Victorian Numbered Acts Victorian Numbered ActsFor sections 36 to 48 of the Sentencing Act 1991 substitute —
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The purpose of a community correction order is to provide a community based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender.
A court may make a community correction order in respect of an offender if—
(a) the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units; and
(b) the court has received a pre-sentence report (if required) and has had regard to any recommendations, information or matters identified in the report; and
(c) the offender consents to the order.
(1) The period of a community correction order is the period determined by the court which must not exceed—
(a) in the case of an order made by the Magistrates' Court, 2 years; or
(b) in the case of an order made by the County Court or the Supreme Court whichever is greater of—
(i) the maximum term of imprisonment for the offence; or
(ii) 2 years.
(2) The court must—
(a) fix the date on which a community correction order commences, which must not be more than 3 months after the order is made; or
(b) direct that the community correction order commences on the date that the offender is released from imprisonment in accordance with section 44.
(1) If the court is making a community correction order for a period of 6 months or longer, the court may fix a period (being part of the period for which the order is in force) as the intensive compliance period.
Example
Where a court is making a community correction order that has a period of, for example, 2 years, the intensive compliance period fixed by the court may be for a lesser period of, for example, 8 months.
(2) A court that fixes an intensive compliance period under subsection (1) must determine that one or more conditions attached to a community correction order are to be completed within the intensive compliance period.
(3) If—
(a) a court is sentencing an offender in respect of two or more offences in the same proceeding; and
(b) the court makes separate community correction orders in respect of any two or more of the offences, the periods of which are cumulative; and
(c) the court fixes intensive compliance periods for the orders that are cumulative—
the intensive compliance periods are to run cumulatively from the commencement of the first order and then the balance of the periods of the orders are to run cumulatively.
(1) If an offender is convicted or found guilty by a court of two or more offences, which are founded on the same facts or form or are part of a series of offences of the same or a similar character, the court may make one community correction order in respect of those offences in place of separate orders in respect of all or any two or more of them.
(2) A community correction order that is being made in respect of more than one offence must not exceed the maximum period for which a community correction order may be made under section 38.
(1) If a court makes separate community correction orders in respect of two or more offences committed by an offender, the conditions of those orders are concurrent unless the court otherwise directs.
(2) The conditions of a community correction order made in respect of an offender are, unless the court otherwise directs, concurrent with those of any other community correction order in force in respect of that offender.
(1) The number of hours of unpaid community work required to be performed under a relevant order must, unless otherwise directed by the court, be performed—
(a) cumulatively on those required to be performed under another relevant order that is in force in respect of the offender; and
(b) concurrently with any hours required to be performed under any other community correction order that is in force in respect of the offender—
whether that other order was made before or at the same time as the first-mentioned order.
(2) In this section, "relevant order" means a fine conversion order or fine default unpaid community work order.
A court may impose on an offender a fine authorised by law in addition to making a community correction order.
(1) Subject to subsection (2), a court may make a community correction order in respect of the offender in addition to sentencing the offender to a term of imprisonment of not more than 3 months, if the sentence of imprisonment is not suspended in whole or in part.
(2) If a court is sentencing an offender for two or more offences in the same proceeding to two or more sentences of imprisonment, the court may not make any community correction order in respect of the offender if the aggregate of those terms of imprisonment is more than 3 months, whether or not the terms of imprisonment are to be served (in whole or in part) concurrently or cumulatively.
(3) If a court makes a community correction order in respect of an offender in addition to a term of imprisonment, the community correction order commences on the release of the offender from imprisonment.
(1) The following terms are attached to each community correction order—
(a) the offender must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) the offender must report to, and receive visits from the Secretary during the period of the order;
(c) the offender must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;
(d) the offender must notify the Secretary of any change of address or employment within 2 clear working days after the change;
(e) the offender must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(f) the offender must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.
(2) A direction may be given by the Secretary under subsection (1)(f) either orally or in writing.
There is attached to each community correction order the term that the offender must comply with any written direction given by the Secretary for or with respect to the following—
(a) reporting to the Secretary; or
(b) receiving visits from the Secretary; or
(c) notifying the Secretary in writing of any change of address or employment; or
(d) obtaining permission from the Secretary before leaving Victoria; or
(e) if the order is subject to an unpaid community work condition, performing unpaid community work, including any written direction as to the place, date or time at which the work is to be performed; or
(f) if the order is subject to a treatment and rehabilitation condition, participating in a treatment or rehabilitation program, including any written direction as to the place, date or time of the participation; or
(g) if the order is subject to a treatment and rehabilitation condition, undergoing any drug or alcohol assessment or treatment, including any written direction as to—
(i) undergoing residential treatment or assessment; or
(ii) the place, date or time that the assessment or treatment must be undergone; or
(h) if the order is subject to a treatment and rehabilitation condition, undergo any drug or alcohol testing, including any written direction as to the place, date or time that the test must be undergone; or
(i) if the order is subject to a treatment and rehabilitation condition, undergoing any medical assessment or mental health assessment, including any written direction as to the place, date or time that the test must be undergone.
