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PARLIAMENT OF VICTORIA
Justice Legislation Amendment (Unlawful
Association and Criminal Appeals) Bill 2018
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
Part 2--Unlawful association amendments 3
3 Definitions 3
4 Description of offences in Schedules 1 and 2 8
5 Association with individuals convicted of serious criminal
offences prohibited 8
6 Lawful association authority 10
7 Section 124D substituted 10
8 Further related unlawful association notices 13
9 Content of unlawful association notices 13
10 New section 124FA inserted 14
11 Section 124H substituted 15
12 Service of unlawful association notice 15
13 Amendment of unlawful association notice to correct clerical
errors or obvious defects 16
14 Revocation of unlawful association notice 16
15 Definitions 16
16 Application for internal review 16
17 Decision on internal review 16
18 Amendment of unlawful association notice following review 17
19 New Division 4 of Part 5A inserted 17
20 Review of Act 27
21 Heading to Schedule substituted and minor amendment to
section reference in Schedule 28
22 New Schedule 2 inserted 28
Part 3--Criminal appeal amendments 35
Division 1--Amendment of Children, Youth and Families Act 2005 35
23 Section 328 repealed 35
24 Appeals to be heard in open court 35
25 Proceedings for breach of sentence 35
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Clause Page
26 New Division 1AA of Part 5.4 inserted 35
27 Division 1 of Part 5.4 substituted 36
28 Determination of DPP appeal 46
29 Stay of sentence 49
30 Bail pending appeal 51
31 New sections 430BA to 430BE inserted 51
32 New section 430CA inserted 56
33 Appellant's failure to appear 59
34 New sections 430EA and 430EB inserted 59
35 New section 430GA inserted 61
36 Divisions 6 and 7 of Part 5.4 repealed 62
37 Statute law revision 62
38 New section 640 inserted 63
Division 2--Amendment of Criminal Procedure Act 2009 64
39 New Division 1AA of Part 6.1 inserted 64
40 Division 1 of Part 6.1 substituted 64
41 Determination of DPP's appeal 77
42 Stay of sentence 80
43 Bail pending appeal 81
44 New sections 265A to 265E inserted 82
45 New section 266A inserted 87
46 Appellant's failure to appear 89
47 New sections 268A and 268B inserted 89
48 Appeal to County Court authorised by other Acts 91
49 New section 271A inserted 91
50 Sections 283 to 286 repealed 92
51 Consequential amendments--cross-references 93
52 Consequential amendments--references to appellate courts 93
53 New section 453 inserted 95
Part 4--Repeal of amending Act 97
54 Repeal of amending Act 97
═════════════
Endnotes 98
1 General information 98
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PARLIAMENT OF VICTORIA
Introduced in the Assembly
Justice Legislation Amendment
(Unlawful Association and Criminal
Appeals) Bill 2018
A Bill for an Act to amend the Criminal Organisations
Control Act 2012 to make further provision in relation to the
prohibition of individuals associating with individuals convicted
of serious criminal offences for the purpose of preventing the
commission of offences and to provide for IBAC oversight in
relation to the issue of unlawful association notices by police
officers and to amend the Children, Youth and Families
Act 2005 and the Criminal Procedure Act 2009 in relation
to criminal appeals and for other purposes.
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to amend the Criminal Organisations
5 Control Act 2012--
(i) to make further provision in relation
to the prohibition of individuals
associating with individuals convicted
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Part 1--Preliminary
of serious criminal offences for the
purpose of preventing the commission
of offences; and
(ii) to provide for IBAC oversight in
5 relation to the issue of unlawful
association notices by police officers;
and
(b) to amend the following Acts in relation to
criminal appeals--
10 (i) the Children, Youth and Families
Act 2005;
(ii) the Criminal Procedure Act 2009.
2 Commencement
(1) Subject to subsection (2), this Act comes into
15 operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 2 March 2020, it comes into
operation on that day.
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3 Definitions
In section 3(1) of the Criminal Organisations
Control Act 2012--
5 (a) insert the following definitions--
"Aboriginal person means a person who--
(a) is descended from an Aborigine or
Torres Strait Islander; and
(b) identifies as an Aborigine or
10 Torres Strait Islander; and
(c) is accepted as an Aborigine or
Torres Strait Islander by an
Aboriginal or Torres Strait
Islander community;
15 applicable proceeding, process or action
means--
(a) any legal proceeding other than a
criminal proceeding; or
(b) any proceeding, other than a
20 criminal proceeding, of any
tribunal, authority or person
having power to require the
production of documents or the
answering of questions, other than
25 the Victorian Inspectorate; or
(c) any disciplinary process or action;
authorised IBAC Officer means an
IBAC Officer that is authorised
under section 124ZE(4);
30 breach of discipline has the same meaning
as in the Victoria Police Act 2013;
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Commission for Children and Young
People means the Commission
established by section 6 of the
Commission for Children and
5 Young People Act 2012;
disciplinary process or action has the
same meaning as in the Independent
Broad-based Anti-corruption
Commission Act 2011;
10 domestic partner has the meaning given
by section 9 of the Family Violence
Protection Act 2008;
IBAC Commissioner has the same
meaning as Commissioner has in
15 the Independent Broad-based
Anti-corruption Commission
Act 2011;
IBAC Ministerial report means a report
under section 124U;
20 IBAC Officer has the same meaning as in
the Independent Broad-based
Anti-corruption Commission
Act 2011;
issuing senior police officer means--
25 (a) for an unlawful association notice
issued in respect of an individual
who is 18 years old or older and
not a vulnerable person, a police
officer of or above the rank of
30 sergeant; or
(b) for an unlawful association notice
issued in respect of a vulnerable
person, a police officer of or
above the rank of senior sergeant;
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member of Victoria Police personnel has the
same meaning as in the Victoria Police
Act 2013;
protected person has the same meaning
5 as in section 45 of the Independent
Broad-based Anti-corruption
Commission Act 2011;
relative has the meaning given by section 10
of the Family Violence Protection
10 Act 2008;
serious youth offence means--
(a) an offence specified in
Schedule 2; or
(b) an offence against section 321,
15 321G or 321M of the Crimes
Act 1958 in relation to an offence
specified in Part A of Schedule 2;
or
(c) an offence against a law of
20 another State, a Territory or
the Commonwealth which
corresponds to--
(i) an offence specified in
Part A of Schedule 2; or
25 (ii) an offence against
section 321, 321G
or 321M of the Crimes
Act 1958 in relation to
an offence against a
30 law of the other State,
the Territory or the
Commonwealth, which
corresponds to an offence
specified in Part A of
35 Schedule 2; or
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(d) an offence against a law of
another State or a Territory
which corresponds to an offence
specified in Part B of Schedule 2;
5 spouse has the same meaning as in the
Family Violence Protection Act 2008;
Victorian Inspectorate has the same
meaning as in the Victorian
Inspectorate Act 2011;
10 vulnerable person means an individual
who--
(a) has a cognitive, physical or mental
health impairment that causes the
individual to have difficulty
15 understanding their rights; or
(b) is an Aboriginal person; or
(c) is an individual who is 14 years
old or older but less than 18 years
old.";
20 (b) in the definition of applicable offence--
(i) in paragraph (b), for "the Schedule"
substitute "Schedule 1";
(ii) in paragraph (c), after "(b);" insert
"or";
25 (iii) after paragraph (c) insert--
"(d) an indictable offence committed
against a law of another State, a
Territory or the Commonwealth
that is punishable by at least
30 5 years imprisonment; or
(e) an offence against a law of
another State, a Territory or
the Commonwealth which
corresponds to--
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(i) an offence against a
provision specified in an
item of Schedule 1, being
a provision of the Act
5 specified in the heading
to that item; or
(ii) an offence against section
321, 321G or 321M of the
Crimes Act 1958 in relation
10 to an offence against a law of
the other State, the Territory
or the Commonwealth,
which corresponds to an
offence referred to in
15 paragraph (a) or (b);";
(c) in the definition of associate with, at the foot
of paragraph (b) insert--
"Example
An example of an electronic communication is
20 communication through social media.";
(d) for the definition of convicted offender
substitute--
"convicted offender means an individual
referred to in section 124D(1)(a)
25 or (b);";
(e) the definition of family member is repealed;
(f) for the definition of senior police officer
substitute--
"senior police officer means a police officer
30 of or above the rank of sergeant;";
(g) in the definition of Victoria Police, for
"2013." substitute "2013;".
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4 Description of offences in Schedules 1 and 2
(1) In the heading to section 10 of the Criminal
Organisations Control Act 2012, for "the
Schedule" substitute "Schedules 1 and 2".
5 (2) In section 10 of the Criminal Organisations
Control Act 2012, for "the Schedule" substitute
"Schedules 1 and 2".
5 Association with individuals convicted of serious
criminal offences prohibited
10 (1) For section 124A(1) of the Criminal
Organisations Control Act 2012 substitute--
"(1) An individual served an unlawful association
notice commits an offence if, before that
service, the individual associated with any
15 2 or more named convicted offenders on
one or more occasions at the same time or
separately, and after that service, associates
with any 2 or more named convicted
offenders on one occasion at the same time
20 or separately.
(1A) An individual served an unlawful association
notice commits an offence if, after that
service, the individual associates with any
2 or more named convicted offenders on 2 or
25 more occasions at the same time or
separately.
(1B) An individual who commits an offence
against subsection (1) or (1A) is liable to a
term of imprisonment not exceeding 3 years
30 or a fine not exceeding 360 penalty units, or
both.".
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(2) For section 124A(3) of the Criminal
Organisations Control Act 2012 substitute--
"(3) It is a defence to a charge for an offence
against subsection (1) or (1A) if the
5 individual served an unlawful association
notice associates with 2 or more named
convicted offenders on an occasion as set
out in either of those subsections and--
(a) the named convicted offenders are a
10 relative, spouse or domestic partner of
the individual; and
(b) the individual and the named convicted
offenders associate for a purpose
that is not an ulterior purpose.".
15 (3) In section 124A(4) of the Criminal
Organisations Control Act 2012--
(a) for "Subsection (1) does not apply if the
individual served an unlawful association
notice associates with the specified
20 individual on an occasion as set out in that
subsection" substitute "It is a defence to a
charge for an offence against subsection (1)
or (1A) if the individual served an unlawful
association notice associates with 2 or more
25 named convicted offenders on an occasion as
set out in either of those subsections";
(b) in paragraphs (c) and (d), for "either or both
of them" substitute "the individual and the
named convicted offenders";
30 (c) after paragraph (f) insert--
"(fa) if the individual served an unlawful
association notice is a parent of a child
and the other parent of the child is a
named convicted offender, for the
35 purpose of managing the parental
responsibilities of the child;".
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(4) In section 124A(5) of the Criminal
Organisations Control Act 2012 insert
the following definitions--
"named convicted offender, in relation to an
5 individual served an unlawful association
notice, means a convicted offender specified
in any unlawful association notice served on
the individual that is in effect;".
parent, in relation to a child, has the same
10 meaning as in the Children, Youth and
Families Act 2005;
parental responsibility, in relation to a child, has
the same meaning as in the Children, Youth
and Families Act 2005;".
15 6 Lawful association authority
(1) In section 124B(1) of the Criminal
Organisations Control Act 2012, for
"an individual specified in that notice (the
specified individual)" substitute "a convicted
20 offender specified in that notice (the specified
convicted offender)".
(2) In section 124B(2)(c), (d) and (e) of the Criminal
Organisations Control Act 2012, for "specified
individual" substitute "specified convicted
25 offender".
7 Section 124D substituted
For section 124D of the Criminal Organisations
Control Act 2012 substitute--
"124D Issue of unlawful association notice
30 (1) Subject to this section, a senior police officer
may issue an unlawful association notice in
respect of an individual who is 14 years
old or older if the senior police officer
reasonably believes that the individual has,
35 on at least one occasion, associated with--
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(a) an individual who--
(i) is 18 years old or older; and
(ii) has been convicted of an
applicable offence; or
5 (b) an individual who--
(i) is 14 years old or older but less
than 18 years old; and
(ii) has been convicted of a serious
youth offence.
10 (2) For the purposes of subsection (1)--
(a) an individual convicted of an applicable
offence or a serious youth offence
includes an individual convicted of
such an offence before the
15 commencement of section 5 of the
Justice Legislation Amendment
(Unlawful Association and Criminal
Appeals) Act 2018; and
(b) any association with a convicted
20 offender by the individual on whom
the notice will be served includes an
association with the convicted offender
before the commencement of that
section.
25 (3) A senior police officer, of the rank of
sergeant, must not issue an unlawful
association notice in respect of an individual
if the senior police officer is of the opinion
that the individual is a vulnerable person.
