Interstate Transfers of Community Based Sentences (ACT)
This article is relevant to anyone who has received a community-based sentence in the ACT and wishes to serve that sentence interstate. There are a number of reasons why a person may wish to transfer a community-based sentence interstate, including proximity to family and community, employment opportunities, or escaping domestic violence. It may also be that at the time of the offending, the person was only temporarily in the ACT.
What is a community-based sentence?
In the ACT, a community-based sentence is defined in the Crimes (Sentencing Administration) Act 2005 as any of the following:
- An intensive correction order
- A drug and alcohol treatment order
- A good behaviour order; and
- A sentence declared by regulation to be a community-based sentence.
As part of a community-based sentence, an offender may be subject to conditions, including community service hours, treatment or supervision.
Can I serve my community-based sentence interstate?
In short, it depends on what the community-based sentence is and where you want to move. Under section 261 of the Crimes (Sentencing Administration) Act 2005, community-based sentences can be transferred by registration between “participating jurisdictions”.
The Act provides that a participating jurisdiction is a state declared by the Crimes (Sentencing Administration) Regulations 2005 to be a participating jurisdiction. However, the only state declared by the Regulations to be a participating jurisdiction is New South Wales. NSW legislation also declares the ACT to be a participating jurisdiction. Accordingly, community-based sentences can be transferred between the ACT and NSW.
How to Organise Interstate Transfer of Community Based Sentences
If a person with an ACT community-based sentence wants to serve that sentence in NSW, the ACT will make a request to NSW to register the sentence. If NSW registers the sentence, the sentence becomes one in force in NSW and ceases to be one in force in the ACT. The effect is as if a New South Wales court had imposed the sentence.
This means that you can complete any conditions attached to your community-based sentence in New South Wales, including your community service hours. If you breach the sentence, your matter can be dealt with in a New South Wales court and this includes situations where the breach occurred before your community-based sentence was registered in New South Wales. However, the original jurisdiction retains responsibility for reviewing or appealing the sentence.
Transfer of a community-based sentence to somewhere other than NSW
If a person wants to serve their community-based sentence in a state other than New South Wales, they must determine whether that state has relevant legislation which allows the transfer of their sentence from ACT.
Below are examples of legislation in other states that allows this to occur.
ACT and Victoria
Victoria provides that the ACT, New South Wales, Tasmania and Western Australia are participating jurisdictions for the purpose of transferring community-based sentences to or from Victoria (Regulation 5 of the Community Based Sentences (Transfer) Regulations 2013 (Vic).
Under section 12 of the Community Based Sentences (Transfer) Act 2021 (Vic), Victoria can register an interstate community-based sentence at the request of a participating jurisdiction in which the sentence is in force (including the ACT).
The request must:
- be in writing;
- state particulars including the offender’s name, date of birth, last known address;
- include a certified copy of the interstate sentence;
- include a copy of the offender’s consent for the registration of their sentence in Victoria;
- include a copy of any relevant pre-sentence report about the offender which is held by the interstate jurisdiction in relation to the subject offence for which the offender was sentenced;
- include details of the offender’s criminal record and compliance with the sentence to date (if relevant).
A person must be aware, and a statement must be provided to this effect, that if the sentence is registered in Victoria, they will be bound by the law of Victoria in relation to the sentence, and that a breach of the sentence may result in the offender being re-sentenced in Victoria for the offence. This may mean different penalties, and different consequences for the breach, from in the ACT.
Victoria must refer to registration criteria when considering whether to register the sentence, at section 16 of the Community Based Sentences (Transfer) Act 2021. The criteria includes that the person can comply with the sentence in Victoria (s16(1)(c)) and that the sentence can be safely, efficiently and effectively administered in Victoria (s16(1)(d)).
