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Courts and Sentencing Legislation
Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The purpose of the Courts and Sentencing Legislation Amendment Bill 2012
is to strengthen Victoria's justice system through various improvements to
court and sentencing legislation.
In respect of court legislation, the Bill will amend the Children, Youth and
Families Act 2005, the County Court Act 1958, the Magistrates' Court
Act 1989, the Supreme Court Act 1986, the Judicial College of Victoria
Act 2001 and the Juries Act 2000.
The Bill will strengthen the court system by amending the above Acts to
clarify the jurisdiction of Koori Courts, improve various Children's Court
processes and make other technical amendments, correct anomalies in
relation to the empanelment and excusing of jurors, make judicial registrars a
class of judicial officer that can be provided with judicial education by the
Judicial College of Victoria, and provide immunity to assessors in the
Supreme Court and the County Court.
In respect of sentencing legislation, the Bill strengthens sentencing laws.
The main provisions of the Sentencing Amendment (Community
Correction Reform) Act 2011 came into effect on 16 January 2012 by
replacing the combined custody and treatment order, intensive correction
order and community based order with a new single community correction
order. On the same day, the Sentencing Legislation (Abolition of Home
Detention) Act 2011 commenced and repealed home detention as a
sentencing order under the Sentencing Act 1991 and as an order available to
the Adult Parole Board under the Corrections Act 1986.
571283 1 BILL LA INTRODUCTION 17/4/2012
The Bill supports the community correction reforms by further amending the
Sentencing Act 1991, the Sentencing Amendment (Community
Correction Reform) Act 2011 and other Acts. The Bill improves the
operation of community-based sentencing by streamlining processes for
charging offenders with contravention of a sentencing order, modernising
orders to convert unpaid fines into unpaid community work, clarifying how
money will be held and repaid under the community correction order bond
condition, and by making further technical and minor amendments.
The Bill also provides for an extension of the period for which certain
offences are infringement offences. Those offences are shop theft and wilful
damage.
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 provides that Part 1, Part 4 and Division 3 of Part 10 of the Bill
will commence on the day after the Act receives Royal Assent.
The remaining provisions of the Bill commence on 1 November
2012, unless proclaimed earlier.
Part 1 of the Bill contains provisions about the purpose and
commencement of the Bill and therefore that Part commences the
day after Royal Assent.
Part 4 of the Bill makes amendments to the Judicial College of
Victoria Act 2001 to allow judicial education of judicial
registrars. That Part commences the day after Royal Assent
because the Judicial College of Victoria has expertise and
resources currently available to provide education to judicial
registrars.
Division 3 of Part 10 amends the Justice Legislation
Amendment (Infringement Offences) Act 2011 to provide that
sunset provisions commence on 1 July 2014. Without this
amendment, such provisions would commence on 1 July 2012.
PART 2--AMENDMENTS TO THE CHILDREN, YOUTH AND
FAMILIES ACT 2005
Clause 3 amends section 346(3)(b) and 346(5) of the Children, Youth
and Families Act 2005 by inserting the word "clear" to clarify
how the period of 21 days referred to in those subsections is to be
calculated. This amendment will allow the Children's Court to
2
remand a child in custody for 21 clear days and have the matter
return to Court on the same day of the week, three weeks later.
That is, on the 21st clear day following the day on which the
order remanding the child in custody was made. This is
important because in some regions the Children's Court may only
sit one day per week, for example every Tuesday. For example,
if the Children' s Court remands a child in custody for 21 days on
Tuesday 6 March, the order will expire on Tuesday 27 March.
Clause 4 amends the Children, Youth and Families Act 2005 by
inserting the word "clear" in section 348 of that Act. This will
clarify how the period of 21 days referred to in that section is to
be calculated as with clause 3.
Clause 5 Subclause (1) inserts the words "or it is otherwise impracticable
for the first-mentioned magistrate to constitute the Court" into
subsection 384(3)(b)(i) of the Children, Youth and Families
Act 2005. Section 384 of that Act provides that a person who is
alleged to have failed to observe any condition, or amended
condition, of a probation order, must appear or be brought before
the Children's Court. The amendment will allow the Court to be
constituted either by the magistrate who sentenced the person or,
if it is impracticable for that magistrate to constitute the court,
another magistrate. The magistrate who originally sentenced the
person may be unavailable due to long-term leave such as
maternity leave.
Subclause (2) repeals section 384(4) of the Children, Youth and
Families Act 2005. The amendment made by subclause (1)
expands the circumstances in which a different magistrate from
the sentencing magistrate may constitute the Court. If it is
impracticable for the sentencing magistrate to constitute the
Court, a different magistrate may constitute the Court regardless
of whether the person who is alleged to have breached probation
consents. Therefore, section 384(4) becomes redundant.
Clause 6 makes amendments which have the same effect as those made by
clause 5, but with respect to a breach of a youth supervision
order.
Clause 7 makes amendments which have the same effect as those made by
clause 5, but with respect to a breach of a youth attendance order.
3
Clause 8 amends the Children, Youth and Families Act 2005 to expand
the criminal jurisdiction of the Koori Court of the Children's
Court by providing that the Koori Court can deal with a breach of
a sentence imposed by another Division of the Children's Court.
The jurisdiction to deal with a breach includes the ability to deal
with--
an offence constituted by a breach; and
a variation of a sentence.
The expanded criminal jurisdiction of the Koori Court is
exercised in the circumstances set out in new section 518A
inserted by clause 9 of the Bill. These are the same
circumstances in which the Koori Court (Criminal Division) may
deal with any other proceeding for criminal offence in respect of
a Koori accused.
The amendment also clarifies that the Koori Court (Criminal
Division) can exercise its jurisdiction to deal with a breach of a
sentence imposed by it in the same circumstances in which it can
exercise its new jurisdiction to deal with a breach of a sentence
imposed by another Division of the Children's Court.
Clause 9 inserts a new section 518A into the Children, Youth and
Families Act 2005. The new section describes the circumstances
in which the Koori Court (Criminal Division) can deal with a
breach of sentence imposed by it or by another Division of the
Children's Court.
Clause 10 inserts the words "or another member of the police force" into
section 598(3) of the Children, Youth and Families Act 2005.
