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Courts and Sentencing Legislation Amendment Act 2012

No. 26 of 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 2

PART 2—AMENDMENTS TO THE CHILDREN, YOUTH AND FAMILIES ACT 2005 4

3 Child in custody to be brought before Court or bail justice 44 Breach of bail 45 Breach of probation 46 Breach of youth supervision order 47 Breach of youth attendance order 58 Jurisdiction of Koori Court (Criminal Division) 59 New section 518A inserted 5

518A Circumstances in which Koori Court (Criminal Division) may deal with breach of a sentence imposed by it or by another Division of the Children's Court 5

10 Circumstances in which a child may be taken into safe custody 611 New sections 620 and 621 inserted 6

620 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012 6

621 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012 7

12 Schedule 3 amended—CAYPINS 7

PART 3—AMENDMENTS TO THE COUNTY COURT ACT 1958 8

13 Jurisdiction of Koori Court Division 814 Dealing with proceedings for certain offences 815 New section 4DA inserted 8

4DA Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by it or by another Division of the County Court 8

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16 New section 48CA inserted 948CA Protection of assessors 9

17 New section 95 inserted 1095 Transitional provision—Courts and Sentencing

Legislation Amendment Act 2012 10

PART 4—AMENDMENTS TO THE JUDICIAL COLLEGE OF VICTORIA ACT 2001 11

18 Definitions 11

PART 5—AMENDMENT TO THE JURIES ACT 2000 12

19 Jury pools 1220 Selection of panels 1221 Information for panel 12

PART 6—AMENDMENTS TO THE MAGISTRATES' COURT ACT 1989 13

22 Jurisdiction of Koori Court Division 1323 New section 4EA inserted 13

4EA Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by another Division of the Magistrates' Court 13

24 Circumstances in which the Koori Court Division may deal with certain offences 14

25 Schedule 8 amended 1548 Transitional provisions—Courts and Sentencing

Legislation Amendment Act 2012 15

PART 7—AMENDMENTS TO THE SENTENCING ACT 1991 16

26 Purposes 1627 Definitions 1628 Time held in custody before trial etc. to be deducted from

sentence 1729 New section 18ZT inserted 17

18ZT Order made by Court of Appeal 1730 Suspended sentence of imprisonment 1731 Unpaid community work where there are several orders 18

42 Concurrent unpaid community work where there are several orders 18

32 Terms of a community correction order 1933 Court may attach conditions 1934 Residual condition 1935 Unpaid community work condition 19

36 Application for variation etc. of a community correction order 19

37 Order made by Court of Appeal 2048Q Order made by Court of Appeal 20

38 Heading to Part 3B amended 2039 Amount of fine where no amount prescribed 2040 New Division heading inserted 2041 Application by person fined 2042 Section 57 repealed 2143 Section 58 repealed 2144 Section 59 repealed 2145 Section 60 repealed 2146 New Division heading and new section 61A inserted 21

Division 3—Fines—unpaid community work, default and imprisonment 21

61A Terms of a fine conversion order 2147 Enforcement of fines against natural persons 2248 Power to make fine default unpaid community work order 2249 New section 62B inserted 23

62B Terms of a fine default unpaid community work order 23

50 New sections inserted after section 63 2463AA Period of unpaid community work to be performed 2463AB Cumulative unpaid community work where there

are several orders 2563AC Period of a fine conversion order or a fine default

unpaid community work order 2563AD Variation etc. of fine conversion order or fine

default unpaid community work order 2663AE Application for variation etc. of a fine conversion

order or fine default unpaid community work order 2751 Warrant to seize property returned unsatisfied 2852 New Division inserted 28

Division 4—Miscellaneous matters 28

64A Suspension by Secretary 2864B Secretary may direct offender to report at another

place or to another person 2953 New sections 66A to 66E inserted 29

66A Notice of orders to be given 2966B Oaths 2966C Application of fines etc. 3066D Penalty payable to body corporate 3066E Order made by Court of Appeal 30

54 New Part heading inserted 3055 Division 2 heading amended 31

56 Release on adjournment following conviction 3157 Release on adjournment without conviction 3158 Division 3 heading amended 3159 Residential treatment order 3160 Division 4 heading amended 3161 Division 2 heading amended 3162 Sections 83AG to 83AQ substituted 32

83AG Commencement of a proceeding 3283AH Time for commencing a proceeding 3383AI Issue of summons or warrant to arrest 3483AJ Transfer of a proceeding 3483AK Issue of warrant to arrest on failure to comply with

bail or summons 3583AL Process where offender before higher court, orders

of that court 3683AM Process where offender before higher court, orders

of Magistrates' Court 3763 Powers of court on finding of guilt for contravention of order

as to suspended sentence 3864 Provisions applying to a superannuation order 3865 Delegation 3866 Regulations 3867 Contravention—Old combined custody and treatment orders 3968 Contravention—pre-existing home detention orders 3969 Contravention—Old intensive correction orders 3970 Contravention—Old community-based orders 40

PART 8—AMENDMENTS TO THE SENTENCING AMENDMENT (COMMUNITY CORRECTION REFORM) ACT 2011 42

71 Bond condition 42

PART 9—AMENDMENTS TO THE SUPREME COURT ACT 1986 44

72 New section 24G inserted 4424G Protection of assessors 44

PART 10—CONSEQUENTIAL AND OTHER AMENDMENTS 45

Division 1—Criminal Procedure Act 2009 45

73 Definitions 4574 Limitations on sentencing in absence of accused 45

Division 2—Infringements Act 2006 45

75 Powers of the Court 45

Division 3—Justice Legislation Amendment (Infringement Offences) Act 2011 46

76 Amendment of commencement provision 4677 Amendment of repeal provision 46

Division 4—Sex Offenders Registration Act 2004 46

78 Definitions 46

Division 5—Summary Offences Act 1966 47

79 Compensation 47

PART 11—REPEAL OF AMENDING ACT 48

80 Repeal of amending Act 48═══════════════

ENDNOTES 49

Courts and Sentencing Legislation Amendment Act 2012†

No. 26 of 2012

[Assented to 29 May 2012]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to make miscellaneous amendments to the following Acts to improve their operation and for other purposes—

