section 11 as part of
that sentence if that period is shorter
than the period specified in section
11A(4)(a), (b) or (c), as the case
requires.
(5) As part of its reasons under subsection (4),
a court must refer to the standard sentence
for the offence and explain how the sentence
imposed by it relates to that standard
sentence.".
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Part 3—Standard sentence scheme
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20 Content of guideline judgment
After section 6AC(e) of the Sentencing Act 1991
insert—
"(ea) guidelines for sentencing offenders for
standard sentence offences;".
21 Aggregate sentence of imprisonment
After section 9(1A)(a) of the Sentencing
Act 1991 insert—
"(ab) the offences comprise at least one offence
that is a standard sentence offence; or".
22 New section 11A inserted
After section 11 of the Sentencing Act 1991
insert—
"11A Fixing of non-parole period for standard
sentence offence
(1) This section applies to a court when fixing,
in accordance with section 11, a non-parole
period—
(a) for a standard sentence offence; or
(b) in respect of a total effective sentence
imposed in respect of 2 or more
sentences, at least one of which is for
a standard sentence offence.
(2) This section also applies to a court when
fixing, in accordance with section 14, a new
single non-parole period in circumstances
where the further sentence is a sentence of
imprisonment for a standard sentence
offence.
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Part 3—Standard sentence scheme
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(3) However, this section only applies to a
court when fixing a non-parole period for a
standard sentence offence if section 5B
applied in relation to the sentencing for that
offence.
(4) Unless the court considers that it is in the
interests of justice not to do so, the court
must fix a non-parole period of at least—
(a) 30 years if the relevant term is the term
of the offender's natural life; or
(b) 70% of the relevant term if that term is
a term of 20 years or more; or
(c) 60% of the relevant term if that term is
a term of less than 20 years.
(5) In subsection (4) the relevant term is—
(a) if a non-parole period is being fixed
for a standard sentence offence, the
sentence for that offence; and
(b) if a non-parole period is being fixed
in respect of a total effective sentence
referred to in subsection (1)(b), that
sentence.
(6) Nothing in this section affects the fixing of a
non-parole period for an offence that is not a
standard sentence offence or in respect of a
total effective sentence imposed in respect of
2 or more sentences, none of which is for a
standard sentence offence.".
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Part 3—Standard sentence scheme
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23 Aggregate fines
After section 51(1) of the Sentencing Act 1991
insert—
"(1A) Despite subsection (1), a court must not
impose one fine in respect of 2 or more
offences if at least one of them is a standard
sentence offence.".
Division 2—Amendment of the Crimes Act 1958
24 Definition inserted
In section 2A(1) of the Crimes Act 1958 insert
the following definition—
"standard sentence, in relation to an offence,
has the same meaning as in the Sentencing
Act 1991.".
25 Standard sentence for murder
(1) The note at the foot of section 3(1) of the Crimes
Act 1958 is repealed.
(2) After section 3(1) of the Crimes Act 1958
insert—
"(2) The standard sentence for murder is—
(a) 30 years if the court, in determining
sentence, is satisfied that the
prosecution has proved beyond
reasonable doubt that—
(i) the person murdered was a
custodial officer on duty or an
emergency worker on duty; and
(ii) at the time of carrying out the
conduct the accused knew or was
reckless as to whether that person
was a custodial officer or an
emergency worker; and
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Part 3—Standard sentence scheme
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(b) in any other case, 25 years.
Notes
1 See sections 5A and 5B of the Sentencing
Act 1991 as to standard sentences.
2 Murder is a category 1 offence under the
Sentencing Act 1991. See section 5(2G) of that
Act for the requirement to impose a custodial
order for this offence.
(3) In subsection (2)(a) custodial officer on
duty, custodial officer, emergency worker
on duty and emergency worker have the
same meanings as in section 10AA of the
Sentencing Act 1991.".
26 Standard sentence for rape
(1) The note at the foot of section 38(2) of the
Crimes Act 1958 is repealed.
(2) After section 38(2) of the Crimes Act 1958
insert—
"(3) The standard sentence for an offence against
subsection (1) is 10 years.".
(3) For the note at the foot of section 38 of the
Crimes Act 1958 substitute—
"Notes
1 An exception applies to this offence—see section 48A.
2 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.
3 An offence against subsection (1) is a category 1
offence under the Sentencing Act 1991.
See section 5(2G) of that Act for the requirement
to impose a custodial order for this offence.".
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Part 3—Standard sentence scheme
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27 Standard sentence for sexual penetration of a child
under the age of 12
(1) After section 49A(2) of the Crimes Act 1958
insert—
"(3) The standard sentence for an offence against
subsection (1) is 10 years.".
(2) For note 3 at the foot of section 49A of the
Crimes Act 1958 substitute—
"3 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.