The amendment will remove the requirement that the same
member of the police force who executed a safe custody warrant
must deliver the child to the location specified in the warrant.
The amendment will allow a different member of the police force
to bring that child to the location specified.
4
Clause 11 inserts two transitional provisions into the Children, Youth and
Families Act 2005. The transitional provisions provide that--
an order made under section 346 (remanding a child in
custody) or section 348 (remanding a child in custody
under the Bail Act 1977) of the Children, Youth and
Families Act 2005 before the commencement of
clauses 3 and 4 of the Bill are not affected by the
amendments made by those clauses.
the expanded jurisdiction of the Koori Court (Criminal
Division) applies to all offences or breaches of sentence,
regardless of when they are alleged to have occurred
and regardless of when the sentence was imposed.
Clause 12 substitutes a new definition of registrar in clause 2 of Schedule 3
to the Children, Youth and Families Act 2005. The new
definition defines registrar as a principal registrar or registrar,
thus removing deputy registrars from the definition. The effect
of this is that a deputy registrar cannot exercise the functions
given to registrars in Schedule 3. Schedule 3 sets out the
procedures for the enforcement of infringement penalties against
children and young persons.
PART 3--AMENDMENTS TO THE COUNTY COURT
ACT 1958
Clause 13 amends the County Court Act 1958 to expand the jurisdiction of
the Koori Court Division of the County Court by providing that
the Koori Court Division can deal with a contravention of a
sentence imposed by another Division of the County Court.
The jurisdiction to deal with a contravention includes the ability
to deal with--
an offence constituted by a contravention; and
a variation of a sentence.
Section 3(1) of the Sentencing Act 1991 provides that
contravention, in relation to a provision of an order or a sentence
includes a failure to comply with that provision.
5
The expanded jurisdiction can be exercised by the Koori Court
Division in the circumstances set out in new section 4DA
inserted by clause 15 of the Bill. These are the same
circumstances in which the Koori Court (Criminal Division) may
deal with any other proceeding for criminal offence in respect of
a Koori accused.
The amendment also clarifies that the Koori Court Division can
exercise its jurisdiction to deal with a contravention of a sentence
imposed by it in the same circumstances in which it can exercise
its new jurisdiction to deal with a contravention of a sentence
imposed by another Division of the County Court.
This clause also replaces the word "breach" with the word
"contravention", which makes section 4B consistent with the
language used in the Sentencing Act 1991.
Clause 14 replaces the word "breach" with the word "contravention" in
section 4C of the County Court Act 1958. This makes
section 4C consistent with the language used in the Sentencing
Act 1991.
Clause 15 inserts a new section 4DA into the County Court Act 1958.
The new section describes the circumstances in which the Koori
Court Division can deal with a contravention of sentence
imposed by another Division of the County Court.
Clause 16 inserts a new section 48CA into the County Court Act 1958.
The new section gives an immunity to an assessor called in for
assistance in a proceeding under section 48A.
Assessors assist the County Court by providing independent
expert assessments, similar to the roles of special referees,
mediators and arbitrators.
The amendment has the effect of giving an assessor, in the
performance of his or her duties in a proceeding, the same
protection and immunity that a judge of the court has in the
performance of his or her duties as a judge. This includes
immunity from civil action in relation to acts or omissions of
assessors in the course of their duties.
Clause 17 inserts a transitional provision into the County Court Act 1958
providing that the changes made by clauses 13 and 15 of this Bill
apply to all proceedings.
6
PART 4--AMENDMENTS TO THE JUDICIAL COLLEGE OF
VICTORIA ACT 2001
Clause 18 amends the definition of judicial officer in section 3 of the
Judicial College of Victoria Act 2001 so as to include judicial
registrars within that definition. This will allow the Judicial
College of Victoria to perform functions with respect to judicial
registrars of the Supreme Court, County Court, Magistrates'
Court, Children's Court and Coroners Court.
PART 5--AMENDMENTS TO THE JURIES ACT 2000
Clause 19 inserts new words into the Juries Act 2000 to clarify that the
Juries Commissioner may cause a document to be prepared
bearing a number that identifies a person called to a pool of
persons attending for jury service as well as the occupation of
that person. If the Juries Commissioner were to prepare this
document, it would be prepared in addition to the document
which must be prepared under section 29(3) of the Juries Act
2000. A jury may be empanelled by name or by number, and this
amendment will allow the preparation of a document which will
assist in the empanelment of a jury by number.
Clause 20 removes words from section 30(4) of the Juries Act 2000 so that
it is no longer a legislative requirement to provide a list of names
of the members of a jury panel to the person authorised by the
trial judge to assist in the calling of the panel and the selection of
the jury.
Clause 21 inserts words into section 32(4) of the Juries Act 2000 which
clarify that unless the Court orders otherwise, a person excused
from jury service under subsection 3 must return to the jury pool
at the completion of the swearing in of the jury. This clarifies
that (unless the Court orders otherwise) an excused person does
not have to be returned to the jury pool at the very moment they
are excused, but rather at the completion of the swearing in of the
jury. This amendment will facilitate the escorting of groups of
persons (rather than individuals) back to the jury pool by the
Juries Commissioner or a pool supervisor.
7
PART 6--AMENDMENTS TO THE MAGISTRATES' COURT
ACT 1989
Clause 22 amends the Magistrates' Court Act 1989 to expand the
jurisdiction of the Koori Court Division of the Magistrates' Court
by providing that the Koori Court Division can deal with a
contravention of a sentence imposed by another Division of the
Magistrates' Court. The jurisdiction to deal with a contravention
includes the ability to deal with--
an offence constituted by a contravention; and
a variation of a sentence.
Section 3 of the Sentencing Act 1991 provides that
"contravention", in relation to a provision of an order or a
sentence, includes a failure to comply with that provision.
The expanded jurisdiction can be exercised by the Koori Court
Division in the circumstances set out in new section 4EA.
These are the same circumstances in which the Koori Court
Division may deal with a proceeding for an offence.
The amendment also clarifies that the Koori Court Division can
exercise its jurisdiction to deal with a contravention of a sentence
imposed by it in the same circumstances in which it can exercise
its new jurisdiction to deal with a contravention of a sentence
imposed by another Division of the Magistrates' Court.