30 (4) A senior police officer, of or above the rank
of senior sergeant, must not issue an
unlawful association notice in respect of an
individual that is specified to be in effect for
3 years after the date it is issued if the senior
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police officer is of the opinion that the
individual is a vulnerable person.
Note
For the duration of unlawful association notices--
5 see section 124H.
(5) For the purposes of subsections (3) and (4),
the senior police officer may be of the
opinion that the individual is a vulnerable
person on the basis of the individual having
10 a cognitive, physical or mental health
impairment, even if the senior police officer
cannot identify the particular impairment.
(6) For the purposes of subsections (3) and (4),
the senior police officer must have regard to
15 any response of an individual that the senior
police officer is aware of, if the individual is
asked whether they are an Aboriginal person.
Note
An Aboriginal person is a vulnerable person--see
20 paragraph (b) of the definition of vulnerable person
in section 3(1).
(7) An unlawful association notice issued under
subsection (1) must specify every convicted
offender to which that subsection applies as
25 an individual with whom the individual
served the notice must not associate.
(8) A senior police officer must not issue an
unlawful association notice under subsection
(1) if the last conviction of a convicted
30 offender referred to in subsection (1) for an
applicable offence or a serious youth offence
was more than 10 years before the date of
issue of the notice.
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(9) Subsection (8) does not apply if the
convicted offender was--
(a) sentenced to a term of imprisonment of
at least 6 months; or
5 (b) convicted of an applicable offence or a
serious youth offence that is a sexual
offence within the meaning of section
6B(1) of the Sentencing Act 1991.".
8 Further related unlawful association notices
10 (1) In section 124E(2) of the Criminal
Organisations Control Act 2012--
(a) for "a notice" substitute "an unlawful
association notice";
(b) for "each" substitute "every".
15 (2) For section 124E(4) of the Criminal
Organisations Control Act 2012 substitute--
"(4) An unlawful association notice issued under
subsection (2) must specify the individual in
respect of whom the initial notice was issued
20 as the individual with whom every convicted
offender issued a notice under this section
must not associate.".
(3) Section 124E(5) of the Criminal Organisations
Control Act 2012 is repealed.
25 9 Content of unlawful association notices
(1) In section 124F(a)(iii) of the Criminal
Organisations Control Act 2012, for "124D(3)"
substitute "124D(7)".
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(2) For section 124F(a)(v) of the Criminal
Organisations Control Act 2012 substitute--
"(v) that, unless sooner revoked, the notice
remains in effect for--
5 (A) 3 years after the date it is issued, if the
individual in respect of whom the
notice has been issued is not a
vulnerable person; or
(B) 12 months after the date it is issued, if
10 the individual in respect of whom the
notice has been issued is a vulnerable
person; and".
(3) In section 124F(b) of the Criminal
Organisations Control Act 2012--
15 (a) in subparagraph (ii), for "exceptions"
substitute "defences";
(b) in subparagraph (iv), for "authority."
substitute "authority; and";
(c) after subparagraph (iv) insert--
20 "(v) any other prescribed matter.".
10 New section 124FA inserted
After section 124F of the Criminal
Organisations Control Act 2012 insert--
"124FA Unlawful association notices not invalid in
25 certain circumstances
(1) This section applies to an unlawful
association notice issued in respect of an
individual who is a vulnerable person that--
(a) is specified to be in effect for 3 years
30 after the date it is issued; or
(b) is issued by a police officer of the rank
sergeant.
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(2) Despite this Part, an unlawful association
notice to which this section applies is not
invalid by reason only of a circumstance
specified in subsection (1).
5 (3) Despite this Part, unless sooner revoked
under section 124K or 124P, an unlawful
association notice to which this section
applies remains in effect for 3 years after it is
issued.
10 (4) Nothing in this section prevents
the individual from applying under
section 124M for internal review of the
decision to issue the unlawful association
notice to which this section applies.".
15 11 Section 124H substituted
For section 124H of the Criminal Organisations
Control Act 2012 substitute--
"124H Duration of unlawful association notice
Unless sooner revoked under section 124K
20 or 124P, an unlawful association notice
remains in effect for--
(a) 3 years after the notice is issued, if
the notice is issued in respect of an
individual who is not a vulnerable
25 person; or
(b) 12 months after the notice is issued, if
the notice is issued in respect of a
vulnerable person.".
12 Service of unlawful association notice
30 In section 124I of the Criminal Organisations
Control Act 2012, for "A" substitute
"An issuing".
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13 Amendment of unlawful association notice to
correct clerical errors or obvious defects
(1) In section 124J(1) of the Criminal Organisations
Control Act 2012, for "A" substitute
5 "An issuing".
(2) In section 124J(2) of the Criminal Organisations
Control Act 2012, after "The" insert "issuing".
14 Revocation of unlawful association notice
(1) In section 124K(1) of the Criminal
10 Organisations Control Act 2012, for "A"
substitute "An issuing".
(2) In section 124K(2)(c) of the Criminal
Organisations Control Act 2012, after "of the"
insert "issuing".
15 (3) In section 124K(3) of the Criminal
Organisations Control Act 2012, after "The"
insert "issuing".
15 Definitions
In section 124L of the Criminal Organisations
20 Control Act 2012, in the definition of reviewing
officer omit "senior".
16 Application for internal review
After section 124M(1)(a) of the Criminal
Organisations Control Act 2012 insert--
25 "(ab) a decision to issue an unlawful association
notice in respect of a vulnerable person;".
17 Decision on internal review
(1) In section 124N(1) of the Criminal
Organisations Control Act 2012, for "a senior
30 police officer" substitute "a police officer of or
above the rank of senior sergeant".
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(2) For section 124N(2)(b) of the Criminal
Organisations Control Act 2012 substitute--
"(b) must not be below the rank of the original
decision maker.".
5 18 Amendment of unlawful association notice following
review
In section 124O(4) of the Criminal
Organisations Control Act 2012, after "section"
insert ", unless the reviewing officer decides
10 under section 124N to amend the period of effect
of the unlawful association notice from 3 years to
12 months in respect of a vulnerable person".
19 New Division 4 of Part 5A inserted
After Division 3 of Part 5A of the Criminal
15 Organisations Control Act 2012 insert--
"Division 4--Oversight by the IBAC
Subdivision 1--Monitoring
124R IBAC to monitor exercise of powers etc.
under this Part
20 The IBAC may monitor any exercise of
the powers of the Chief Commissioner or
senior police officers, or any performance of
the duties and functions of the Chief
Commissioner or senior police officers,
25 under this Part, including monitoring any
matter relating to--
(a) an exercise of powers under this Part;
and
(b) the impact of an exercise of powers
30 under this Part on vulnerable persons in
respect of whom unlawful association
notices are issued.
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124S Reports to the Minister on monitoring
(1) The IBAC, at any time, may give the
Minister a written report on any monitoring
of any exercise of the powers of the Chief
5 Commissioner or a senior police officer, or
any performance of the duties and functions
of the Chief Commissioner or a senior police
officer, under this Part, including the results
of any inspections carried out under
10 Subdivision 4.
(2) If requested by the Minister to do so, the
IBAC must give the Minister a report under
subsection (1) as soon as practicable after
receiving the request.
15 (3) The IBAC must give a copy of any
report under subsection (1) to the Chief
Commissioner.
124T Request for action after monitoring
(1) After monitoring any exercise of the
20 powers of the Chief Commissioner or a
senior police officer, or any performance of
the duties and functions of the Chief
Commissioner or a senior police officer,
under this Part, the IBAC, in writing, may
25 recommend that the Chief Commissioner
take any action that the IBAC considers
appropriate.
(2) The Chief Commissioner must give a written
response to the IBAC's recommendation
30 within 45 days after receiving the
recommendation.
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Subdivision 2--IBAC Ministerial report
124U IBAC Ministerial report
(1) The IBAC, in accordance with section 124V,
must report to the Minister on matters for or
5 with respect to--
(a) the exercise of the powers of the Chief
Commissioner and senior police
officers, and the performance of the
duties and functions of the Chief
10 Commissioner and senior police
officers, under this Part; and
(b) the impact of the exercise of powers
under this Part by the Chief
Commissioner, or senior police
15 officers, on vulnerable persons in
respect of whom unlawful association
notices are issued.
(2) In a report under this section, the IBAC may
include recommendations to improve the
20 operation of this Part.
(3) Before the IBAC provides a report to the
Minister under subsection (2) that makes a
recommendation to improve the operation of
this Part that is related to vulnerable persons,
25 the IBAC must consult with any of the
following, as the case requires--
(a) the Commission for Children and
Young people, if the recommendation
is related to vulnerable persons who
30 are 14 years old or older but less than
18 years old;
(b) any person holding an office or position
established by or under an Act (other
than the office of member of the
35 Parliament of Victoria), or to which
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the person was appointed by the
Governor in Council, or by a Minister,
other than under an Act, who the IBAC
considers to be relevant to the
5 recommendation.
124V Timing of IBAC Ministerial report
The IBAC must make an IBAC Ministerial
report as soon as possible after the end of the
first 2-year period from the commencement
10 of this Subdivision and as soon as possible
after the end of each 2-year period after that.
124W IBAC Ministerial reports to be laid before
Parliament
(1) The Minister must cause an IBAC
15 Ministerial report to be laid before each
House of the Parliament within 7 sitting days
of that House after receiving the report.
(2) A report laid before each House of the
Parliament under subsection (1) must
20 not include any information that the Chief
Commissioner identifies should not be
included in the report.
(3) For the purpose of subsection (2), before
the Minister causes the report to be laid
25 before each House of the Parliament, the
Chief Commissioner may advise the
Minister that information in the report should
not be included in the copy of the report to
be laid before the Parliament because, in
30 the Chief Commissioner's opinion, the
information could reasonably be expected
to--
(a) endanger a person's safety; or
(b) prejudice an investigation or
35 prosecution; or
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(c) compromise operational activities or
methodologies of--
(i) Victoria Police; or
(ii) the IBAC; or
5 (iii) a police force or police service of
another State or a Territory; or
(iv) the Australian Federal Police
constituted under the Australian
Federal Police Act 1979 of the
10 Commonwealth; or
(v) any police force or police service
(however described) in a place
outside Australia; or
(vi) any other person or body
15 responsible for the enforcement of
laws in a place outside Australia;
or
(d) disclose the identity of a person, where
it is not in the public interest to do so.
20 Subdivision 3--Reporting on the issue
of unlawful association notices
124X Chief Commissioner report on issued
unlawful association notices
(1) As soon as possible after the end of each
25 period of 3 months in any year, the Chief
Commissioner, in writing, must report to
the IBAC listing the unlawful association
notices issued in the period.
(2) For the purpose of subsection (1), the first
30 period of 3 months in any year begins on
1 January.
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(3) A report under subsection (1) must set out
the following information--
(a) the number of unlawful association
notices issued in the period;
5 (b) in relation to each unlawful association
notice--
(i) the name and age of the individual
in respect of whom the notice was
issued; and
10 (ii) whether the individual in respect
of whom the notice was issued is a
vulnerable person; and
(iii) whether or not an application for
internal review has been made.
15 124Y The IBAC may review the issue of
unlawful association notices
(1) The IBAC may review the issue of unlawful
association notices in a period determined by
the IBAC.
20 (2) In the review, the IBAC may review the
making of a proportion of the unlawful
association notices issued during the period
under review.
(3) If the IBAC decides under subsection (2) to
25 review a proportion of unlawful association
notices issued, the IBAC must determine the
proportion of notices to be reviewed having
regard to--
(a) the number of notices issued during the
30 period; and
(b) the need to have a representative
sample of notices issued; and
(c) any other relevant matter.
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124Z Preliminary processes
(1) Once the IBAC has determined the unlawful
association notices, the issue of which is to
be reviewed, the IBAC, in writing, must give
5 the Chief Commissioner notice of that
information.
(2) On receiving notice under subsection (1), the
Chief Commissioner must allow the IBAC
access to all information on which the
10 decisions to issue the unlawful association
notices were based.
124ZA Conduct of review
(1) For each unlawful association notice
under review, the IBAC must review
15 whether or not the notice should have been
made having regard to the matters set out
in section 124D(1)(a) and (b), (3), (4), (5),
(6), (8) and (9).
(2) In a review, the information that the IBAC
20 may consider is the information given to the
IBAC under section 124Z(2).
124ZB The IBAC may request that certain action
be taken
(1) After reviewing the issue of an unlawful
25 association notice, the IBAC, in writing, may
recommend that the Chief Commissioner
take any action that the IBAC considers
appropriate.
(2) The Chief Commissioner must give a written
30 response to the IBAC's recommendation
within 45 days after receiving the
recommendation.
