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Monday, 2 May 2011

Suspended sentences amended — addendum

Following on from our post last Friday about the changes to suspended sentences, I wanted to add two things. (Though we often edit our posts, that doesn't get sent out on Feedburner's email delivery.)



The first point occurred to me last week, and the ever-watchful Anonymous raised the same question today: do the changes apply only to offences that occur after 1 May, or sentences imposed after 1 May?

The answer is contained in the Sentencing Act 1991 s 143 (Transitional provision—Sentencing Amendment Act 2010). I can't link to it right now, because Austlii hasn't yet updated its version (an example of why the government website is the only safe one to use for court purposes). The VicLeg website version has all the detail, but in broad terms, if the offence was committed wholly before the amendments, then the amendments don't apply: see sub-ss 143(6) and (9).

For driving when disqualified offences contrary to Road Safety Act s 30, there is no transitional provision.

That means we probably rely on the presumption of statutory interpretation that legislation doesn't operate retrospectively. This presumption doesn't apply for acts that are purely procedural in nature, but in any event, they usually prescribe operation based on past events. Mode and method of criminal trials, and sentencing, are the usual examples: Rodway v The Queen (1990) 169 CLR 515 at 518.

All this is a long-winded way of saying that the new Road Safety Act s 30 applies to any sentencing after 1 May 2011.



The second point is about the new Sentencing Act 1991 s 27(2B), which provides:

(2B) Despite subsection (1), a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence or for a significant offence.

Last week we mentioned that all the serious offences defined in s 3(1) are triable only in the County and Supreme Courts.

When I re-read that over the weekend, I realised that's not quite right.

The reason why isn't immediately apparent to little ol' me, but the offence contrary to Crimes Act 1958 s 20 (making threats to kills) is listed in paragraph (c)(i) of the definition of serious offence. It's the only offence there that is triable summarily, by virtue of Criminal Procedure Act 2009 s 28(1)(b).

So, any threats to kill that occur after 1 May 2011 can't be punished by suspended sentence.

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