It should also be noted that Victoria must also consider whether it has a corresponding community-based sentence under its own laws that either corresponds or substantially corresponds to the interstate sentence (s16(2)). Note, that Victoria, unlike ACT, does not have Intensive Correction Orders which are custodial terms served in the community under the supervision of Corrective Services.
ACT and Western Australia
Western Australia declares under the Sentence Administration (Interstate Transfer of Community Based Sentences) Regulation 2011 (WA) that ACT, New South Wales, Tasmania and Victoria are participating jurisdictions (Regulation 4).
The process of registering an interstate community-based sentence in Western Australia is similar to that set out above for Victoria.
ACT and Queensland
In February 2020, Queensland introduced the Community Based Sentences (Interstate Transfer) Bill 2019 to manage and facilitate the supervision of offenders with community-based sentences. The Minister for Police and Corrective Services, in introducing the Bill, stated that Queensland, in enacting the legislation, was joining Victoria, New South Wales, Western Australia, South Australia, Tasmania and the ACT.
At the time of writing, no regulations had been formalised declaring which states and territories were participating jurisdictions. However, even if a particular state or territory is not declared by the regulations to be a participating jurisdiction, the Minister has stated that the new legislation will allow Ministers with authority to enter into more informal arrangements to facilitate the administration of community-based sentences for persons travelling to, or residing in, Queensland whose sentences are not subject to formal transfer and registration under the scheme.
What does this mean for the transfer of ACT community-based sentences?
Recall that the ACT has only declared New South Wales to be a participating jurisdiction for the purpose of transferring community-based sentences to and from the ACT. Whether the ACT is able to transfer community-based sentences to other states and territories will therefore depend on whether the ACT is declared a participating jurisdiction by corresponding legislation.
At the time of writing, the ACT is declared a participating jurisdiction in Victoria, New South Wales, and Western Australia. South Australia, Tasmania and Queensland do not appear to have corresponding Regulations defining participating jurisdictions.
Notwithstanding, as referred to above, some interstate Acts provide that the Minister may enter into arrangements with the corresponding Minister of an interstate jurisdiction to facilitate the administration of interstate sentences. This is separate to the formal transfer/registration scheme and considers circumstances where the interstate jurisdiction is not formally a “participating jurisdiction” under the legislation. See section 13A of the Interstate Transfer (Community-based Sentences) Act 2009 (TAS).
Ultimately, whether the community-based sentence is administered interstate, whether by formal registration or arrangement, will depend on whether the sentence can be properly managed. For example, if you are sentenced in the ACT to complete community service hours, the state in which you want the community-based sentence registered must have confidence that you can comply with the sentence and that it can be effectively administered in that state. In the ACT, there is scope for the courts to impose up to 500 hours (approximately 20 days) of community service, which another state may not be willing to facilitate or supervise.
In addition, the ACT courts can make orders requiring you to submit to the supervision of Community Corrections. You should first make enquiries as to whether or not the other state’s Community Corrections is willing to supervise you. Consent is not always guaranteed, particularly if the conditions of supervision are numerous or complicated (for example, the offender must supply samples for drug and alcohol testing or submit to a curfew which will require police to check in on the offender at home).
Importance of formalising transfers of community-based sentences
According to a report on government services, in 2017 and 2018, an average of nearly 70,000 offenders were serving community corrections orders in Australia.
It appears that states and territories are slowly recognising the importance of formalising a national scheme that provides for the transfer of community-based sentences interstate, to ensure an efficient and effective criminal justice system and that freedom of movement of persons is not unreasonably or onerously prohibited.
A community-based sentence is certainly more severe if an offender is unable to return home or move interstate for the term of the order.
However, there may also be consequences at the sentencing stage if community-based sentences cannot be transferred. For example, if the court considers that a sentence of full-time imprisonment is warranted, it must then consider whether the term of imprisonment can be served in the community. If the offender must move interstate, but the community-based order cannot be formally or by arrangement transferred, the court may be inclined to consider that there is no viable alternative to full-time imprisonment.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.