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Subdivision 4--General
124ZC Non-production of documents and other
things in applicable proceeding, process or
action
5 (1) A protected person is not compellable
to produce, or permit inspection of, any
document or other thing in any applicable
proceeding, process or action if--
(a) the protected person has created the
10 document or thing in the performance
of the duties and functions or the
exercise of the powers of the protected
person or the IBAC under this Part; or
(b) the document or thing has come into
15 the protected person's possession or
control in the performance of the duties
and functions or the exercise of the
powers of the protected person or the
IBAC under this Part.
20 (2) A written certificate of the IBAC that a
document or thing is a document or thing
to which subsection (1)(a) or (b) applies is
evidence of that fact.
124ZD Exemption from Freedom of Information
25 Act 1982
(1) The Freedom of Information Act 1982
does not apply to a document that is in the
possession of any person or body to the
extent to which the document discloses
30 information that relates to the performance
of the duties and functions or the exercise of
the powers of the IBAC or an authorised
IBAC Officer under this Part.
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(2) In this section--
document has the same meaning as in the
Freedom of Information Act 1982.
124ZE Powers of entry and inspection
5 (1) An authorised IBAC Officer, after notifying
the Chief Commissioner of the intended
entry, may--
(a) at any time, enter premises occupied
by Victoria Police at which the IBAC
10 Commissioner reasonably believes
there are documents that--
(i) relate to the exercise of the powers
of the Chief Commissioner or
senior police officers, or the
15 performance of the duties and
functions of the Chief
Commissioner or senior police
officers under this Part; or
(ii) are relevant to the IBAC's
20 functions under this Part; and
(b) inspect or copy any document
found at any premises entered under
paragraph (a); and
(c) require a member of Victoria Police
25 personnel to give the authorised IBAC
Officer any information that the
authorised IBAC Officer considers
necessary, being information that is in
the member's possession, or to which
30 the member has access, and that is
relevant to the inspection; and
(d) require a member of Victoria Police
personnel to answer any question that
is relevant to the inspection; and
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(e) do anything that it is necessary
or convenient to do to enable an
inspection to be carried out under
this section.
5 (2) The Chief Commissioner must ensure that
members of Victoria Police personnel give
any assistance the authorised IBAC Officer
reasonably requires to enable the authorised
IBAC Officer to exercise the authorised
10 IBAC Officer's powers under this section.
(3) Any information or answer given in
accordance with a requirement under
subsection (1)(c) or (d) is not admissible in
evidence before any court or person acting
15 judicially, except in a proceeding for--
(a) perjury or giving false information; or
(b) a breach of discipline by a member of
Victoria police personnel; or
(c) a disciplinary process or action.
20 (4) The IBAC may authorise, in writing, an
IBAC Officer to exercise a power under
subsection (1).
124ZF IBAC to be given reasonable assistance
(1) The Chief Commissioner must give the
25 IBAC any reasonable assistance that the
IBAC reasonably requires to enable the
IBAC to perform the IBAC's functions
under this Part.
(2) The Chief Commissioner must ensure
30 that every member of Victoria Police
personnel gives the IBAC any assistance that
the IBAC reasonably requires to enable the
IBAC to perform the IBAC's functions under
this Part.
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124ZG Chief Commissioner to keep records
(1) For the purpose of this Part, the Chief
Commissioner must take all reasonable steps
to ensure that the following records are
5 kept--
(a) a record of each decision to issue an
unlawful association notice including
the reasons for each decision;
(b) each unlawful association notice issued
10 and served, including any notice that is
not in effect;
(c) any document received from an
individual in respect of whom an
unlawful association notice has been
15 issued, or on behalf of that person, in
relation to the notice;
(d) any policies, procedures or guidelines
of Victoria Police about the issue of
unlawful association notices or the
20 exercise of the powers or the
performance of the duties and functions
of the Chief Commissioner and senior
police officers under this Part.
(2) It is sufficient compliance with subsection
25 (1) if a copy of a document is kept.".
20 Review of Act
In section 137(7) of the Criminal Organisations
Control Act 2012, in the definition of report
period, in paragraph (b), for "the Criminal
30 Organisations Control Amendment
(Unlawful Associations) Act 2015" substitute
"Part 2 of the Justice Legislation Amendment
(Unlawful Association and Criminal Appeals)
Act 2018".
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21 Heading to Schedule substituted and minor
amendment to section reference in Schedule
(1) For the headings to the Schedule to the Criminal
Organisations Control Act 2012 substitute--
5 "Schedule 1--Applicable offences".
(2) In the Schedule to the Criminal Organisations
Control Act 2012, for "Section 4(2)(b)"
substitute "Section 3(1)".
22 New Schedule 2 inserted
10 After the Schedule to the Criminal
Organisations Control Act 2012 insert--
"Schedule 2--Serious youth offences
Section 3(1)
Part A--Specified Victorian offences
1 Child homicide.
15 2 Murder.
3 Manslaughter.
4 Treason.
5 An offence against section 15A(1) of the Crimes
Act 1958 (causing serious injury intentionally in
20 circumstances of gross violence).
6 An offence against section 15B(1) of the Crimes
Act 1958 (causing serious injury recklessly in
circumstances of gross violence).
7 An offence against section 16 of the Crimes Act 1958
25 (causing serious injury intentionally).
8 An offence against section 21A(1) of the Crimes
Act 1958 (stalking).
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9 An offence against section 38(1) of the Crimes Act 1958
(rape).
10 An offence against section 39(1) of the Crimes Act 1958
(rape by compelling sexual penetration).
5 11 An offence against section 42(1) of the Crimes Act 1958
(assault with intent to commit a sexual offence).
12 An offence against section 47(1) of the Crimes Act 1958
(abduction or detention for a sexual purpose).
13 An offence against section 49A(1) of the Crimes
10 Act 1958 (sexual penetration of a child under the age
of 12).
14 An offence against section 49B(1) of the Crimes
Act 1958 (sexual penetration of a child under the age
of 16).
15 15 An offence against section 49J(1) of the Crimes
Act 1958 (persistent sexual abuse of a child under
the age of 16).
16 An offence against section 49P(1) of the Crimes
Act 1958 (abduction or detention of a child under the
20 age of 16 for a sexual purpose).
17 An offence against any of the following provisions of
Subdivision (8C) of Division 1 of Part I of the Crimes
Act 1958 (incest)--
(a) section 50C(1) (sexual penetration of a child
25 or lineal descendant);
(b) section 50D(1) (sexual penetration of a
step-child);
(c) section 50E(1) (sexual penetration of a parent,
lineal ancestor or step-parent);
30 (d) section 50F(1) (sexual penetration of a sibling
or half-sibling).
18 An offence against section 63A of the Crimes Act 1958
(kidnapping).
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19 An offence against section 75A(1) of the Crimes
Act 1958 (armed robbery).
20 An offence against section 77 of the Crimes Act 1958
(aggravated burglary).
5 21 An offence against section 77A of the Crimes Act 1958
(home invasion).
22 An offence against section 77B of the Crimes Act 1958
(aggravated home invasion).
23 An offence against section 79 of the Crimes Act 1958
10 (carjacking).
24 An offence against section 79A of the Crimes Act 1958
(aggravated carjacking).
25 An offence against section 197A of the Crimes Act 1958
(arson causing death).
15 26 An offence against section 317AC(1) of the Crimes
Act 1958 (intentionally exposing an emergency worker,
a custodial officer or a youth justice custodial worker to
risk by driving).
27 An offence against section 317AD(1) of the Crimes
20 Act 1958 (aggravated offence of intentionally exposing
an emergency worker, a custodial officer or a youth
justice custodial worker to risk by driving).
28 An offence against section 317AE(1) of the Crimes
Act 1958 (recklessly exposing an emergency worker, a
25 custodial officer or a youth justice custodial worker to
risk by driving).
29 An offence against section 317AF(1) of the Crimes
Act 1958 (aggravated offence of recklessly exposing an
emergency worker, a custodial officer or a youth justice
30 custodial worker to risk by driving).
30 An offence against section 318(1) of the Crimes
Act 1958 (culpable driving causing death).
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31 An offence against section 319(1) or (1A) of the Crimes
Act 1958 (dangerous driving causing death or serious
injury).
32 An offence against section 319AA(1) of the Crimes
5 Act 1958 (dangerous or negligent driving while pursued
by police).
33 An offence against any of the following provisions of
the Drugs, Poisons and Controlled Substances
Act 1981 (as in force immediately before the
10 commencement of the Drugs, Poisons and Controlled
Substances (Amendment) Act 2001)--
(a) section 71(1) (trafficking in a drug of dependence)
in circumstances where the offence is committed
in relation to a quantity of a drug of dependence
15 that is not less than the commercial quantity
applicable to that drug of dependence;
(b) section 72(1) (cultivation of narcotic plants) in
circumstances where the offence is committed in
relation to a quantity of a drug of dependence,
20 being a narcotic plant, that is not less than the
commercial quantity applicable to that narcotic
plant;
(c) section 79(1) (conspiracy) in circumstances where
the conspiracy is to commit an offence referred to
25 in paragraph (a) or (b).
34 An offence against any of the following provisions of
the Drugs, Poisons and Controlled Substances
Act 1981 (as in force immediately before the
commencement of the Drugs, Poisons and Controlled
30 Substances (Amendment) Act 2001)--
(a) section 71(1) (trafficking in a drug of
dependence);
(b) section 72(1) (cultivation of narcotic plants);
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(c) section 79(1) (conspiracy) in circumstances
where the conspiracy is to commit an offence
referred to in paragraph (a) or (b).
35 An offence against any of the following provisions of the
5 Drugs, Poisons and Controlled Substances Act 1981--
(a) section 71 (trafficking in a quantity of a drug or
drugs of dependence that is not less than the large
commercial quantity applicable to that drug or
those drugs);
10 (b) section 71AA (trafficking in a quantity of a drug
or drugs of dependence that is not less than the
commercial quantity applicable to that drug or
those drugs);
(c) section 72 (cultivation of a narcotic plant in a
15 quantity of a drug of dependence, being a narcotic
plant, that is not less than the large commercial
quantity applicable to that narcotic plant);
(d) section 72A (cultivation of a narcotic plant in a
quantity of a drug of dependence, being a narcotic
20 plant, that is not less than the commercial quantity
applicable to that narcotic plant);
(e) section 79(1) (conspiracy) in circumstances where
the conspiracy is to commit an offence referred to
in paragraph (a), (b), (c) or (d).
25 36 An offence against any of the following provisions of the
Drugs, Poisons and Controlled Substances Act 1981--
(a) section 71AB (trafficking in a drug or drugs of
dependence to a child);
(b) section 71AC (trafficking in a drug of
30 dependence);
(c) section 72B (cultivation of narcotic plants);
(d) section 79(1) (conspiracy) in circumstances
where the conspiracy is to commit an offence
referred to in paragraph (a), (b) or (c).
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37 An offence against section 125A(1) of the Family
Violence Protection Act 2008 (persistent contravention
of notices and orders).
38 An offence against section 4B(1) or 21W of the
5 Terrorism (Community Protection) Act 2003.
Part B--Specified Commonwealth offences
39 An offence against section 302.2, 302.3, 303.4, 303.5,
304.1, 304.2, 305.3 or 305.4 of the Criminal Code of
the Commonwealth in circumstances where the offence
10 is committed in relation to a substance in respect of a
quantity that is not less than the commercial quantity
(as defined in section 70(1) of the Drugs, Poisons and
Controlled Substances Act 1981) applicable to the drug
of dependence as defined in the Drugs, Poisons and
15 Controlled Substances Act 1981 constituted by that
substance.
40 An offence against section 307.1, 307.2, 307.5,
307.6, 307.8 or 307.9 of the Criminal Code of the
Commonwealth in circumstances where the offence
20 is committed in relation to a substance in respect of a
quantity that is not less than the commercial quantity
(as defined in section 70(1) of the Drugs, Poisons and
Controlled Substances Act 1981) applicable to the
drug of dependence as defined in the Drugs, Poisons
25 and Controlled Substances Act 1981 constituted by
that substance.
41 An offence under section 231(1), 233A or 233B(1) of
the Customs Act 1901 of the Commonwealth (as in force
immediately before the commencement of the Law and
30 Justice Legislation Amendment (Serious Drug Offences
and Other Measures) Act 2005 of the Commonwealth) in
circumstances where the offence is committed in relation
to narcotic goods within the meaning of Customs Act
1901 of the Commonwealth) in respect of a quantity that
35 is not less than the commercial quantity (as defined in
section 70(1) of the Drugs, Poisons and Controlled
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Substances Act 1981) applicable to the drug of
dependence as defined in the Drugs, Poisons and
Controlled Substances Act 1981 constituted by those
narcotic goods.
