Local Court Bench Book Update 137 published

Local Court Bench Book update 137 contains amendments to the following chapters:

Specific penalties and orders

has been updated as a result of the following recent amendments:

  • Rail Safety (Adoption of National Law) Act 2012 by Rail Safety (Adoption of National Law) Amendment (Drug and Alcohol Testing) Regulation 2020 (No 89)
  • Tow Truck Industry Regulation 2020 commenced on 1 July 2020 and repeals and replaces the Tow Truck Industry Regulation 2008.

[2-000] Road transport legislation includes a note at [2-020] to clarify that particular “second offences” in the PCA, other alcohol related offences and mandatory interlock order disqualification tables are only mandatory interlock offences where the first offence was any other alcohol-related major offence..

[18-000] Commonwealth offences has been extensively revised and amended as follows:

  • the value of the penalty unit amount has increased to $222 from 1 July 2020 due to the Notice of Indexation of the Penalty Unit Amount, and [18-060], [18-100], [18-160], [18-200], [18-220], [18-300], [18-320] and [18-380] have been amended to take account of this increase.
  • amendments regarding Commonwealth child sex offences arising from Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 have been incorporated into [18-020], [18-120] and a new subsection in [18-120], Commonwealth child sex offenders must serve actual term of imprisonment. Child abuse offences at [18-280] has also been renamed and substantially revised.
  • [18-080] Discount for guilty pleas includes reference to s 16A(2)(g) which provides the fact and timing of a guilty plea, including any resulting benefit to the community, victims and witnesses can be taken into account; and Huang aka Liu v R [2018] NSWCCA 70 regarding the desirability to specify the discount given in respect of a guilty plea.
  • [18-140] Person suffering from mental illness or intellectual disability is amended to provide that, when a court is dealing with a defendant suffering from a mental illness or intellectual disability under s 20BQ, the court must not make a recognizance, intensive correction or reparation order, however a residential treatment order may be made.
  • The Table of penalties for Criminal Code offences at [18-160] has been amended to include penalties for Commonwealth child sexual offences ss 471.26, 474.25C and 474.27A.

[20-000] Bail has been extensively revised and amended. The main amendments are as follows:

  • [20-080] Persons for whom a bail decision may be made has had a note added to clarify that when additional charges are laid, bail is dispensed with in relation to them unless an order is made: Bail Act 2013, s 10(3).
  • [20-300] Test to be applied includes a note to clarify that if there is a dispute as to whether an offence is a “show cause” offence, the onus is on the prosecution to establish the criteria under s 16B. A reference to DPP v Zaiter [2016] NSWCCA 247 has been included regarding the limited precedential value of single judge bail decisions of the Supreme Court in determining bail for “show cause” offences.
  • [20-500] Procedure if accused granted bail but remains in custody has been updated to include the requirement for the court to be notified in writing within 8 days if a person who has been granted bail but remains in custody: s 42.
  • [20-620] Procedure for determination under s 78 includes a note specifying that a detention application in relation to a person brought before the court cannot be adjourned without a bail decision being made.

New sections include:

  • Jurisdictional issues and restrictions on the Local Court at [20-150] (incorporating previous sections of the chapter)
  • Special bail provisions for Cth child sex offences at [20-820] due to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
  • Onus on accused to satisfy court bail should be granted at [20-840] arising from the above Act.

[28-000] Committal proceedings (renamed) has new information on Vulnerable witnesses in Commonwealth committal proceedings at [28-140] due to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). Section 15YHA of the Crimes Act 1914 (Cth) provides that certain “vulnerable witnesses” cannot be cross-examined in committal proceedings for particular Commonwealth offences (see ss 15Y(1) & (2), 15YAA, 15YAB, 15YHA(2) for relevant definitions and inclusions). The Committal proceedings (pre-30 April 2018) chapter has been removed.

[38-000] Children’s Court Criminal jurisdiction has been extensively revised and updated. The most significant amendments relate to the following areas:

  • inclusion of Paul Campbell v R [2018] NSWCCA 87 at [38-000] Guiding principles and [38-080] Sentencing orders and principles which provides the relevant principles regarding the sentencing of children
  • inclusion of RP v Ellis [2011] NSWSC 442 at [38-020] Criminal procedure generally on doli incapax
  • driving matters in the Children’s Court jurisdiction have been updated at [38-020] Criminal procedure generally
  • the responsibility of the police to assist a child to contact the Legal Aid Youth Hotline and the Aboriginal Legal Service Custody Notification Line is included in Detention for questioning at [38-020] Criminal procedure generally
  • the determination of bail conditions for children according to the legislative provisions in the Bail Act 2013 is included at [38-040] Bail
  • the Early Appropriate Guilty Plea committal process for serious children’s indictable offences is included at [38-060] Committals
  • information about the Youth Koori Court is included at [38-080] Sentencing orders and principles
  • supervision by Youth Justice imposed with a good behaviour bond or a probation order is detailed at [38-120]
  • [38-160] Suspended sentence — s 33(1B) is updated noting they remain a sentencing option for children
  • the principles under the “Joint Protocol to reduce the contact of young people in residential out-of-home care (OOHC) with the criminal justice system” which applies to any child under the age of 18 and living in residential OOHC have been included at [38-340] Apprehended violence orders.

The Index, Table of Statutes and Table of Cases have been updated to Update 137.