4 An offence against subsection (1) is a category 1
offence under the Sentencing Act 1991.
See section 5(2G) of that Act for the requirement
to impose a custodial order for this offence.".
28 Standard sentence for sexual penetration of a child
under the age of 16
(1) After section 49B(2) of the Crimes Act 1958
insert—
"(3) The standard sentence for an offence against
subsection (1) is 6 years.".
(2) After note 2 at the foot of section 49B of the
Crimes Act 1958 insert—
"3 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.".
29 Standard sentence for sexual assault of a child
under the age of 16
(1) After section 49D(2) of the Crimes Act 1958
insert—
"(2A) The standard sentence for an offence against
subsection (1) is 4 years.".
(2) After note 3 at the foot of section 49D of the
Crimes Act 1958 insert—
"4 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.".
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30 Standard sentence for sexual activity in the presence
of a child under the age of 16
(1) After section 49F(2) of the Crimes Act 1958
insert—
"(2A) The standard sentence for an offence against
subsection (1) is 4 years.".
(2) After note 3 at the foot of section 49F of the
Crimes Act 1958 insert—
"4 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.".
31 Standard sentence for causing a child under the age
of 16 to be present during sexual activity
(1) After section 49H(2) of the Crimes Act 1958
insert—
"(2A) The standard sentence for an offence against
subsection (1) is 4 years.".
(2) After note 3 at the foot of section 49H of the
Crimes Act 1958 insert—
"4 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.".
32 Standard sentence for persistent sexual abuse of a
child under the age of 16
(1) After section 49J(2) of the Crimes Act 1958
insert—
"(2A) The standard sentence for an offence against
subsection (1) is 10 years.".
(2) For the note at the foot of section 49J of the
Crimes Act 1958 substitute—
"Notes
1 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.
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Part 3—Standard sentence scheme
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2 An offence against subsection (1) is a category 1
offence under the Sentencing Act 1991.
See section 5(2G) of that Act for the requirement
to impose a custodial order for this offence.".
33 Standard sentence for sexual penetration of a child
or lineal descendant
(1) After section 50C(2) of the Crimes Act 1958
insert—
"(3) The standard sentence for an offence against
subsection (1) is 10 years if B is, at the time
of the offence, under the age of 18 years.".
(2) For note 4 at the foot of section 50C of the
Crimes Act 1958 substitute—
"4 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.
5 An offence against subsection (1) is a category 1
offence under the Sentencing Act 1991 if B is,
at the time of the offence, under the age of 18 years.
See section 5(2G) of that Act for the requirement
to impose a custodial order for this offence.".
34 Standard sentence for sexual penetration of a
step-child
(1) After section 50D(2) of the Crimes Act 1958
insert—
"(3) The standard sentence for an offence against
subsection (1) is 10 years if B is, at the time
of the offence, under the age of 18 years.".
(2) For note 4 at the foot of section 50D of the
Crimes Act 1958 substitute—
"4 See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.
5 An offence against subsection (1) is a category 1
offence under the Sentencing Act 1991 if B is,
at the time of the offence, under the age of 18 years.
See section 5(2G) of that Act for the requirement
to impose a custodial order for this offence.".
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Part 3—Standard sentence scheme
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35 Standard sentence for culpable driving causing
death
After section 318(1) of the Crimes Act 1958
insert—
"(1A) The standard sentence for an offence under
subsection (1) is 8 years.
Note
See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.".
Division 3—Amendment of the Drugs, Poisons and
Controlled Substances Act 1981
36 Definition inserted
In section 4(1) of the Drugs, Poisons and
Controlled Substances Act 1981 insert the
following definition—
"standard sentence, in relation to an offence,
has the same meaning as in the Sentencing
Act 1991;".
37 Standard sentence for trafficking in a large
commercial quantity of a drug or drugs of
dependence
After section 71(1) of the Drugs, Poisons and
Controlled Substances Act 1981 insert—
"(2) The standard sentence for an offence under
subsection (1) (other than one constituted by
an attempt to traffick) is 16 years.
Note
See sections 5A and 5B of the Sentencing Act 1991
as to standard sentences.".
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Part 4—Guideline judgments
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Part 4—Guideline judgments
38 Definition
In section 6AA of the Sentencing Act 1991,
in the definition of guideline judgment, after
"offenders" insert "for offences (other than
offences against a law of the Commonwealth)".
39 New section 6ABA inserted
After section 6AB of the Sentencing Act 1991
insert—
"6ABA Guideline judgments on application of
Attorney-General
(1) The Attorney-General may apply to the
Court of Appeal for it to give a guideline
judgment, or review a guideline judgment
previously given by it, if the Attorney-
General believes that—
(a) a guideline judgment is required to be
given or reviewed to address a broad or
systemic sentencing issue; and
(b) the making of the application is in the
public interest.