The clause uses the word "contravention" to replace the word
"breach", which makes the language used in section 4E consistent
with the Sentencing Act 1991.
Clause 23 inserts a new section 4EA into the Magistrates' Court Act 1989.
The new section describes the circumstances in which the Koori
Court Division can deal with a contravention of sentence
imposed by it or by another Division of the Magistrates' Court.
Clause 24 replaces the word "breach" with the word "contravention" which
makes section 4F of the Magistrates' Court Act 1989 consistent
with the language used in the Sentencing Act 1991.
Clause 25 is a transitional provision which provides that the amendments
made to the Magistrates' Court Act 1989 by clauses 22 and 23
of this Bill apply to all proceedings for an offence or a
contravention, regardless of when the offence or contravention is
8
alleged to have occurred and regardless of when the sentence was
imposed.
PART 7--AMENDMENTS TO THE SENTENCING ACT 1991
Clause 26 amends the purposes of the Sentencing Act 1991 to include
providing fair procedures for offenders who contravene a
sentencing order.
Clause 27 amends the definitions in section 3 (1) of the Sentencing Act
1991 to--
insert a definition of a community correction order;
repeal the definition of contravention summons as a
consequence of amendments made to Division 2 of
Part 3C of the Sentencing Act 1991 by clause 62 of the
Bill;
expand the definition of a fine conversion order to
include an order made under section 55(3) of the
Sentencing Act 1991. Section 55(3) deals with the
situation where an offender applies to convert a fine for
an offence that is before the Magistrates' Court
following the revocation of an enforcement order for an
unpaid infringement fine under the Infringements Act
2006;
expand the definition of a fine default unpaid
community work order to include an order made under
section 64(4) of the Sentencing Act 1991. Section 64
deals with the situation where an offender who has
defaulted in payment of a fine has had property seized
to satisfy the fine. However, upon execution of the
warrant the property is not sufficient to satisfy the fine.
In such cases, a court may imprison the offender or, in
the alternative, make a fine default unpaid community
work order, if appropriate to do so;
update references in the definition of instalment order
to refer to Part 3B of the Sentencing Act 1991;
clarify the definition of Regional Manager so it is clear
that the officer also administers fine conversion orders.
9
Clause 28 amends section 18(1) of the Sentencing Act 1991 to make
necessary consequential amendments following the repeal of
section 31 and the insertion of section 83AR by section 44 of the
Sentencing Amendment (Community Correction Reform)
Act 2011.
Clause 29 inserts a new section 18ZT into the Sentencing Act 1991 to
clarify the status of drug treatment orders made by the Court of
Appeal. The order of the Court of Appeal is taken to be made by
the lower court, being the original sentencing court (ie. the Drug
Court). The amendment ensures the Court of Appeal does not
become the sentencing court in relation to the order and is not
required to deal with subsequent hearings in relation to a
contravention or variation of the order. For example, if an
offender later made an application to vary the order the Drug
Court would deal with the application.
Clause 30 amends section 27 of the Sentencing Act 1991 to substitute
references to 'breach' with 'contravention' as a consequence of the
creation of the offence in section 83AB which was inserted by
section 44 of the Sentencing Amendment (Community
Correction Reform) Act 2011. This clause also clarifies the
status of a suspended sentence of imprisonment made by the
Court of Appeal with the effect that the order is taken to be made
by the lower court, being the original sentencing court.
The amendment ensures the Court of Appeal does not become
the sentencing court in relation to the order and is not required to
deal with subsequent hearings in relation to a contravention of
the suspended sentence. For example, if an offender contravened
the suspended sentence the proceeding would be dealt with by
the lower court (for example the County Court).
Clause 31 substitutes section 42 of the Sentencing Act 1991. The new
section continues the rule that the unpaid community work
required to be performed under a community correction order is
performed concurrently with unpaid community work under a
fine conversion order or a fine default unpaid community work
order, unless otherwise directed by the court.
The existing section 42 also contained a rule about unpaid
community work being performed where there is more than one
fine conversion order and fine default unpaid community work
order imposed. Clause 50 transfers this rule to Part 3B of the
10
Sentencing Act 1991 in a new section 63AB because it is a more
appropriate location.
Clause 32 amends section 45(1) of the Sentencing Act 1991 to insert a new
term for each community correction order in a new
paragraph (ba). The effect of this amendment is that all offenders
on a community correction order must comply with any
obligation or requirement prescribed in the regulations made
under section 116. For example, regulation 17 of the Sentencing
Regulations 2011 imposes obligations and requirements on
offenders not to consume alcohol or use drugs of addiction or use
a prohibited poison when attending at a community corrections
centre or a location or during the performance of unpaid
community work. If an offender contravenes new
section 45(1)(ba) he or she may be charged under section 83AD
of the Sentencing Act 1991 with contravention of a community
correction order.
Clause 33 amends section 47(2)(b) of the Sentencing Act 1991 to replace
the reference to the Division under which conditions are attached
to a community correction order when sentencing an
intellectually disabled offender. The reference will refer to new
Division 2 of new Part 3BA.
Clause 34 amends section 48(2) of the Sentencing Act 1991 to replace the
reference to the limitations on attaching a residual condition to a
community correction order. The reference will refer to new
Division 2 of new Part 3BA which is about conditions imposed
on a community correction order in respect of intellectually
disabled offenders.
Clause 35 amends section 48C(6) of the Sentencing Act 1991 to correct a
reference to "activity" with unpaid community work, that more
accurately reflects the nature of the unpaid community work
condition.
Clause 36 amends section 48N(2) to clarify which persons need to be
notified about an application to vary a community correction
order. If the sentencing court was the Magistrates' Court, the
informant or police prosecutor is notified of the application.
If the sentencing court was the Supreme Court or County Court,
the Director of Public Prosecutions is notified.
11
Clause 37 substitutes section 48Q of the Sentencing Act 1991 to clarify the
status of a community correction order made by the Court of
Appeal. The order of the Court of Appeal is taken to be made by
the lower court, being the original sentencing court.