5 42 A terrorism offence within the meaning of the Crimes
Act 1914 of the Commonwealth.".
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Part 3--Criminal appeal amendments
Part 3--Criminal appeal amendments
Division 1--Amendment of Children,
Youth and Families Act 2005
23 Section 328 repealed
5 Section 328 of the Children, Youth and Families
Act 2005 is repealed.
24 Appeals to be heard in open court
In section 330(1) of the Children, Youth and
Families Act 2005 omit "328 or".
10 25 Proceedings for breach of sentence
In section 423(9) of the Children, Youth and
Families Act 2005, for "426(5)" substitute
"426B(2)".
26 New Division 1AA of Part 5.4 inserted
15 After the heading to Part 5.4 of the Children,
Youth and Families Act 2005 insert--
"Division 1AA--Preliminary
423A When a recording is unavailable
In this Part, a reference to a recording, or a
20 part of a recording, that is unavailable is a
reference to a recording, or a part of a
recording, that--
(a) is indecipherable, destroyed or
otherwise irretrievable; or
25 (b) was never made.".
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27 Division 1 of Part 5.4 substituted
For Division 1 of Part 5.4 of the Children, Youth
and Families Act 2005 substitute--
"Division 1--Appeal by offender to
5 the County Court or Trial Division
of the Supreme Court
424 Right of appeal and leave to appeal
(1) Subject to subsections (2) and (3), a person
convicted of an offence by the Children's
10 Court in a summary proceeding in the
Criminal Division may appeal to the
County Court against either or both of--
(a) the conviction; and
(b) the sentence.
15 Note
See the definitions of conviction and sentence in
section 3(1).
(2) Leave to appeal is required from the County
Court for an appeal against conviction if the
20 person was convicted following a plea of
guilty.
(3) If the Children's Court was constituted by the
President or the Chief Magistrate who is a
dual commission holder, the appeal or
25 application for leave to appeal is to be made
to the Trial Division of the Supreme Court.
425 How appeal or application for leave to
appeal is commenced
(1) An appeal under section 424, or an
30 application for leave to appeal under that
section, is commenced by filing a notice of
appeal or an application for leave to appeal,
as the case requires, with a registrar of
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the Children's Court at any venue of the
Children's Court within 28 days after the
day on which the sentence of the Children's
Court is imposed.
5 (2) A copy of the notice of appeal or the
application for leave to appeal, as the case
requires, must be served on the respondent in
accordance with section 392 of the Criminal
Procedure Act 2009 within 7 days after the
10 day on which the notice or application is
filed.
(3) A notice of appeal or application for leave to
appeal must--
(a) state whether the appellant or applicant
15 was convicted following a plea of
guilty and, if so, whether the Children's
Court gave a sentence indication; and
(b) be in the form, and include the
information, prescribed by the rules of
20 the appellate court.
(4) A notice of appeal or an application for leave
to appeal must also include an undertaking
signed by the appellant or applicant, in the
manner prescribed by the rules of the
25 appellate court--
(a) to appear at the appellate court to
proceed with the appeal or application
at a place and on a day fixed or to be
fixed by the registrar of the County
30 Court or the Prothonotary (as the case
requires) and to appear at the appellate
court for the duration of the appeal or
application; and
(b) to give written notice without delay to
35 the registrar of the County Court or the
Prothonotary, as the case requires, of
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any change to the following
information as appearing in the notice
of appeal or application for leave to
appeal--
5 (i) the address of the appellant or
applicant;
(ii) other information prescribed in the
rules of the appellate court.
(5) A notice of appeal or an application for leave
10 to appeal filed under this section must be
transmitted to the appellate court.
425A Summary of appeal notice
(1) Within 28 days after filing a notice of appeal
or an application for leave to appeal against
15 the conviction imposed by the Children's
Court, the appellant or applicant must file a
summary of appeal notice in the appellate
court.
(2) A summary of appeal notice must--
20 (a) state the general grounds of appeal or
application; and
(b) be in the form prescribed by the rules of
the appellate court.
425B Determination of application for leave to
25 appeal
(1) On an application for leave to appeal, the
court may only grant leave to appeal if
satisfied that it is in the interests of justice to
do so.
30 (2) For the purposes of subsection (1), the court
may have regard to the following factors--
(a) the circumstances in which the person
entered the plea;
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(b) the time taken to apply for leave to
appeal the conviction;
(c) any other matter that the court
considers relevant.
5 426 Determination of appeal--appeal against
conviction
(1) In determining an appeal against conviction
under section 424, the appellate court must
determine the appeal by way of rehearing--
10 (a) on either--
(i) the evidence given before the
Children's Court in the summary
hearing; or
(ii) if the whole of the recording of
15 that evidence is unavailable, the
evidence received under
section 430BD(2); and
(b) on the evidence received in the appeal
under section 430BE (if any); and
20 (c) having regard to the reasons of the
magistrate constituting the Children's
Court in the summary hearing.
Note
Section 430BC provides for the court to make
25 orders for the provision of transcripts and
reasons.
(2) If the court allows an appeal against
conviction under section 424, the court
must--
30 (a) set aside the conviction that was the
subject of the appeal; and
(b) either--
(i) remit the proceeding in
accordance with subsection (3); or
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(ii) deal with the appeal in accordance
with subsection (5).
(3) If leave for the appeal was required under
section 424(2), the court may remit the
5 proceeding to the Children's Court with or
without any direction in law.
(4) On a proceeding being remitted under
subsection (3)--
(a) each charge in the charge-sheet for
10 that proceeding is reinstated, other
than a charge that was struck out for
non-compliance with section 344A;
and
(b) if the appellant was also sentenced by
15 the Children's Court on a charge that
was heard together with the charge that
is the subject of the appeal--
(i) that sentence is set aside; and
(ii) the Children's Court must
20 re-sentence the offender.
(5) On allowing any appeal against conviction
under section 424, whether or not leave was
required under section 424(2), the appellate
court may--
25 (a) dismiss the charge for the offence that
was the subject of the appeal; and
(b) if--
(i) at any time in the summary
hearing there was before the
30 Children's Court a charge against
the appellant other than the charge
for the offence that is the subject
of the appeal; and
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(ii) the appellant could have been
found guilty of that other charge;
and
(iii) the appellate court is satisfied,
5 beyond reasonable doubt, that the
appellant is guilty of the offence
that is the subject of that other
charge--
reinstate that other charge (if necessary)
10 and enter a judgment of conviction for
that offence and impose a sentence for
that offence that is no more severe than
the sentence that was imposed for the
offence that was the subject of the
15 appeal; and
(c) vary a sentence that--
(i) was imposed for an offence that
was not the subject of the appeal
at or after the time when the
20 appellant was sentenced for the
offence that was the subject of the
appeal; and
(ii) took into account the sentence for
the offence that was the subject of
25 the appeal; and
(d) exercise any power which the
Children's Court could have exercised.
Note
See also sections 467(5), 468(4) and 473(9).
30 (6) For the purposes of subsection (5), the
appellate court may, despite anything to the
contrary in this Act, make a probation order,
youth supervision order or youth attendance
order in respect of a person even though at
35 the time of making that order the person is
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of or above the age of 19 years but under
21 years.
(7) The power under subsection (5)(c) to vary
the sentence referred to in that provision
5 may still be exercised even if the sentence
imposed by the Children's Court is an
aggregate sentence of detention.
(8) If at the conclusion of an appeal the
appellant remains convicted of more than
10 one offence, the appellate court may either--
(a) impose a separate sentence in respect of
each offence; or
(b) impose an aggregate sentence
of detention in accordance with
15 section 362B in respect of all
offences or any 2 or more offences.
426A Determination of appeal--appeal against
sentence
(1) In determining an appeal against sentence
20 under section 424, the appellate court must
determine the appeal on the evidence and
other material that was before the Children's
Court for the sentencing hearing.
Note
25 Subsection (3) also permits the court to consider other
matters.
(2) Without limiting subsection (1), the court
may consider the following--
(a) if the appellant pleaded guilty, the
30 agreed statement of facts on which the
Children's Court relied to impose the
sentence that is the subject of the
appeal;
(b) the criminal record of the appellant, if
35 any;
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(c) any documentary evidence that was
before the Children's Court for the
sentencing hearing;
(d) if oral evidence was taken from a
5 witness or the appellant at the
sentencing hearing, a transcript of
that evidence.
(3) The court may also consider--
(a) other evidence, material or information
10 that--
(i) relates to matters that occurred
after the Children's Court
sentenced the appellant; and
(ii) concerns the circumstances of the
15 appellant; and
(b) any submissions made during the
hearing of the appeal; and
(c) if an appeal was also brought against
the conviction to which the sentence
20 relates, the evidence received in that
appeal under section 430BD or 430BE
(if any); and
(d) if there is a factual issue in dispute
that the court considers relevant and
25 necessary to determining the appeal,
any other evidence given before the
Children's Court in the summary
hearing.
(4) For the purposes of subsections (1), (2)
30 and (3), the court may inform itself of what
evidence or other material was before the
Children's Court in any way it sees fit.
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(5) In determining an appeal against sentence
under section 424--
(a) the court must allow the appeal if it
finds that there are compelling reasons
5 to impose a different sentence from that
imposed by the Children's Court; and
(b) must dismiss the appeal in any other
case.
(6) For the purposes of subsection (5), in
10 determining whether there are compelling
reasons to impose a different sentence the
court must have regard to the need for a just
and fair outcome, taking into account--
(a) the reasons of the magistrate
15 constituting the Children's Court
in the summary hearing; and
(b) a presumption in favour of the
correctness of the decision of the
Children's Court in the summary
20 hearing.
(7) The determination of compelling reasons for
the purposes of this section--
(a) does not require a specific error of law
to be identified; and
25 (b) is not satisfied merely by the
identification of a deficiency in the
sentencing remarks of the magistrate
constituting the Children's Court in
the summary hearing; and
30 (c) requires more than it being merely
arguable that a different sentence
should be imposed; and
(d) does not require the appellate court to
be satisfied that the sentence was
35 unreasonable or plainly unjust.
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(8) If the court allows an appeal against sentence
under section 424, the court--
(a) must set aside the sentence; and
(b) subject to subsection (9), may impose
5 any sentence which the court considers
appropriate and which the Children's
Court could have imposed; and
(c) may exercise any power which the
Children's Court could have exercised.
10 (9) If an appellant appeals under section 424
against an order made under section 363,
365 or 367, the appellate court may--
(a) dismiss the charge against the
appellant; or
15 (b) make an order in the same terms as the
order of the Children's Court--
but must not impose any other sentence.
Note
Orders under sections 363, 365 and 367 are orders
20 for non-accountable undertakings, accountable
undertakings and good behaviour bonds respectively.
(10) For the purposes of subsection (8), the
appellate court may, despite anything to the
contrary in this Act, make a probation order,
25 youth supervision order or youth attendance
order in respect of a person even though at
the time of making that order the person is
of or above the age of 19 years but under
21 years.
30 426B Sentence imposed on appeal
(1) The appellate court may backdate a sentence
imposed under section 426 or 426A to a date
not earlier than the date of the sentence of
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the Children's Court that was set aside on the
appeal.
(2) A sentence imposed under section 426
or 426A is for all purposes to be regarded
5 as a sentence of the appellate court.
426C Warning that more severe sentence may
be imposed
If, on an appeal under section 424, the
appellate court is considering imposing a
10 more severe sentence than that imposed
by the Children's Court, the appellate court
must warn the appellant, as early as possible
during the hearing of the appeal, that the
appellant faces the possibility that a more
15 severe sentence may be imposed than that
imposed by the Children's Court.".
28 Determination of DPP appeal
(1) For section 429(1) of the Children, Youth and
Families Act 2005 substitute--
20 "(1) In determining an appeal under section 427,
the appellate court must determine the appeal
on the evidence and other material that was
before the Children's Court for the
sentencing hearing.
25 Note
Subsection (1B) also permits the court to consider
other matters.
(1A) Without limiting subsection (1), the appellate
court may consider the following--
30 (a) if the respondent pleaded guilty,
the agreed prosecution summary of
evidence, being a summary that was
put before the Children's Court by
the prosecution for the sentencing
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hearing, having first been agreed to by
the respondent;
(b) the criminal record of the respondent, if
any;
5 (c) any documentary evidence that was
before the Children's Court for the
sentencing hearing;
(d) if oral evidence was taken from a
witness or the respondent at the
10 sentencing hearing, a transcript of
that evidence.