(2) An application is not to be made in respect
of any proceeding before any court or with
respect to a particular offender.
(3) An application may include submissions
with respect to the framing of the proposed
guideline judgment.
(4) The Court of Appeal must state the reasons
if it refuses to give or review a guideline
judgment on an application under this
section.
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Part 4—Guideline judgments
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(5) A guideline judgment given or reviewed
on an application under this section must
be given or reviewed separately from any
proceeding before the Court with respect to
a particular offender.".
40 Content of guideline judgment
(1) Before section 6AC(f) of the Sentencing
Act 1991 insert—
"(eb) guidelines as to the appropriate level or
range of sentences for a particular offence or
class of offence;".
(2) At the end of section 6AC of the Sentencing
Act 1991 insert—
"(2) Counsel for the prosecution or the
defence may make a submission to a court
considering the sentence for an offence, on
the level or range of sentences that could be
imposed for it, if that level or range has been
set out in a guideline judgment.
(3) Subsections (1)(eb) and (2) have effect
despite any rule of law or practice to the
contrary and any such rule is abolished.".
41 Procedural requirements
(1) In section 6AD of the Sentencing Act 1991,
after "Court of Appeal" insert "is considering
(including on an application by the Attorney-
General under section 6ABA) whether to give or
review a guideline judgment or".
(2) At the end of section 6AD of the Sentencing
Act 1991 insert—
"(2) In specifying a period for the purposes of
subsection (1)(a), the Court of Appeal must
take into consideration the period reasonably
required for the Sentencing Advisory
Council to—
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Part 4—Guideline judgments
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(a) undertake research and statistical
analysis; and
(b) consult with relevant persons within the
criminal justice system as well as the
general public.
(3) Views stated by the Sentencing Advisory
Council under subsection (1)(a) or a
submission made under subsection (1)(b)
may include a view or submission with
respect to the framing of the proposed
guideline judgment.".
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Part 5—Miscellaneous
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Part 5—Miscellaneous
42 New section 162 inserted
At the end of Part 12 of the Sentencing Act 1991
insert—
"162 Transitional provisions—Sentencing
Amendment (Sentencing Standards)
Act 2017
(1) In this section—
2017 Act means the Sentencing
Amendment (Sentencing Standards)
Act 2017;
Part 3 commencement day means the day
on which Part 3 of the 2017 Act comes
into operation.
(2) The amendments made to this Act by
Part 3 of the 2017 Act only apply to the
sentencing of an offender on or after the
Part 3 commencement day for an offence
alleged to have been committed on or after
that day.
(3) However, nothing in subsection (2)
prevents a court taking into account the
effect on current sentencing practices of the
amendments made to this Act by Part 3 of
the 2017 Act in sentencing an offender on or
after the Part 3 commencement day for an
offence to which those amendments would
have applied had it been committed on or
after that day.
Note
Section 5(2)(b) requires a court in sentencing
an offender to have regard to current sentencing
practices.
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Part 5—Miscellaneous
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(4) For the purposes of subsections (2) and (3),
if an offence is alleged to have been
committed between 2 dates, one before and
one after the Part 3 commencement day, the
offence is alleged to have been committed
before that day.
(5) The amendment made to this Act by
section 43(2) of the 2017 Act applies to a
sentence imposed after the commencement
of that section, irrespective of when the
offence was committed.
(6) For the purposes of subsection (5), a
sentence imposed by an appellate court on
setting aside a sentencing order must be
taken to have been imposed at the time the
original sentencing order was made.".
43 Amendment of Schedule 1
(1) In clause 5(c) of Schedule 1 to the Sentencing
Act 1991, for "(bb)." substitute "(bb);".
(2) After clause 5(c) of Schedule 1 to the Sentencing
Act 1991 insert—
"(d) any other offence, whether committed
in Victoria or elsewhere, the necessary
elements of which consist of elements that
constitute any of the offences referred to in
paragraphs (a) to (c).".
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Part 6—Repeal of amending Act
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Part 6—Repeal of amending Act
44 Repeal of amending Act
This Act is repealed on 1 April 2019.
Note
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
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Endnotes
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
† Minister's second reading speech—
Legislative Assembly: 25 May 2017
Legislative Council: 8 June 2017
The long title for the Bill for this Act was "A Bill for an Act to amend
the Sentencing Act 1991 to repeal the baseline sentencing scheme,
provide for standard sentences for indictable offences and enhance the
scheme in that Act for the giving of guideline judgments, to amend the
Crimes Act 1958 and the Drugs, Poisons and Controlled Substances
Act 1981 to remove references to the baseline sentencing scheme and
fix a standard sentence for certain offences against those Acts and for
other purposes."
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