The amendment ensures the Court of Appeal does not become
the sentencing court in relation to the order and is not required to
deal with subsequent hearings in relation to a contravention or
variation of the order. For example, if an offender later made an
application to vary the order, the lower court would deal with the
application (for example the County Court).
Clause 38 amends the heading to Part 3B of the Sentencing Act 1991 to
provide that the Part deals with fines.
The change to the heading is part of a broader modernisation of
Part 3B. The Bill continues the modernisation of these
provisions first commenced by sections 22 to 27 inclusive of the
Sentencing Amendment (Community Correction Reform)
Act 2011.
The effect of the amendment is to make the Part exclusively
about fines and orders imposed by a court on an offender to
satisfy unpaid fines. Orders to satisfy unpaid fines include
instalment orders and unpaid community work orders (called fine
conversion orders and fine default unpaid community work
orders) and imprisonment.
There are several amendments in the Bill which result from this
amendment. Clauses 40 to 53 inclusive, 58, 60 and Part 10 of the
Bill are consequential on the amendments made to Part 3B of the
Sentencing Act 1991. Clause 54 creates a new Part 3BA which
is about other sentencing orders previously contained in Part 3B
of the Sentencing Act 1991.
Clause 39 amends section 52 of the Sentencing Act 1991 to correct a
reference to section 109(3) in relation to the penalty scale.
Clause 40 inserts a new Division heading into Part 3B of the Sentencing
Act 1991. New Division 2 is about orders relating to payment of
a fine.
12
Clause 41 amends section 55 of the Sentencing Act 1991 to provide that
the Secretary may give directions in relation to a fine conversion
order. Clause 65 enables the Secretary to delegate powers to
certain persons who can administer fine conversion orders such
as Regional Managers and community corrections officers.
Clause 42 repeals section 57 of the Sentencing Act 1991. Clause 53
re-inserts the substance of the repealed provision in new
section 66A. The purpose of the re-location of this provision is
to modernise the structure of Part 3B of the Sentencing Act
1991.
Clause 43 repeals section 58 of the Sentencing Act 1991. Clause 53
re-inserts the substance of the repealed provision in new
section 66B. The purpose of the re-location of this provision is to
modernise the structure of Part 3B of the Sentencing Act 1991.
Clause 44 repeals section 59 of the Sentencing Act 1991. Clause 53
re-inserts the substance of the repealed provision in new
section 66C. The purpose of the re-location of this provision is to
modernise the structure of Part 3B of the Sentencing Act 1991.
Clause 45 repeals section 60 of the Sentencing Act 1991. Clause 53
re-inserts the substance of the repealed provision in new
section 66D. The purpose of the re-location of this provision is
to modernise the structure of Part 3B of the Sentencing Act
1991.
Clause 46 inserts a new Division 3 into Part 3B of the Sentencing Act 1991
which provides that unpaid fines that are satisfied by converting
the fine into unpaid community work or imprisonment. The new
Division applies to fine conversion orders and fine default unpaid
community work orders.
New section 61A sets out the terms of a fine conversion order.
The terms impose obligations or requirements on offenders under
the order, such as not to commit an offence punishable by
imprisonment during the period of the order. The terms apply to
each fine conversion order and last for the entire duration of the
order.
13
Clause 47 amends section 62 of the Sentencing Act 1991 to provide that
the Secretary may give directions in relation to a fine default
unpaid community work order. Clause 65 of the Bill provides for
the delegation of the Secretary's powers to certain persons who
can administer fine default unpaid community work orders.
Clause 48 amends section 62A of the Sentencing Act 1991 to provide that
the Secretary gives directions in relation to a fine default unpaid
community work orders. Clause 65 of the Bill provides for the
delegation of the Secretary powers to certain persons who can
administer fine default unpaid community work orders.
Clause 49 inserts a new section 62B of the Sentencing Act 1991 which
provides for the terms of fine default unpaid community work
orders. The terms mirror the terms for a fine conversion order
under clause 46 of the Bill. The terms apply to each fine default
unpaid community work order and last for the entire duration of
the order.
Clause 50 inserts new provisions in the Sentencing Act 1991 with respect
to fine conversion orders and fine default unpaid community
work orders.
New section 63AA of the Sentencing Act 1991 is about the
period of unpaid community work a court may impose for fine
conversion orders and fine default unpaid community work
orders. The court cannot require an offender to perform an
amount of hours of unpaid community work that exceeds the
periods set out in section 63AA, in particular a maximum of--
500 hours over 24 months;
20 hours in any 7 day period;
40 hours in a 7 day period (if the offender consents in
writing to do so).
The order expires on the satisfactory completion by the offender
of the hours of unpaid community work to be performed.
New section 63AB sets out a rule that unpaid community work
performed under a fine conversion order or a fine default unpaid
community work order are to be served cumulatively on each
other, unless the court directs otherwise. This provision re-enacts
some of existing section 42 of Sentencing Act 1991 because it is
14
a more appropriate location for this rule. The remainder of
existing section 42 is retained by clause 31 of the Bill.
New section 63AB also contains a rule that any direction about
how unpaid community work is to be performed in respect of fine
conversion orders or fine default unpaid community work orders
must not be inconsistent with section 63AA. For example,
two fine conversion orders to be served cumulatively cannot
exceed 500 hours over a 2 year period.
New section 63AC provides that a court must determine the
period of a fine conversion order or fine default unpaid
community work order according to section 63AA. For example,
a fine conversion order of 125 hours to satisfy unpaid fines must
be performed over a period of 6 months or less. In addition, the
order must commence within 3 months of being made.
New section 63AD empowers a court to vary a fine conversion
order or a fine default unpaid community work order.
New section 63AE provides for the making of an application to
vary a fine conversion order or a fine default unpaid community
work order.
Clause 51 amends section 64(4) of the Sentencing Act 1991 to replace a
reference to a community based order made in default of a fine
with a fine default unpaid community work order.
The amendment is a consequential amendment arising from the
creation of fine default unpaid community work orders by the
Sentencing Amendment (Community Correction Reform)
Act 2011. Section 64 deals with the situation where an offender
who has defaulted in payment of a fine has had property seized to
satisfy the fine. However, upon execution of the warrant the
property is not sufficient to satisfy the fine. In such cases, a court
may imprison the offender or, in the alternative, make a fine
default unpaid community work order, if appropriate to do so.
