Sentence Administration (Interstate Transfer of Community Based Sentences) Act 2009 00-b0-05 Xml

Western Australia

Sentence Administration (Interstate Transfer of Community Based Sentences) Act 2009

An Act relating to the interstate transfer of community based orders, and for other purposes.

Part 1 — Preliminary

1.Short title

This is the Sentence Administration (Interstate Transfer of Community Based Sentences) Act 2009.

2.Commencement

This Act comes into operation as follows —

(a)sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3.Purpose of Act

The purpose of this Act is to allow community based sentences imposed in participating jurisdictions to be transferred, by registration, between participating jurisdictions.

4.Application of the Act

(1)This Act applies only to community based sentences imposed by courts on adults, or persons to which the Young Offenders Act 1994 section 50A applies, convicted or found guilty of offences.

(2)This Act does not apply to —

(a)a parole order; or

(b)a sentence to the extent that it imposes a fine or other financial penalty (however described); or

(c)a sentence to the extent that it requires the making of reparation (however described).

5.Terms used

In this Act, unless the contrary intention appears —

community based sentence has the meaning given in section 7;

corresponding law has the meaning given in section 10;

Department means the department principally assisting the Minister in the administration of this Act;

interstate authority has the meaning given in section 11;

interstate jurisdiction has the meaning given in section 8(4);

interstate sentence has the meaning given in section 9(2);

jurisdiction has the meaning given in section 8(1);

local authority has the meaning given in section 12;

local register has the meaning given in section 14;

local sentence has the meaning given in section 9(1);

offender, in relation to a community based sentence, means the person on whom the sentence was imposed;

originating jurisdiction, for a community based sentence, means the jurisdiction where the sentence was originally imposed;

participating jurisdiction has the meaning given in section 8(3);

sentence means an order, decision or other sentence (however described), and includes part of a sentence;

serve a sentence, includes —

(a)to comply with or satisfy the sentence; or

(b)to do anything else in accordance with the sentence;

this jurisdiction has the meaning given in section 8(2).

6.Notes

Notes included in this Act do not form part of this Act.

Part 2 — Key concepts for Act

7.Community based sentences

A community based sentence is —

(a)for this jurisdiction, any of the following —

(i)a community based order made under the Sentencing Act 1995 Part 9;

(ii)an intensive supervision order made under the Sentencing Act 1995 Part 10;

(iii)a conditional suspended imprisonment order made under the Sentencing Act 1995 Part 12 Division 1;

(b)for an interstate jurisdiction — a sentence that is a community based sentence under the corresponding law of the jurisdiction.

8.Jurisdictions and participating jurisdictions

(1)A jurisdiction means a State or Territory of the Commonwealth.

(2)This jurisdiction means Western Australia .

(3)A participating jurisdiction is this jurisdiction or a State or a Territory declared by the regulations to be a participating jurisdiction.

(4)An interstate jurisdiction is a participating jurisdiction other than this jurisdiction.

9.Local and interstate sentences

(1)A local sentence is a community based sentence in force in this jurisdiction.

Note for this subsection:

For the effect of interstate registration of a local sentence, see section 27.

(2)An interstate sentence is a community based sentence in force in an interstate jurisdiction.

Note for this subsection:

For the effect of registration in this jurisdiction of an interstate sentence, see section 24.

10.Corresponding law

A corresponding law is —

(a)a law of an interstate jurisdiction corresponding, or substantially corresponding, to this Act; or

(b)a law of an interstate jurisdiction that is declared by the regulations to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act.

11.Interstate authorities

The interstate authority for an interstate jurisdiction is the entity that is the local authority for the jurisdiction under the corresponding law of the jurisdiction.

Note for this definition:

The local authority for Western Australia is the chief executive officer of the Department, see section 12.

Part 3 — Administration

12.Chief executive officer is local authority

The local authority for this jurisdiction is the chief executive officer of the Department.

13.Delegation by local authority

The local authority may delegate the exercise of any of the authority’s functions under another provision of this Act to a public service officer employed in the Department.

14.Local register

(1)The local authority must keep a register (the local register) of interstate sentences registered under this Act.

(2)The local authority may correct a mistake or omission in the local register.

Part 4 — Registration of interstate sentences in this jurisdiction

15.Request for transfer of interstate sentence

The local authority may register an interstate sentence in this jurisdiction at the request of the interstate authority for the interstate jurisdiction in which the sentence is in force.

