Criminal Code Amendment Act 2001

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/2001/Acts/Criminal%20Code%20Amendment%20Act%202001.pdf

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Criminal Code Amendment Act 2001.pdf
CRIMINAL CODE AMENDMENT ACT 2001



BERMUDA
2001 : 29

CRIMINAL CODE AMENDMENT ACT 2001

[Date of Assent: 13 August 2001]

[Operative Date: 29 October 2001]



ARRANGEMENT OF SECTIONS
1 Citation
2 Amendment of section 3 of the

principal Act
3 Repeal and replacement of

sections 53 to 71 of principal
Act

4 Amendment of section 71A of
principal Act

5 Amendment of section 71B of
principal Act

6 Amendment of section 71D of
principal Act

7 Amendment of section 463 of
principal Act

8 Repeal of section 551 of
principal Act

9 Amendment of section 552 of
principal Act

10 Repeal of sections 557 to 562
of principal Act

11 Consequential amendments
12 Commencement



WHEREAS it is expedient to amend the Criminal Code Act 1907
to revise the methods for dealing with offenders, to provide a wider range
of alternatives to incarceration and to make consequential amendments:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:⎯


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CRIMINAL CODE AMENDMENT ACT 2001


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Citation
1 This Act, which amends the Criminal Code Act 1907 ("the
principal Act"), may be cited as the Criminal Code Amendment Act 2001.

Amendment of section 3 of the principal Act
2 Section 3 of the principal Act is amended—

(a) by deleting the definition of "order for conditional
discharge" and substituting the following—

""order for conditional discharge" means an order for
conditional discharge made under section 69;";

(b) by deleting the definition of "period of conditional
discharge";

(c) by deleting the definition of "probation officer" and
substituting the following—

""probation officer" means a person appointed to be a
probation officer under section 70E;";

(d) by deleting the definition of "probation order" and
substituting the following—

""probation order" means an order made under section
70;".

Repeal and replacement of sections 53 to 71 of principal Act
3 Sections 53 to 71 of the principal Act are repealed and the
following is substituted—

"PURPOSE AND PRINCIPLES OF SENTENCING

Purpose
53 The fundamental purpose of sentencing is to promote respect for
the law and to maintain a just, peaceful and safe society by imposing
just sanctions that have one or more of the following objectives—

(a) to protect the community;

(b) to reinforce community-held values by denouncing
unlawful conduct;

(c) to deter the offender and other persons from committing
offences;

(d) to separate offenders from society, where necessary;

(e) to assist in rehabilitating offenders;

(f) to provide reparation for harm done to victims;

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(g) to promote a sense of responsibility in offenders by
acknowledgement of the harm done to victims and to the
community.

Fundamental principle
54 A sentence must be proportionate to the gravity of the offence
and the degree of responsibility of the offender.

Imprisonment to be imposed only after consideration of alternatives
55 (1) A court shall apply the principle that a sentence of
imprisonment should only be imposed after consideration of all sanctions
other than imprisonment that are authorized by law.

(2) In sentencing an offender the court shall have regard to⎯

(a) the nature and seriousness of the offence, including any
physical or emotional harm done to a victim;

(b) the extent to which the offender is to blame for the
offence;

(c) any damage, injury or loss caused by the offender;

(d) the need for the community to be protected from the
offender;

(e) the prevalence of the offence and the importance of
imposing a sentence that will deter others from
committing the same or a similar offence;

(f) the presence of any aggravating circumstances relating
to the offence or the offender, including—

(i) evidence that the offence was motivated by bias,
prejudice or hate based on race, national or ethnic
origin, language, colour, religion, sex, age, mental or
physical disability, sexual orientation, or any other
similar factors;

(ii) evidence that the offender, in committing an offence,
abused a position of trust or authority in relation to
the victim;

(g) the presence of any mitigating circumstances relating to
the offence or the offender including—

(i) an offender's good character, including the absence
of a criminal record;

(ii) the youth of the offender;

(iii) a diminished responsibility of the offender that may
be associated with age or mental or intellectual
capacity;

CRIMINAL CODE AMENDMENT ACT 2001


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(iv) a plea of guilty and, in particular, the time at which
the offender pleaded guilty or informed the police,
the prosecutor or the court of his intention so to
plead;

(v) any assistance the offender gave to the police in the
investigation of the offence or other offences;

(vi) an undertaking given by the offender to co-operate
with any public authority in a proceeding about an
offence, including a confiscation proceeding;

(vii) a voluntary apology or reparation provided to a
victim by the offender.

PUNISHMENT - GENERAL PROVISIONS

Construction of statutory provisions relating to punishments
56 Except where otherwise expressly provided, in the construction
of this Act or any other enactment—

(a) a person liable to imprisonment for any term may be
sentenced to imprisonment for any shorter term;

(b) a person liable to a fine of any amount may be sentenced
to pay a fine of any lesser amount;

(c) a person liable to imprisonment may in addition to, or
instead of, imprisonment be sentenced to pay—

(i) a fine of $1500 where the term of imprisonment does
not exceed 12 months,

(ii) a fine of $3000 where the term of imprisonment
exceeds 12 months but does not exceed 2 years,

(iii) a fine of $7,500 where the term of imprisonment
exceeds 2 years.

Determination of sentence
57 (1) Where an enactment prescribes a punishment in respect of
an offence, the sentence to be imposed is, subject to the limitations
provided in the enactment, in the discretion of the court that convicts a
person who commits the offence.