Clause 27(2) of the Bill amends section 3(1) of the Sentencing
Act 1991 to insert in the definition of a fine default unpaid
community work order an order made under section 64(4).
Clause 52 inserts a new Division 4 of Part 3B of the Sentencing Act 1991
dealing with miscellaneous matters.
New section 64A empowers the Secretary to suspend a fine
conversion order or fine default unpaid community work order or
a condition of those orders in certain circumstances.
15
New section 64B empowers the Secretary to direct offenders to
report at another place or to another person. The powers may be
delegated to certain persons under section 115B of the
Sentencing Act 1991 as amended by clause 65 of the Bill.
Clause 53 inserts new sections 66A, 66B, 66C, 66D and 66E into the
Sentencing Act 1991.
New sections 66A, 66B, 66C and 66D are a re-enactment of the
substance of sections 57, 58, 59 and 60 of the Sentencing Act
1991, which are repealed by clauses 42 to 45 inclusive, which are
more appropriately located later in Part 3B.
New section 66E deals with the situation where the Court of
Appeal imposes a fine or makes a fine conversion order or fine
default unpaid community work order on appeal (including a
proceeding for a contravention of a fine conversion order or fine
default unpaid community work order). The order is taken to be
made by the lower court, being the original sentencing court.
The amendment ensures the Court of Appeal does not become
the sentencing court in relation to the order. The Court of Appeal
is not required to deal with subsequent hearings in relation to a
contravention or variation of the order. For example, the Court
of Appeal makes a fine default unpaid community work order
and the offender later makes an application to vary the order, the
Supreme Court or the County Court (as the case may be) would
deal with the application.
Clause 54 inserts a new Part 3BA into the Sentencing Act 1991 dealing
with other sentencing orders. The new Part deals principally with
adjourned undertakings to be of good behaviour and sentencing
orders in respect of intellectually disabled offenders.
Related consequential amendments are contained in clauses 33,
34, 56, 57 and in Part 10 of the Bill.
Clause 55 amends Part 3B of the Sentencing Act 1991 to replace the
existing reference to Division 2 with a reference to Division 1.
The effect of the amendment is to create a new Division 1 of new
Part 3BA dealing with dismissals, discharges and adjournments.
Clause 56 amends section 72(3) of the Sentencing Act 1991 to update a
reference to imposing a justice plan condition as part of a release
on adjournment following a conviction.
16
Clause 57 amends section 75(3) of the Sentencing Act 1991 to update a
reference to imposing a justice plan condition as part of a release
on adjournment without conviction.
Clause 58 substitutes the heading to Division 3 of Part 3B of the
Sentencing Act 1991 to refer to new Division 2 of new Part 3BA
which deals with sentencing of intellectually disabled offenders.
Clause 59 amends section 82AA(1)(a) of the Sentencing Act 1991 to make
clear, for the avoidance of doubt, that a reference to making a
residential treatment order in relation to a serious offence means
a serious offence within the meaning of section 3(1), for example
the offence of rape. A residential treatment order may also be
made for the offence of indecent assault under section
82AA(1)(b).
Clause 60 substitutes the reference to Division of Part 3B of the Sentencing
Act 1991 to refer to new Division 3 of Part 3BA which is about
deferral of sentencing in the Magistrates' Court or County Court.
Clause 61 substitutes the heading to Division 2 of Part 3C of the
Sentencing Act 1991. The amendment more accurately
describes the purpose of the Division, namely to set out the
procedure for criminal proceedings in relation to a contravention
offence.
Clause 62 substitutes sections 83AG to the 83AQ of the Sentencing Act
1991 with new sections 83AG to 83AM.
The principal purpose of the amendments is to set out a more
streamlined procedure regarding proceedings for contraventions
of sentencing orders.
A "contravention offence" refers generally to where an offender
commits an offence of contravening a sentencing order.
The principal contravention offences are in sections 83AB, 83AC
and 83AD of the Sentencing Act 1991. The offences in
sections 83AE and 83AF are offences constituted by
contravening a direction given by the Secretary (his or her
delegates) in relation to a community correction order.
Section 63A and Schedule 3 of the Sentencing Act 1991 also
contain contravention offences. Section 63A and Schedule 3
incorporate or apply Part 3C with any necessary modifications set
out therein.
17
The general rule is that the charge for the contravention offence
is filed in the Magistrates' Court and is made returnable by
summons or warrant to the sentencing court, except where the
offence is a summary offence against section 83AE or 83AF.
In that case, the proceeding will be heard and determined by the
Magistrates' Court regardless of whether it was the sentencing
court.
Specific exceptions to this rule are set out in new sections 83AL
and 83AM. The purpose of the exceptions is to allow the higher
courts to deal with the situation where a finding of guilt for a new
offence also contravenes a sentencing order.
New section 83AG requires a charge sheet for the above offences
to be filed in the Magistrates' Court. The charge sheet must be
filed by any of the persons specified in section 83AG(2).
New section 83AG(3) provides that the procedure which applies
to these criminal proceedings is to be in accordance with the
Criminal Procedure Act 2009, the Bail Act 1977 and the
Magistrates' Court Act 1989 with any necessary modifications.
The purpose is to adopt the procedures under those Acts for
Division 2 of Part 3C of the Sentencing Act 1991 with
modifications to reflect that these proceedings are about
contravention of a sentencing order. For example, the charge
sheet alleging contravention of a sentencing order must be in
accordance with the Criminal Procedure Act 2009 and any
regulations or rules made under that Act.
Following the filing of the charge sheet and the commencement
of the proceeding in accordance with section 83AG(1), new
section 83AG(4) makes clear that the prosecution may apply for
a summons or warrant in accordance with section 12 of the
Criminal Procedure Act 2009.
New section 83AH deals with the time for commencement of a
proceeding for an offence against 83AB, 83AC and 83AD
(and therefore also for an offence under section 63A and
Schedule 3). It substantially re-enacts section 83AH previously
inserted by section 43 of the Sentencing Amendment
(Community Correction Reform) Act 2011. The time limit for
commencing a proceeding for an offence against section 83AE or
83AF is within 12 months from the date of the alleged offence.