16.Form of request for registration

(1)The local authority must consider the request if the request —

(a)is in writing; and

(b)states the following particulars —

(i)the offender’s name;

(ii)the offender’s date of birth;

(iii)the offender’s last‑known address;

(iv)any other particulars required by the local authority;

and

(c)is accompanied by the documents mentioned in subsection (2).

(2)The documents to accompany the request are as follows —

(a)a copy of the interstate sentence certified by the interstate authority;

(b)a copy of the offender’s consent for the registration of the sentence in this jurisdiction;

(c)a copy of any relevant pre‑sentence report about the offender held by the interstate jurisdiction in relation to any offence committed by the offender for which the offender is subject to a sentence;

(d)a copy of any relevant psychological or other assessment of the offender held by the interstate authority;

(e)details held by the interstate jurisdiction of —

(i)the offender’s criminal record (whether in or outside Australia ); and

(ii)the offender’s compliance with the interstate sentence and any other relevant non‑custodial sentence;

(f)a statement by the interstate authority explaining what part of the sentence has been served in the interstate jurisdiction or any other interstate jurisdiction before the making of the request;

(g)a statement by the interstate authority that the authority has explained to the offender, in language likely to be readily understood by the offender, that, if the sentence is registered in this jurisdiction —

(i)the offender will be bound by the requirements of the law of this jurisdiction in relation to the sentence; and

(ii)a breach of the sentence may result in the offender being re‑sentenced in this jurisdiction for the offence; and

(iii)the other consequences for a breach of the sentence in this jurisdiction may be different from the consequences for a breach of the sentence in the interstate jurisdiction, and, in particular, the penalties for breach of the sentence may be different;

(h)a statement by the interstate authority that sets out the reasons given by the offender for requesting to register the interstate sentence in this jurisdiction;

(i)any other document required by the local authority.

(3)For the purposes of subsection (2)(c), the offender is subject to a sentence if the sentence has not been fully served and has not been discharged.

(4)In considering the request, the local authority may take into account any other information or other documents given to the local authority by the interstate authority.

17.Request for additional information

The local authority may ask the interstate authority for additional information about the interstate sentence or the offender.

18.Withdrawal of offender’s consent

The offender may withdraw consent to the registration of the interstate sentence at any time before (but not after) its registration by giving written notice to the local authority.

19.Registration criteria

(1)The registration criteria for the purposes of section 20 are that —

(a)the offender has consented to the sentence being registered in this jurisdiction and has not withdrawn the consent; and

(b)there is a corresponding community based sentence under the law of this jurisdiction; and

(c)the offender can comply with the sentence in this jurisdiction; and

(d)the sentence can be safely, efficiently and effectively administered in this jurisdiction.

(2)In this section, there is a corresponding community based sentence under the law of this jurisdiction for the interstate sentence if —

(a)a community based sentence under the law of this jurisdiction corresponds, or substantially corresponds, to the interstate sentence; or

(b)a community based sentence under the law of this jurisdiction is declared by the regulations to correspond to the interstate sentence, whether or not the sentence corresponds, or substantially corresponds, to the interstate sentence.

20.Decision on request

(1)The local authority may decide —

(a)to register the interstate sentence; or

(b)to register the sentence if the offender meets preconditions imposed under section 21; or

(c)not to register the sentence.

(2)In deciding whether to register the interstate sentence, the local authority must have regard to the registration criteria, but may have regard to any matter prescribed by the regulations and any other relevant matter.

(3)The local authority —

(a)may decide not to register the interstate sentence even if satisfied the registration criteria are met; but

(b)must not decide to register the interstate sentence (with or without preconditions) unless satisfied that the registration criteria are met.

(4)The local authority may decide whether to register the interstate sentence, or to impose any preconditions, on the information and documents given to the authority under this Part, and any other information or documents available to the authority, without hearing the offender.

(5)To remove any doubt, the local authority may decide to register the interstate sentence even if —

(a)the interstate jurisdiction is not the originating jurisdiction for the sentence; or

(b)the sentence has previously been registered in this jurisdiction or this jurisdiction is the originating jurisdiction for the sentence; or

(c)the authority has previously decided not to register the sentence in this jurisdiction.

