QUEENSLAND LAW SOCIETY SYMPOSIUM
LEGISLATION AND CASE LAW UPDATE FOR CRIMINAL LAWYERS 21 MARCH 2015
PRESENTED BY ANDREW MOLONEY MOLONEY MACCALLUM LAWYERS
In the 2014 calendar year, the Newman Government passed 65 pieces of legislation of which 14 had criminal law elements. I don’t intend to address every piece of legislation in the time available AS THEY WERE SO NUMEROUS.
- And any of you who pay for Carters loose-leaf service – will know the hard way – that ther e lots and lots of changes – at $770.00 a pop.
I will try direct your attention to those pieces of legislation which would have the most effect on our day to day practices “at the coal face” of criminal law. I’ll get through as much as I can and if anyone is awake at the end I’ll try to answer some questions. The legislation passed had titles which were self-explanatory e.g. the Penalties and Sentences (Indexation) Amendment Act 2014 which as the name suggests dealt with the introduction of the value of a penalty unit being indexed to change yearly (and only once per year). The increase will be an amount announced by the Treasurer prior to the 31st of March in any given year to take effect on the 1st of July that year, or if no amount has been published by the Treasurer prior to that date then the amount is 3.5%.
Then there is the rather the Orwellian title of Safe Night Out Legislation Amendment Act 2014. I will spend some time addressing this particular legislation as it makes amendments to no less than 17 existing pieces of legislation or subordinate legislation.
Other legislation passed included legislation in relation to “out of control events” in the Police Powers and Responsibilities and other Legislation Amendment Act 2014. Youth Justice and other Legislation Amendment Act 2014 (to be dealt with in more detail later)
Criminal Code and Another Act (Stock) 2014 which amended the penalties for a lot of stock offences from set amounts to amounts described in penalty units which are now indexed as mentioned earlier.
The Child Protection Reform Amendment Act 2014 which implemented amendments to the Child Protection Act 1999 such as new mandatory reporting laws for children and or abuse. - - briefly
“a relevant person” which is a doctor, a registered nurse,
a teacher
or a Police officer who under a direction given by the Commissioner of Police Service under the Police Service Administration Act is responsible for reporting under this section or
a person engaged to perform a child advocate function under the Public Guardian Act
who holds a reasonable suspicion
that the child is suffering or is an unacceptable risk of suffering sufficient harm caused by physical or sexual abuse and, may not have a parent able and willing to protect the child from the harm
then that becomes a reportable suspicion
and if it is formed about a child in the course of the persons engagement as a relevant person, the person must give a written report to the Chief Executive under s13G.
Other Acts are the:
Biosecurity Act 2014.
Crime and Misconduct and other Legislation Amendment Act
Child Protection (Offender Reporting) and other Legislation Amendment Act 2014.
Criminal law Amendment Act 2014
Transport and Other legislation Amendment Act 2014 Major Events Act
Education and other legislation Amendment Act 2014 Health and other legislation Amendment Act
SAFE NIGHT OUT LEGISLATION AMENDMENT ACT 2014
This Act was assented to on the 5th of September 2014 and many of its sections came into effect on the 1st of December 2014.
This piece of legislation contains amendments to:- Bail Act*;
Corrective Services Act; Criminal Code*;
Drugs Misuse Act;
Drugs Misuse Regulations*; Evidence Act;
Introduction Agents Act; Liquor Act*;
Penalties and Sentences Act*;
Police Powers and Responsibilities Act*; Security Providers Act;
State Penalties Enforcement Registry Regulations 2014; Summary Offences Act;
Transport Operations (Passenger Transport) Act; Vicious Lawless Association Disestablishment Act; Victim of Crime Assistance Act;
The Wine Industry Act.
In the explanatory notes to the Safe Night Out Legislation Amendment Bill 2014 under the heading, “Achievement of Policy Objectives”, it is stated
“the bill will achieve the policy objectives by increasing penalties and police powers, strengthening liquor licensing compliance measures and creating stronger local management of entertainment precincts.”
The cost to implement the legislation is $29.1 million dollars and $4.94 million dollars per annum provided as additional funding to Queensland Government Agencies to implement some of the initiatives. Other initiatives will be funded through existing resources.