(2) Where an accused is convicted of an offence punishable
with both fine and imprisonment and a term of imprisonment in default
of payment of the fine is not specified in the enactment that prescribed
the punishment to be imposed, the imprisonment that may be imposed
in default of payment shall not exceed the term of the imprisonment that
is prescribed in respect of the offence.

(3) Where an accused—

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(a) is sentenced while serving a term of imprisonment for a
prior offence, and a term of imprisonment, whether in
default of payment of a fine or otherwise, is imposed;

(b) is convicted of an offence punishable with both a fine
and imprisonment and both are imposed; or

(c) is convicted of more offences than one, and—

(i) more than one fine is imposed,

(ii) terms of imprisonment for the respective offences
are imposed, or

(iii) a term of imprisonment is imposed in respect of one
offence and a fine is imposed in respect of another
offence,

the court that sentences the accused may direct that the terms of
imprisonment that are imposed, whether in default of payment of a fine
or otherwise, be served consecutively.

Time in custody to be taken into account
58 In determining the sentence to be imposed on a person convicted
of an offence, a court may take into account any time spent in custody
by the person as a result of the offence.

Time at large to be excluded from term of imprisonment
59 Any time during which a convicted person is unlawfully at large
or is at large on release on licence does not count as part of any term of
imprisonment imposed on the person.

Commencement of sentence
60 (1) Subject to subsections (2) and (3), a sentence commences
when it is imposed, except where an enactment otherwise provides.

(2) A term of imprisonment, whether imposed by a trial court or
the court appealed to, commences or shall be deemed to be resumed, as
the case may be, on the day on which the convicted person is arrested
and taken into custody under the sentence.

(3) Where a sentence that is imposed is a fine with a term of
imprisonment in default of payment, no time prior to the day of the
execution of the warrant of committal counts as part of the term of
imprisonment.

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PROCEDURE AND EVIDENCE

Sentencing proceedings
61 A court shall, as soon as practicable after an offender has been
found guilty, conduct proceedings to determine the appropriate sentence
to be imposed.

Presentence report by probation officer
62 (1) Where an accused, other than a corporation, pleads guilty
to or is found guilty of an offence, a probation officer, if required to do so
by a court, shall, as soon as practicable, prepare and file with the court a
report in writing relating to the accused for the purpose of assisting the
court in imposing a sentence or in determining whether the accused
should be discharged pursuant to section 69.

(2) Upon the report being filed with the court the clerk or
registrar of the court shall give a copy of the report to the accused or his
counsel.

(3) Unless otherwise specified by the court, the report shall,
wherever possible, contain information on the following matters—

(a) the offender's age, maturity, character, home
circumstances, employment history, behaviour, attitude
and willingness to make amends;

(b) the history of previous dispositions under the Young
Offenders Act 1950, this Act and any other Act;

(c) the history of any measures other than imprisonment
used to deal with the offender, and the offender's
response to those measures; and

(d) an analysis of the likelihood of the offender to reoffend.

(4) The presentence report shall also contain information on
any other matter required by the court, after hearing argument from the
prosecutor and the offender, to be included in the report.

(5) Where the court orders a presentence report and the court
is considering a probation order which will contain a requirement that
the offender submit to treatment for alcohol or drug addiction, the court
may order that the offender undergo an assessment by a qualified person
for such treatment, which assessment shall form part of the presentence
report.

(6) Where⎯

(a) a request has been made by the prosecution or the
offender for a presentence report; and

(b) the court rejects the request,

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the court shall give reasons for the rejection of the request.

Victim impact statement
63 (1) For the purpose of determining the sentence to be imposed
on an offender or whether the offender should be discharged pursuant to
section 69 in respect of any offence, the court shall consider any
statement made by the victim or by the prosecution on behalf of the
victim describing the harm done to, or loss suffered by, the victim arising
from the commission of the offence.

(2) A victim impact statement shall be in written form and shall
be filed with the court.

(3) At the request of a victim, the court may instruct the clerk
of the court or registrar to read the statement into the record in open
court.

(4) Where the victim impact statement discloses confidential or
sensitive information or material that may cause embarrassment or
distress to the victim or his family, the court may direct that the
statement be dealt with in camera.

(5) The prosecutor shall notify the victim as soon as a date has
been set for sentencing as to the date fixed for sentencing and the right
of the victim to make a victim impact statement.

(6) The clerk or registrar of the court shall provide a copy of the
victim impact statement, as soon as possible after a finding of guilt, to
the offender or counsel for the offender and the prosecutor.

(7) As soon as practicable after a finding of guilt and in any
event before sentence, the court shall inquire of the prosecutor or a
victim of the offence whether the victim has been advised of the
opportunity to make a victim impact statement.

(8) For the purposes of this section, "victim", in relation to an
offence—

(a) means the person to whom harm is done or who suffers
physical or emotional loss as a result of the commission
of the offence; and

(b) where the person described in paragraph (a) is dead, ill
or otherwise incapable of making a statement referred to
in subsection (1), includes the spouse or any relative of
that person, anyone who has in law or fact the custody
of that person or is responsible for the care or support of
that person or any dependant of that person.

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Evidence relevant to determination of sentence
64 (1) In determining the sentence, the court shall consider any
relevant information placed before it, including any representations or
submissions made by or on behalf of the prosecutor or the offender.

(2) Before determining the sentence the court shall give the
prosecutor and the offender an opportunity to make submissions
relevant to the sentence to be imposed.

(3) In determining the sentence, a court may consider any
evidence disclosed at the trial.

(4) The court may, on its own motion, after hearing argument
from the prosecutor and the offender require the production of evidence
that would assist it in determining the appropriate sentence.

