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Tuesday, 7 August 2012

Legislation Watch: Criminal Procedure and Sentencing Acts Amendment (Victims of Crime) Bill 2012

This Bill makes a couple of minor changes to sentencing procedure. The Second Reading Speech is here, the Explanatory Memorandum is here. Unless proclaimed earlier, it has an automatic commencement date of 31st January 2013.

Clause 4, an amendment to s 60 of the Criminal Procedure Act 2009 which purports to give the Magistrates' Court authority to refuse to give a sentencing indication if it has insufficient information about the effect of the crime on the victim, is not necessary. Courts already posess the ability to refuse to give an indication, and one would have thought that if a judicial officer thought they had insufficient information to base the indication on, they wouldn't give one. Clause 5 does the same for the County and Supreme Courts.

Clause 6 will require a sentencing court to enquire whether application for a compensation order will be made when evidence has been presented that property damage, loss or destruction has occurred as a result of the offence. According to the Explanatory Memorandum, the purpose of the amendment is to, 'promote consideration of compensation orders for property loss and damage in all relevant cases'.

The Bill also amends the Sentencing Act 1991 to allow a court to make a compensation order of its own motion, but only where the accused does not object to the making of the order and has been given the opportunity to be heard.

The EM goes on (at 4),

These amendments do not disturb the clear case principle established at common law. This principle confirms that compensation orders should only be made by the criminal court in clear and simple cases, and that it is a proper exercise of judicial discretion to refuse to make an order where a complicated or extensive enquiry is necessary to establish causation or the extent of the injury or loss (see for example R v Monks [2001] TASSC 41 and Kaplan v Lee-Archer (2007) 15 VR 405).
Neither change will have great impact on the way a sentencing hearing runs.

The Criminal Procedure Amendment Bill 2012 also had its Second Reading in June. It will extend the statutory timeframes for service of a preliminary brief from the current 7 days to 21 days. It also expands the types of offences which will allow VARE evidence under s 366 of the Criminal Procedure Act to be admitted.




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