18
Following the filing of the charge sheet under section 83AG(1)
and the making of an application for a summons or warrant under
section 12 of the Criminal Procedure Act 2009, new
section 83AI sets out that for the offences under sections 83AB,
83AC and 83AD the summons or warrant is returnable to the
sentencing court. In the case of a warrant to arrest, the offender
when arrested is brought before a bail justice or the sentencing
court. The warrant to arrest is issued in accordance with Part 4 of
the Magistrates' Court Act 1989.
The offences under sections 83AE and 83AF are heard and
determined by the Magistrates' Court in accordance with
Chapters 2 and 3 of the Criminal Procedure Act 2009.
New section 83AJ deals with transfer of a proceeding where it is
commenced under section 83AG for an offence under
section 83AB, 83AC or 83AD (and therefore also for an offence
under section 63A and Schedule 3). It requires the Magistrates'
Court to order the proceeding to be transferred to the appropriate
venue of the sentencing court. This provision does not apply if
the Magistrates' Court is the sentencing court.
For example, new sections 83AG to 83AJ would apply in the
following scenario. The County Court previously made a
community correction order in respect of an offence punishable
by more than 5 penalty units. The offender is subsequently
charged with contravening that sentencing order under
section 83AD. The charge must be filed in the Magistrates' Court
and is made returnable by summons or warrant to the County
Court. The Magistrates' Court must then make an order that the
proceeding is transferred to the appropriate venue of the County
Court.
An order transferring a proceeding may be made by the court
constituted by a registrar. The transfer of the proceeding to the
higher court only takes effect on the filing of evidence of the
service of the summons (for example, an affidavit of service).
Alternatively, where an arrest warrant is issued, the transfer takes
effect on the execution of the warrant on the offender
(which includes filing an execution copy of the warrant).
19
Upon the transfer of the proceeding, the County Court or
Supreme Court (as the case applies) may hear and determine the
summary offence without a jury. The procedure for hearing and
determining the offence is the summary procedure applicable in
the Magistrates' Court under Chapter 3 of the Criminal
Procedure Act 2009, subject to any modifications set out in the
court rules.
New section 83AK deals with the situation where the proceeding
is transferred to the sentencing court (i.e. the County Court or the
Supreme Court) but the offender does not attend before that
court. The higher court may issue a warrant to arrest the
offender.
New section 83AL deals with the specific scenario where the
County Court or Supreme Court (called the relevant sentencing
court) finds an offender guilty of an offence that also contravenes
a sentencing order previously imposed by that court.
For example, an offender is before the County Court and found
guilty of rape. The offence of rape was committed during the
period of a community correction order previously imposed by
the County Court for another offence. The provision allows the
prosecution, in its discretion, to file a charge in the higher court
for the section 83AD offence, rather than filing the charge in the
Magistrates' Court.
The purpose of filing the charge in the higher courts is to allow
the County Court or Supreme Court (as the case may be) to
sentence the offender on both offences together and hence
sentence according to the totality of the offending.
The procedure under new section 83AL is only available in
circumstances where the offender is before the higher court for
an offence that also contravenes a sentencing order previously
imposed by that court. New section 83AL is an optional process
where it is convenient and appropriate for the higher courts to
deal with the contravention offence together with the other
offence. The higher court may hear and determine the
contravention offence without a jury and in accordance with
Chapter 3 of the Criminal Procedure Act 2009.
20
New section 83AM deals with a scenario where the offender is
before the County Court or Supreme Court and is found guilty of
an offence which also contravenes a sentencing order previously
imposed by the Magistrates' Court. For example, an offender is
before the County Court and found guilty of culpable driving.
This offence was committed during the period of a suspended
sentence of imprisonment previously imposed by the Magistrates'
Court for another offence (for example, drive while disqualified).
The court may proceed to deal with the contravention offence as
if it were an unrelated summary offence and section 243 of the
Criminal Procedure Act 2009 applies subject to any
modifications set out in the court rules of the relevant sentencing
court.
The purpose of new section 83AM is to allow the higher courts to
sentence the offender on both offences together and hence
sentence according to the totality of the offending. The County
Court or Supreme Court may choose to transfer the contravention
offence in accordance with section 243 of the Criminal
Procedure Act 2009. The charge for the contravention offence
is required to be filed in the Magistrates' Court. Section 243(3)
provides that the higher court may hear and determine the
contravention offence without a jury and in accordance with
Part 3.3 of Chapter 3 of the Criminal Procedure Act 2009 as far
as practicable.
The procedure under new section 83AM is only available in
circumstances where the offender is before the higher court for
an offence which also contravenes a sentencing order previously
imposed by the Magistrates' Court. It is an optional process for
the higher court to transfer the proceeding, where the
requirements of section 243 of the Criminal Procedure Act
2009 are satisfied and in accordance with any modifications set
out in the court rules.
Clause 63 repeals section 83AR(7) of the Sentencing Act 1991.
This provision is no longer necessary because the substance of
the provision is dealt with by new section 83AG(3), which,
among other things, incorporates the Criminal Procedure Act
2009, Bail Act 1977 and Magistrates' Court Act 1989 for the
purposes of the Division with any necessary modifications.
21
Clause 64 amends section 83H of the Sentencing Act 1991 in respect of
superannuation orders due to the amendment made by clause 44
of the Bill. The clause updates a reference to the application to
superannuation orders of fines, penalties or other sum of money
being paid into the Consolidated Fund under new section 66C.
Clause 65 amends section 115B(1)(a) of the Sentencing Act 1991 to allow
the Secretary to delegate powers under Part 3B to certain persons,
such as any officer within the meaning of Part 5 or Part 9 of the
Corrections Act 1986. The purpose is to allow Regional
Managers, community corrections officers, and other officers at
Corrections Victoria to give directions in respect of fine
conversion orders and fine default unpaid community work
orders on behalf of the Secretary.
Clause 66 inserts new paragraph (ca) into section 116(1)(c) of the
Sentencing Act 1991 to provide for regulations in relation to fine
conversion orders or fine default unpaid community work orders.