(5) Hearsay evidence is admissible at sentencing proceedings,
but the court may, if the court considers it to be in the interests of
justice, compel a person to testify where the person—

(a) has personal knowledge of the matter;

(b) is reasonably available; and

(c) is a compellable witness.

(6) Where the court is composed of a judge and jury, the court
shall accept as proved all facts, express or implied, that are essential to
the jury's verdict of guilty.

(7) Where there is a dispute with respect to any fact that is
relevant to the determination of a sentence—

(a) the court shall request that evidence be adduced as to
the existence of the fact unless the court is satisfied that
sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a
fact contained in a presentence report, has the burden of
proving it;

(c) either party may cross-examine any witness called by
the other party;

(d) subject to paragraph (e), the court must be satisfied on a
balance of probabilities of the disputed fact before
relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a
reasonable doubt, the existence of any aggravating fact
or any previous conviction by the offender.

Other offences taken into consideration
65 (1) In determining the sentence, the court—

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(a) shall consider, if it is possible and appropriate to do so,
any other offences of which the offender was found guilty
by the same court, and shall determine the sentence to
be imposed for each of those offences;

(b) shall consider, if the Director of Public Prosecutions and
the offender consent, any outstanding charges that the
court has jurisdiction to try against the offender to
which the offender consents to plead guilty and pleads
guilty, and shall determine the sentence to be imposed
for each charge unless the court is of the opinion that a
separate prosecution for any of the outstanding charges
is necessary in the public interest; and

(c) may consider any facts forming part of the
circumstances of the offence that could constitute the
basis for a separate charge.

(2) The court shall, on the information or indictment, note—

(a) any outstanding charges considered in determining the
sentence under paragraph (1)(b); and

(b) any facts considered under paragraph (1)(c) in
determining the sentence under that paragraph,

and no further proceedings may be taken with respect to any offence
described in those charges or disclosed by those facts unless the
conviction for the offence of which the offender has been found guilty is
set aside or quashed on appeal.

Offender may speak to sentence
66 Before determining the sentence to be imposed, the court shall
ask whether the offender, if present, has anything to say.

Reasons for sentence
67 When imposing a sentence, a court shall state the terms of the
sentence imposed and the reasons for it, and enter those terms and
reasons into the record of the proceedings.

DRUG TREATMENT PROGRAMMES

Drug treatment programmes
68 (1) There is established a special magistrates court to be
known as the Drug Treatment Court.

(2) The Chief Justice may designate any magistrate as a judge
of the Drug Treatment Court.

(3) Where an accused other than a corporation⎯

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(a) pleads guilty to or is found guilty of an offence;

(b) appears to the court to satisfy the eligibility criteria; and

(c) is willing to undergo an assessment by a qualified
person to determine his suitability for a drug treatment
programme,

the court may by order direct the offender to appear before the Drug
Treatment Court.

(4) The Drug Treatment Court on being satisfied⎯

(a) that the offender is suitable for enrollment in a drug
treatment programme;

(b) that it is in the best interests of the offender that he be
enrolled in such programme; and

(c) that the offender agrees to be enrolled in such
programme,

may, instead of convicting the offender, order that he be enrolled in a
drug treatment programme of such description, for such period and
subject to such conditions as the Drug Treatment Court may specify in
the order.

(5) Where an offender has been enrolled in a drug treatment
programme, the Drug Treatment Court shall monitor the progress of the
offender throughout the duration of the programme.

(6) Where the offender fails, without reasonable excuse, to
comply with the rules of a drug treatment programme or any conditions
set out in an order under subsection (4), the Drug Treatment Court
may⎯

(a) (i) impose any sanction, including, imprisonment
for a period not exceeding 20 days, that it could
have imposed for the offence in respect of which
the order was made; and

(ii) require the offender to continue in the drug
treatment programme; or

(b) (i) revoke the order,

(ii) convict the offender of the offence in respect of
which the order was made, and

(iii) impose any sentence that could have been
imposed if the offender had been convicted at
the time the order was made.

(7) For the avoidance of doubt it is declared that where an
accused⎯

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(a) has pleaded guilty to an offence; and

(b) has been enrolled in a drug treatment programme,

the plea is irrevocable.

(8) For the purposes of the Rehabilitation of Offenders Act 1977
a person shall be deemed to have become a rehabilitated person if he
successfully completes a drug treatment programme pursuant to an
order under subsection (4).

(9) In this section⎯

(a) "drug treatment programme" means a drug treatment
and rehabilitative programme approved by the Minister
of Health and Family Services;

(b) "eligibility criteria" means eligibility criteria for
participation in a drug treatment programme that are
approved by the Minister of Health and Family Services
and are published in the Gazette;

(c) "qualified person" means a person approved by the
Minister of Health and Family Services as qualified to
conduct an assessment under this section.



DISCHARGE

Conditional and absolute discharge
69 (1) Where an accused, other than a corporation, pleads guilty
to or is found guilty of an offence, the court may, if it considers it to be in
the best interests of the offender and not contrary to the public interest,
instead of convicting the offender, by order direct that the offender be
discharged absolutely or on conditions prescribed in a probation order
made under section 70A or 70B.

(2) Where a court directs under subsection (1) that an offender
be discharged of an offence, the offender shall be deemed not to have
been convicted of the offence except that—

(a) the offender may appeal from the determination of guilt
as if it were a conviction in respect of the offence;

(b) the Director of Public Prosecutions or the informant may
appeal from the decision of the court not to convict the
offender of the offence as if that decision were a
judgment or verdict of acquittal of the offence or a
dismissal of the information against the offender; and

(c) the offender may plead autrefois convict in respect of any
subsequent charge relating to the offence.