(i) the Children, Youth and Families Act 2005;

(ii) the County Court Act 1958;

Victoria

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(iii) the Judicial College of Victoria Act 2001;

(iv) the Juries Act 2000;

(v) the Magistrates' Court Act 1989;

(vi) the Supreme Court Act 1986; and

(b) to amend the Justice Legislation Amendment (Infringement Offences) Act 2011 to provide for the continuation of certain offences as infringement offences for a further 2 years; and

(c) to amend the Sentencing Act 1991—

(i) to make further provision for fine conversion orders and fine default unpaid community work orders; and

(ii) to further provide for procedures for bringing a proceeding for contravention of a sentence; and

(iii) to provide for other matters in that Act; and

(d) to amend the Sentencing Amendment (Community Correction Reform) Act 2011 to further provide for the bond condition of a community correction order; and

(e) to make minor and consequential amendments to other Acts.

2 Commencement

(1) This Part, Part 4 and Division 3 of Part 10 come into operation on the day after the day on which the Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

Section Page

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s. 2

(3) If a provision of this Act referred to in subsection (2) does not come into operation before 1 November 2012, it comes into operation on that day.

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Section Page

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s. 2

PART 2—AMENDMENTS TO THE CHILDREN, YOUTH AND FAMILIES ACT 2005

3 Child in custody to be brought before Court or bail justice

See:Act No. 96/2005. Reprint No. 3 as at 1 January 2011and amendingAct Nos 51/2006, 53/2010, 27/2011, 29/2011, 54/2011 and 80/2011. LawToday:www.legislation.vic.gov.aus. 3

(1) In section 346(3)(b) of the Children, Youth and Families Act 2005 after "21" insert "clear".

(2) In section 346(5) of the Children, Youth and Families Act 2005 after "21" insert "clear".

4 Breach of bail

In section 348 of the Children, Youth and Families Act 2005, after "21" insert "clear".

5 Breach of probation

(1) In section 384(3)(b)(i) of the Children, Youth and Families Act 2005, after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".

(2) Section 384(4) of the Children, Youth and Families Act 2005 is repealed.

Part 11—Repeal of Amending Act

Courts and Sentencing Legislation Amendment Act 2012No. 26 of 2012

4

6 Breach of youth supervision order

(1) In section 392(3)(b)(i) of the Children, Youth and Families Act 2005 after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".


7 Breach of youth attendance order

(1) In section 408(7)(b)(i) of the Children, Youth and Families Act 2005 after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".


8 Jurisdiction of Koori Court (Criminal Division)

(1) In section 518(b) of the Children, Youth and Families Act 2005, after "such a sentence" insert ", in the circumstances set out in section 518A".

(2) After section 518(b) of the Children, Youth and Families Act 2005 insert—

"(ba) jurisdiction to deal with a breach of a sentence imposed by the Children's Court (including any offence constituted by such a breach), or a variation of such a sentence, in the circumstances set out in section 518A; and".

9 New section 518A inserted

After section 518 of the Children, Youth and Families Act 2005 insert—

"518A Circumstances in which Koori Court (Criminal Division) may deal with breach

s. 7Part 11—Repeal of Amending Act


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of a sentence imposed by it or by another Division of the Children's Court

For the purposes of section 518(b) and (ba), the circumstances are—

(a) the child is Aboriginal; and

(b) the offence to which the sentence relates is within the jurisdiction of the Criminal Division, other than a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; and

(c) in the case of an offence constituted by a breach of a sentence referred to in section 518(b) or (ba), the child—

(i) intends to plead guilty to the offence; or

(ii) pleads guilty to the offence; or

(iii) has been found guilty of the offence by the Criminal Division; and

(d) the child consents to the proceeding being dealt with by the Koori Court (Criminal Division).".

10 Circumstances in which a child may be taken into safe custody

In section 598(3) of the Children, Youth and Families Act 2005, after "the member of the police force who executed the warrant" insert "or another member of the police force".

11 New sections 620 and 621 inserted

After section 619 of the Children, Youth and Families Act 2005 insert—



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"620 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

Despite the commencement of sections 3 and 4 of the Courts and Sentencing Legislation Amendment Act 2012, an order made and in force under section 346 or 348 immediately before that commencement continues in force on and from that commencement as if sections 346 and 348 had not been amended by sections 3 and 4 of that Act.

621 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

This Act as amended by sections 8 and 9 of the Courts and Sentencing Legislation Amendment Act 2012 applies to a proceeding for an offence or a breach of sentence (including any offence constituted by such a breach) irrespective of whether the offence or breach is alleged to have been committed, or the sentence was imposed, before or on or after the commencement of those sections.".

12 Schedule 3 amended—CAYPINS

In clause 2 of Schedule 3 to the Children, Youth and Families Act 2005 for the definition of registrar substitute—

"registrar means principal registrar or registrar.".

