(1) If the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused and finds the accused guilty, the court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991 .
(2) If the Magistrates' Court finds an accused guilty in the absence of the accused on the basis of a preliminary brief—
S. 87(2)(a) amended by Nos 65/2011 s. 107(Sch. item 4.3), 26/2012 s. 74.
(a) the court must not make an order under Part 3B of the Sentencing Act 1991 for a fine exceeding 20 penalty units and the total sum of orders for fines must not exceed in the aggregate 50 penalty units; and
(b) the total sum of orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 for the payment of restitution or compensation must not exceed $2000.
Note to s. 87(2) amended by No. 65/2011 s. 107(Sch. item 4.4).
In addition to this section, the court cannot make an order that requires the consent of the accused to its making, for example, a community correction order.
(3) If, at any time during the hearing, the Magistrates' Court considers that the charge, if proven, is likely to result in an order prohibited by subsection (1) or (2) or an order that requires the consent of the accused, the court—
(a) must adjourn the proceeding to enable the accused to attend or to be brought before the court to answer to the charge; and
(b) may issue a warrant to arrest the accused.
(4) If the Magistrates' Court finds a charge against a person proved and imposes a sentence in the absence of the person, the court must serve written notice on the person, at the address of the person on the register kept under section 18 of the Magistrates' Court Act 1989 , of—
(a) the order of the court; and
(b) their right to apply for a rehearing of the charge.
Part 3.4 provides for a rehearing in certain circumstances. In particular,
section 94 provides for automatic rehearing in certain cases.