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(3) Where an offender who is bound by the conditions of a
probation order made at a time when the offender was directed to be
discharged under this section is convicted of an offence, including an
offence under section 70C(9), the court that made the probation order
may, in addition to or in lieu of exercising its authority under section
70C(8), at any time when it may take action under that section—

(a) revoke the discharge;

(b) convict the offender of the offence to which the discharge
relates; and

(c) impose any sentence that could have been imposed if
the offender had been convicted at the time of discharge,

and no appeal lies from a conviction under this subsection where an
appeal was taken from the order directing that the offender is
discharged.

PROBATION

Making of probation order
70 (1) Where a person is convicted of an offence, a court may,
having regard to the age and character of the offender, the nature of the
offence and the circumstances surrounding its commission—

(a) suspend the passing of sentence and direct that the
offender be released on conditions prescribed in a
probation order; or

(b) in addition to fining or sentencing the offender to
imprisonment for a term not exceeding two years, direct
that the offender comply with conditions prescribed in a
probation order;

(2) A court may also make a probation order where it
discharges an accused under section 69.

Compulsory conditions
70A The court shall direct, as conditions of a probation order, that
the offender—

(a) not commit another offence during the period of the
order;

(b) appear before the court when required to do so by the
court;

(c) notify the probation officer in writing in advance of any
intended change of address and promptly notify the
probation officer of any change of employment or
occupation;

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(d) report to a probation officer at the place and within the
times stated in the order and thereafter when required
by the probation officer and in the manner directed by
the probation officer; and

(e) not leave Bermuda without the written permission of a
probation officer.

Optional conditions of probation order
70B The court may direct, as additional conditions of a probation
order, that the offender—

(a) perform up to 1000 hours of community service over a
period not exceeding 18 months;

(b) submit to drug testing as directed by the court;

(c) abstain from—

(i) the consumption of alcohol or other intoxicating
substance,

(ii) the consumption of controlled drugs within the
meaning of the Misuse of Drugs Act 1972 except in
accordance with a medical prescription;

(d) with the agreement of the offender and the director of
the relevant programme, participate in a treatment or
rehabilitative programme approved by the Minister of
Health and Family Services and comply with the rules of
the programme;

(e) complete to the satisfaction of the probation officer any
specified course of education or training designed to
improve work skills or social skills, or both;

(f) make restitution of property or make reparation in
accordance with sections 70H and 70I;

(g) refrain from—

(i) participating in specified activities or attending
specified places,

(ii) associating with specified persons or with persons of
a specified description;

(h) abide by conditions of any curfew;

(i) comply with such other reasonable conditions as the
court may direct for facilitating the successful
reintegration of the offender into the community.

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Probation order
70C (1) A court that makes a probation order shall—

(a) take reasonable steps to ensure the offender
understands the order;

(b) explain the procedure for applying under subsection (5)
for a change to the optional conditions;

(c) explain the consequences of being convicted of an
offence while on probation under subsection (8) or under
section 69;

(d) explain the consequences of non-compliance with the
order under subsection (9);

(e) require the offender to sign the probation order; and

(f) cause a copy of the order to be given to the offender.

(2) A probation order comes into force when the order is made
except that where the offender at that time is sentenced to imprisonment
under section 70(1)(b) or is serving time in prison, it shall come into force
when the offender is released from prison.

(3) If a person who is bound by a probation order is
subsequently convicted of an offence or is imprisoned under section
70(1)(b), the order continues in force except in so far as the
imprisonment renders it impossible for the offender to comply with the
order.

(4) A probation order continues in force for such period as the
court may specify in it but no probation order shall continue in force for
more than three years after the date on which the order came into force.

(5) A court that makes a probation order may at any time, on
application by the offender, the probation officer or the prosecutor,
require the offender to appear before it and, after hearing the offender
and one or both of the probation officer and the prosecutor—

(a) make any changes to the optional conditions that in the
opinion of the court are rendered desirable by a change
in the circumstances since those conditions were
imposed under section 70B;

(b) relieve the offender, either absolutely or on such terms
or for such period as the court thinks desirable of
compliance with any optional condition; or

(c) decrease the period for which the probation order is to
remain in force,

and the court shall thereupon endorse the probation order accordingly
and inform the offender of its action and require the offender to sign the

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probation order as amended and cause a copy of the order to be given to
the offender.

(6) Where a court that makes a probation order imposes a
condition that the offender be treated for drug or alcohol addiction and
report to a magistrate who is designated to monitor such order, the
powers set out in subsection (5) may be exercised by that magistrate.

(7) All the functions of the court under subsection (5) may be
exercised in chambers.

(8) Where an offender who is bound by a probation order made
under section 70(1)(a) is convicted of an offence including an offence
under subsection (9) which is committed during the term of the
probation order, in addition to any punishment that may be imposed for
that offence, the court may, on application by the prosecutor and after
hearing the prosecutor and the offender—

(a) revoke the order that was made under section 70(1)(a)
and impose any sentence that could have been imposed
if the passing of sentence had not been suspended; or

(b) make such changes to the optional conditions set out in
section 70A as the court considers desirable, or extend
the period for which the order is to remain in force for
such period, not exceeding one year, as the court
considers desirable

and the court shall thereupon endorse the probation order accordingly
and shall inform the offender of its action and require the offender to
sign the probation order as amended and cause a copy of the amended
order to be given to the offender.