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PART 3—AMENDMENTS TO THE COUNTY COURT ACT 1958

13 Jurisdiction of Koori Court Division See:Act No. 6230.Reprint No. 14 as at1 August 2010 and amending Act Nos 34/2010, 47/2010, 64/2010, 50/2011 and 65/2011.LawToday:www.legislation.vic.gov.aus. 13

(1) In section 4B(b) of the County Court Act 1958—

(a) for "breach" (wherever occurring) substitute "contravention";

(b) after "such a sentence" insert ", in the circumstances set out in section 4DA".

(2) After section 4B(b) of the County Court Act 1958 insert—

"(ba) jurisdiction to deal with a contravention of a sentence imposed by the County Court (including any offence constituted by such a contravention), or a variation of such a sentence, in the circumstances set out in section 4DA; and".

14 Dealing with proceedings for certain offences

In section 4C of the County Court Act 1958, for "breach" substitute "contravention".

15 New section 4DA inserted

After section 4D of the County Court Act 1958 insert—

"4DA Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by it or by another Division of the County Court



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For the purposes of sections 4B(b) and (ba), the circumstances are—

(a) the accused is Aboriginal; and

(b) the offence to which the sentence relates is within the jurisdiction of the County Court, other than—

(i) a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; or

(ii) a contravention of a family violence intervention order or a family violence safety notice under the Family Violence Protection Act 2008 or an offence arising out of the same conduct as that from which the contravention arose; and

(c) in the case of an offence constituted by a contravention of a sentence referred to in section 4B(b) or (ba), the accused pleads guilty to the offence; and

(d) the accused consents to the proceeding being dealt with by the Koori Court Division; and

(e) the Koori Court Division considers that it is appropriate in all the circumstances that the proceeding be dealt with by it.".

16 New section 48CA inserted

After section 48C of the County Court Act 1958 insert—

"48CA Protection of assessors

An assessor called in for assistance in a proceeding under section 48A has, in the performance of his or her duties as an



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assessor in the proceeding, the same protection and immunity as a judge of the Court has in the performance of his or her duties as a judge.".

17 New section 95 inserted

After section 94 of the County Court Act 1958 insert—

"95 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

This Act, as amended by sections 13 and 15 of the Courts and Sentencing Legislation Amendment Act 2012, applies to a proceeding for an offence or a contravention of sentence irrespective of whether the offence or contravention is alleged to have been committed, or the sentence was imposed, before or on or after the commencement of those sections.".

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PART 4—AMENDMENTS TO THE JUDICIAL COLLEGE OF VICTORIA ACT 2001

18 DefinitionsSee:Act No.20/2001.Reprint No. 1 as at10 May 2007 and amendingAct No. 24/2008.LawToday: www.legislation.vic.gov.aus. 18

In section 3 of the Judicial College of Victoria Act 2001, in the definition of judicial officer—

(a) in paragraph (a) for "or an Associate Judge" substitute ", an Associate Judge or a judicial registrar";

(b) in paragraph (b) for "or an associate judge" substitute ", an associate judge or a judicial registrar";

(c) in paragraph (c) after "or a magistrate" insert "or a judicial registrar";

(d) for paragraph (d) substitute—

"(d) a coroner within the meaning of the Coroners Act 2008 or a judicial registrar of the Coroners Court; or".

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PART 5—AMENDMENT TO THE JURIES ACT 2000

19 Jury poolsSee:Act No. 53/2000.Reprint No. 2 as at16 July 2007 and amendingAct Nos 38/2008, 68/2009, 69/2009, 9/2010, 13/2010, 29/2010, 65/2011, 66/2011 and 70/2011.LawToday: www.legislation.vic.gov.aus. 19

After section 29(3) of the Juries Act 2000 insert—

"(3A) Without limiting subsection (3), the Juries Commissioner may also cause to be prepared a document bearing a number that identifies the person and the occupation of the person.".

20 Selection of panels

In section 30(4) of the Juries Act 2000 omit ", and the names of the persons constituting the panel must be delivered to that person".

21 Information for panel

In section 32(4) of the Juries Act 2000, after "the jury pool" insert "at the completion of the swearing in of the jury,".

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PART 6—AMENDMENTS TO THE MAGISTRATES' COURT ACT 1989

22 Jurisdiction of Koori Court DivisionSee:Act No. 51/1989.Reprint No. 16 as at1 January 2012and amendingAct Nos 51/2006, 52/2008, 12/2010 and 65/2011.LawToday: www.legislation.vic.gov.aus. 22

(1) In section 4E(b) of the Magistrates' Court Act 1989—

(a) for "breach" (wherever occurring) substitute "contravention"; and

(b) after "such a sentence" insert ", in the circumstances set out in section 4EA".

(2) After section 4E(b) of the Magistrates' Court Act 1989 insert—

"(ba) jurisdiction to deal with a contravention of a sentence imposed by the Magistrates' Court (including any offence constituted by such a contravention), or variation of such a sentence, in the circumstances set out in section 4EA; and".

23 New section 4EA inserted

After section 4E of the Magistrates' Court Act 1989 insert—

"4EA Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by another Division of the Magistrates' Court

For the purposes of sections 4E(b) and (ba), the circumstances are—



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(a) the accused is Aboriginal; and

(b) the offence to which the sentence relates is within the jurisdiction of the Magistrates' Court, other than—

(i) a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; or

(ii) a contravention of a family violence intervention order or a family violence safety notice under the Family Violence Protection Act 2008 or an offence arising out of the same conduct as that from which the contravention arose; or

(iii) a contravention of a personal safety intervention order under the Personal Safety Intervention Orders Act 2010 or an offence arising out of the same conduct as that out of which the contravention arose; and

(c) in the case of an offence constituted by a contravention of a sentence referred to in section 4E(b) or (ba), the accused—

(i) intends to plead guilty to the offence; or

(ii) pleads guilty to the offence; or

(iii) intends to consent to the adjournment, under section 59 of the Criminal Procedure Act 2009, of the proceeding to enable



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the accused to participate in a diversion program; and

(d) the accused consents to the proceeding being dealt with by the Koori Court Division.".

