Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Community Based Sentences (Transfer)
Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the purpose of the Bill is to provide for the transfer
and registration of community based sentences between States
and Territories that have enacted similar legislation.
(These States and Territories are called participating
jurisdictions.)
Clause 2 provides that the Bill will commence by proclamation. It has a
default commencement date of 1 July 2013.
Clause 3 provides that the Bill applies only to adult offenders.
The Bill does not apply to parole orders (as these are already
transferable under the Parole Orders (Transfer) Act 1983).
Clause 4 provides for the definition of terms used in the Bill.
PART 2--KEY CONCEPTS FOR BILL
Part 2 defines the key concepts of the Bill, including definitions of
community based sentence, jurisdiction and participating jurisdiction, local
sentence and interstate sentence, and corresponding law.
Clause 5 provides the definition of community based sentence for the
purposes of the Bill.
For Victoria, this means a community corrections order made
under the Sentencing Act 1991. There is provision to prescribe
other orders, but there is no current intention to do so.
571252 1 BILL LA INTRODUCTION 6/6/2012
A community based sentence for interstate jurisdictions is one
that is declared as such in the corresponding legislation of the
interstate jurisdiction.
Clause 6 provides further definitions used in the Bill, in particular the
meaning of various terms related to jurisdiction.
In particular, the clause provides that the Regulations will
prescribe what are participating jurisdictions. These will be
those jurisdictions that have passed a corresponding law.
Clause 7 provides further definitions used in the Bill.
A local sentence is a community based sentence in force in
Victoria.
An interstate sentence is a community based sentence in force in
an interstate jurisdiction.
Clause 8 provides the definition of corresponding law for the purposes of
the Bill.
A corresponding law is a law of an interstate jurisdiction that
corresponds or substantially corresponds to the Bill, or is
prescribed to be a corresponding law (a law can be prescribed to
be a corresponding law to the Bill, even if it does not correspond
or substantially correspond). There is no current intention to
prescribe any law for this purpose.
Clause 9 provides the definition of the term interstate authority.
An interstate authority is the entity that is the local authority
under the corresponding law of the interstate jurisdiction.
The note to this clause explains that the Secretary to the
Department of Justice is the local authority for Victoria.
PART 3--ADMINISTRATION
Clause 10 provides that the local authority for Victoria is the Secretary to
the Department of Justice.
Clause 11 provides that the Secretary, as the local authority, must keep a
register of interstate sentences that are registered in Victoria
under the Bill. The Secretary has the power to correct a mistake
or omission in this local register.
2
PART 4--REGISTRATION OF INTERSTATE SENTENCES
IN VICTORIA
Clause 12 provides that the Secretary may, at the request of an interstate
authority for a participating jurisdiction, register an interstate
sentence in Victoria.
Clause 13 provides the requirements for requests for registration of an
interstate sentence in Victoria.
Subclause (1) provides that requests must be in writing and
contain specified information about the offender. The Secretary
may also require other information.
Subclause (2) provides that the request must be accompanied by
a number of documents, including a copy of the sentence, the
offender's consent to registration, any relevant pre-sentence or
psychological report, and the offender's criminal record.
The interstate authority must also provide a statement to the
effect that they have explained to the offender that, on
registration--
the offender will be bound by the laws of Victoria in
relation to the sentence; and
a breach of the sentence may result in the offender being
resentenced in Victoria; and
the consequences of breaching the sentence in Victoria
may be different to the consequences of breach in the
interstate jurisdiction.
This is an important requirement as it will ensure that, in giving
their consent, the offender is fully aware of the consequences of
breaching their sentence in Victoria.
Subclause (3) clarifies that an offender is to be considered to be
subject to a sentence if the sentence has not been fully served and
has not been discharged.
Subclause (4) provides that the Secretary may take into account
any other information or documents provided when considering
the request.
3
Clause 14 provides that the Secretary may request additional information
about the offender or the interstate sentence from the interstate
authority.
It is important, for the purposes of the decision-making process,
to allow for the provision of additional information.
Clause 15 provides that an offender is entitled to withdraw their consent to
transfer at any time prior to registration, but may not do so after
registration.
This clause does not prevent the offender from applying to
transfer their sentence back to the originating jurisdiction at a
later date.
Clause 16 provides the criteria that the Secretary must take into account
when making a decision on whether to agree to register the
interstate sentence (see clause 17).
The registration criteria include all of the following--
that the offender consents; and
that there is a corresponding community based sentence
in Victoria; and
that the offender can comply with the sentence in
Victoria; and
that the sentence can be safely, efficiently and
effectively administered in Victoria.
Subclause (2) defines what is considered to be a corresponding
community based sentence under the law of Victoria.
The requirement is that a Victorian sentence corresponds, or
substantially corresponds, to the interstate order.
Subclause (3) explains that correspondence is determined by
whether or not there is a penalty, and conditions of substantially
the same nature. The penalty and conditions do not have to be
identical.