(9) An offender who is bound by a probation order and who,
without reasonable excuse, fails or refuses to comply with that order is
guilty of—

(a) an indictable offence and is liable to imprisonment for a
term of two years; or

(b) an offence punishable on summary conviction and is
liable to imprisonment for 18 months, or to a fine of
$2000, or both.

(10) Nothing in this section or sections 70, 70A or 70B affects a
probation order or an order for conditional or absolute discharge made in
respect of a person under the age of 16 years under the Young Offenders
Act 1950.

Presentence report
70D (1) Before imposing a condition under section 70B(a), (d) or (e)
the court must have before it a presentence report prepared by a
probation officer, which has addressed the following—

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(a) the offender's circumstances;

(b) the feasibility of securing compliance with the relevant
condition;

(c) where participation in any programme or activities
would involve the co-operation of a person other than
the offender and the probation officer who is responsible
for his supervision, that person's written consent to the
inclusion of the offender in the programme or activities;

(2) Where the court orders a presentence report and the court
is considering the making of a probation order containing a condition
that the offender participate in a treatment or rehabilitation programme
for alcohol or drug abuse, the court may order at the time when a
presentence report is requested that the offender undergo an assessment
by a qualified person of the suitability of the offender for such
programme.

Appointment, functions etc of probation officers
70E (1) The Governor may appoint such number of probation
officers as may appear to him to be necessary.

(2) A probation officer shall have the powers and discharge the
duties conferred or imposed on a probation officer under this Act or any
other enactment and, in particular, it shall be the duty of a probation
officer—

(a) to supervise, having regard to the requirements of the
probation orders made in their respective cases, the
offenders placed under his supervision;

(b) to advise and assist them;

(c) to inquire, without prejudice to any special directions
that may be given by the court, into the circumstances
and past and present environment of any accused or
convicted person, with the view to assisting the court in
determining the most suitable way of dealing with his
case;

(d) to assist the court by which a probation order was made
in determining how best to exercise its powers in relation
to the offender; and

(e) to advise and assist offenders who, on release from
custody, have been placed under his supervision.

(3) It shall be the duty of the Director, subject to any general or
special directions given to him by the responsible Minister, to provide for
the efficient carrying out of the work of probation officers and to review
the work of probation officers in individual cases.

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(4) The probation officer who is to be responsible for the
supervision of an offender shall be selected under arrangements made by
the Director from among the available probation officers; and, if the
probation officer so selected dies or is unable for any reason to carry out
his or her duties, or if the Director thinks it desirable that another
probation officer should take his or her place, then another probation
officer shall be selected in like manner from among the available
probation officers.

(5) In this section "the Director" means the public officer
responsible for probation services.

FINES

Fines
70F (1) Subject to subsection (2), a court that convicts a person,
other than a corporation, of an offence may fine the offender in addition
to or in lieu of any other sanction that the court is authorized to impose.

(2) In fixing the amount of any fine to be imposed on an
offender, the court shall take into consideration the means and
responsibilities of the offender so far as they appear or are known to the
court.

(3) Where the court is of the opinion that the offender is unable
to pay a fine, it shall determine whether the offender would be a suitable
candidate to perform community service as a condition of a probation
order.

(4) All or any part of a fine imposed under this section may be
taken out of moneys found in the possession of the offender at the time
of the arrest of the offender if the court making the order, on being
satisfied that ownership of or right to possession of those moneys is not
disputed by claimants other than the offender, so directs.

(5) A court that fines an offender under subsection (1) may
order that the fine be paid by instalments at stipulated times or may
allow the offender time to pay the fine and, on the application of the
offender, may extend the time for payment of the fine.

(6) In the absence of an order under subsection (5) the fine
shall be due and payable on the twenty-eighth day after the order was
made.

(7) The court may secure the payment of the fine by imposing
such terms as the court thinks appropriate.

(8) If the fine is not paid within the time by which the fine or
any portion thereof fails to be paid under this section the fine may be
enforced⎯

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18



(a) in the case of a fine imposed by the Supreme Court, as a
civil debt owed to the Crown; or

(b) in the case of a fine imposed by a court of summary
jurisdiction, as a civil debt owed to the Crown or
pursuant to section 30 of the Summary Jurisdiction Act
1930.

and in either case the court may provide for payment of the fine by
garnishment or attachment of the offender's wages.

Fines on corporations
70G (1) A corporation that is convicted of an offence is liable, in lieu
of any imprisonment that is prescribed as punishment for that offence,
to be fined in an amount, except where otherwise provided by law—

(a) that is in the discretion of the court, where the offence is
an indictable offence; or

(b) not exceeding $20,000, where the offence is a summary
offence.

RESTITUTION AND REPARATION

Restitution
70H (1) Where an offender—

(a) deprives a person of property of which that person was
in possession; and

(b) is in possession of the property,

the court may order the offender to restore the property to the person
who was in possession of it immediately before the commission of the
offence.

(2) The court may enforce an order for restitution by—

(a) imposing it as a condition in a probation order; or

(b) by suspending the passing of sentence to allow the
property to be restored before sentencing.

Reparation
70I (1) Where an offender is convicted or discharged, the court
imposing sentence on or discharging the offender may, in the case of
damage to or the loss or destruction of property of any person as a result
of the commission of an offence or the arrest or attempted arrest of the
offender, make a reparation order requiring the offender to pay that
person an amount not exceeding the replacement value of the property at
the date the order is imposed less the value of any part of the property
that is returned to that person at the date it is returned.