24 Circumstances in which the Koori Court Division may deal with certain offences

In section 4F(1) of the Magistrates' Court Act 1989, for "breach" substitute "contravention".

25 Schedule 8 amended

In Schedule 8 to the Magistrates' Court Act 1989, after clause 46 insert—

"48 Transitional provisions—Courts and Sentencing Legislation Amendment Act 2012

This Act as amended by sections 22 and 23 of the Courts and Sentencing Legislation Amendment Act 2012 applies to a proceeding for an offence or a contravention of sentence (including any offence constituted by such a contravention) irrespective of whether the offence or contravention is alleged to have been committed, or the sentence was imposed, before or on or after the commencement of those sections.".

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s. 24s. 25Part 11—Repeal of Amending Act


15

PART 7—AMENDMENTS TO THE SENTENCING ACT 1991

26 PurposesSee:Act No. 49/1991. Reprint No. 13 as at17 February 2012andamendingAct No. 68/2010. LawToday: www. legislation. vic.gov.aus. 26

In section 1(c)(ii) of the Sentencing Act 1991, after "breach" insert "or contravene".

27 Definitions

(1) In section 3(1) of the Sentencing Act 1991 insert the following definition—

"community correction order means an order made under Part 3A;".

(2) In section 3(1) of the Sentencing Act 1991, the definition of contravention summons is repealed.

(3) In section 3(1) of the Sentencing Act 1991, in the definition of fine conversion order after "section 55(1)(d)" insert "or (3)".

(4) In section 3(1) of the Sentencing Act 1991, in the definition of fine default unpaid community work order for "or section 62A" substitute ", 62A or 64(4)".

(5) In section 3(1) of the Sentencing Act 1991, in the definition of instalment order—



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(a) omit "Division 1 of";

(b) for "that Division" substitute "that Part".

(6) In section 3(1) of the Sentencing Act 1991, in the definition of Regional Manager after paragraph (b) insert—

"(ba) a fine conversion order; or".

28 Time held in custody before trial etc. to be deducted from sentence

In section 18(1) of the Sentencing Act 1991, for "section 31" (wherever occurring) substitute "section 83AR".

29 New section 18ZT inserted

After section 18ZS of the Sentencing Act 1991 insert—

"18ZT Order made by Court of Appeal

For the purposes of any proceeding under this Subdivision—

(a) a drug treatment 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; and

(b) the provisions about proceedings under this Subdivision apply as if the court from which the appeal was made were the sentencing court.".

30 Suspended sentence of imprisonment

(1) In section 27(1A)(b) of the Sentencing Act 1991, for "breached" substitute "contravened".



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(2) For section 27(9) of the Sentencing Act 1991 substitute—

"(9) For the purposes of any proceeding under this Subdivision or Division 2 of Part 3C—

(a) a suspended sentence of imprisonment 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; and

(b) the provisions about proceedings under this Subdivision or Division 2 of Part 3C apply as if the court from which the appeal was made were the sentencing court.".

31 Unpaid community work where there are several orders

For section 42 of the Sentencing Act 1991 substitute—

"42 Concurrent unpaid community work where there are several orders

(1) The number of hours of unpaid community work required to be performed under a fines order must, unless otherwise directed by the court, be performed concurrently with any hours of unpaid community work required to be performed under any community correction order that is in force in respect of the offender whether the community correction order is made before or at the same time as the fines order.



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(2) In this section, fines order means a fine conversion order or fine default unpaid community work order.".

32 Terms of a community correction order

After section 45(1)(a) of the Sentencing Act 1991 insert—

"(ab) the offender must comply with any obligation or requirement prescribed by the regulations;".

33 Court may attach conditions

In section 47(2)(b) of the Sentencing Act 1991, for "Division 3 of Part 3B" substitute "Division 2 of Part 3BA".

34 Residual condition

In section 48(2) of the Sentencing Act 1991, for "Division 3 of Part 3B" substitute "Division 2 of Part 3BA".

35 Unpaid community work condition

In section 48C(6) of the Sentencing Act 1991, for "an activity" substitute "unpaid community work".

36 Application for variation etc. of a community correction order

(1) For section 48N(2)(b) of the Sentencing Act 1991 substitute—

"(b) if the sentencing court was—

(i) the Magistrates' Court, to the informant or police prosecutor; or



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(ii) the Supreme Court or the County Court, to the Director of Public Prosecutions; and".

(2) Section 48N(2)(c) of the Sentencing Act 1991 is repealed.

37 Order made by Court of Appeal

For section 48Q of the Sentencing Act 1991 substitute—

"48Q Order made by Court of Appeal

For the purposes of any proceeding under this Part or Division 2 of Part 3C—

(a) 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; and

(b) the provisions about proceedings under this Part or Division 2 of Part 3C apply as if the court from which the appeal was made were the sentencing court.".

38 Heading to Part 3B amended

In the heading to Part 3B of the Sentencing Act 1991, for "OTHER ORDERS" substitute "FINES".

39 Amount of fine where no amount prescribed

In section 52 of the Sentencing Act 1991, for "(3)(a)" substitute "(3)".

40 New Division heading inserted

After section 52 of the Sentencing Act 1991 insert—



20

"Division 2—Fines—instalment orders, time to pay orders and variation orders".