This piece of legislation creates new offences, mandatory penalties, presumptions about being adversely affected by drugs, restrictions on movement summarily imposed by Police with the imposition of banning notices, mandatory bail conditions for Drug and Alcohol Assessment Referral (“DAAR”), preventative detention for intoxicated persons that present a risk of physical harm to themselves or others, a cost recovery charge for this preventative detention, and licensing requirements for surveillance for patrons on licensed premises.
It places steroids as a Schedule 1 drug and distinguishes the current Schedule 1 drugs to cocaine, heroin etc as “Schedule 1, Part 1 non-steroid drugs”.
There are now 65 different drugs in the “Schedule 1, Part 2 Steroid drugs” section plus a catch all of, “any other anabolic or androgenic steroidal agent” listed. For the purposes of amounts in Schedule 3, there is no concept of purity when it comes to the steroid drugs and the weight is now the “whole weight of dangerous drug” that amount is 5000 grams. The amendment to the Drugs Misuse Regulations came into effect on the 5th of September 2014.
CRIMINAL CODE AMENDMENTS
There was an outcry in the media both in Queensland and interstate regarding results in cases involving the infliction of one punch causing the victim to fall to the ground and strike his head leading to death. Terms such as “king-hit” and “Coward punch” were bandied about in the media.
The outcry was not only persons being acquitted with defence of accident but also the sentences upon conviction.
Queensland’s way to address this was to introduce a new offence in the Criminal Code (Section 314A) of Unlawful Striking Causing Death. In the explanatory notes it states “the offence will target “Coward Punch” cases where the victim tragically dies. The Section reads, “a person who unlawfully strikes another person to the head or neck and causes the death of another person is guilty of a crime”.
The maximum penalty is life imprisonment.
The Section specifically excludes defences contained in Section 23(1)(b) (accident) or Section 270 (prevention of repetition of insult) of the Criminal Code.
Section 314A(3) outlines that the striking of another person is unlawful unless it is authorised or justified or excused by law.
Defences are included in Section 314A(4) namely, if the striking is done as part of a socially acceptable function or activity and is reasonable in the circumstances.
Again, although life imprisonment is not mandatory, it is mandatory that any sentence imposed have the offender serve a minimum of 80% of that sentence or 15 years whichever is the lesser (Section 314A(5))
Comment
any of us who have ever been involved in any case involving the death of any person ( except dangerous driving causing death in the absence of alcohol) would be aware that sentences of 5 years or less thus leaving a suspended sentence as a possibility, are rare, if nonexistent, and as such persons convicted of this offence may well be likely to serve longer periods of actual time in custody than those convicted of offences of Manslaughter, Rape, Grievous Bodily Harm with Intent in circumstances where there is no imposition of a serious violent offender declaration.
This would seem to be unduly harsh given the legislation seems to be introduced for the one punch type offence where there is every chance that the perpetrator has been convicted for the very first time and in circumstances where the imposition of a serious violent offender declaration would be highly unlikely. In R v McDougall and Collas [2006] QCA 365 at [41] The Court of Appeal noted that:
“the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question, and, so outside “the norm” for that type of offence.”
This potential anomonly did not seem to bother the government too much as it does state in the explanatory notes
“such amendments will affect the rights and liberties of some individuals and arguably impinge on the independence and discretion of the Courts. The potential breaches of fundamental legislative principles are justified to ensure that the community is protected from the violence associated with excessive alcohol consumption and illicit drug use.”
Again reading from the explanatory notes
“the new offence will fill a legislative gap and ensure that the community is protected from such cowardly acts of violence. The new offence of unlawful striking causing death precludes an accused from attempting to argue that although the strike was deliberate and wilful, the death of the victim was an “accident”.
Just on the issue of sentence the requirement of serving 80% or fifteen (15) years does not apply
if the Court sentences a person to a term of imprisonment for life or an indefinite sentence under the Penalties and Sentences Act or
where they are sentenced to a term of imprisonment and makes an intensive correction order or
the whole or part of the imprisonment be suspended
the one glaring omission from this Section given it was introduced amongst a raft of legislative changes to occur to alcohol related violence – and as stated in the explanatory notes i.e to protect the community from violence associated with EXCESSIVE ALCOHOL CONSUMPTION AND ILLICIT DRUG USE –
is that alcohol or any other intoxication is not a requirement in the offence i.e.; two sober people have a fight and one person strikes and there is a definition of strike another that is caused that may make for some unusual sentences to be imposed. In subsection 7 causing is defined as “means causing directly or indirectly”.
strike, a person means directly apply force to the person by punching or kicking, or by otherwise hitting by using any part of the body, with or without the use of a dangerous or offensive weapon or instrument.
