Victorian Numbered Acts Victorian Numbered Acts(1) In section 31 of the Sentencing Act 1991 , for sub-sections (1) to (4) substitute —
"(1) If a court finds an offender on whom a suspended sentence of imprisonment has previously been imposed guilty of another offence punishable by imprisonment committed within the preceding 3 years and during the operational period of that sentence, it may—
(a) on the application, in the prescribed form, of a prescribed person or a member of a prescribed class of persons; and
(b) if the offender is then present before the court—
do either of the following—
(c) if it is the court that imposed the suspended sentence, proceed to exercise any power conferred on it by sub-section (5) regardless of whether the operational period of that sentence is current or has expired; or
(d) if it is not the court that
imposed the suspended sentence, transfer (in accordance with the regulations)
the proceeding under this sub-section to that court and, for this purpose, if
the offender is not being held in custody in relation to the other offence or
for any other reason, grant bail to the offender conditioned for, or remand
the offender in custody pending, his or her appearance at the court that
imposed the suspended sentence.
s. 5
(1A) On an offender breaching an order suspending a sentence of imprisonment by committing another offence punishable by imprisonment (a breach offence ) during the operational period of that sentence, a prescribed person or a member of a prescribed class of persons may, if an application has not been made under sub-section (1) in respect of the breach or such an application has been withdrawn, at any time up until 3 years after the date on which the breach offence was committed, apply to a registrar of the Magistrates' Court at any venue of that Court for the issue of—
(a) a summons to answer to the breach of the suspended sentence (a breach summons ); or
(b) a warrant to arrest—
in order to compel the attendance of the offender at the court (and, in the case of the Magistrates' Court, the proper venue of that Court) that imposed the suspended sentence.
(1B) An application under sub-section (1A) may be made by the applicant in person or by post.
(2) On an application under sub-section (1A), the registrar must, if satisfied that the offender has been found guilty of the breach offence, issue—
(a) a breach summons; or
(b) subject to sub-section (2A), a warrant to arrest.
(2A) A registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that—
(a) it is probable that the offender will not answer a summons; or
(b) the offender has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or
(c) a warrant is required or authorised for other good cause.
(3) On the application of the person who applied for the issue of the breach summons at any time before it is served, the date specified in the breach summons for the offender to attend court (the return date ) may be extended without cause—
(a) before the return date; or
(b) within one month after the return date—
by a registrar at the venue of the Magistrates' Court at which the summons was issued on one occasion and thereafter may be extended—
(c) before the current return date; or
(d) within one month after the current return date—
by such a registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the summons.
(4) A breach summons—
(a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the suspended sentence was imposed by the Supreme Court or the County Court, at that court, on a specified date and at a specified time to answer the breach; and
(b) may be served in any manner in which a summons to answer to a charge may be served under section 34 of the Magistrates' Court Act 1989 .
(4A) Service of a breach summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 35 of the Magistrates' Court Act 1989 .
(4B) If an offender does not attend before a court in accordance with his or her undertaking of bail granted under sub-section (1) or in answer to a breach summons which has been served in accordance with this section, the court may issue a warrant to arrest the offender.
(4C) A warrant to arrest authorised to be issued under this section is to be issued in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant with any necessary modifications.
(4D) Section 50 of the Magistrates' Court Act 1989 applies to a breach summons or warrant to arrest issued under this section as if the reference in that section—
(a) to a summons or warrant were a reference to a summons or warrant issued under this section; and
(b) to the Court were a reference to the court by which the suspended sentence was imposed.
(4E) The person constituting the court that finds the offender guilty of the breach offence may, if the offender is not then present before the court, exercise any of the powers of a registrar under this section on the application, in the prescribed form, of a prescribed person or a member of a prescribed class of persons.
(4F) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted, or a summons or warrant issued, under this section, the court must—
(a) ask the defendant whether he or she has sought legal advice; and
(b) if satisfied that the offender has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the offender.
(4G) If the court before which an offender appears in answer to bail granted, or a summons or warrant issued, under this section is satisfied that the offender does not have a knowledge of the English language that is sufficient to enable the offender to understand, or participate in, the proceeding, it must not hear and determine the proceeding without a competent interpreter interpreting it.".
(2) In section 31(5) of the Sentencing Act 1991 , for "on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition" substitute "the court that imposed a suspended sentence of imprisonment is satisfied that the offender has been found guilty of an offence punishable by imprisonment committed during the operational period of the suspended sentence it".
(3) In section 31(5A) of the Sentencing Act 1991 , for "on the hearing of a charge the court finds the offender guilty of the offence it must, in addition to any fine it may impose under sub-section (5)," substitute "the court is satisfied as mentioned in that sub-section it must".
(4) Section 31(9) of the Sentencing Act 1991 is repealed .