Note
It is an offence under section 83AF for an offender to contravene a written direction given by the Secretary.
(1) A court that is making a community correction order must attach at least one condition in accordance with subsection (2).
(2) A court that is making a community correction order may—
(a) attach one or more conditions under Division 4; or
(b) attach a condition under Division 3 of Part 3B.
(1) A court that is making a community correction order may attach in addition to a condition attached in accordance with section 47 any other condition to the order that the court thinks fit, other than a condition about making restitution or the payment of compensation, costs or damages.
(2) A condition attached under subsection (1) to a community correction order must not be about the subject matter of a condition under Division 4 or Division 3 of Part 3B.
The court must attach conditions to a community correction order in accordance with—
(a) the principle of proportionality; and
(b) the purposes for which a sentence may be imposed as set out in section 5 ; and
(c) the purpose of a community correction order set out in section 36.
In this Division—
"family violence" has the same meaning as in the Family Violence Protection Act 2008 ;
"safety" means safety from family violence, physical or mental harm.
(1) A court which is making a community correction order may attach a condition requiring an offender to perform unpaid community work.
(2) The purpose for attaching an unpaid community work condition is to adequately punish the offender in the community.
(3) The offender must perform the number of hours
of unpaid community work specified by the court under an unpaid community work
condition.
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(4) The total number of hours for which an offender may be required to perform unpaid community work under an unpaid community work condition must be determined by the court and must not exceed 600 hours.
(5) The total number of hours of unpaid community work that the offender must perform in any 7 day period must not exceed 20.
(6) An offender may perform an activity for up to 40 hours in a period of 7 days if he or she requests to do so and signs a written consent to performing the extra number of hours.
(7) If a court attaches an unpaid community work condition as the sole condition under this Division of a community correction order for up to a maximum of 300 hours, the order expires on the satisfactory completion of those hours of work.
(8) If an offender is or will be subject to more than one community correction order the court must not make a direction under this Act that causes the time limits that apply under all unpaid community work conditions under the orders to exceed the maximum time limits for the orders under section 38.
(9) When attaching an unpaid community work condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.
(1) A court which is making a community correction order may attach a condition to the order that requires the offender to undergo treatment and rehabilitation specified by the court and directed by the Secretary unless otherwise directed by the court.
(2) When attaching a treatment and rehabilitation condition the court must—
(a) have regard to the need to address the underlying causes of the offending;
(b) have regard to the recommendations, information and matters identified in the pre-sentence report in relation to the treatment and rehabilitation of the offender.
(3) The treatment and rehabilitation that must be specified by the court in a treatment and rehabilitation condition must be any one or more of the following—
(a) any assessment and treatment (including testing) for drug abuse or dependency;
(b) any assessment and treatment (including testing) for alcohol abuse or dependency;
(c) any assessment and treatment (including testing) at a residential facility for—
(i) withdrawal from or rehabilitation for alcohol abuse or dependency; or
(ii) withdrawal from or rehabilitation for drug abuse or dependency;
(d) any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility;
(e) any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
(f) any program that addresses factors related to his or her offending behaviour;
(g) any other treatment and rehabilitation that the court considers necessary and that is specified in the order that may include employment, educational, cultural and personal development programs that are consistent with the purpose of the treatment and rehabilitation condition.
(4) For the purposes of subsection (1) the Secretary may give a direction to the offender—
(a) to undergo the treatment and rehabilitation or kind of treatment and rehabilitation specified by the Secretary in the direction; and
(b) in relation to any aspect of the treatment and rehabilitation that the Secretary has specified, a direction—
(i) requiring the attendance of the offender at a specified location; and
(ii) requiring the participation of the offender in particular kinds of treatment or rehabilitation.
(1) A court which is making a community correction order may attach a condition to the order that the offender be supervised, monitored and managed as directed by the Secretary.
(2) The court may attach a supervision condition for the purpose of addressing the need to ensure the compliance of the offender with the order.
(3) When attaching a supervision condition the court must have regard to the information, matters and recommendations made in the pre-sentence report.
(4) When attaching a supervision condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.
(1) A court which is making a community correction order may attach a condition to the order directing that—
(a) the offender must not contact or associate with a person specified in the order; or
Example
An example of a direction that may be made under a condition attached under paragraph (a) is that the offender must not contact or associate with a co-offender or co-offenders.
(b) the offender must not contact or associate with a class of person specified in the order.