CHAPTER 35A of the code
This where it gets a bit wacky.- this is about the proof of the circumstance of aggravation of being in a public place while adversely affected by an intoxicating substance.
Offences
Grievous bodily harm; Wounding
Serious assault of a police officer with a circumstance of aggravation ( bite spit etc)or
serious assault of a public officer with a circumstance of aggravation (bite spit etc)
adversely affected means .15% or over or
(c) any amount of a drug prescribed by regulation is present in the person’s saliva; or
(d) the person fails to provide a specimen as required under the Transport Operations (Road Use Management) Act 1995, section 80 as applied under the Police Powers and Responsibilities Act 2000, chapter 18A.
BAIL ACT 1980 Amendments to the Bail Act include amendments to
Section 11 regarding conditions of release on bail including a special condition (Section 11(3)(b) where a person can be prohibited from entering a safe night precinct and be prohibited from entering or remaining in stated licences premises or a stated class of licences premises.
Specifically, the Bail Act now requires a mandatory condition on bail if a person is charged with certain public order offences. This commenced on the 1st of December 2014. If a person commits a “prescribed offence” (not alleged to have been committed) such as:-
1
Affray Section 72 Criminal Code;
Grievous Bodily Harm Section 320 Criminal Code; Wounding Section 323 Criminal Code;
Common Assault Section 335 Criminal Code;
Assault Occasioning Bodily Harm Section 339 Criminal Code;
Serious Assault on Police or other Public Officer (Section 340(1)(b) or 340((2)AA) Criminal Code or Assault/Obstruct Police Section 790 PPRA;
2. In a public place
3. whilst adversely affected by an intoxicating substance;
The Court must include a condition on bail that the person completes a DAAR Course by a stated date.
This is the Drug and Alcohol referral I referred to earlier. This section doesn’t apply if the person has done two DAAR course within the last 5 years, is under 18 or where Section 11A of the Bail Act applies namely a person has an impairment of mind. Comment
Funding was set aside for 5000 drug and alcohol referrals across Queensland per annum which is approximately 415 per month. In its first 3 months to the end of February 2015 there has been a total of 237 referrals out of a budgeted amount of 1250 representing an approximately 19% uptake. The imposition of that condition is mandatory.
The imposition of this bail condition when granted by a Police Officer to attend DAAR then also allows the Police Officer to detain and photograph the person for the purposes of a PPRA Part 5B (Police Banning Notice) which I will refer to later.
While we are on the Bail Act ( the Criminal law amendment Act inserted a new s11(4A) and a 11AA–
Amendment of s 11 (Conditions of release on bail) Section 11— insert—
(4A) A court or a police officer authorised by this Act to grant bail for the release of a person who is not an Australian citizen or permanent resident must consider the imposition of a special condition under subsection (2)—
(a) requiring the person to surrender the person’s current passport; and (b) prohibiting the person from applying for a passport.
(10) In this section— Australian citizen see the Australian Citizenship Act 2007 (Cwlth), section 4. permanent resident means—
(a) the holder of a permanent visa within the meaning of the Migration Act 1958 (Cwlth), section 30(1); or
(b) a New Zealand citizen who is the holder of a special category visa within the meaning of the Migration Act 1958 (Cwlth), section 32.
Insertion of new s 11AA After section 11— insert— 11AA Release of a person only after surrender of passport
(1) This section applies if a court or a police officer authorised by this Act to grant bail imposes a special condition under section 11(2) requiring the person to surrender the person’s current passport.
(2) If the condition is imposed by a court, the court must order that the person be detained in custody until the passport is surrendered. (3) If the condition is imposed by a police officer, the person must be detained in custody until the passport is surrendered.
PENALTIES AND SENTENCES ACT AMENDMENTS
Sentencing Guidelines
There has been significant changes to the Penalties and Sentences Act by this legislation. Firstly there is introduction of s9(9A) section. It states
“Voluntarily intoxication of an offender by alcohol or drugs is not a mitigating factor for a Court to have regard to in sentencing the offender”. This now applies even if the offence was committed before the commencement date of that section namely 5 September 2014.
Comment
This seems to confirm in legislation the principles in R v Rosenberger; ex parte A-G 1994 [QCA 488] that is “ordinarily intoxication, whether by alcohol or other drugs, will not mitigate penalty”.
