Landmark legislation that the PLP Government hopes will ultimately restore balance in Bermuda?s sentencing regime was passed in the Senate yesterday.

The Criminal Code Amendment Act 2005 was introduced into the House of Assembly upon the closure of the last session of the Legislature.

PLP Senator Reginald Burrows said the earlier Criminal Code Amendment Act 2001 changed the basic sentencing philosophy directing the Bermuda courts away from a punitive regime to one that was based upon restorative justice and rehabilitation.

He said incarceration became, in law, the sentence of last resort after consideration of a number of alternatives.

?What the Criminal Code Amendment Act 2001 does do is require that the court consider the range and appropriateness of alternatives before passing a custodial sentence,? he said.

The Criminal Code Amendment Act 2001 provided the legal underpinning for the Alternatives to Incarceration initiative that has been adopted and promoted for the past six years.

He said the Government recognised that some offenders had difficulty in changing their offending behaviour and that some took much longer than others in changing their offending behaviour.

Mr. Burrows said Government also accepted that some offenders, albeit very few, would never change their offending behaviour and that the general public needed and deserved protection from such individuals.

?In these instances, incarceration, whatever its length, is the appropriate option,? he said.

He said that the change in sentencing philosophy inherent in the Criminal Code Amendment Act 2001 marked the first such change in many years.

?The people of Bermuda generally will readily appreciate that when a process undergoes such radical change, there is often a subsequent need to modify the legislation based on the practical experience that follows and our experiences, that is, the experiences of the Bermuda Police Service and the Department of Court Services in particular, have led to the realisation that the Criminal Code Amendment Act 2001 required modification in selected areas,? he said.

He said the Bill would remove an unanticipated difficulty in the administration of probation orders.

?During recent years the Bermuda Police Service and the Department of Court Services have experienced major problems administering the Criminal Code Amendment Act 2001 with respect to breaches of probation orders.?

?Specifically, the Police and Court Services have encountered considerable difficulty in bringing offenders who breach the conditions of their probation back before the Courts,? he said.

He added that these delays were unacceptable as they presented the opportunity for offenders to re-offend before they were dealt with by the court.

?The Bermuda Police Service and the Department of Court Services are able to cite a number of examples where, after the Department of Court Services has initiated proceedings for breach of probation, the offenders concerned have committed more serious offences, including attempted murder, during the lengthy interim period,? he said.

Mr. Burrows said The Criminal Code Amendment Act 2005 will address this problem and restore balance in our sentencing regime.

Under the current law, a person who breaches a probation order is liable to be prosecuted for the breach by way of a new criminal offence.

This provision requires the Police to conduct an investigation, produce a file and present it to the Director of Public Prosecutions with a recommendation for prosecution.

Mr. Burrows said the Minister of Labour, Home Affairs and Public Safety has been advised that the preparation of breach files as a separate new offence is time-consuming and that it relies upon certified documentary evidence from the courts to prove the existence of the order.

He said the Bill would enable the court that ordered the probation to deal with the breach, without the need for the person concerned to be separately prosecuted for that breach.

In essence, trained probation officers, who provide the community-based supervision of offenders, will be able to lay the information before the courts expediently and for timely resolution by the courts.

?The amendment provisions will promote the protection of the community and allow offenders to be held strictly accountable,? he said.

Mr. Burrows said the Bill would also improve the provisions dealing with probation by removing reference to the courts? ability to suspend the passing of a sentence when putting in place a probation order.

He said the current provision in this regard had proven to be ambiguous and unnecessary in the Bermuda context, as there was no clarity around just what was suspended.

?In making distinct supervision orders or separate orders for suspended sentences, it will now be clear as to what is expected and the sentences can then be enforced accordingly,? he said.

Mr. Burrows said the current probation regime allows a combination order to be made by the court that allows a sentence of imprisonment up to two years followed by probation of up to five years.

He added that the old term of imprisonment of two years has proven to be too short to enable the probationer to receive the proper punishment, treatment, courses and preparation for entry to probation on release from prison.

?The Bill amends the initial period of imprisonment for a combination order from two years to five years.Therefore, a court will be able to sentence an offender to up to five years imprisonment, recommending appropriate treatment during that period, followed by a period of probation with conditions. Thus, the offender will be under constant supervision during the entire period of his or her sentence, a circumstance that should allow for a successful re-entry into the community with, very importantly, a diminished chance of re-offending,? he said.

He said it was equally important for the Department of Corrections and the Department of Court Services to have in place a range of programmes ? counselling, therapeutic, anger management, vocational, educational and the like ? that will assist the offender in improving his attitude and behaviour.

He assured the Senate that the required funding would be provided to ensure the availability of the required programmes.

Mr. Burrows added that discussion were currently underway between the Department of Education, Westgate and the Bermuda College to implement programmes for inmates to attend College courses.