(1B) The appellate court may also consider--
(a) other evidence, material or information
that--
15 (i) relates to matters that occurred
after the Children's Court
sentenced the respondent; and
(ii) concerns the circumstances of the
respondent; and
20 (b) any submissions made during the
hearing of the appeal; and
(c) if there is a factual issue in dispute that
the appellate court considers relevant
and necessary to determining the
25 appeal, any other evidence given before
the Children's Court in the summary
hearing.
(1C) For the purposes of subsections (1), (1A)
and (1B), the appellate court may inform
30 itself of what evidence or other material
was before the Children's Court in any way
it sees fit.
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(1D) In determining an appeal under
section 427--
(a) the appellate court must allow the
appeal if it finds that there are
5 compelling reasons to impose a
different sentence from that imposed
by the Children's Court; and
(b) must dismiss the appeal in any other
case.
10 (1E) For the purposes of subsection (1D), in
determining whether there are compelling
reasons to impose a different sentence the
appellate court must have regard to the need
for a just and fair outcome, taking into
15 account--
(a) the reasons of the magistrate
constituting the Children's Court in the
summary hearing; and
(b) a presumption in favour of the
20 correctness of the decision of the
Children's Court in the summary
hearing.
(1F) The determination of compelling reasons for
the purposes of this section--
25 (a) does not require a specific error of law
to be identified; and
(b) is not satisfied merely by the
identification of a deficiency in the
sentencing remarks of the magistrate
30 constituting the Children's Court in the
summary hearing; and
(c) requires more than it being merely
arguable that a different sentence
should be imposed; and
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(d) does not require the appellate court to
be satisfied that the sentence was
unreasonable or plainly unjust.".
(2) For section 429(2) of the Children, Youth and
5 Families Act 2005 substitute--
"(2) If the appellate court allows an appeal
referred to in subsection (1), the court--
(a) must set aside the sentence; and
(b) may impose any sentence which
10 the court considers appropriate and
which the Children's Court could
have imposed; and
(c) may exercise any power which the
Children's Court could have exercised.
15 Note
See also sections 467(5), 468(4) and 473(9).".
29 Stay of sentence
(1) In the heading to section 430A of the Children,
Youth and Families Act 2005, for "order"
20 substitute "sentence".
(2) Before section 430A(1) of the Children, Youth
and Families Act 2005 insert--
"(1AA) If a person applies for leave to appeal against
conviction and is not in custody because of
25 a sentence in respect of that conviction, the
application operates as a stay of the sentence
(but not the conviction) when the person files
the application and signs the undertaking
referred to in section 425(4).
30 (1AAB) If a person applies for leave to appeal against
conviction and is in custody because of a
sentence in respect of that conviction, the
application operates as a stay of the sentence
(but not the conviction) when--
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(a) the person files the application and
signs the undertaking referred to in
section 425(4); and
(b) the person enters bail, if bail is granted
5 under section 430B.".
(3) After section 430A(2) of the Children, Youth
and Families Act 2005 insert--
"(2A) The stay of the sentence operates until the
determination of the appeal or the refusal
10 of the application for leave to appeal.".
(4) After section 430A(3) of the Children, Youth
and Families Act 2005 insert--
"(4) To avoid doubt, if--
(a) an Act provides that--
15 (i) an order may be appealed against
as if it were a sentence; or
(ii) an order may be appealed in the
same manner in which a sentence
may be appealed; and
20 (b) a person appeals against the order or
applies for leave to appeal against the
order--
this section applies to that order in the same
way that it applies to a sentence.
25 (5) Nothing in subsection (4) limits the
application of any other provision of this
Part to an appeal against an order referred
to in that subsection.".
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30 Bail pending appeal
(1) Before section 430B(1) of the Children, Youth
and Families Act 2005 insert--
"(1AA) This section applies if--
5 (a) an appellant is in custody because of a
sentence in respect of a conviction; and
(b) the person is appealing, or has applied
for leave to appeal, against either the
conviction or the sentence.".
10 (2) In section 430B(1) of the Children, Youth and
Families Act 2005, for "If an appellant is in
custody because of the sentence appealed against
and wishes to be released pending the appeal, the
appellant--" substitute "The appellant--".
15 31 New sections 430BA to 430BE inserted
After section 430B of the Children, Youth and
Families Act 2005 insert--
"430BA Listing pre-appeal mention hearings
(1) The appellate court may list any appeal
20 under section 424, or application for leave
to appeal under section 424, for a pre-appeal
mention hearing.
(2) If a pre-appeal mention hearing is listed,
the registrar of the County Court or the
25 Prothonotary, as the case requires, must
notify the appellant of the listing time and
date.
430BB Pre-appeal mention hearings
(1) An appellant or applicant must appear at
30 any pre-appeal mention hearing listed by
the appellate court in accordance with
section 430BA.
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(2) At a pre-appeal mention hearing the
appellate court may--
(a) order any party to make, file or serve
any written or oral material required by
5 the court for the purposes of the appeal
or application for leave; and
(b) fix a date for the hearing of the appeal
or application for leave; and
(c) make an order under section 430BC;
10 and
(d) make any other order or give any
direction that the court considers
appropriate.
430BC Transcripts
15 (1) The appellate court may order that copies of
the following material are to be provided to
the court and to the parties--
(a) the transcript of the evidence given or
submissions made in the summary
20 hearing;
(b) a transcript of the evidence given by a
witness at the sentencing hearing;
(c) a transcript of any other evidence,
including an audio or audiovisual
25 recording of that evidence;
(d) the transcript of the reasons of the
magistrate constituting the Children's
Court in the summary hearing.
(2) The registrar of the County Court or the
30 Prothonotary, as the case requires, may
also make an order under subsection (1).
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(3) An order under subsection (1) may be
made in respect of only a specified part of
the summary hearing if the appellant or
applicant and the respondent agree.
5 430BD Where recording of evidence is wholly or
partly unavailable
(1) The fact that part of the recording of the
evidence given before the Children's Court is
unavailable does not prevent the appellate
10 court from receiving the evidence contained
in another part of the recording in
determining the appeal.
Notes
1 The court is to determine the appeal on the
15 evidence given before the Children's Court in
the summary hearing. See sections 426(1)(a)(i)
and 426A(1).
2 Section 430BE also allows for the appellate
court to receive further evidence in certain
20 circumstances.
(2) If the whole of the recording of the evidence
that was given before the Children's Court is
unavailable, the appellate court may, on an
appeal against conviction under section 424,
25 receive evidence that addresses any matter
the court considers relevant and necessary to
determining the appeal.
Notes
1 Section 423A sets out when a recording is
30 unavailable.
2 Evidence received under this subsection may be
considered in an appeal against sentence only in
accordance with section 426A(3)(c).
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430BE Further evidence
(1) On an appeal against conviction under
section 424, the appellate court may receive
evidence if the court is satisfied that--
5 (a) it is in the interests of justice to do so;
and
(b) in the case of evidence protected under
subsection (3) or (4), the evidence is
substantially relevant to a fact in issue
10 in the appeal.
Note
Evidence received under this section may be
considered in an appeal against sentence only in
accordance with section 426A(3)(c).
15 (2) In determining whether it is in the interests
of justice to receive evidence under this
section, the court must have regard to--
(a) the probative value of the evidence; and
(b) the right of the appellant to fully
20 present their appeal; and
(c) if the evidence was not given before
the Children's Court in the summary
hearing--
(i) whether the evidence was
25 available at the time of the
summary hearing; and
(ii) why the evidence was not given
in the summary hearing; and
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(d) if the evidence was given in that
hearing--
(i) whether the recording of the
giving of the evidence in that
5 hearing, or any part of that
recording, is unavailable; and
Note
If the whole of the recording of the
evidence that was given before the
10 Children's Court is unavailable, the
appellate court has a separate power to
receive evidence. See section 430BD(2).
(ii) if the recording is available,
whether there is any other reason
15 why the evidence should be given
again.
(3) For the purposes of subsection (1)(b),
evidence is protected under this subsection
if--
20 (a) the evidence is to be given by a
complainant; and
(b) the criminal proceeding relates
(wholly or partly) to a charge for--
(i) a sexual offence; or
25 (ii) an offence where the conduct
constituting the offence consists
of family violence within the
meaning of the Family Violence
Protection Act 2008; or
30 (iii) an offence against section 17(1)
or 19 of the Summary Offences
Act 1966.
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(4) For the purposes of subsection (1)(b),
evidence is protected under this subsection
if--
(a) the evidence is to be given by a person
5 who--
(i) was a child at the time the
criminal proceeding commenced;
or
(ii) had a cognitive impairment at the
10 time the criminal proceeding
commenced; and
(b) the criminal proceeding relates
(wholly or partly) to a charge for--
(i) a sexual offence; or
15 (ii) an offence where the conduct
constituting the offence consists
of family violence within the
meaning of the Family Violence
Protection Act 2008; or
20 (iii) an offence against section 17(1)
or 19 of the Summary Offences
Act 1966; or
(iv) an offence which involves an
assault on, or injury or a threat
25 of injury to, a person.".
32 New section 430CA inserted
After section 430C of the Children, Youth and
Families Act 2005 insert--
"430CA Failure to file summary of appeal notice
30 means appeal or application is abandoned
and may be struck out
(1) If an appellant or applicant fails to file a
summary of appeal notice within the period
specified in section 425A(1)--
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(a) the appeal or application is taken to be
abandoned; and
(b) the appellate court constituted by a
judge, or a registrar of the County
5 Court or the Prothonotary (as the case
requires), may strike out the appeal or
application.
(2) If--
(a) an appeal or application for leave is
10 struck out under subsection (1); and
(b) the appellant or applicant had been
sentenced to a term of detention in a
youth residential centre or a youth
justice centre by the Children's Court--
15 the registrar of the County Court or the
Prothonotary, as the case requires, may issue,
in accordance with the Magistrates' Court
Act 1989, a warrant to detain the appellant or
applicant in a youth residential centre or
20 youth justice centre and may recall and
cancel that warrant.
(3) If an appeal or application for leave to appeal
is struck out under subsection (1)--
(a) the sentence of the Children's Court is
25 reinstated and may be enforced as if
an appeal or application had not been
commenced but, for the purposes of the
enforcement of any penalty, time is
deemed not to have run during the
30 period of any stay; and
(b) the registrar of the County Court or
the Prothonotary, as the case requires,
must give to the respondent or to the
respondent's legal practitioner a copy
35 of the order striking out the appeal or
application; and
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(c) the making of an order striking out
an appeal or application discharges
the undertaking of the appellant or
applicant to proceed with the appeal
5 or application.
(4) The appellate court, at any time, may set
aside an order striking out an appeal or
application for leave to appeal because of the
failure of the appellant or applicant to file a
10 summary of appeal notice, if the appellant or
applicant satisfies the court that the failure
was not due to fault or neglect on the part of
the appellant or applicant.
(5) An application under subsection (4) to set
15 aside an order may be made at any time by
notice in writing to the respondent served a
reasonable time before the making of the
application.
(6) Notice under subsection (5) must be served
20 in the same way as a notice of appeal or
application for leave to appeal.
(7) If the appellate court grants an application
under subsection (4), the court--
(a) must order the reinstatement of the
25 appeal or application for leave to appeal
subject to the payment of any costs that
the court considers appropriate; and
(b) may require the appellant or applicant
to give a further undertaking to proceed
30 with the appeal or application.
(8) An application under section 430B for bail
pending the reinstated appeal or application
may be made to the appellate court.
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(9) On the reinstatement of an appeal or
application, the appeal or application
operates as a stay of the sentence (but not
a conviction in respect of the sentence)
5 when--
(a) if required, the appellant or applicant
signs the undertaking referred to in
subsection (7)(b); and
(b) if the appellant or applicant is in
10 custody because of the sentence
appealed against and bail is granted
under section 430B, the appellant
enters bail.
(10) Subsection (9) is subject to section 29 of the
15 Road Safety Act 1986.".
33 Appellant's failure to appear
In section 430D(1) of the Children, Youth
and Families Act 2005, after "appear at" insert
"a pre-appeal mention hearing or".
20 34 New sections 430EA and 430EB inserted
After section 430E of the Children, Youth and
Families Act 2005 insert--
"430EA Power to strike out appeal with no
reasonable prospect of success
25 (1) The appellate court may strike out an appeal
under section 424 if the court is satisfied that
the appeal has no reasonable prospect of
success.
(2) If--
30 (a) the appellate court strikes out an appeal
under subsection (1); and
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(b) the appellant had been sentenced to a
term of detention in a youth residential
centre or a youth justice centre by the
Children's Court--
5 the registrar of the County Court or the
Prothonotary, as the case requires, may issue,
in accordance with the Magistrates' Court
Act 1989, a warrant to detain the appellant or
applicant in a youth residential centre or
10 youth justice centre and may recall and
cancel that warrant.