However this section now seems to not take into account where the use of drugs or alcohol may be directly related to a mental illness suffered by the perpetrator particularly in circumstances where that mental illness may have been undiagnosed prior to the offence, or where someone was not compliant with mediation or indeed a bad reaction to medication.
Mandatory Community Service Orders
There is a new section 108B which commenced on 1 December 2014 where in an offender commits a prescribed offence with a circumstance of aggravation The Court must impose a community service order unless the offender is not capable of completing such an order because the offender suffers from a physical, intellectual or psychiatric disability.
The prescribed offences are:
Affray Section 72 Criminal Code;
Grievous Bodily Harm Section 320 Criminal Code; Wounding Section 323 Criminal Code;
Common Assault Section 335 Criminal Code;
Assault Occasioning Bodily Harm Section 339 Criminal Code;
Serious Assault on Police or other Public Officer (Section 340(1)(b) or 340(2)AA Criminal Code or
Assault/Obstruct Police Section 790 PPRA
-In a public place,
So where one of those offences are committed and it occurs in a public place whilst the offender was adversely affected by an intoxicating substance, then that is considered to be a circumstance of aggravation and the imposition of a community service order is mandatory. No consent is required (s106(2)).
The Government seems determined that the community service be carried out in that the period to complete the community service order may be extended by any period that the offender is in custody on remand or serving a sentence.
If the offender already has a community service order totalling up to 240 hours, the number of hours in excess of 240 can run concurrently (s108C(3)) . s108B is subject to sections 121(4), 125(8), 126(6B). These are all new sections in the Act. All referred to the ability to resentence to another community service order if taking any action on a revocation amendment or breach.
The mandatory community service order does not apply to offences committed before the commencement of the section i.e. before 1 December 2014.
POLICE POWERS AND RESPONSIBILITIES ACT 2000 AMENDMENTS
There were a number of amendments to the Police Powers and Responsibilities Act of which the most headline grabbing was the introduction of “Sober Safe Centres”. This part of the legislation commenced on 1 October 2014 and is contained in the new sections of the PPRA 390A to 390P. It could be seen as the reintroduction of the concept of the “drunk tank”
The explanatory notes to the bill give reasons as follows:-
“the bill introduces a sober safe centre trial in the Brisbane CBD. The trial enables a Police officer to detain and transport an adult the officer reasonably suspects is intoxicated and is behaving in a safe night out precinct in a way that constitutes a nuisance offence or could pose a risk of physical harm to themselves or another person. Arguably this breaches the rights and liberties of individuals.”
Whilst violent or aggressive intoxicated persons can pose a risk to the safety of persons enjoying a safe night out, it is equally important to recognise intoxicated persons are vulnerable to harm. The safe centre trial aims to protect persons who are in an impaired state from alcohol or drugs as well as the broader community. The centres also offer an alternative to charging a person with a nuisance offence.
The legislation gives the Police the powers to do the following:-
To detain if intoxicated and risk of public nuisance or physical harm s390E; Power to require a person to state name and address s41(M);
Power to detain for up to 8 hours s390J;
The persons belongings may be searched s390F;
The person must pay a cost recovery charge (s390M) which starts at two penalty units then if there are other times it increases by the formula of 1 penalty unit plus 1 penalty unit for each previous admission of up to a maximum of six times;
Allows health care professionals to use reasonable force;
The persons detained must be assessed by health care professionals upon arrival and then again within 4 hours of arrival and also must be provided with information as soon as practical regarding duration of detention, search and costs etc. Please note though the offending must happen in a safe night precinct. However if there conduct is considered to be more serious than just a nuisance offence, or an offence under the summary offences act for being intoxicated in a public place then the sections don’t apply.
BREATH SAMPLES
Where a relevant assault offence Grievous bodily harm; Wounding
Serious assault of a police officer with a circumstance of aggravation or serious assault of a public officer with a circumstance of aggravation.
Chapter 18A of the PPRA allows Police to require a specimen of breath under s80 of the TORUM for prescribed purposes where intoxication is circumstance of aggravation.
So that means that the new section 548C if a Police officer reasonably suspects a person has committed a relevant assault offence within the proceeding 3 hours and that the person is intoxicated and the offence occurred in a public place – they may require a specimen of breath just as Police do in a standard drink driving situation.