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19



(2) Where bodily harm is caused to any person as a result of
the commission of an offence or the arrest or attempted arrest of the
offender, the court may make a reparation order requiring the offender,
to pay to that person out of pocket expenses directly incurred as a result
of the bodily harm.

(3) Where the amount of reparation under subsection (1) or (2)
is not readily ascertainable, the court may adjourn the proceedings and
order a probation officer or any other person designated by the court for
the purpose to prepare a report to determine—

(a) the loss or damage;

(b) the means of the offender;

(c) the nature and extent of the offender's existing financial
obligations;

(d) the maximum amount the offender is likely to be able to
pay under a sentence to make reparation; and

(e) where payment by instalments is considered
appropriate, the frequency and magnitude of any
payments that would be required to make reparation.

(4) The court may make an order attaching any salary, wages
or other monies that may become due and payable to the offender.

(5) An order for reparation under subsection (1) or (2) may be
enforced as a condition of probation.

(6) Where the court decides not to include a reparation order as
a condition of probation, the person who suffered the loss or damage or
bodily injury ("victim"), after the time has expired under the reparation
order for the offender to pay, may apply to the court for enforcement of
the reparation order.

(7) On receipt of an application under subsection (6) the court
shall cause a summons to be issued for the appearance of the offender
and the victim shall be notified of the hearing date.

(8) Upon the appearance of the offender the court shall enquire
into—

(a) the reasons why the reparation order was not complied
with; and

(b) the offender's present ability to pay the balance of the
reparation order.

(9) The court may impose such new terms for the payment of
the reparation as it considers necessary to secure payment of the
balance owing under the reparation order.

(10) Where—

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20



(a) the court—

(i) finds it appropriate in the circumstances to make an
order for reparation in relation to an offender,

(ii) is also considering an order to require the offender
to pay a fine; and

(b) it appears to the court that the offender would not have
the means or ability to comply with both an order for
reparation and an order to pay the fine,

the court shall first make the order of reparation and shall then consider
whether and to what extent an order to pay a fine is appropriate in the
circumstances.

(11) Where both reparation and a fine are ordered, payments will
be applied first to reparation and secondly towards the fine.

(12) All or any part of any amount that is ordered to be paid by
way of reparation under subsection (1) or (2) may be taken out of monies
found in the possession of the offender at the time of his arrest if the
court is satisfied that ownership of or right to possession of those
moneys is not disputed by claimants other than the offender.

(13) Nothing in this section affects the right of any person to
recover compensation under the Criminal Injuries (Compensation) Act
1973 or by civil proceedings for damages.

IMPRISONMENT

Calculation of terms of imprisonment
70J (1) Subject to this section, a sentence of imprisonment passed
by the Supreme Court or a court of summary jurisdiction shall, unless
the court otherwise directs, have effect from and include the day on
which it was passed.

(2) Where a person who is undergoing, or has been sentenced
to undergo, imprisonment for an offence, is convicted of another offence,
any sentence of imprisonment imposed on him for that other offence
shall, unless the court otherwise directs, take effect from the time when
the offender would otherwise be released from prison under the previous
sentence of imprisonment.

(3) Where a person sentenced to imprisonment by a court of
summary jurisdiction appeals against his conviction or sentence to the
Supreme Court, the period of time spent by him in prison under that
sentence before the determination or abandonment of his appeal shall,
unless the Supreme Court otherwise orders, be deducted from the term
of imprisonment (if any) which he is required to serve by virtue of the
determination of the appeal.

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21



Suspended sentence of imprisonment
70K (1) If a court sentences an offender to imprisonment for 5 years
or less it may order that the term of imprisonment be suspended in
whole or in part during the period specified in the order ("the operational
period"), which period shall not exceed 5 years, if the court is satisfied
that it is appropriate to do so in the circumstances.

(2) A court shall not make an order under subsection (1) if it
would not have sentenced the offender to imprisonment in the absence of
power to make an order suspending the sentence.

(3) Before making an order under subsection (1) the court shall
explain to the offender in ordinary language his liability under
subsection (5) if during the operational period he commits in Bermuda
an offence for which he is sentenced to imprisonment.

(4) A court making an order under subsection (1) shall specify
a suspended sentence that corresponds in length to the sentence of
imprisonment that it would have imposed in the absence of power to
make an order suspending the sentence.

(5) Where an offender whose term of imprisonment has been
suspended under this section is convicted of a further offence which is
committed during the operational period and for which he is sentenced
to imprisonment, the court which sentences the offender for the further
offence shall order that the suspended sentence shall take effect unless
it is of the opinion that it is unjust to do so in view of all the
circumstances which have arisen since the suspended sentence was
imposed, including the further offence.

(6) Where a court decides under subsection (5) that it would be
unjust for a suspended sentence to take effect, the court shall—

(a) order that the suspended sentence—

(i) take effect with a substitution of a lesser term of
imprisonment; or

(ii) be cancelled and be replaced by any non-custodial
sentence that could have been imposed on the
offender at the time when the offender was convicted
of the offence for which the suspended sentence was
imposed; or

(b) decline to make any order referred to in paragraph (a)
concerning the suspended sentence.

(7) Where pursuant to subsection (5) or subsection (6) a court
orders that the suspended sentence shall take effect, the sentence shall
commence on the date of the making of that order.