Note for this subsection:

For the effect of registration in this jurisdiction of an interstate sentence, see section 24.

(6)If the local authority decides not to register the interstate sentence, the authority must give written notice of the decision to the offender and the interstate authority.

21.Preconditions for registration

(1)The local authority may impose preconditions for the registration of the interstate sentence that the offender must meet to show that the offender can comply, and is willing to comply, with the sentence in this jurisdiction.

(2)Without limiting subsection (1), the local authority may impose preconditions of the following kind —

(a)that the offender must satisfy the local authority before a stated time that the offender is living in this jurisdiction;

(b)that the offender must report to a stated person in this jurisdiction at a stated time and place (or another time and place agreed between the local authority and the offender).

(3)If the local authority decides to impose preconditions, the local authority must give written notice of the decision and the preconditions to the offender and the interstate authority.

(4)The local authority may, by written notice to the offender and the interstate authority, amend or revoke any precondition.

22.How interstate sentence registered

(1)If the local authority decides to register the interstate sentence in this jurisdiction without imposing preconditions for the registration of the sentence, the local authority must register the sentence by entering the required details in the local register.

(2)If the local authority decides to impose preconditions for the registration of the interstate sentence, the local authority must register the sentence by entering the required details in the local register only if the authority is satisfied that the preconditions have been met.

(3)In this section —

required details means the details of the offender and the interstate sentence prescribed by the regulations.

23.Notice of registration

(1)If the local authority registers the interstate sentence in this jurisdiction, the local authority must give written notice of the registration to the offender and the interstate authority.

(2)The notice must state the date the sentence was registered.

24.Effect of registration generally

(1)If the interstate sentence is registered in this jurisdiction, the following provisions apply —

(a)the sentence becomes a community based sentence in force in this jurisdiction, and ceases to be a community based sentence in force in the interstate jurisdiction;

(b)the sentence is taken to have been validly imposed by the appropriate court of this jurisdiction;

(c)the sentence continues to apply to the offender in accordance with its terms despite anything to the contrary under the law of this jurisdiction;

(d)the offence (the relevant offence) for which the sentence was imposed on the offender is taken to be an offence against the law of this jurisdiction, and not an offence against the law of the originating jurisdiction;

(e)the penalty for the relevant offence is taken to be the relevant penalty for the offence under the law of the originating jurisdiction, and not the penalty for an offence of that kind (if any) under the law of this jurisdiction;

(f)any part of the sentence served in an interstate jurisdiction before its registration is taken to have been served in this jurisdiction;

(g)the offender may be dealt with in this jurisdiction for a breach of the sentence, whether the breach happened before, or happens after, the registration of the sentence;

(h)the law of this jurisdiction applies to the sentence and any breach of it with the changes (if any) prescribed by the regulations.

(2)Subsection (1)(d) and (e) do not apply if this jurisdiction is the originating jurisdiction.

(3)This section does not affect any right, in the originating jurisdiction, of appeal or review (however described) in relation to —

(a)the conviction or finding of guilt on which the interstate sentence was based; or

(b)the imposition of the interstate sentence.

(4)Any sentence or decision imposed or made on an appeal or review mentioned in subsection (3) has effect in this jurisdiction as if it were validly imposed or made on an appeal or review in this jurisdiction.

(5)This section does not give any right to the offender to an appeal or review (however described) in this jurisdiction in relation to the conviction, finding of guilt or imposition of sentence mentioned in subsection (3).

(6)In this section —

appropriate court, of this jurisdiction, means —

(a)if the interstate sentence was imposed by a court of summary jurisdiction or by a court on appeal from a court of summary jurisdiction — the Magistrates Court ; and

(b)in any other case — the Supreme Court.

Part 5 — Registration of local sentences in interstate jurisdictions

25.Request for transfer of local sentence

The local authority may request the interstate authority for an interstate jurisdiction to register a local sentence in the interstate jurisdiction.

26.Response to request for additional information

The local authority may, at the request of the interstate authority or on its own initiative, give the interstate authority any additional information about the local sentence or the offender.

27.Effect of interstate registration

(1)If the local sentence is registered in the interstate jurisdiction, the following provisions have effect —

(a)the sentence becomes a community based sentence in force in the interstate jurisdiction, and ceases to be a community based sentence in force in this jurisdiction;

(b)the offender may be dealt with in the interstate jurisdiction for a breach of the sentence, whether the breach happened before, or happens after, the registration of the sentence;

(c)if the sentence is registered in the local register — the sentence ceases to be registered.