Example
An example of a direction that may be made under a condition attached under paragraph (b) is that the offender must not contact or associate with a member of a specified club or association.
(2) When attaching a non-association condition the court may have regard to any effect the attaching of the condition may have on any employment of the offender.
(3) When attaching a non-association condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.
(1) A court which is making a community correction order may attach a condition to the order, directing that the offender must—
(a) reside at a place specified in the order; or
Example
An example of a direction that may be made under a condition attached under paragraph (a) is that the offender must reside at his or her current residential address.
(b) not reside at a place specified in the order.
Example
An example of a direction that may be made under a condition attached under paragraph (b) is that the offender must not reside at the residence of a co-offender.
(2) When attaching a residence restriction or exclusion condition the court may—
(a) have regard to the risk the condition poses to the safety of any person who is likely to reside with the offender under the order; and
(b) have regard to any effect the attaching of the condition may have on any employment of the offender.
(3) When attaching a residence restriction or exclusion condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.
(4) An offender to whom a residence restriction or exclusion condition applies must not change his or her place of residence unless the community correction order to which the condition is attached has been varied under section 48M(2)(d) to specify the new place at which the offender must or must not reside.
(5) The court must not attach a residence restriction or exclusion condition that is inconsistent with a family violence intervention order or a personal safety intervention order.
(1) A court which is making a community correction order may attach a condition to the order, directing that the offender must not enter or remain in a specified place or area.
Example
The following are examples of directions that may be made under a condition attached under subsection (1)—
(a) that the offender must not enter or remain in a specified sporting venue in Victoria;
(b) that the offender must not enter or remain in the central business district of Melbourne.
Note
Exclusion from a place or area that is a licensed premises may be a condition of an order under section 48J, alcohol exclusion condition.
(2) When attaching a place or area exclusion condition the court may have regard to any effect the attaching of the condition may have on any employment of the offender.
(3) When attaching a place or area exclusion condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.
(4) The court must not attach a place or area exclusion condition that is inconsistent with a family violence intervention order or a personal safety intervention order.
(1) A court which is making a community correction order may attach a condition to the order, directing that the offender must remain at the place specified in the order between specified hours of each day for the period specified in the order.
Example
An example of a direction that may be made under a condition attached under subsection (1) is a direction that the offender must remain at home between 9pm and 6am each day.
(2) When attaching a curfew condition the court
may—
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(a) have regard to the risk the condition poses to the safety of any person who is likely to reside with the offender under the order;
(b) have regard to any effect the attaching of the condition may have on any employment of the offender.
(3) The offender must remain at a place specified by the court under a curfew condition for—
(a) not less than 2 hours of each day; and
(b) not more than 12 hours of each day—
for the period specified in the order which must not be more than 6 months.
(4) The court must not attach a curfew condition that is inconsistent with a family violence intervention order or a personal safety intervention order.
(1) A court which is making a community correction order may attach a condition directing that the offender comply with the restrictions in subsection (2).
(2) For the purpose of subsection (1) and subject to subsection (3) the restrictions are as follows—
(a) the offender must not enter or remain in any licensed premises characterised as a nightclub, bar, restaurant, cafe, reception centre or function centre; and
(b) the offender must not enter or remain in the location of any major event; and
(c) the offender must not enter or
remain in a bar area of any licensed premises to which paragraph (a) or (b)
does not apply; and
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(d) the offender must not consume liquor in any licensed premises to which paragraph (a) or (b) does not apply.
(3) When attaching an alcohol exclusion condition a court may specify a licensed premises to which the restrictions under subsection (2)(a), (b) or (c) do not apply.
(4) The court may attach an alcohol exclusion condition to address the role of alcohol in the offending behaviour.
(5) When attaching an alcohol exclusion condition the court may have regard to any effect the attaching of the condition may have on any employment of the offender.
(6) When attaching an alcohol exclusion condition the court may specify whether the condition applies to the offender for a period of hours of each day or at all times.
(7) When attaching an alcohol exclusion condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.
(8) In this section—
"bar area" means an area within a licensed premises that is set aside for the
service of liquor for consumption on that premises;
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"licensed premises" has the same meaning as in the Liquor Control Reform Act 1998 ;
"liquor" has the same meaning as in the Liquor Control Reform Act 1998 ;
"major event" has the same meaning as in the Liquor Control Reform Act 1998 .
(1) A court which is making a community correction order may attach a condition to the order directing that the offender be monitored by the court, if the court is satisfied that it is necessary for the court to review (during the course of the order) the compliance of the offender with the order.
(2) The court may make a direction for the following matters in a judicial monitoring condition—
(a) a time or times at which the offender must re-appear before the court for a review under section 48L of the compliance of the offender with the order; and
(b) any information, report or test that must or may be provided in the course of a review under section 48L.