Comment
I am unaware at this stage of any particular wording regarding the requirement to give the specimen of breath such as that in a drink driving offence curiously the legislation does not state what happens if a person fails to provide that specimen of breath in terms of committing an offence. In drink driving cases consequences flow from the failure to provide. Specifically s80(11) of the TORUM. However, s548E specifically excludes the application of that section and, others sub section of s80. Say you get a call in the middle of the night and the client seeks advice about whether to comply with the request. Is he giving up information or evidence, or will it assist (so drunk can’t form an intent) or if so, then will be charged with PPRA offence – obstruct, not follow direction?
S365C of the code deems you adversely affected if you don’t but that presumption is rebuttable by proving you were not adversely affected .
POLICE POWERS AND RESPONSIBILITIES ACT BANNING NOTICES
From 1 October 2014 new provisions came into force for Police banning orders. They contained in s602A to 602W. Contained in chapter 19 part 5A Police may;
Ban a person from a licensed premises, class of licensed premises, safe night out precinct, public event where liquor is sold or a stated area;
Police officer giving the banning notice must be reasonably satisfied that giving the notice is necessary because
a) The respondent has behaved in a disorderly, offensive, threatening or violent way; and
b) The respondents behaviour was at, or in the vicinity of, a relevant public place; and
c) The persons ongoing presence, or presence in the immediate future, at the relevant public place and any other place started in the notice, poses as an unacceptable risk of;
i. Causing violence at the places; or
ii. Impacting on the safety of other persons attending the places; or iii. Disrupting or interfering with the peaceful passage, or
reasonable enjoyment of other persons, at the places.
The period of the order is for the duration of the stated event in the notice or up to 10 days after the start time.
A Police officer of the rank of Senior Sergeant or above may extend the initial notice for up to 3 months.
Can be reviewed in QCAT s602P.
AMENDMENTS TO LIQUOR ACT 1992
There was a total of 62 amending sections. This was to target Licensees regarding compliance and community safety. Amongst these amendments is the establishment of “Safe Night Precinct”. These Precincts will be managed by local board associations which must be incorporated. This board will be responsible for addressing alcohol related violence in its precinct. Licensees who conduct business in each precinct must join the local board association. There isn’t time to go through all of the amendments but some of the relevant ones are:-
Section 9A “for this Act, a person may be taken to be unduly intoxicated if –
(a) The persons speech, balance, coordination or behaviour is noticeably affected ; and
(b) There are reasonable grounds for believing the affected speech, balance, coordination or behaviour is the result of the consumption of liquor, drugs or other intoxicating substances”.
This commenced on the date of assent on 5th September 2014.
Commencing on 1 July 2015 it is an offence to take liquor for consumption onto or from licensed premises to which a night club licence relates and that penalty is 25 penalty units.
There are increases to penalties for offences in s165 and s165A, failing to leave licenced premises or attempting to re-enter licenced premises. This goes from 25 penalty units to 50 penalty units and that commenced on 5 September 2014.
With respect to licensees and patrons, commencing from 1 October 2014 patrons seeking entry into certain late night trading venues which can be loosely described as those in a safe night precinct and which are licenced to trade from midnight to 5:00 am will have to have their photo identification scanned. (Section 173EF).
There are obligations about the operation of the ID scanning system contained in Section 173EJ. In short, they are that the system does not record any personal information other than:-
The person’s name, address and date of birth; A photo of the person;
Details of a banning order in force for the person;
Details of a licensee banning imposed on the person by a linked licensee that the licensee has asked the approved operator to include in the system (maximum penalty 25 penalty units).
Where the person is not subject to a banning order, the personal information should not be held for more than 30 days after it is entered into the system.
There are also small penalties for failing to notify within 48 hours of becoming aware of a system failure.
Information can be shared namely the details of the person with a banning order or licensee bans and that may be shared with the Police Commissioner, Commissioner for Liquor and Gaming, the Licensee and a Court.
YOUTH JUSTICE AND OTHER LEGISLATION AMENDMENT ACT 2014 This legislation introduced:-
Further amendments to the Youth Justice Act 1992 for Boot Camp (Vehicle Offences) Orders. The Government was required to “better address the disproportionate level of vehicle – related crime by children in Townsville”. Introduced an offence of committing offence whilst on bail;
The omission of sentence reviews by Children’s Court Judge of sentences of Children’s Court Magistrate;
Details regarding the transfer of offenders aged 17 into mainstream prison; Changes to permitting media to attend closed Court sessions and open Court
sessions in the Children’s Court.