(8) Where a court imposes a suspended sentence for one
offence, the court may also impose suspended sentences under

CRIMINAL CODE AMENDMENT ACT 2001


22



subsection (1) for other offences for which the offender has appeared for
sentence, so long as the total period of all suspended sentences to which
the offender is subject does not exceed 5 years from the date of the
commencement of the first such sentence, and, where two or more
suspended sentences are imposed on an offender, the sentences shall be
served concurrently.

(9) For the purposes of any Act conferring rights of appeal in
criminal cases any order made by a court under this section shall be
treated as a sentence passed on the offender by that court for the offence
for which the suspended sentence was passed.

Intermittent sentences
70L (1) Where the court imposes a sentence of imprisonment of 90
days or less on an offender convicted of an offence, the court may, having
regard to—

(a) the age and character of the offender;

(b) the nature of the offence and the circumstances
surrounding its commission; and

(c) the availability of the appropriate accommodation to
ensure compliance with the sentence,

order—

(d) that the sentence be served intermittently at such time
as is specified in the order; and

(e) that the offender comply with conditions in a probation
order when not in confinement during the period that
the sentence is being served and, if the court so orders,
on release from prison after completing the intermittent
sentence.

(2) An offender who is ordered to serve a sentence of
imprisonment intermittently may, on giving notice to the prosecutor,
apply to the court that imposed the sentence to allow it to be served on
consecutive days.

(3) Where a court imposes a sentence of imprisonment on a
person who is subject to an intermittent sentence in respect of another
offence, the unexpired portion of the intermittent sentence shall be
served on consecutive days unless the court otherwise orders.

Effect of escape on punishment
70M A person undergoing a sentence of imprisonment who escapes
from lawful custody is liable on recapture to undergo the punishment
which he was undergoing at the time of his escape for a period equal to
that during which he was absent from prison after his escape and before

CRIMINAL CODE AMENDMENT ACT 2001



23



the expiration of the term of his sentence, whether that term has or has
not expired at the time of his recapture.

TRAINING, EDUCATIONAL AND REHABILITATION
PROGRAMMES IN PRISON

Prison programmes
70N (1) Where the court, on sentencing an offender to a period of
imprisonment of not less than 12 months, is satisfied that⎯

(a) a specified training, educational or rehabilitation
programme that is relevant to the needs of the offender
can be provided in prison; and

(b) the report of a qualified person, who has conducted an
assessment of the offender, indicates that he would be
suitable for enrolment in the specified programme,

the court may by order direct the Commissioner of Prisons to offer the
specified programme to the offender.

(2) Where a specified programme has been offered by the
Commissioner of Prisons to an offender⎯

(a) if the offender completes the programme and complies
with all the requirements of the programme to the
satisfaction of the Commissioner of Prisons, he shall be
entitled to make an immediate application for release on
licence;

(b) if the offender fails to complete the programme or fails to
comply with all the requirements of the programme to
the satisfaction of the Commissioner of Prisons, he shall
not be entitled to apply for release on licence under
section 70P after serving one-third of his sentence.

(3) Before making an order under subsection (1) the court shall
explain to the offender in ordinary language the effect of subsection (2).

(4) In this section "qualified person" means a person approved
by the Minister of Health and Family Services as qualified to conduct an
assessment under this section.

PAROLE

Life sentences
70O Any person who is sentenced to life imprisonment for an offence
for which no minimum period of imprisonment is provided before he is
eligible for release on licence shall serve at least 15 years of his
imprisonment before any application for his release on licence may be
entertained or granted by the Parole Board.

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24



Eligibility for parole generally
70P (1) Subject to section 70N, where no minimum period of
imprisonment is provided before a person can apply for his release on
licence a person must serve at least one-third of the term of
imprisonment before any application for his release on licence may be
entertained or granted by the Parole Board in the absence of an order
made under subsection (3).

(2) Subsection (1) applies where the sentence was imposed
before, on or after the date on which this section comes into operation.

(3) Notwithstanding subsection (1), where an offender receives
a sentence of imprisonment for two years or more on conviction on
indictment, the court, may, if satisfied, having regard to—

(a) the circumstances of the commission of the offence; and

(b) the character and circumstances of the offender,

that the expression of society's denunciation of the offence or the
objective of specific or general deterrence so requires, order that the
portion of the sentence that must be served before the offender may be
released on licence is one-half of the sentence or 10 years, whichever is
less.

Eligibility for parole, persons under 18 convicted of murder
70Q Notwithstanding sections 286A and 288 of this Act, where an
offender who was under the age of 18 years at the time of the
commission of the offence is convicted of premeditated murder or murder
and is sentenced to imprisonment for life, the offender shall not be
eligible for release on licence until he has served—

(a) 10 years, in the case of a person convicted of
premeditated murder who was 16 or 17 years of age at
the time of the commission of the offence; and

(b) 7 years, in the case of a person convicted of murder who
was 16 or 17 years of age at the time of the commission
of the offence.".

Amendment of section 71A of principal Act
4 Section 71A(2) of the principal Act is amended by deleting
the words "be less than forty nor more than two hundred and forty" and
substituting the words "exceed 1000".

Amendment of section 71B of principal Act
5 Section 71B of the principal Act is amended⎯

(a) by deleting the words "of Social Services" wherever they
appear;

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25



(b) in subsection (2), by deleting the word "twelve" and
substituting the word "eighteen";

(c) by adding the following as subsection (4)⎯

"(4) In this section and section 71D "Director" means
the public officer responsible for probation services.".

Amendment of section 71D of principal Act
6 Section 71D(1) of the principal Act is amended⎯

(a) by deleting the words "of Social Services";

(b) by deleting the word "twelve" and substituting the word
"eighteen".