(3) A direction in a judicial monitoring condition made by the court under subsection (2)(a) or (b) is not to be taken to empower the medical testing of the offender or the making of a medical report as to the offender without the consent of the offender.
(4) A judicial monitoring condition attached to an order remains in force for the period specified by the court in the order, or, if no period is specified in the order, for the period of the order.
(5) Any proceeding where an offender re-appears before the court for review in accordance with a judicial monitoring condition may be conducted by the court constituted by the judicial officer who made the order or by the court constituted by another judicial officer.
(1) In any proceeding where an offender re-appears before a court for review of the offender's compliance with the order under a judicial monitoring condition—
(a) the court may require the offender, or may invite the offender to answer questions or produce information (including reports or the results of medical examinations or medical tests);
(b) the court may invite the offender's medical practitioner or any medical practitioner who has examined the offender to produce any medical report about the offender or the results of any medical test about the offender to the court;
(c) the court may require or invite any of the following persons to provide information to the court either verbally or in any written form—
(i) the Secretary;
(ii) the person or body who prosecuted the offender for the offence;
(iii) any other person the court considers appropriate.
(2) In any proceeding where an offender re-appears before a court for review in accordance with the terms of a judicial monitoring condition the court—
(a) may—
(i) cancel the condition; or
(ii) vary the condition, including shortening or extending the condition; or
(iii) take no further action in relation to the condition; or
(b) may give further directions as to—
(i) the time or times at which the offender must re-appear before the court for other reviews under this section of the compliance of the offender with the order; and
(ii) any information, report or test that must or may be provided in the course of another review under this section.
(1) On an application under section 48N, the court which made a community correction order may decide to deal with the order under subsection (2), if the court is satisfied that—
(a) the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or
(b) the circumstances of the offender were wrongly stated or were not accurately presented to the court or to the author of a pre-sentence report or drug and alcohol report before the order was made; or
(c) the offender no longer consents to the order; or
(d) the rehabilitation and reintegration of the offender would be advanced by the making of the decision to deal with the order; or
(e) the continuation of the sentence is no longer necessary in the interests of the community or the offender.
(2) If satisfied of a matter set out in subsection (1), the court may decide to deal with the order in one or more of the following ways—
(a) by confirming the order or a part of the order; or
(b) by cancelling the order and dealing with the offender for the offence or offences with respect to which the order was made in any manner in which the court could deal with the offender if it had just found him or her guilty of that offence or those offences; or
(c) by cancelling the order and making no further order in respect of the offence or offences with respect to which the order was originally made; or
(d) by varying the order; or
(e) in relation to a condition of the order, by cancelling, suspending, varying or reducing the condition; or
Example
An example of a variation of a condition of the order that may be made under paragraph (e) is a reduction of the number of hours specified under an unpaid community work condition.
(f) by attaching a new condition on the order; or
(g) in relation to a program that must be undertaken under the order, by cancelling, suspending, varying or reducing the program; or
(h) by imposing a new program that must be undertaken under the order.
(3) The court must make a decision under subsection (2) on the basis of its assessment of the extent to which the offender has complied with the order.
(4) The Secretary must disclose any direction he or she has given under Division 3 of Part 3C to a court making an assessment under subsection (3).
(1) An application for the court to deal with a community correction order under section 48M may be made at any time while the order is in force by—
(a) a prescribed person or a member of a prescribed class of person; or
(b) the informant or police prosecutor (if the sentencing court was the Magistrates' Court); or
(c) the Director of Public Prosecutions; or
(d) the offender; or
(e) the Secretary.
(2) Notice of an application under subsection (1) must be given—
(a) to the offender, if the application is not made by the offender; and
(b) to the Director of Public Prosecutions; and
(c) to the informant or police prosecutor, if the sentencing court was the Magistrates' Court; and
(d) any prescribed person or a member of any prescribed class of person; and
(e) the Secretary.
(3) The court may order that a warrant to arrest be issued against the offender if he or she does not attend before the court on the hearing of the application.
(1) The Secretary may—
(a) if the offender is ill; or
(b) in other exceptional circumstances—
suspend for a period the operation of a community correction order or any condition of the order.
(2) If the Secretary suspends the operation of an order or a condition of an order under subsection (1), the period of the suspension does not count in calculating the period for which the order is to remain in force or a condition is to be complied with.
(1) If, because an offender has changed his or her place of residence or for any other reason it is not convenient that the offender should report at a place or to a person specified in a community correction order, the Secretary may direct the offender to report at another place or to another person.
(2) An offender must report as directed under subsection (1) as if that place or person had been specified in the order.
For the purposes of any proceeding under Division 2 of Part 3C, a community correction order made by the Court of Appeal on an appeal must be taken to have been made by the court from whose decision the appeal was brought.
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