(3) If an appeal is struck out under
subsection (1)--
(a) the stay of the sentence of the
15 Children's Court is lifted; and
(b) subject to subsection (4), the sentence
may be enforced as if an appeal had not
been commenced; and
(c) the registrar of the County Court or
20 the Prothonotary, as the case requires,
must give to the respondent or to the
respondent's legal practitioner a copy of
the order striking out the appeal; and
(d) the making of an order striking out an
25 appeal discharges the undertaking of
the appellant to proceed with the
appeal.
(4) For the purposes of the enforcement of any
penalty, time is deemed not to have run
30 while the sentence of the Children's Court
was stayed.
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430EB Bail following appeal
If on an appeal the appellate court remits
the proceeding to the Children's Court in
accordance with section 426(3), the appellate
5 court may remand the appellant in custody or
grant the appellant bail pending the hearing
of the remitted proceeding in the Children's
Court.".
35 New section 430GA inserted
10 After section 430G of the Children, Youth and
Families Act 2005 insert--
"430GA Ancillary orders--how affected by appeal
by offender
(1) In this section--
15 ancillary order means an order that--
(a) is not a sentence; and
(b) is made under an Act that provides
that the order, or an application for
the order, may only be made in respect
20 of a person--
(i) whom a court has found guilty, or
not guilty by reason of mental
impairment, of an offence; or
(ii) on whom a court has imposed a
25 sentence for an offence;
applicable offence, in relation to an ancillary
order made in respect of a person,
means the offence for which--
(a) the finding referred to in
30 paragraph (b) of the definition of
ancillary order was made; or
(b) the sentence referred to in that
paragraph was imposed.
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(2) If a person in respect of whom an ancillary
order is made appeals, or applies for leave
to appeal, under section 424 against the
conviction or sentence for the applicable
5 offence for that order--
(a) the appeal or application for leave
to appeal operates as a stay of the
ancillary order--
(i) on and from the time when the
10 person files the application and
signs the undertaking referred to
in section 425(4); and
(ii) until the determination or striking
out of the appeal or application for
15 leave to appeal; and
(b) if the conviction is set aside on the
appeal, the ancillary order does not take
effect unless the appellate court
otherwise orders.
20 (3) If a provision of an Act under which an
ancillary order is made is inconsistent with
subsection (2), the provision of that other
Act prevails to the extent of the
inconsistency.".
25 36 Divisions 6 and 7 of Part 5.4 repealed
Divisions 6 and 7 of Part 5.4 of the Children,
Youth and Families Act 2005 are repealed.
37 Statute law revision
In section 630 of the Children, Youth and
30 Families Act 2005 (where secondly occurring),
for "630" substitute "630A".
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38 New section 640 inserted
At the end of Part 8.6 of the Children, Youth
and Families Act 2005 insert--
"640 Transitional provision--Justice
5 Legislation Amendment (Unlawful
Association and Criminal Appeals)
Act 2018
(1) In this section--
amending Act means the Justice
10 Legislation Amendment (Unlawful
Association and Criminal Appeals)
Act 2018.
(2) Subject to subsection (3), an amendment
made to Part 5.4 by a provision of Part 3 of
15 the amending Act applies in relation to a
criminal proceeding in which the plea to the
charge is entered in the Children's Court
after the commencement of that amendment.
(3) Despite the repeal of Divisions 6 and 7
20 of Part 5.4 by section 36 of the amending
Act, on and after the commencement of
section 36 of the amending Act, those
provisions, as in force immediately before
that commencement, continue to apply
25 in relation to a sentence of imprisonment
imposed by the appellate court under
section 426, 429 or 429C--
(a) before that commencement; or
(b) following a plea of guilty entered
30 before that commencement; or
(c) following a conviction entered on a
hearing that commenced before that
commencement.".
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Division 2--Amendment of Criminal
Procedure Act 2009
39 New Division 1AA of Part 6.1 inserted
After the heading to Part 6.1 of the Criminal
5 Procedure Act 2009 insert--
"Division 1AA--Preliminary
253C Definition
In this Part--
appellate court means the County Court or
10 the Trial Division of the Supreme Court
(as the case requires).
253D When a recording is unavailable
In this Part, a reference to a recording, or a
part of a recording, that is unavailable is a
15 reference to a recording, or a part of a
recording, that--
(a) is indecipherable, destroyed or
otherwise irretrievable; or
(b) was never made.".
20 40 Division 1 of Part 6.1 substituted
For Division 1 of Part 6.1 of the Criminal
Procedure Act 2009 substitute--
"Division 1--Appeal by offender
254 Right of appeal and leave to appeal
25 (1) Subject to subsections (2) to (4), a person
convicted of an offence by the Magistrates'
Court in a criminal proceeding conducted in
accordance with Part 3.3 may appeal to the
County Court against either or both of--
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(a) the conviction; and
(b) the sentence.
Notes
1 See the definitions of conviction and sentence in
5 section 3.
2 Other Acts may provide that other orders may
be appealed against as if they were a sentence.
See, for example, section 142 of the
Confiscation Act 1997.
10 (2) Leave to appeal is required from the County
Court for an appeal against conviction if--
(a) the person was convicted following a
plea of guilty; or
(b) subject to subsection (3), the person
15 was convicted and sentenced but did
not appear in the criminal proceeding
in the Magistrates' Court.
(3) A person referred to in subsection (2)(b)
must not seek leave to appeal if--
20 (a) the person has not made an application
under section 88 in respect of the
charge on which the person was
convicted; or
Note
25 Section 88 provides that a person referred to in
subsection (2)(b) may apply to the Magistrates'
Court for an order that a charge be reheard.
(b) the person has made an application
referred to in paragraph (a) that has not
30 yet been determined.
(4) If the Magistrates' Court was constituted
by the Chief Magistrate who is a dual
commission holder, the appeal or application
for leave to appeal is to be made to the Trial
35 Division of the Supreme Court.
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255 How appeal or application for leave to
appeal is commenced
(1) Subject to subsection (2), an appeal under
section 254, or an application for leave to
5 appeal under that section, is commenced by
filing a notice of appeal or an application for
leave to appeal, as the case requires, with a
registrar of the Magistrates' Court at any
venue of the Magistrates' Court within
10 28 days after the day on which the sentence
of the Magistrates' Court is imposed.
(2) If section 254(2)(b) applies, the application
for leave to appeal is commenced by filing
an application for leave to appeal with a
15 registrar of the Magistrates' Court at any
venue of the Magistrates' Court within
28 days after the Magistrates' Court did
not order a rehearing under section 92.
(3) A copy of the notice of appeal or the
20 application for leave to appeal, as the case
requires, must be served on the respondent
in accordance with section 392 within 7 days
after the day on which the notice or
application is filed.
25 (4) A notice of appeal must--
(a) state whether the appeal is against
conviction, sentence or both; and
(b) state whether the appellant was
convicted following a plea of guilty
30 and, if so, whether the Magistrates'
Court gave a sentence indication; and
(c) be in the form, and include the
information, prescribed by the rules
of the appellate court.
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(5) An application for leave to appeal must--
(a) state whether the applicant--
(i) was convicted following a plea of
guilty and, if so, whether the
5 Magistrates' Court gave a sentence
indication; or
(ii) did not appear in the criminal
proceeding in the Magistrates'
Court; and
10 (b) if paragraph (a)(ii) applies, state the
date on which the Magistrates' Court
did not order a rehearing under
section 92; and
(c) be in the form, and include the
15 information, prescribed by the rules
of the appellate court.
(6) A notice of appeal or an application for leave
to appeal must include a statement that--
(a) is to the effect that the appellant or
20 applicant is aware that on appeal the
court may impose a sentence more
severe than that sought to be appealed
against or for which leave to appeal is
sought; and
25 (b) is in the form prescribed by the rules of
the appellate court; and
(c) is signed by the appellant or applicant.
(7) A notice of appeal or an application for leave
to appeal must also include an undertaking
30 signed by the appellant or applicant, in the
manner prescribed by the rules of the
appellate court--
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(a) to appear at the appellate court to
proceed with the appeal or application
at a place and on a day fixed or to be
fixed by the registrar of the County
5 Court or the Prothonotary (as the case
requires) and to appear at the appellate
court for the duration of the appeal or
application; and
(b) to give written notice without delay to
10 the registrar of the County Court or
the Prothonotary, as the case requires,
of any change to the following
information as appearing in the notice
of appeal or application for leave to
15 appeal--
(i) the address of the appellant or
applicant;
(ii) other information prescribed in
the rules of the appellate court.
20 (8) Before accepting a notice of appeal or an
application for leave to appeal, a registrar of
the Magistrates' Court must--
(a) give to the person seeking to file the
notice of appeal or application for
25 leave to appeal a notice in the form
prescribed by the rules of the appellate
court to the effect that on the appeal the
court may impose a sentence more
severe than that sought to be appealed
30 against or for which leave to appeal is
sought; and
(b) if the person seeking to file the notice
of appeal or application for leave to
appeal is not the proposed appellant or
35 applicant, be satisfied that the proposed
appellant or proposed applicant has
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signed the statement required to be
included in the notice of appeal or the
application for leave to appeal by
subsection (6).
5 (9) A notice of appeal or an application for leave
to appeal filed under this section must be
transmitted to the appellate court.
255A Summary of appeal notice
(1) Within 28 days after filing a notice of appeal
10 or an application for leave to appeal against
the conviction imposed by the Magistrates'
Court, the appellant or applicant must file a
summary of appeal notice in the appellate
court.
15 (2) A summary of appeal notice must--
(a) state the general grounds of appeal or
application; and
(b) be in the form prescribed by the rules of
the appellate court.
20 255B Determination of application for leave to
appeal
(1) On an application for leave to appeal, the
court may only grant leave to appeal if
satisfied that it is in the interests of justice
25 to do so.
(2) For the purposes of subsection (1), the court
may have regard to the following factors--
(a) if the application relates to a conviction
following a plea of guilty--
30 (i) the circumstances in which the
person entered the plea; and
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(ii) the time taken to apply for leave
to appeal the conviction; and
(iii) any other matter that the court
considers relevant;
5 (b) if the application relates to a conviction
where the person did not appear in the
criminal proceeding in the Magistrates'
Court--
(i) the time taken to apply for leave
10 to appeal the conviction; and
(ii) any other matter that the court
considers relevant.
256 Determination of appeal--appeal against
conviction
15 (1) In determining an appeal against conviction
under section 254, the appellate court must
determine the appeal by way of rehearing--
(a) on either--
(i) the evidence given before the
20 Magistrates' Court in the summary
hearing; or
(ii) if the whole of the recording of
that evidence is unavailable, the
evidence received under
25 section 265D(2); and
(b) on the evidence received in the appeal
under section 265E (if any); and
(c) having regard to the reasons of the
magistrate constituting the Magistrates'
30 Court in the summary hearing.
Note
Section 265C provides for the court to make
orders for the provision of transcripts and
reasons.
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(2) If the appellate court allows the appeal, the
court must--
(a) set aside the conviction that was the
subject of the appeal; and
5 (b) either--
(i) remit the proceeding in
accordance with subsection (3); or
(ii) deal with the appeal in accordance
with subsection (5).
10 (3) If leave for the appeal was required under
section 254(2), the appellate court may remit
the proceeding to the Magistrates' Court with
or without any direction in law.
(4) On a proceeding being remitted under
15 subsection (3)--
(a) each charge in the charge-sheet for
that proceeding is reinstated, other
than a charge that was struck out for
non-compliance with section 7; and
20 (b) if the appellant was also sentenced by
the Magistrates' Court on a charge that
was heard together with the charge that
is the subject of the appeal--
(i) that sentence is set aside; and
25 (ii) the Magistrates' Court must
re-sentence the offender.
(5) On allowing any appeal against conviction
under section 254, whether or not leave was
required under section 254(2), the appellate
30 court may--
(a) dismiss the charge for the offence that
was the subject of the appeal; and
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(b) if--
(i) at any time in the summary
hearing there was before the
Magistrates' Court a charge
5 against the appellant other than
the charge for the offence that is
the subject of the appeal; and
(ii) the appellant could have been
found guilty of that other charge;
10 and
(iii) the appellate court is satisfied,
beyond reasonable doubt, that the
appellant is guilty of the offence
that is the subject of that other
15 charge--
reinstate that other charge (if necessary)
and enter a judgment of conviction for
the offence to which it relates and
impose a sentence for that offence that
20 is no more severe than the sentence that
was imposed for the offence that was
the subject of the appeal; and
(c) vary a sentence that--
(i) was imposed for an offence that
25 was not the subject of the appeal
at or after the time when the
appellant was sentenced for the
offence that was the subject of the
appeal; and
30 (ii) took into account the sentence for
the offence that was the subject of
the appeal; and
(d) exercise any power which the
Magistrates' Court could have
35 exercised.