Amendment of section 463 of principal Act
7 Section 463(2) of the principal Act is amended by deleting
the words "imprisonment or preventive detention" and substituting the
words "or imprisonment".

Repeal of section 551 of principal Act
8 Section 551 of the principal Act is repealed.

Amendment of section 552 of principal Act
9 Section 552 of the principal Act is amended⎯

(a) in subsection (1), by deleting the words "to be sentenced
to preventive detention or"

(b) in subsection (2), by deleting the words "has previously
been sentenced to preventive detention or (as the case
may be)".

(c) in the heading thereto, by deleting the words "to
imposing sentence of preventive detention or".

Repeal of sections 557 to 562 of principal Act
10 Sections 557 to 562 of the principal Act are repealed.

Consequential amendments
11 (1) The provisions of the enactments specified in column 1
of the Schedule and described in column 2 of the Schedule are amended
in the manner specified in column 3 of the Schedule.

(2) The Young Offenders Act 1950 is amended by inserting
the following as section 5⎯

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26



"Detention during Her Majesty's pleasure
5 Where a child or young person is convicted of
premeditated murder or murder, the court may sentence
the offender to be detained in a secure facility during
Her Majesty's pleasure and he shall be detained in that
facilty under such conditions as the Governor may
direct.".

Commencement
12 This Act comes into operation on such date as the Minister
responsible for probation services may appoint by notice published in the
Gazette.

CRIMINAL CODE AMENDMENT ACT 2001



27



SCHEDULE (section 9)
CONSEQUENTIAL AMENDMENTS



COLUMN 1
ENACTMENT AND
PROVISIONS THEREOF

COLUMN 2
DESCRIPTION OF
SUBJECT MATTER

COLUMN 3
AMENDMENT

Court of Appeal Act 1964

section 20(1)(b) and (2) Effect of notice of
appeal

Delete "preventive
detention,"

Criminal Appeal Act 1952

section 1(1) "compensation order"
definition

Delete "being a
compensation order
within the meaning of
section 560" and
substitute "being a
reparation order within
the meaning of section
70I".

"restitution order"
definition

Delete "section 562" and
substitute "section 70H".

section 11(2)(d)(i) Effect of notice of
appeal

Delete "section 56(2)"
and substitute "section
70J(3)".

Interpretation Act 1951

section 4(2) Definitions Delete the entry defining
"preventive detention".

Motor Car Act 1951

section 90(1)(b) Cancellation of licence Delete "or has been
sentenced to a term of
preventive detention".

CRIMINAL CODE AMENDMENT ACT 2001


28



Municipalities Act 1923

section 18(2)(b) and First
Schedule paragraph 4(1)(c)(iii)
and Form D paragraph 2(d)

Disqualification for
election

Delete "or preventive
detention".

Parliamentary Election
Rules 1979



First Schedule PART II
paragraph (e)

Election forms Delete ",preventive
detention".

Pensions and Gratuities
(War Service) Act 1947



section 25(1) suspension of payment
during imprisonment

Delete "or to a term of
preventive detention,"
",or as the case may be,
of his preventive
detention" and "or
preventive detention".

section 25(2) Delete "or, as the case
may be, of preventive
detention,".

Prisons Act 1979

section 1(1) "probation officer"
definition

Delete "section 66" and
substitute "section 70E".

section 7(3) Prison rules Delete "or of preventive
detention".

section 8(2)(b) Classes of prisoners Delete

section 9(3)(b) Functions of Parole
Board

Delete

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29



section 12(1) Release on licence Delete "one-half of his
adjudged term of
imprisonment or a
period of twelve months,
whichever is the greater,
be released on licence
under this section" and
substitute" one-third of
his adjudged term of
imprisonment, be
released on licence
under this section, but
the provisions of this
section are subject to
section 70P of the
Criminal Code".

section 12(2) Release on licence Delete "or a term of
preventive detention".

section 14 Preventive detention Delete

section 15(3) and (4) Release on grounds of
ill-health

Delete "or of preventive
detention".

section 19(1) and (2) Persons unlawfully at
large

Delete "or to preventive
detention".

section 19(2) Delete "or preventive
detention".

Prison Rules 1980

rule 11(2) Personal record Delete "or to a term of
preventive detention".

rule 62 Assistance after
discharge

Delete "or preventive
detention".

rule 76 Preventive inoculation Delete "or of preventive
detention".

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30



rule 83 Medical report Delete "or (as the case
may be) for preventive
detention".

rule 100 Separation of
prisoners

Delete "or preventive
detention".

rule 118 Application of rules Delete "or preventive
detention".

rules 137 to 146 Preventive detention Delete

rules 166(1)(a) Release on licence Delete "at the expiration
of twelve months from
the date of the sentence;
then on the expiration of
four years from the date
of the sentence and at
the end of every four
years thereafter" and
substitute "when such
prisoner first becomes
eligible for release on
licence under the
Criminal Code and
thereafter at intervals of
12 months".

rule 166(1)(b) Release on licence Delete "one-half" and
substitute "one-third".

Prisoner's Payment for
Work in Prison Order 1980



paragraph 2(a)(ii) Rates of pay Delete

Rehabilitation of Offenders
Act 1977



section 3(d) Sentences excluded
from rehabilitation

Delete

CRIMINAL CODE AMENDMENT ACT 2001



31



Young Offenders Act 1950

section 2(1) "probation officer"
definition

Delete "section 66" and
substitute "section 70E".

section 16(d) Powers on conviction Delete "section 560" and
substitute "section 70I".