(2)If this jurisdiction is the originating jurisdiction for the local sentence, this section does not affect any right of appeal or review (however described) in relation to —

(a)the conviction or finding of guilt on which the sentence was based; or

(b)the imposition of the sentence.

(3)To remove any doubt, this section does not prevent the local sentence from later being registered in this jurisdiction.

Part 6 — Miscellaneous

28.Inaccurate information about local sentence registered interstate

(1)This section applies if —

(a)a community based sentence that was a local sentence is registered in an interstate jurisdiction; and

(b)the local authority becomes aware that information about the sentence or the offender recorded in the register kept under the corresponding law of the interstate jurisdiction (the interstate register) is not, or is no longer, accurate.

(2)The local authority must tell the interstate authority for the interstate jurisdiction how the information in the interstate register needs to be changed to be accurate.

(3)Without limiting subsection (2), the local authority must tell the interstate authority about —

(a)any part of the sentence served in this jurisdiction between the making of the request to register the sentence in the interstate jurisdiction and its registration in the interstate jurisdiction; or

(b)the outcome of any appeal or review in this jurisdiction affecting the sentence.

29.Dispute about accuracy of information in interstate register

(1)This section applies if —

(a)a community based sentence that was a local sentence is registered in an interstate jurisdiction; and

(b)the offender claims, in writing, to the interstate authority for the interstate jurisdiction that the information recorded about the sentence or the offender in the register kept under the corresponding law of the interstate jurisdiction (the interstate register) is not, or is no longer, accurate, and states in the claim how the information is inaccurate.

(2)The interstate authority may send the local authority —

(a)a copy of the claim; and

(b)an extract from the interstate register containing the information that the offender claims is inaccurate.

(3)The local authority must check whether the information in the extract is accurate, having regard to the offender’s claims.

(4)If the local authority is satisfied that the information is accurate, the local authority must tell the interstate authority.

(5)If the local authority is satisfied that the information is inaccurate, the local authority must give the interstate authority the correct information.

30.Evidence of registration and registered particulars

(1)A certificate that appears to be signed by or on behalf of the local authority or the interstate authority for an interstate jurisdiction, and states a matter that appears in or can be worked out from the register kept under this Act or a corresponding law, is evidence of the matter.

(2)A certificate under subsection (1) may state a matter by reference to a date or period.

(3)A certificate that appears to be signed by or on behalf of the local authority or the interstate authority for an interstate jurisdiction, and states any matter prescribed by the regulations, is evidence of the matter.

(4)A certificate that appears to be signed by or on behalf of the local authority or the interstate authority for an interstate jurisdiction and states any of the following details is evidence of the matter —

(a)details of a community based sentence or the offender in relation to a community based sentence;

(b)details of any part of a community based sentence that has or has not been served.

(5)A court must accept a certificate mentioned in this section as proof of the matters stated in it if there is no evidence to the contrary.

(6)A court must or may admit into evidence other documents prescribed by the regulations in the circumstances prescribed by the regulations.

31.Regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

Notes

1This is a compilation of the Sentence Administration (Interstate Transfer of Community Based Sentences) Act 2009. The following table contains information about that Act.

Compilation table

Short title	Number and year	Assent	Commencement
Sentence Administration (Interstate Transfer of Community Based Sentences) Act 2009	5 of 2009	14 May 2009	s. 1 and 2: 14 May 2009 (see s. 2(a)); Act other than s. 1 and 2: 1 Oct 2011 (see s. 2(b) and Gazette 23 Sep 2011 p. 3811)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined termProvision(s)

appropriate court24(6)

community based sentence5, 7

corresponding community based sentence under the law of this jurisdiction19(2)

corresponding law5, 10

Department5

interstate authority5, 11

interstate jurisdiction5, 8(4)

interstate register28(1), 29(1)

interstate sentence5, 9(2)

jurisdiction5, 8(1)

local authority5, 12

local register5, 14(1)

local sentence5, 9(1)

offender5

originating jurisdiction5

participating jurisdiction5, 8(3)

registration criteria19(1)

relevant offence24(1)

required details22(3)

sentence5

serve5

subject16(3)

this jurisdiction5

This jurisdiction8(2)