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(6) The power under subsection (5)(c) to vary
the sentence referred to in that provision
may still be exercised even if the sentence
imposed by the Magistrates' Court is an
5 aggregate sentence of imprisonment.
(7) If at the conclusion of an appeal the
appellant remains convicted of more than
one offence, the appellate court may either--
(a) impose a separate sentence in respect of
10 each offence; or
(b) impose an aggregate sentence of
imprisonment in accordance with
section 9 of the Sentencing Act 1991
in respect of all offences or any 2 or
15 more offences.
256A Determination of appeal--appeal against
sentence
(1) In determining an appeal against sentence
under section 254, the appellate court must
20 determine the appeal on the evidence and
other material that was before the
Magistrates' Court for the sentencing
hearing.
Note
25 Subsection (3) also permits the court to consider other
matters.
(2) Without limiting subsection (1), the appellate
court may consider the following--
(a) if the appellant pleaded guilty, the
30 agreed statement of facts on which the
Magistrates' Court relied to impose the
sentence that is the subject of the
appeal;
(b) the criminal record of the appellant, if
35 any;
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(c) any documentary evidence that was
before the Magistrates' Court for the
sentencing hearing;
(d) if oral evidence was taken from a
5 witness or the appellant at the
sentencing hearing, a transcript of
that evidence.
(3) The appellate court may also consider--
(a) other evidence, material or information
10 that--
(i) relates to matters that occurred
after the Magistrates' Court
sentenced the appellant; and
(ii) concerns the circumstances of
15 the appellant; and
(b) any submissions made during the
hearing of the appeal; and
(c) if an appeal was also brought against
the conviction to which the sentence
20 relates, the evidence received in that
appeal under section 265D or 265E
(if any); and
(d) if there is a factual issue in dispute
that the court considers relevant and
25 necessary to determining the appeal,
any other evidence given before the
Magistrates' Court in the summary
hearing.
(4) For the purposes of subsections (1), (2) and
30 (3), the appellate court may inform itself of
what evidence or other material was before
the Magistrates' Court in any way it sees fit.
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(5) In determining an appeal against sentence
under section 254--
(a) the appellate court must allow the
appeal if it finds that there are
5 compelling reasons to impose a
different sentence from that imposed
by the Magistrates' Court; and
(b) must dismiss the appeal in any other
case.
10 (6) For the purposes of subsection (5), in
determining whether there are compelling
reasons to impose a different sentence the
appellate court must have regard to the need
for a just and fair outcome, taking into
15 account--
(a) the reasons of the magistrate
constituting the Magistrates' Court
in the summary hearing; and
(b) a presumption in favour of the
20 correctness of the decision of the
Magistrates' Court in the summary
hearing.
(7) The determination of compelling reasons for
the purposes of this section--
25 (a) does not require a specific error of law
to be identified; and
(b) is not satisfied merely by the
identification of a deficiency in the
sentencing remarks of the magistrate
30 constituting the Magistrates' Court in
the summary hearing; and
(c) requires more than it being merely
arguable that a different sentence
should be imposed; and
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(d) does not require the appellate court to
be satisfied that the sentence was
unreasonable or plainly unjust.
(8) If the appellate court allows an appeal
5 against sentence under section 254, the
court--
(a) must set aside the sentence; and
(b) may impose any sentence which the
court considers appropriate and which
10 the Magistrates' Court could have
imposed; and
(c) may exercise any power which the
Magistrates' Court could have
exercised.
15 256B Sentence imposed on appeal
(1) The appellate court may backdate a sentence
imposed under section 256 or 256A to a date
not earlier than the date of the sentence of
the Magistrates' Court that was set aside on
20 the appeal.
(2) A sentence imposed under section 256
or 256A is for all purposes to be regarded
as a sentence of the appellate court.
Note
25 See the definition of sentence in section 3. This includes the
recording of a conviction and an order as to costs.
256C Warning that more severe sentence may
be imposed
If, on an appeal under section 254, the
30 appellate court is considering imposing a
more severe sentence than that imposed by
the Magistrates' Court, the appellate court
must warn the appellant, as early as possible
during the hearing of the appeal, that the
35 appellant faces the possibility that a more
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severe sentence may be imposed than that
imposed by the Magistrates' Court.".
41 Determination of DPP's appeal
(1) For section 259(1) of the Criminal Procedure
5 Act 2009 substitute--
"(1) In determining an appeal under section 257,
the appellate court must determine the appeal
on the evidence and other material that was
before the Magistrates' Court for the
10 sentencing hearing.
Note
Subsection (1B) also permits the court to consider
other matters.
(1A) Without limiting subsection (1), the appellate
15 court may consider the following--
(a) if the respondent pleaded guilty, the
agreed prosecution summary of
evidence, being a summary that was put
before the Magistrates' Court by the
20 prosecution for the sentencing hearing,
having first been agreed to by the
respondent;
(b) the criminal record of the respondent, if
any;
25 (c) any documentary evidence that was
before the Magistrates' Court for the
sentencing hearing;
(d) if oral evidence was taken from a
witness or the respondent at the
30 sentencing hearing, a transcript of
that evidence.
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(1B) The appellate court may also consider--
(a) other evidence, material or information
that--
(i) relates to matters that occurred
5 after the Magistrates' Court
sentenced the respondent; and
(ii) concerns the circumstances of the
respondent; and
(b) any submissions made during the
10 hearing of the appeal; and
(c) if there is a factual issue in dispute that
the appellate court considers relevant
and necessary to determining the
appeal, any other evidence given before
15 the Magistrates' Court in the summary
hearing.
(1C) For the purposes of subsections (1), (1A)
and (1B), the appellate court may inform
itself of what evidence or other material was
20 before the Magistrates' Court in any way it
sees fit.
(1D) In determining an appeal under
section 257--
(a) the appellate court must allow the
25 appeal if it find that there are
compelling reasons to impose a
different sentence from that imposed
by the Magistrates' Court; and
(b) must dismiss the appeal in any other
30 case.
(1E) For the purposes of subsection (1D), in
determining whether there are compelling
reasons to impose a different sentence the
appellate court must have regard to the need
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for a just and fair outcome, taking into
account--
(a) the reasons of the magistrate
constituting the Magistrates' Court
5 in the summary hearing; and
(b) a presumption in favour of the
correctness of the decision of the
Magistrates' Court in the summary
hearing.
10 (1F) The determination of compelling reasons for
the purposes of this section--
(a) does not require a specific error of law
to be identified; and
(b) is not satisfied merely by the
15 identification of a deficiency in the
sentencing remarks of the magistrate
constituting the Magistrates' Court in
the summary hearing; and
(c) requires more than it being merely
20 arguable that a different sentence
should be imposed; and
(d) does not require the court to be satisfied
that the sentence was unreasonable or
plainly unjust.".
25 (2) For section 259(2) of the Criminal Procedure
Act 2009 substitute--
"(2) If the appellate court allows an appeal
referred to in subsection (1), the court--
(a) must set aside the sentence; and
30 (b) may impose any sentence which the
court considers appropriate and which
the Magistrates' Court could have
imposed; and
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(c) may exercise any power which the
Magistrates' Court could have
exercised.".
42 Stay of sentence
5 (1) Before section 264(1) of the Criminal Procedure
Act 2009 insert--
"(1AA) If a person applies for leave to appeal against
conviction and is not in custody because of a
sentence in respect of that conviction, the
10 application operates as a stay of the sentence
(but not the conviction) when the person files
the application and signs the undertaking
referred to in section 255(7).
(1AAB) If a person applies for leave to appeal against
15 conviction and is in custody because of a
sentence in respect of that conviction, the
application operates as a stay of the sentence
(but not the conviction) when--
(a) the person files the application and
20 signs the undertaking referred to in
section 255(7); and
(b) the person enters bail, if bail is granted
under section 265.".
(2) After section 264(2) of the Criminal Procedure
25 Act 2009 insert--
"(2A) The stay of the sentence operates until the
determination of the appeal or the refusal of
the application for leave to appeal.".
(3) After section 264(3) of the Criminal Procedure
30 Act 2009 insert--
"(4) To avoid doubt, if--
(a) an Act provides that--
(i) an order may be appealed against
as if it were a sentence; or
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(ii) an order may be appealed in the
same manner in which a sentence
may be appealed; and
(b) a person appeals against the order or
5 applies for leave to appeal against the
order--
this section applies to that order in the same
way that it applies to a sentence.
Note
10 Section 271A sets out how these orders are affected
by an appeal under section 254.
(5) Nothing in subsection (4) limits the
application of any other provision of this
Part to an appeal against an order referred
15 to in that subsection.".
43 Bail pending appeal
(1) Before section 265(1) of the Criminal Procedure
Act 2009 insert--
"(1AA) This section applies if--
20 (a) an appellant is in custody because of a
sentence in respect of a conviction; and
(b) the person is appealing, or has applied
for leave to appeal, against either the
conviction or the sentence.".
25 (2) In section 265(1) of the Criminal Procedure
Act 2009, for "If an appellant is in custody
because of the sentence appealed against and
wishes to be released pending the appeal, the
appellant--" substitute "The appellant--".
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44 New sections 265A to 265E inserted
After section 265 of the Criminal Procedure
Act 2009 insert--
"265A Listing pre-appeal mention hearings
5 (1) The appellate court may list any appeal
under section 254, or application for leave to
appeal under section 254, for a pre-appeal
mention hearing.
(2) If a pre-appeal mention hearing is listed,
10 the registrar of the County Court or the
Prothonotary, as the case requires, must
notify the appellant of the listing time and
date.
265B Pre-appeal mention hearings
15 (1) An appellant or applicant must appear at
any pre-appeal mention hearing listed by
the appellate court in accordance with
section 265A.
(2) At a pre-appeal mention hearing the
20 appellate court may--
(a) order any party to make, file or serve
any written or oral material required by
the court for the purposes of the appeal
or application for leave; and
25 (b) fix a date for the hearing of the appeal
or application for leave; and
(c) make an order under section 265C; and
(d) make any other order or give any
direction that the court considers
30 appropriate.
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265C Transcripts
(1) The appellate court may order that copies of
the following material are to be provided to
the court and to the parties--
5 (a) the transcript of the evidence given or
submissions made in the summary
hearing;
(b) a transcript of the evidence given by a
witness at the sentencing hearing;
10 (c) a transcript of any other evidence,
including an audio or audiovisual
recording of that evidence;
(d) the transcript of the reasons of the
magistrate constituting the Magistrates'
15 Court in the summary hearing.
(2) The registrar of the County Court or the
Prothonotary, as the case requires, may
also make an order under subsection (1).
(3) An order under subsection (1) may be made
20 in respect of only a specified part of the
summary hearing if the appellant or
applicant and the respondent agree.
265D Where recording of evidence is wholly or
partly unavailable
25 (1) The fact that part of the recording of the
evidence given before the Magistrates' Court
is unavailable does not prevent the appellate
court from receiving the evidence contained
in another part of the recording in
30 determining the appeal.
Notes
1 The court is to determine the appeal on the
evidence given before the Magistrates' Court in
the summary hearing. See sections 256(1)(a)(i)
35 and 256A(1).
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2 Section 265E also allows for the appellate
court to receive further evidence in certain
circumstances.
(2) If the whole of the recording of the evidence
5 that was given before the Magistrates' Court
is unavailable, the appellate court may, on an
appeal against conviction under section 254,
receive evidence that addresses any matter
the court considers relevant and necessary to
10 determining the appeal.
Notes
1 Section 253D sets out when a recording is
unavailable.
2 Evidence received under this subsection may be
15 considered in an appeal against sentence only in
accordance with section 256A(3)(c).
265E Further evidence
(1) On an appeal against conviction under
section 254, the appellate court may receive
20 evidence if the court is satisfied that--
(a) it is in the interests of justice to do so;
and
(b) in the case of evidence protected under
subsection (3) or (4), the evidence is
25 substantially relevant to a fact in issue
in the appeal.
Note
Evidence received under this section may be
considered in an appeal against sentence only in
30 accordance with section 256A(3)(c).
(2) In determining whether it is in the interests
of justice to receive evidence under this
section, the appellate court must have regard
to--
35 (a) the probative value of the evidence; and
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(b) the right of the appellant to fully
present their appeal; and
(c) if the evidence was not given before
the Magistrates' Court in the summary
5 hearing--
(i) whether the evidence was
available at the time of the
summary hearing; and
(ii) why the evidence was not given
10 in the summary hearing; and
(d) if the evidence was given in that
hearing--
(i) whether the recording of the
giving of the evidence in that
15 hearing, or any part of that
recording, is unavailable; and
Note
If the whole of the recording of the
evidence that was given before the
20 Magistrates' Court is unavailable, the
appellate court has a separate power to
receive evidence. See section 265D(2).