Clause 67 substitutes clause 7(4)(a) of Schedule 3 to the Sentencing Act
1991 to clarify a court's power to confirm an old combined
custody and treatment order that was contravened.
The amendment relates to sentencing options available to the
sentencing court after it has found a person guilty of
contravening an old combined custody and treatment order.
The amendment makes clear that when a court confirms the order
it means the remaining period and the conditions of the order are
to be performed. If necessary for that purpose, the court may
vary the dates and duration of the order. For example, if the
contravention was committed 3 months into an old combined
custody and treatment order and the court confirms order, this
means that the offender must complete the remaining 9 months.
The court may change the dates and duration of the order to
reflect this period, irrespective of whether or not the order has
expired.
Clause 68 substitutes clause 8(4)(a) of Schedule 3 to the Sentencing Act
1991 to clarify a court's power to confirm a pre-existing home
detention order that was contravened. The amendment relates to
sentencing options available to the sentencing court after it has
found a person guilty of contravening pre-existing home
detention order. The amendment makes clear that when a court
confirms the order, it means the remaining period and the
conditions of the order are to be performed. If necessary for that
22
purpose, the court may vary the dates and duration of the order.
For example, if the contravention was committed 2 months into a
5 month pre-existing home detention order and the court
confirms the order, this means the offender must complete the
remaining 3 months. The court may change the dates and
duration of the order to reflect this period, irrespective of whether
or not the order has expired.
Clause 69 substitutes clause 9(4)(a) of Schedule 3 to the Sentencing Act
1991 to clarify a court's power to confirm an old intensive
correction order that was contravened. The amendment relates to
sentencing options available to the sentencing court after it has
found a person guilty of contravening an old intensive correction
order. The amendment makes clear that when a court confirms
the order, it means the remaining period and the conditions of the
order are to be performed. If necessary for that purpose, the
court may vary the dates and duration of the order. For example,
if the contravention was committed 4 months into a 12 month old
intensive correction order and the court confirms the order, this
means the offender must complete the remaining 8 months.
The court may change the dates and duration of the order to
reflect this period, irrespective of whether or not the order has
expired.
Clause 70 amends clause 10 of Schedule 3 to the Sentencing Act 1991 to
clarify the operation of old community based orders by--
inserting an offence carrying a maximum fine of
10 penalty units to contravene a community based order
in default of a fine order made under Division 4 of
Part 3 of the Sentencing Act 1991 before the
commencement of the Bill. This type of old community
based order is defined as an old community based order
(fines) in clause 70(7). The offence applies
prospectively, namely from the commencement of the
Bill. This re-enacts the offence previously applicable
for these orders under section 47 of the Sentencing Act
1991 in force before the commencement of section 21
of the Sentencing Amendment (Community
Correction Reform) Act 2011;
23
applying Part 3C of the Sentencing Act 1991 to the
offence to contravene an old community based order
(fines). The purpose is to apply the procedure under
that Part to the new offence;
applying section 63A(3) of the Sentencing Act 1991 to
the offence to contravene an old community based order
(fines). The purpose is enable the court to impose a
sentence of imprisonment in certain circumstances
where a person is found guilty of the offence to
contravene an old community based order (fines);
providing that where a person is found guilty of the
offence to contravene an old community based order
(fines), the court may exercise the powers under
clause 10(4) of Schedule 3 to the Sentencing Act 1991
as amended by the Bill.
Clause 70(6) also substitutes clause 10(4)(a) of Schedule 3 to the
Sentencing Act 1991 to clarify a court's power to confirm an old
community based order that was contravened. The amendment
relates to sentencing options available to the sentencing court
after it has found a person guilty of contravening an old
community based order (including a an old community based
order (fines)). The amendment makes clear that when a court
confirms the order, it means the remaining period and the
conditions of the order are to be performed. If necessary for that
purpose, the court may vary the dates and duration of the order.
For example, if the contravention was committed 6 months into
an 18 month old community based order and the court confirms
the order, this means the offender must complete the remaining
12 months. The court may change the dates and duration of the
order to reflect this period, irrespective of whether or not the
order has expired.
24
PART 8--AMENDMENTS TO THE SENTENCING
AMENDMENT (COMMUNITY CORRECTION REFORM)
ACT 2011
Clause 71 amends section 48JA of the Sentencing Act 1991 as proposed to
be inserted by section 58 of the Sentencing Amendment
(Community Correction Reform) Act 2011.
Section 58 of the Sentencing Amendment (Community
Correction Order) Act 2011 proposes to create a bond condition
that a court may attach to a community correction order.
A bond condition is a condition requiring an offender to pay an
amount of money as a bond to the sentencing court.
The condition is attached to a community correction order for
the purpose of ensuring their compliance with the order.
The sentencing court decides the amount of money to be paid
and when it is to be paid to the court.
The bond condition has not yet commenced operation under the
Sentencing Act 1991. Part 3 of the Sentencing Amendment
(Community Correction Order) Act 2011 has a default
commencement date of 30 June 2013 unless proclaimed earlier.
Clause 71 creates rules and clarifies processes about payment,
return or forfeiture of bond money. It also deals with
circumstances where an offender is charged in a criminal
proceeding with an offence that may also contravene the
community correction order if the offence or offences are proven.
Clause 71(1) substitutes new section 48JA(4) to provide that the
money paid by an offender under the bond condition is--
paid to the sentencing court;
held by the Crown in a trust account established by the
Minister under section 23 of the Financial
Management Act 1994. The trust account in practice
will be the whole of security trust fund administered by
or on behalf of the Department of Justice;
held by the Crown despite any provisions to the
contrary in the Supreme Court Act 1986, County
Court Act 1958 and the Magistrates' Court Act 1989
do not apply.
25
Clause 71(2) substitutes new section 48JA(5) with new
subsections (6), (7), (8) and (9).
New section 48JA(5) deals with payment of interest accrued on
the bond money. The interest must be paid into the Consolidated
Fund. The offender does not receive any of the interest.
Any money repaid to the offender excludes the interest.
New section 48JA(6) deals with repayment of the bond money.
Where repayment is ordered by the court, it must be repaid by the
Crown to the offender within 7 days of the order being made
unless the court orders a longer period. Repayment arises in two
broad circumstances.