The Act introduces a new Section 59A which reads: (1) This section applies to a child if –
a. The child is granted bail after being charged with an original offence; and
b. A finding of guilt is later made against the child for subsequent offence committed while on bail for the original offence.
(2) The finding of guilt made against the child for the subsequent offence is taken to be an offence against this Act. The maximum penalty (subject to Part 7) – is 20 penalty units or one years imprisonment.
(3) For this section, if a finding or guilt is made against the child for more than one subsequent offence arising out of the same, or the same set of, circumstances, subsection (2) applies to only one of the subsequent offences.
Section 59B sets out the proceedings for an offence against Section 59A, proceedings can be started without Complaint and Summons and must be started immediately after the child is found guilty of the subsequent offence. The production of the copy of a bail order issued by the Court is sufficient proof that the child was on bail for the original offence from the date of the bail order or undertaking. The onus then shifts to the child upon production of that bail order to prove why the child should not be convicted of an offence under Section 59A.
I haven’t personally done one of these matters but members of my staff have and in each particular case it seems to have been of the Magistrate’s own volition that the Court then takes action ie, it seems the Court initiates the Prosecution. However, the practical effect has generally been that the child has been convicted and not further punished or given a reprimand.
Section 148 (evidence of childhood finding of guilty not admissible against adult) was amended to insert a new subsection 3 as follows:-
(3) this section does not prevent a Court that is sentencing an adult from – (a) admitting evidence that the adult was found guilty as a child of
an offence even if a conviction was not recorded; or
(b) receiving information about any other sentence to which the adult is subject if that is necessary to mitigate the effect of the Court sentence.
Further, Section 150 subparagraph 5 has also been amended,
“this section overrides any other Act or law to the extent that, in sentencing a child for an offence, the Court must not have regard to any principle that a detention order should be imposed only as a last resort.”
There are amendments to the Act which allow the Court to permit an interested person to be present in a proceeding for a non-youth justice matter or a youth justice matter in relation to a first time offender – to provide that, in a proceeding for a youth justice matter in relation to a first time offender the Court may permit a representative of the media to be present but previously that could be done only where it was a repeat offender. That isn’t disturbed but allows the discretion to be exercised for first time offenders.
The new Section 234 allows Children’s Court Judge to allow the publication of the identifying information of a first time offender if the Court has made an order against a first time offender under Section 176(3)(b) that is where the Court has ordered the child be detained for a period up to and including the maximum of life, if –
i. The offence involves the commission of violence against a person; and ii. The Court considers the offence to be a particularly heinous offence
having regard to all of the circumstances.
The Court may order the information about a first time offender be published if it considers it would be in the interests of justice to allow the publication and must have regard to:
The need to protect the community;
The safety or wellbeing of a person other than the first time offender; The impact the publication on the first time offenders rehabilitation; and Any other relevant matter.
It cannot be done, before the end of any appeal period or, if there is a Notice of Appeal or Application for Leave to Appeal before any appeal proceeding has ended. If offenders turn 17 and have more than six months to run on their sentences then they will be transferred to an adult prison.
The other legislation amended by this act was the Penalties and Sentences Act in particular s9. Most subsections are now renumbered
Inserted was the now s9(4) (was 9(5))
(4) In sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.
In fact everyone should give s9 a good going over because it bears little or no resemblance to the s9 in force before March 2012. It now runs to greater than six pages.
The act also introduces guidelines and definitions for child-images offenders.
child-images offender means an offender being sentenced for any of the following offences— (a) an offence against the Classification of Computer Games and Images Act 1995, section 28, if the objectionable computer game is a child abuse computer game under the Act;
(b) an offence against any of the following provisions of the Classification of Films Act 1991— (i) section 41(3) or 42(3) or (4); (ii) section 43, if the offence involves a child abuse film under the Act; (c) an offence against any of the following provisions of the Classification of Publications Act 1991— (i) section 14; (ii) section 12, 13, 15, 16 or 17, if the offence involves a child abuse publication or child abuse photograph under the Act;
(d) an offence against the Criminal Code, section 228A, 228B, 228C or 228D. Also inserted was
(12) This section overrides any other Act or law to the extent that, in sentencing an offender for any offence, the court must not have regard to any principle that a sentence of imprisonment should be imposed only as a last resort.