41 Application by person fined

(1) In section 55(1)(d) of the Sentencing Act 1991, for "Regional Manager" substitute "Secretary".

(2) In section 55(3) of the Sentencing Act 1991, for "Regional Manager" substitute "Secretary".

42 Section 57 repealed

Section 57 of the Sentencing Act 1991 is repealed.







46 New Division heading and new section 61A inserted


"Division 3—Fines—unpaid community work, default and imprisonment

61A Terms of a fine conversion order

(1) The following terms are attached to each fine conversion order—

(a) the offender must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;



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(b) the offender must comply with any obligation or requirement prescribed by the regulations;

(c) the offender must report to, and receive visits from the Secretary during the period of the order;

(d) the offender must report to the community corrections centre specified in the order within 2 clear working days after the order comes into force;

(e) the offender must notify the Secretary of any change of address or employment within 2 clear working days after the change;

(f) the offender must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;

(g) the offender must comply with any direction given by the Secretary that it 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)(g) either orally or in writing.".

47 Enforcement of fines against natural persons

In section 62(10)(a) of the Sentencing Act 1991, for "Regional Manager" substitute "Secretary".

48 Power to make fine default unpaid community work order



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In section 62A of the Sentencing Act 1991, for "Regional Manager" substitute "Secretary".

49 New section 62B inserted

After section 62A of the Sentencing Act 1991 insert—

"62B Terms of a fine default unpaid community work order

(1) The following terms are attached to each fine default unpaid community work 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 comply with any obligation or requirement prescribed by the regulations;

(c) the offender must report to, and receive visits from the Secretary during the period of the order;

(d) the offender must report to the community corrections centre specified in the order within 2 clear working days after the order comes into force;

(e) the offender must notify the Secretary of any change of address or employment within 2 clear working days after the change;

(f) the offender must not leave Victoria except with the permission, either



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generally or in relation to a particular case, of the Secretary;

(g) 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)(g) either orally or in writing.".

50 New sections inserted after section 63


"63AA Period of unpaid community work to be performed

(1) The number of hours ordered by the court that an offender must perform unpaid community work as specified in an item in column 1 of the Table to this subsection may be performed over a period that is equal to or less than the period specified opposite the number of hours in the item in column 2 of the Table.

TABLE

Item Column 1 Column 2

Hours of unpaid community work

Maximum period of order

1 376 to 500 24 months

2 251 to 375 18 months

3 126 to 250 12 months

4 51 to 125 6 months

5 50 or less 3 months



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(2) The period over which unpaid community work must be performed, that a court specifies in a fine conversion order or a fine default unpaid community work order, must not be such a period as would require an offender to perform more than 20 hours of unpaid community work in any 7 day period.

(3) Despite subsection (2) an offender may perform unpaid community work 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.

(4) A fine conversion order or fine default unpaid community work order, expires on the satisfactory completion of the hours of work that the court ordered that the offender must perform.

63AB Cumulative unpaid community work where there are several orders

(1) The number of hours of unpaid community work required to be performed by an offender under a fines order must, unless otherwise directed by a court, be performed cumulatively on any hours of unpaid community work required to be performed under another fines order that is in force in respect of the offender, whether the other fines order is made before or at the same time as the first mentioned order.

(2) A court must not give a direction under this section that is not consistent with section 63AA.

(3) In this section, fines order means a fine conversion order or fine default unpaid community work order.



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63AC Period of a fine conversion order or a fine default unpaid community work order

(1) The period of a fine conversion order or a fine default unpaid community work order is the period determined by the court in accordance with section 63AA.

(2) The court must fix the date on which a fine conversion order or a fine default unpaid community work order commences, which must not be more than 3 months after the order is made.

63AD Variation etc. of fine conversion order or fine default unpaid community work order

(1) On an application under section 63AE, the court which made a fine conversion order or a fine default unpaid community work 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 the order; or

(b) the circumstances of the offender were wrongly stated or were not accurately presented to the court before the order was made; or

(c) the offender no longer consents to the order.

(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—



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(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.

(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.

63AE Application for variation etc. of a fine conversion order or fine default unpaid community work order

(1) An application for the court to deal with a fine conversion order or fine default unpaid community work order under section 63AD 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.



27

(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) if the sentencing court was—

(i) the Magistrates' Court, to the informant or police prosecutor; or

(ii) the Supreme Court or the County Court, to the Director of Public Prosecutions; and

(c) any prescribed person or a member of any prescribed class of person; and

(d) 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.".

51 Warrant to seize property returned unsatisfied

In section 64(4) of the Sentencing Act 1991, for "make a community-based order" substitute "make a fine default unpaid community work order".

52 New Division inserted


"Division 4—Miscellaneous matters

64A Suspension by Secretary

(1) The Secretary may suspend the operation of a fine conversion order or fine default unpaid community work order or any condition of that order for a period.



28

(2) The Secretary may suspend an order or any condition of the order under subsection (1)—

(a) if the offender is ill; or

(b) in other exceptional circumstances.

(3) 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.

64B Secretary may direct offender to report at another place or to another person

(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 fine conversion order or fine default unpaid community work 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.".

53 New sections 66A to 66E inserted


"66A Notice of orders to be given

An order under this Part is not binding on an offender if the offender has not been given notice of it in the manner required by or under this Part.



29

66B Oaths

A court, or a proper officer of a court, may administer an oath for the purposes of proceedings under this Part.

66C Application of fines etc.