A sentence may also be considered to be a corresponding
community based sentence under the law of Victoria if it is
prescribed to correspond. There is no current intention to
prescribe any interstate sentence.
4
Clause 17 makes provision for decisions on request.
Subclause (1) provides that the Secretary, as the local authority,
has three options upon receipt of a request. The Secretary may
decide--
to register the sentence; or
to register it subject to preconditions being met; or
not to register the sentence.
Subclause (2) requires the Secretary to consider whether the
registration criteria have been met (as provided in subclause (4))
and allows the Secretary to have regard to any prescribed matter
and any other relevant matter in making the decision.
Subclause (3) permits the Secretary to decline a request
regardless of the fact that the offender has satisfied the
registration criteria.
Subclause (4) prevents the Secretary from registering a sentence
unless all four of the registration criteria are met.
Subclause (5) clarifies that there is no requirement that the
Secretary hear the offender when making a decision.
The Secretary is able to make the decision based solely upon
the information and documents provided and any other
information available to the Secretary.
Subclause (6) clarifies that the following circumstances do not
prevent the Secretary from deciding to register the sentence in
Victoria--
the interstate jurisdiction making the request is not the
jurisdiction in which the offender was sentenced;
the sentence originated in Victoria, or was previously
registered in Victoria;
the Secretary has previously made a decision not to
register the sentence.
A note is included containing a reference to the clause of the Bill
specifying the consequences of registration.
Subclause (7) requires the Secretary to give written notice to both
the offender and the interstate authority in the event that the
Secretary decides not to register the interstate sentence.
5
Clause 18 provides that the Secretary is permitted to impose preconditions
for registration. If such preconditions are imposed, the offender
must meet them to show that the offender can, and is willing to,
comply with the sentence in Victoria.
Subclause (2) provides examples of the type of preconditions that
may be imposed. An offender may be required to satisfy the
Secretary, before a stated time, that they are living in Victoria.
An offender might also be required to report to a particular
person or place at a stated time.
If preconditions are imposed, the sentence will not be registered
in Victoria until they have been met. One reason for including
preconditions is to avoid an accidental breach by the offender.
For example, if a NSW sentence was registered in Victoria before
the offender had travelled to Victoria, and the offender was then
unable to leave NSW (for example, due to an accident), they may
inadvertently breach their sentence.
Subclause (3) provides that written notice must be provided to
both the offender and the interstate authority if a decision to
impose preconditions is made.
Subclause (4) provides that the Secretary retains the power to
amend or revoke any precondition, but the Secretary must give
written notice to the offender and the interstate authority if the
Secretary does so.
Clause 19 provides that, in the event that the Secretary decides to register an
interstate sentence, the Secretary must enter the prescribed details
in the local register.
Subclause (2) provides that if preconditions are imposed, the
sentence can only be registered once they have been met.
Clause 20 provides that, if the sentence is registered in Victoria, the
Secretary must provide written notice to both the offender and
the interstate authority. The notice must include the date on
which the sentence was registered.
6
Clause 21 provides for the effects of registration generally.
Subclause (1) outlines the effect of registering an interstate
sentence in Victoria. In particular--
the sentence ceases to be in force in the interstate
jurisdiction and instead becomes a community based
sentence in force in Victoria;
the sentence is taken to have been imposed by a
Victorian court. Whether it is taken to have been
imposed by the Magistrates' Court, the County Court
or the Supreme Court will depend on which court
originally imposed it in the interstate jurisdiction;
the sentence continues to apply in accordance with its
terms;
the offence for which the sentence was originally
imposed is taken to be an offence against Victorian law;
the penalty for the relevant offence is taken to be the
penalty from the originating jurisdiction;
any part of the sentence served in the interstate
jurisdiction is taken to have been served in Victoria;
if the offender breaches their sentence, they can be dealt
with in Victoria regardless of whether the breach
happened before or after the registration of the sentence;
Victorian law (including the regulations) will apply to
the sentence and any breach of it.
Subclause (2) provides that for offenders transferring back to
Victoria, deeming an offence to be a Victorian offence is not
applicable and it is not necessary to specify that the penalty is the
penalty provided by Victorian law.
Subclause (3) provides that the penalty set out in an originating
jurisdiction will be relevant in the event that the offender is
resentenced by a Victorian court.
Subclause (4) provides that the registration of an interstate
sentence does not affect any right of appeal or review in the
originating jurisdiction where it relates to the conviction, finding
of guilt or imposition of the sentence.
7
Subclause (5) provides that an appeal or review as to the
conviction, finding of guilt or imposition of a community based
sentence will apply in Victoria as if it were validly imposed or
made by a Victorian court.
Subclause (6) clarifies that the offender who has transferred their
community based sentence into Victoria does not have rights to
appeal convictions, findings or the imposition of the community
based sentence in Victorian courts.
Subclause (7) provides that sentences that impose a fine or
financial penalty have been excluded from this clause of the Bill.