Firstly, it may arise in cases of contravention of the community
correction order which has a bond condition attached. Under
new section 83AS(4) of the Sentencing Act 1991 (as proposed to
be inserted by section 59 of the Sentencing Amendment
(Community Correction Reform) Act 2011) the community
correction order may be confirmed, varied or cancelled because
the offender has contravened the order. The court decides how
much bond money is forfeited and this decision forms part of the
sentencing order in relation to the contravention proceeding.
Secondly, the community correction order may be varied under
section 48M of the Sentencing Act 1991. This is where the
community correction order is varied by way of an application.
The offender or other authorised persons under that Act may
apply to either vary the amount of the bond money, remove the
bond condition from the community correction order or cancel
the community correction order altogether. If the bond condition
is removed from the order or the whole community correction
order is cancelled, the whole bond money is repaid to the
offender. If the bond condition is varied to reduce the amount of
bond payable, part of the bond money is repaid to the offender.
New section 48JA(7) creates rules about the Crown repayment
and holding of the bond money after the community correction
order has expired. New subsection (7)(a) provides the Crown
holds the bond money after a community correction order (with a
bond condition attached) has expired. The Crown holds the bond
money for up to 3 months after the expiry of the order. If the
offender completes the order without any contravention being
alleged, the money must be repaid to the offender once the
3 month period has finished.
26
New subsection (7)(b) deals with the situation where an offender
is charged with an offence punishable by imprisonment that was
committed during the period of the community correction order
(which may include the offence under section 83AD, as the case
applies). The Crown holds the money until the proceeding is
finalised, which may be longer than 3 months after the
community correction order has expired.
An example of the operation of new section 48JA(7)(b) is as
follows. An offender is charged with an assault alleged to have
been committed during the period of a community correction
order. The offender is charged two months after the community
correction order has expired. The charge is not heard and
determined by a court until 12 months later. The money is held
until the proceeding is finalised for the assault charge.
A finalised proceeding is defined to be finalised under new
section 48JA(8) and includes circumstances where there is an
acquittal, finding of guilt or conviction in relation to the charge,
where the charge is withdrawn or the prosecution of the charge is
discontinued. The final determination of the proceeding includes
any appeals. If forfeiture under section 83AS(4) does not arise
(for example, the accused is acquitted of the charge), the money
must be repaid within 7 days of the proceeding being finalised.
The time period under the two rules in new section 48JA(7)(a)
and (b) apply whichever is the later.
New section 48JA(9) deals with forfeiture of the bond money.
This relates to new section 83AS(4) of the Sentencing Act 1991
(as proposed to be inserted by section 59 of the Sentencing
Amendment (Community Correction Reform) Act 2011).
The bond money is liable to forfeiture by order of the sentencing
court in certain circumstances set out in new section 83AS(4).
It applies where the offender has been found guilty of
contravention of a community correction order which has a bond
condition attached and the court decides to confirm, vary or
cancel the sentencing order. If the court decides to confirm or
vary the community correction order the court may order that all
or part of the bond money is forfeited. If the court decides to
cancel the community correction order under section 83AS(1)(c),
the court must order that all or part of the bond money is
forfeited. New section 48JA(9) provides that the forfeited money
must be paid into the Consolidated Fund.
27
PART 9--AMENDMENTS TO SUPREME COURT ACT 1986
Clause 72 inserts a new section 24G into the Supreme Court Act 1986.
The new section gives an immunity to an assessor called in for
assistance in a proceeding under section 77 of the Supreme
Court Act 1986.
Assessors assist the Supreme Court by providing independent
expert assessments, similar to the roles of special referees,
mediators and arbitrators.
The amendment has the effect of giving an assessor, in the
performance of his or her duties in a proceeding, the same
protection and immunity as a judge of the court has in the
performance of his or her duties as a judge. This includes
immunity from civil action in relation to acts or omissions of
assessors in the course of their duties.
PART 10--CONSEQUENTIAL AND OTHER AMENDMENTS
Division 1--Criminal Procedure Act 2009
Clause 73 amends section 3 of the Criminal Procedure Act 2009 to
include in the definition of sentence a reference to these orders
being made under new Part 3BA of the Sentencing Act 1991 as a
result of the amendments made by clauses 54 and 55.
Clause 74 amends section 87(2)(a) of the Criminal Procedure Act 2009 to
remove the reference to Division 1 of Part 3B of the Sentencing
Act 1991 and instead refer to whole of Part 3B. The amendment
makes clearer the limitations on sentencing in the absence of an
accused.
Division 2--Infringements Act 2006
Clause 75 amends section 160(3)(e) of the Infringements Act 2006 to
update the reference to location of the power of the Court under
the Sentencing Act 1991 to make a fine default unpaid
community work order in lieu of imprisonment in respect of an
infringement offender.
28
Division 3--Justice Legislation Amendment (Infringement
Offences) Act 2011
Clause 76 amends the commencement provision in the Justice Legislation
Amendment (Infringement Offences) Act 2011 with the effect
that sunset provisions in that Act commence on 1 July 2014
instead of 1 July 2012.
Clause 77 amends the automatic repeal date for the Justice Legislation
Amendment (Infringement Offences) Act 2011 from 1 July
2013 to 1 July 2015.
Division 4--Sex Offenders Registration Act 2004
Clause 78 amends the definition of good behaviour bond under section 3 of
the Sex Offenders Registration Act 2004 to reflect the new
location of those orders in new Division 1 of new Part 3BA of the
Sentencing Act 1991 as a result of the amendments made by
clauses 54 and 55.
Division 5--Summary Offences Act 1966
Clause 79 amends section 47 of the Summary Offences Act 1966 as a
result of the amendment made by clauses 44 and 53. This clause
updates a reference to the application of fines, penalty or other
sum of money being paid into the Consolidated Fund under new
section 66C of the Sentencing Act 1991 in respect of
compensation including assessing the value of a homing pigeon.
PART 11--REPEAL OF AMENDING ACT
Clause 80 provides for the automatic repeal of this amending Bill on
1 November 2013. The repeal of the Bill does not affect the
continuing operation of the amendments by the Bill (see section
15(1) of the Interpretation of Legislation Act 1984).
29