The whole or any part of a fine, penalty or sum of money which by or under any Act is authorised or directed to be imposed on a person forms part of, and must be paid into, the Consolidated Fund if no other way of appropriating or applying it is prescribed by law.

66D Penalty payable to body corporate

A forfeiture or penalty payable to a party aggrieved under an Act relating to an offence (whether indictable or summary) is payable to a body corporate if it is the party aggrieved.

66E Order made by Court of Appeal

For the purposes of any proceeding under this Part or Division 2 of Part 3C—

(a) a fine or a fine conversion order or fine default unpaid community work 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; and

(b) the provisions about proceedings under this Part or Division 2 of Part 3C apply as if the court from which the appeal was made were the sentencing court.".



30

54 New Part heading inserted

After Division 1 of Part 3B of the Sentencing Act 1991 insert—

"__________________

PART 3BA—SENTENCES—OTHER ORDERS".

55 Division 2 heading amended

In the heading to Division 2 of Part 3B of the Sentencing Act 1991, for "Division 2" substitute "Division 1".

56 Release on adjournment following conviction


57 Release on adjournment without conviction




59 Residential treatment order

In section 82AA(1)(a) of the Sentencing Act 1991, for "serious offence" substitute "serious offence within the meaning of the definition of serious offence in section 3(1)".



s. 54s. 55Part 11—Repeal of Amending Act


31


For the heading to Division 2 of Part 3C of the Sentencing Act 1991 substitute—

"Division 2—Procedure for contravention offence".

62 Sections 83AG to 83AQ substituted

For sections 83AG to 83AQ of the Sentencing Act 1991 substitute—

"83AG Commencement of a proceeding

(1) A proceeding for an offence under section 83AB, 83AC, 83AD, 83AE or 83AF is commenced by filing a charge-sheet in the Magistrates' Court.

(2) A charge-sheet must be filed under subsection (1) by—

(a) the Director of Public Prosecutions; or

(b) a crown prosecutor within the meaning of the Criminal Procedure Act 2009; or

(c) a member of staff of the Office of Public Prosecutions who is a legal practitioner; or

(d) a member of the police force; or

(e) a prescribed person; or

(f) a member of a prescribed class of person; or

(g) the Secretary—

as the case requires.



32

(3) Subject to this Act, a proceeding commenced under this Division is to be in accordance with the provisions of and regulations and rules made under—

(a) the Criminal Procedure Act 2009;

(b) the Bail Act 1977;

(c) the Magistrates' Court Act 1989—

with any necessary modifications, and in particular with the modification that a reference to a person accused of an offence or an accused person, is taken to be a reference to the offender.

(4) In particular, without limiting subsection (3), section 12 of the Criminal Procedure Act 2009 applies to a proceeding commenced under this section with the modification that a reference to section 6 is taken to be a reference to section 83AG of this Act.

83AH Time for commencing a proceeding

(1) A proceeding for an offence under section 83AB, 83AC or 83AD must be commenced—

(a) if the contravention is constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 6 months after the person is convicted or found guilty of the later offence, subject to subsection (2); or

(b) if the contravention is not constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 1 year after the order ceases to be in force.



33

(2) A proceeding for an offence under section 83AB, 83AC or 83AD to which subsection (1)(a) applies must not be commenced more than 2 years after the order ceases to be in force.Note

The time limit for the commencement of a proceeding for a summary offence under section 7 of the Criminal Procedure Act 2009 applies to an offence against section 83AE or 83AF.

83AI Issue of summons or warrant to arrest

(1) A summons issued for the purposes of a proceeding commenced under section 83AG for an offence under section 83AB, 83AC or 83AD must direct the offender to attend to answer to the charge—

(a) at the proper venue of the Magistrates' Court, if the order that is the subject of the offence was made by the Magistrates' Court; or

(b) at the Supreme Court or the County Court, if the order that is the subject of the offence was made by either court.

(2) A warrant to arrest issued for the purposes of a proceeding commenced under section 83AG for an offence under section 83AB, 83AC or 83AD must—

(a) be issued in accordance with Part 4 of the Magistrates' Court Act 1989; and

(b) authorise the person to whom it is directed to bring the offender when arrested before a bail justice or the sentencing court to be dealt with according to law.

83AJ Transfer of a proceeding



34

(1) If a proceeding is commenced under section 83AG for an offence under section 83AB, 83AC or 83AD, and the Magistrates' Court did not make the order that is the subject of the offence, the Magistrates' Court must order that the proceeding be transferred to the appropriate venue of the sentencing court.

(2) An order made under subsection (1) that transfers a proceeding takes effect—

(a) if a summons has been issued under section 83AI(1) on the filing of the evidence of service of the summons in the sentencing court; or

(b) if a warrant to arrest has been issued under section 83AI(2) on the execution of the warrant against the offender.

(3) The Magistrates' Court under subsection (1) may be constituted by a proper officer of the court.

(4) If a proceeding is transferred to the Supreme Court or the County Court under subsection (1) it may be heard and determined without a jury and in accordance with Chapter 3 of the Criminal Procedure Act 2009 subject to any modifications as set out in the rules of the court.

83AK Issue of warrant to arrest on failure to comply with bail or summons

If a proceeding is transferred under section 83AJ and an offender does not attend before the sentencing court—

(a) in accordance with his or her undertaking of bail; or



35

(b) in answer to a summons which has been served—

the sentencing court may issue a warrant to arrest the offender.