The inclusion of such penalties could lead to a loss of revenue for
the originating jurisdiction and, due to significant variation in
their application, would create too much complexity if they were
transferred between jurisdictions. If an interstate sentence
includes a fine or financial penalty then the sentence would be
transferrable once the fine or financial penalty had been
discharged.
Also excluded from transfer are sentences or components of
sentences that impose the making of reparation.
Any requirement to make reparation to a particular person or
entity will be specific to the jurisdiction in which the sentence
was made. For this reason it would not be transferable to another
jurisdiction and therefore is incompatible with this scheme.
As with fines, the remaining part of the sentence will still be
eligible for transfer if it meets all other requirements of the
legislation.
PART 5--REGISTRATION OF LOCAL SENTENCES IN
INTERSTATE JURISDICTIONS
Clause 22 provides that the Secretary may request another participating
jurisdiction to register a Victorian sentence in that jurisdiction.
(The corresponding legislation in the other jurisdiction will
require that such a request is consent based).
Clause 23 provides that, once the Secretary has made a request for transfer
of a Victorian sentence, the Secretary is empowered to provide
additional information about the sentence or the offender, either
at the Secretary's own initiative or at the request of the interstate
authority to which the Secretary made the request.
8
Clause 24 provides for the effect of the registration of a Victorian sentence
in an interstate jurisdiction. It details the administration of the
sentence and how any breaches of that sentence are to be dealt
with.
The effects of interstate registration are--
the order ceases to be a sentence in force in Victoria and
becomes a community based sentence in force in the
interstate jurisdiction;
the offender may be dealt with in the interstate
jurisdiction for breach, regardless of whether it occurred
before or after the registration in that jurisdiction;
if the sentence had been registered in the Victorian
register, it ceases to be registered in that register;
there may be no commencement or continuation of
proceedings against an offender under the law of
Victoria in relation to a breach that occurred before
registration in the interstate jurisdiction. (In practice, if
there were any proceedings on foot against an offender,
it is unlikely that a transfer would be agreed to until
those proceedings were resolved.)
Under subclause (2), if the sentence was originally made in
Victoria, this clause does not affect any right of the offender to
appeal or seek a review in relation to conviction, finding of guilt
or the imposition of the sentence. By allowing appeal or review
despite transfer, this is protecting the offender's right to access to
justice.
Subclause (3) accords with equivalent provisions in clause 21 to
provide that the transfer does not affect the sentence to the extent
to which it imposes a fine or financial penalty or requires the
making of reparation if Victoria is the originating jurisdiction for
the sentence.
Subclause (4) makes clear that an offender who transfers out of
Victoria, but then wishes to return, may have their sentence re-
registered in this State. Such a transfer request must comply with
the procedures set out in Part 4.
9
PART 6--MISCELLANEOUS
Clause 25 provides that the Secretary is required to provide information to
an interstate authority in circumstances where information
contained in the interstate register is inaccurate or has altered
since registration.
The Secretary must inform the interstate authority if the
information needs to be amended, in particular, information
concerning the period of a sentence served in Victoria prior to
registration in the interstate jurisdiction and the results of any
appeal or review of the sentence in Victoria.
Clause 26 provides for the action that must be taken if there is a dispute
over the accuracy of the information held about a Victorian
sentence registered in an interstate jurisdiction.
The offender may make a claim in writing to the interstate
authority stating how the information held in the interstate
register is inaccurate. The offender will communicate initially
with the interstate authority at the interstate jurisdiction where the
sentence is supervised and administered.
The interstate authority is empowered to send the Secretary a
copy of the claim and extract of information in dispute.
Upon receipt of the claim and extract the Secretary is required
to check whether the information is accurate and advise the
interstate authority if the information is accurate and details of
any required amendments.
Clause 27 provides, in subclause (1), that a signed certificate issued by an
interstate authority or the Secretary containing particulars
contained in a register is prima facie evidence of the matters
stated in the certificate.
Subclause (2) states that certificates can be issued that make
reference to dates and periods.
Subclause (3) provides that a signed certificate issued by an
interstate authority or the Secretary containing information of a
kind prescribed in regulations made under the Bill is prima facie
evidence of the matters stated in the certificate. Matters that may
be prescribed in regulations could include extracts from reports
or clinical material. There is no current intention to prescribe any
matters.
10
Subclause (4) provides that a signed certificate issued by an
interstate authority or the Secretary containing information about
a community based sentence or the offender in relation to a
community based sentence or details of any part of a community
based sentence that has or has not been served is prima facie
evidence of the matters stated in the certificate.
Subclause (5) provides that if there is no evidence to the contrary
then a court must accept any such certificate.
Subclauses (6) and (7) provide the ability for regulations to
prescribe other documents that the court must or may admit into
evidence in the circumstances set out in the regulations. There is
no current intention to prescribe any such documents.
Clause 28 sets out the power to make regulations necessary for the
administration of the Bill.
11