(ii) if the recording is available,
whether there is any other reason
25 why the evidence should be given
again.
(3) For the purposes of subsection (1)(b),
evidence is protected under this subsection
if--
30 (a) the evidence is to be given by a
complainant; and
(b) the criminal proceeding relates
(wholly or partly) to a charge for--
(i) a sexual offence; or
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(ii) an offence where the conduct
constituting the offence consists
of family violence within the
meaning of the Family Violence
5 Protection Act 2008; or
(iii) an offence against section 17(1)
or 19 of the Summary Offences
Act 1966.
(4) For the purposes of subsection (1)(b),
10 evidence is protected under this subsection
if--
(a) the evidence is to be given by a person
who--
(i) was a child at the time the
15 criminal proceeding commenced;
or
(ii) had a cognitive impairment at the
time the criminal proceeding
commenced; and
20 (b) the criminal proceeding relates
(wholly or partly) to a charge for--
(i) a sexual offence; or
(ii) an offence where the conduct
constituting the offence consists
25 of family violence within the
meaning of the Family Violence
Protection Act 2008; or
(iii) an offence against section 17(1)
or 19 of the Summary Offences
30 Act 1966; or
(iv) an offence which involves an
assault on, or injury or a threat
of injury to, a person.".
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45 New section 266A inserted
After section 266 of the Criminal Procedure
Act 2009 insert--
"266A Failure to file summary of appeal notice
5 means appeal or application is abandoned
and may be struck out
(1) If an appellant or applicant fails to file a
summary of appeal notice within the period
specified in section 255A(1)--
10 (a) the appeal or application is taken to be
abandoned; and
(b) the appellate court, or the registrar of
the County Court or the Prothonotary
(as the case requires), may strike out
15 the appeal or application.
(2) If--
(a) an appeal or application for leave is
struck out under subsection (1); and
(b) the appellant or applicant had been
20 sentenced to a term of imprisonment or
detention by the Magistrates' Court--
the registrar of the County Court or the
Prothonotary, as the case requires, may
issue, in accordance with the Magistrates'
25 Court Act 1989, a warrant to imprison the
appellant or applicant and may recall and
cancel that warrant.
(3) If an appeal or application for leave to appeal
is struck out under subsection (1)--
30 (a) the sentence of the Magistrates' Court
is reinstated and may be enforced as if
an appeal or application had not been
commenced but, for the purposes of the
enforcement of any penalty, time is
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deemed not to have run during the
period of any stay; and
(b) the registrar of the County Court or
the Prothonotary, as the case requires,
5 must give to the respondent or to the
respondent's legal practitioner a copy
of the order striking out the appeal or
application; and
(c) the making of an order striking out an
10 appeal or application discharges the
undertaking of the appellant or
applicant to proceed with the appeal
or application.
(4) The appellate court, at any time, may set
15 aside an order striking out an appeal or
application for leave to appeal because of the
failure of the appellant or applicant to file a
summary of appeal notice, if the appellant or
applicant satisfies the court that the failure
20 was not due to fault or neglect on the part of
the appellant or applicant.
(5) An application under subsection (4) to set
aside an order may be made at any time by
notice in writing to the respondent served a
25 reasonable time before the making of the
application.
(6) Notice under subsection (5) must be served
in the same way as a notice of appeal or
application for leave to appeal.
30 (7) If the appellate court grants an application
under subsection (4), the court--
(a) must order the reinstatement of the
appeal or application for leave to appeal
subject to the payment of any costs that
35 the court considers appropriate; and
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(b) may require the appellant or applicant
to give a further undertaking to proceed
with the appeal or application.
(8) An application under section 265 for bail
5 pending the reinstated appeal or application
may be made to the appellate court.
(9) On the reinstatement of an appeal or
application, the appeal or application
operates as a stay of the sentence (but not a
10 conviction in respect of the sentence)
when--
(a) if required, the appellant or applicant
signs the undertaking referred to in
subsection (7)(b); and
15 (b) if the appellant or applicant is in
custody because of the sentence
appealed against and bail is granted
under section 265, the appellant enters
bail.
20 (10) Subsection (9) is subject to section 29 of the
Road Safety Act 1986.".
46 Appellant's failure to appear
In section 267(1) of the Criminal Procedure
Act 2009, after "appear at" insert "a pre-appeal
25 mention hearing or".
47 New sections 268A and 268B inserted
After section 268 of the Criminal Procedure
Act 2009 insert--
"268A Power to strike out appeal with no
30 reasonable prospect of success
(1) The appellate court may strike out an appeal
under section 254 if the court is satisfied that
the appeal has no reasonable prospect of
success.
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(2) If--
(a) the appellate court strikes out an appeal
under subsection (1); and
(b) the appellant had been sentenced to a
5 term of imprisonment or detention by
the Magistrates' Court--
the registrar of the County Court or the
Prothonotary, as the case requires, may
issue, in accordance with the Magistrates'
10 Court Act 1989, a warrant to imprison the
appellant and may recall and cancel that
warrant.
(3) If an appeal is struck out under
subsection (1)--
15 (a) the stay of the sentence of the
Magistrates' Court is lifted; and
(b) subject to subsection (4), the sentence
may be enforced as if an appeal had not
been commenced; and
20 (c) the registrar of the County Court or
the Prothonotary, as the case requires,
must give to the respondent or to the
respondent's legal practitioner a copy of
the order striking out the appeal; and
25 (d) the making of an order striking out an
appeal discharges the undertaking of
the appellant to proceed with the
appeal.
(4) For the purposes of the enforcement of any
30 penalty, time is deemed not to have run
while the sentence of the Magistrates' Court
was stayed.
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268B Bail following appeal
If on an appeal the appellate court remits
the proceeding to the Magistrates' Court in
accordance with section 256(3), the appellate
5 court may remand the appellant in custody or
grant the appellant bail pending the hearing
of the remitted proceeding in the Magistrates'
Court.".
48 Appeal to County Court authorised by other Acts
10 Note 1 at the foot of section 271 of the Criminal
Procedure Act 2009 is repealed.
49 New section 271A inserted
After section 271 of the Criminal Procedure
Act 2009 insert--
15 "271A Ancillary orders--how affected by appeal
by offender
(1) In this section--
ancillary order means an order that--
(a) is not a sentence; and
20 (b) is made under an Act that provides
that the order, or an application
for the order, may only be made in
respect of a person--
(i) whom a court has found
25 guilty, or not guilty by
reason of mental impairment,
of an offence; or
(ii) on whom a court has
imposed a sentence for an
30 offence;
applicable offence, for an ancillary order
made in respect of a person, means the
offence for which--
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(a) the finding referred to in
paragraph (b) of the definition of
ancillary order was made; or
(b) the sentence referred to in that
5 paragraph was imposed.
(2) If a person in respect of whom an ancillary
order is made appeals, or applies for leave to
appeal, under section 254 against the
conviction or sentence for the applicable
10 offence for that order--
(a) the appeal or application for leave to
appeal operates as a stay of the
ancillary order--
(i) on and from the time when the
15 person files the application and
signs the undertaking referred to
in section 255(7); and
(ii) until the determination or striking
out of the appeal or application for
20 leave to appeal; and
(b) if the conviction is set aside on the
appeal, the ancillary order does not take
effect unless the appellate court
otherwise orders.
25 (3) If a provision of an Act under which an
ancillary order is made is inconsistent with
subsection (2), the provision of that other
Act prevails to the extent of the
inconsistency.".
30 50 Sections 283 to 286 repealed
Sections 283, 284, 284A, 285 and 286 of the
Criminal Procedure Act 2009 are repealed.
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51 Consequential amendments--cross-references
(1) In section 263(1) and (2)(a) of the Criminal
Procedure Act 2009, after "section 255(1)" insert
"or (2)".
5 (2) In section 264(1) and (2)(a) of the Criminal
Procedure Act 2009, for "section 255(5)"
substitute "section 255(7)".
(3) In section 315(3) of the Criminal Procedure
Act 2009 omit "or 284A(3)".
10 (4) In section 322(2) of the Criminal Procedure
Act 2009 omit "or 284A(3)".
(5) In section 334(4)(c) of the Criminal Procedure
Act 2009--
(a) for "section 255" substitute "section 255, or
15 an application for leave to appeal referred to
in that section,";
(b) for "section 255(5);" substitute
"section 255(7);".
(6) In section 406(4)(a) of the Criminal Procedure
20 Act 2009, for "section 255(5);" substitute
"section 255(7);".
52 Consequential amendments--references to appellate
courts
(1) In section 257(2) of the Criminal Procedure
25 Act 2009, for "County Court or the Trial Division
of the Supreme Court, as the case requires"
substitute "appellate court".
(2) In section 258(3)(b) and (5) of the Criminal
Procedure Act 2009, for "County Court or the
30 Supreme Court, as the case requires" substitute
"appellate court".
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(3) In section 259(5) of the Criminal Procedure
Act 2009, for "County Court or the Supreme
Court, as the case requires" substitute "appellate
court".
5 (4) In section 260(3) of the Criminal Procedure
Act 2009, for "County Court or the Trial Division
of the Supreme Court, as the case requires"
substitute "appellate court".
(5) In section 261(3) and (5) of the Criminal
10 Procedure Act 2009, for "County Court or the
Supreme Court, as the case requires," substitute
"appellate court".
(6) In section 262(2) of the Criminal Procedure
Act 2009, for "County Court or the Supreme
15 Court, as the case requires," substitute "appellate
court".
(7) In section 263(2) and (4)(a) of the Criminal
Procedure Act 2009, for "County Court or the
Supreme Court, as the case requires", substitute
20 "appellate court".
(8) In section 263(4) and (5)(b) of the Criminal
Procedure Act 2009, for "Prothonotary of the
Supreme Court" substitute "Prothonotary".
(9) In section 266(1) of the Criminal Procedure
25 Act 2009--
(a) for "County Court or the Supreme Court, as
the case requires," substitute "appellate
court";
(b) for "applicable court" (where twice
30 occurring) substitute "appellate court".
(10) In section 266(3)(a), (3A) and (5)(b) of the
Criminal Procedure Act 2009, for "Prothonotary
of the Supreme Court" substitute "Prothonotary".
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(11) In section 267 of the Criminal Procedure
Act 2009--
(a) in subsections (1) and (1A)(a), for "County
Court or the Supreme Court, as the case
5 requires," substitute "appellate court";
(b) in subsection (6A), for "County Court or
the Supreme Court, as the case requires"
substitute "appellate court".
(12) In section 267(1A) and (2)(b) of the Criminal
10 Procedure Act 2009, for "Prothonotary of the
Supreme Court" substitute "Prothonotary".
(13) In section 268(1) and (2) of the Criminal
Procedure Act 2009, and in the Note at the foot
of section 268(1)(b) of that Act, for "County
15 Court or the Supreme Court, as the case requires"
substitute "appellate court".
(14) In section 270 of the Criminal Procedure
Act 2009, for "County Court or the Supreme
Court, as the case requires" substitute "appellate
20 court".
53 New section 453 inserted
At the end of Chapter 10 of the Criminal
Procedure Act 2009 insert--
"453 Transitional provision--Justice
25 Legislation Amendment (Unlawful
Association and Criminal Appeals)
Act 2018
(1) In this section--
amending Act means the Justice
30 Legislation Amendment (Unlawful
Association and Criminal Appeals)
Act 2018.
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(2) Subject to subsection (3), an amendment
made to Part 6.1 or 6.3 by a provision of
Part 3 of the amending Act applies in
relation to a criminal proceeding in which
5 the plea to the charge is entered in the
Magistrates' Court after the commencement
of that provision.
(3) Despite the repeal of sections 283, 284,
284A, 285 and 286 by section 50 of the
10 amending Act, on and after the
commencement of section 50 of the
amending Act, those provisions, as in force
immediately before that commencement,
continue to apply in relation to a sentence of
15 imprisonment imposed by the appellate court
under section 256, 259 or 262--
(a) before that commencement; or
(b) following a plea of guilty entered
before that commencement; or
20 (c) following a conviction entered on a
hearing that commenced before that
commencement.".
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Part 4--Repeal of amending Act
Part 4--Repeal of amending Act
54 Repeal of amending Act
This Act is repealed on 2 March 2021.
Note
5 The repeal of this Act does not affect the continuing operation
of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
By Authority. Government Printer for the State of Victoria.
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