83AL Process where offender before higher court, orders of that court

(1) If in a proceeding before the Supreme Court or the County Court (the relevant sentencing court)—

(a) an offender is before the relevant sentencing court and is convicted or found guilty of the offence that is the subject of the proceeding; and

(b) the conviction or finding of guilt constitutes a contravention of an order (the original order) under this Act applying to the offender, in respect of which a charge-sheet may be filed for an offence under section 83AB, 83AC or 83AD; and

(c) the original order was made by the relevant sentencing court—

despite anything to the contrary in this Division, the proceeding for the offence under section 83AB, 83AC or 83AD may be commenced by filing a charge-sheet in the relevant sentencing court.

(2) If a charge-sheet is filed in the relevant sentencing court under subsection (1) it must be filed by—

(a) the Director of Public Prosecutions; or



36

(b) a crown prosecutor within the meaning of the Criminal Procedure Act 2009; or

(c) a member of staff of the Office of Public Prosecutions who is a legal practitioner; or

(d) a member of the police force; or

(e) a prescribed person; or

(f) a member of a prescribed class of person; or

(g) the Secretary—

as the case requires.

(3) The relevant sentencing court may hear and determine the charge for the offence under section 83AB, 83AC or 83AD without a jury and in accordance with Chapter 3 of the Criminal Procedure Act 2009, subject to any modifications as set out in the rules of the relevant sentencing court.

83AM Process where offender before higher court, orders of Magistrates' Court

(1) If in a proceeding before the Supreme Court or the County Court (the relevant sentencing court)—

(a) an offender is before the relevant sentencing court and is convicted or found guilty of the offence that is the subject of the proceeding; and

(b) the conviction or finding of guilt constitutes a contravention of an order (the original order) under this Act applying to the offender, in respect of which a charge-sheet may be filed for



37

an offence under section 83AB, 83AC or 83AD; and

(c) the original order was made by the Magistrates' Court—

despite anything to the contrary in this Division, the relevant sentencing court may proceed to hear and determine the proceeding for the offence under section 83AB, 83AC or 83AD as if it were an unrelated summary offence within the meaning of section 243 of the Criminal Procedure Act 2009.

(2) Section 243 of the Criminal Procedure Act 2009 applies to the proceeding for the offence under section 83AB, 83AC or 83AD—

(a) subject to any modifications as set out in the rules of the relevant sentencing court; and

(b) with any other necessary modifications.".

63 Powers of court on finding of guilt for contravention of order as to suspended sentence

Section 83AR(7) of the Sentencing Act 1991 is repealed.

64 Provisions applying to a superannuation order

(1) In section 83H of the Sentencing Act 1991 omit "59,".

(2) In section 83H of the Sentencing Act 1991 for "64 and 65" substitute "64, 65 and 66C".

65 Delegation

In section 115B(1)(a) of the Sentencing Act 1991, after "Part 3A" insert "or Part 3B".



38

66 Regulations

After section 116(1)(c) of the Sentencing Act 1991 insert—

"(ca) fine conversion orders or fine default unpaid community work orders, including but not limited to the commencement of those orders, the matters to be specified in those orders, the supply of copies of those orders to specified persons and the obligations of persons subject to those orders; and".

67 Contravention—Old combined custody and treatment orders

For clause 7(4)(a) of Schedule 3 to the Sentencing Act 1991 substitute—

"(a) whether or not the order has expired, confirm the order that was contravened and if necessary to enable the offender to perform the remaining period and conditions of the order, vary the duration and dates of the order; or".

68 Contravention—pre-existing home detention orders



69 Contravention—Old intensive correction orders


"(a) whether or not the order has expired, confirm the order that was contravened and if



39

necessary to enable the offender to perform the remaining period and conditions of the order, vary the duration and dates of the order; or".

70 Contravention—Old community-based orders

(1) After clause 10(1) of Schedule 3 to the Sentencing Act 1991 insert—

"(1A) An offender who is subject to an old community-based order (fines) must not, unless that person has a reasonable excuse, contravene that order.

Penalty: Level 10 fine.".


"(2A) Subclause (1A) does not apply to a contravention of an old community-based order (fines) that occurs before the commencement of section 70 of the Courts and Sentencing Legislation Amendment Act 2012.".

(3) In clause 10(3) of Schedule 3 to the Sentencing Act 1991 for "subclause (1)" (wherever occurring) substitute "subclause (1) or (1A)".


'(3A) In addition to subclause (3) and subject to subclause (4)—

(a) Part 3C applies to an offence under subclause (1A) where an offender is subject to an old community-based



40

order (fines) as if any reference in that Part to an offence under section 83AD were a reference to an offence under subclause (1A); and

(b) section 63A(3) applies to an offence under subclause (1A) as if in that section a reference to a "fine conversion order or a fine default unpaid community work order" were a reference to an "old community-based order (fines),".'.

(5) In clause 10(4) of Schedule 3 to the Sentencing Act 1991 for "subclause (1)" substitute "subclause (1) or (1A)".

(6) For clause 10(4)(a) of Schedule 3 to the Sentencing Act 1991 substitute—



"(6) In this clause, old community-based order (fines) means an old community-based order made under Division 4 of Part 3 before the commencement of section 70 of the Courts and Sentencing Legislation Amendment Act 2012.".

__________________



41

PART 8—AMENDMENTS TO THE SENTENCING AMENDMENT (COMMUNITY CORRECTION REFORM)

ACT 2011

71 Bond conditionSee:Act No. 65/2011. Statute Book: www. legislation. vic.gov.aus. 71

(1) For section 48JA(4) of the Sentencing Act 1991, as proposed to be inserted by section 58 of the Sentencing Amendment (Community Correction Reform) Act 2011 substitute—

"(4) Any money paid by an offender under subsection (1)—

(a) must be paid to the court making the order; and

(b) despite any provision to the contrary in the Supreme Court Act 1986, the County Court Act 1958 or the Magistrates' Court Act 1989, must be held on trust by the Crown in a trust account established by the Minister under section 23 of the Financial Management Act 1994 until the money is required to be repaid or forfeited under this Act.".

(2) For section 48JA(5) of the Sentencing Act 1991, as proposed to be inserted by section 58 of the Sentencing Amendment (Community Correction Reform) Act 2011 substitute—

"(5) If any interest is received from the investment of any money paid by an offender under subsection (1) the interest must be credited to the Consolidated Fund, whether or not any of the money is repaid to the offender under this section.



42

(6) If money paid under subsection (1) is to be repaid to an offender as a result of the making of an order to cancel or vary or otherwise deal with a community correction order or bond condition under section 48M(2) or 83AS(1), the Crown must repay the money to the offender within 7 days after the order is made, unless the court orders a longer period.

(7) The Crown must repay to the offender any money paid under subsection (1), that is not liable for forfeiture under section 83AS(4) and that subsection (6) does not apply to—

(a) 3 months after the expiry of the order; or

(b) if no later than 3 months after the expiry of the order, the offender is charged with an offence punishable by imprisonment that was committed during the period of the order, 7 days after the proceeding is finalised—

whichever is the later.

(8) For the purposes of this section a proceeding is finalised—

(a) after the final determination of the charge by a court; or

(b) when the charge is withdrawn; or

(c) when the prosecution of the charge is discontinued.

(9) All money forfeited to the Crown under section 83AS(4) must be paid into the Consolidated Fund.".



43

__________________



44

PART 9—AMENDMENTS TO THE SUPREME COURT ACT 1986

72 New section 24G insertedSee:Act No. 110/1986.Reprint No. 7 as at1 January 2011and amendingAct No. 50/2011.LawToday: www.legislation.vic.gov.aus. 72

After section 24F of the Supreme Court Act 1986 insert—

"24G Protection of assessors

An assessor called in for assistance in a proceeding under section 77 has, in the performance of his or her duties as an assessor in the proceeding, the same protection and immunity as a Judge of the Court has in the performance of his or her duties as a Judge.".

__________________



45

PART 10—CONSEQUENTIAL AND OTHER AMENDMENTS

Division 1—Criminal Procedure Act 2009

73 DefinitionsSee:Act No. 7/2009. Reprint No. 2 as at18 March 2012andamendingAct No.65/2010. LawToday: www. legislation. vic.gov.aus. 73

In section 3 of the Criminal Procedure Act 2009, in the definition of sentence in paragraph (b) after "3B," insert "3BA,".

74 Limitations on sentencing in absence of accused

In section 87(2)(a) of the Criminal Procedure Act 2009 omit "Division 1 of".

Division 2—Infringements Act 2006

75 Powers of the Court

In section 160(3)(e) of the Infringements Act 2006, for "Division 1" substitute "Division 3".

See:Act No. 12/2006. Reprint No. 3 as at22 June 2011 and amending Act Nos65/2010, 74/2010, 65/2011 and 71/2011. LawToday: www. legislation. vic.gov.au



46

Division 3—Justice Legislation Amendment (Infringement Offences) Act 2011

76 Amendment of commencement provision

In section 2(5) of the Justice Legislation Amendment (Infringement Offences) Act 2011, for "1 July 2012" substitute "1 July 2014".

77 Amendment of repeal provision

In section 10 of the Justice Legislation Amendment (Infringement Offences) Act 2011, for "1 July 2013" substitute "1 July 2015".

Division 4—Sex Offenders Registration Act 2004

78 Definitions

In section 3 of the Sex Offenders Registration Act 2004, in the definition of good behaviour bond, for "Division 2 of Part 3B" substitute "Division 1 of Part 3BA".

s. 76

See:Act No.27/2011.LawToday:www.legislation.vic.gov.au

See:Act No. 56/2004. Reprint No. 3 as at21 August 2008and amendingAct Nos34/2008, 55/2009, 68/2009, 91/2009, 16/2010, 63/2010, 65/2011 and 80/2011. LawToday: www. legislation. vic.gov.au



47

Division 5—Summary Offences Act 1966

79 CompensationSee:Act No. 7405. Reprint No. 10 as at1 January 2009and amendingAct Nos46/2008, 1/2009, 7/2009, 68/2009, 92/2009, 13/2010, 18/2010, 29/2010, 63/2010, 12/2011, 27/2011, 29/2011, 43/2011, 58/2011, 80/2011 and 5/2012. LawToday: www. legislation. vic.gov.aus. 79

In section 47 of the Summary Offences Act 1966 for "section 59" substitute "section 66C".

__________________



48

PART 11—REPEAL OF AMENDING ACT

80 Repeal of amending Act

This Act is repealed on 1 November 2013.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════



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ENDNOTES

Endnotes


50

† Minister's second reading speech—

Legislative Assembly: 18 April 2012

Legislative Council: 3 May 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005, the County Court Act 1958, the Criminal Procedure Act 2009, the Infringements Act 2006, the Judicial College of Victoria Act 2001, the Juries Act 2000, the Justice Legislation Amendment (Infringement Offences) Act 2011, the Magistrates' Court Act 1989, the Sentencing Act 1991, the Sentencing Amendment (Community Correction Reform) Act 2011, the Sex Offenders Registration Act 2004, the Summary Offences Act 1966 and the Supreme Court Act 1986 and for other purposes."

courts and sentencing legislation amendment act 2012 · web viewocpc-vic, word 2007, ... courts...

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