Sentencing (Amendment) Act 1999 (Vic)

Sentencing (Amendment) Act 1999

Act No. 19/1999

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	Principal Act	2
4.	Deferred sentencing order	2
5.	Combined custody and treatment orders	3
6.	New section 18VA inserted	4
18VA. Variation of combined custody and treatment order	4
7.	Intensive correction orders	5
8.	Community-based orders	6
9.	New Division 7 inserted in Part 3	6
Division 7—Deferral of Sentencing in Magistrates' Court	6

83A. Deferral of sentencing 6

10.	Application under section 86 by child or person under disability	8
11.	Use of victim impact statements in compensation application	9
12.	Power to award costs on application under section 86	9
13.	New section 95BA inserted	9
95BA. Medical reports	9
14.	Victim impact statements	11
15.	New section 122 inserted	12

122.        Transitional provisions—Sentencing (Amendment) Act

1999 12

16.	Statute law revision	13
17.	Amendment of Children and Young Persons Act 1989	13

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NOTES 15

i

Victoria

No. 19 of 1999

Sentencing (Amendment) Act 1999†

[Assented to 18 May 1999]

The Parliament of Victoria enacts as follows:

1. Purpose

(1) The main purpose of this Act is to amend the

Sentencing Act 1991 so as to—

(a)	enable the Magistrates' Court to defer the sentencing of certain offenders; and
(b)	make further provision with respect to the conditions, and enable the variation, of a combined custody and treatment order;

Sentencing (Amendment) Act 1999

Act No. 19/1999 s. 2

(c)	allow conditions to be imposed under an intensive correction order for a period shorter than the duration of the order;
(d)	make miscellaneous amendments in relation to applications for compensation orders;
(e)	enable medical reports to be attached to victim impact statements.

(2) Another purpose of this Act is to amend the

Children and Young Persons Act 1989 so as to widen the sentencing options available on dealing with a breach of the conditions of a temporary

leave permit.

2. Commencement

(1) This section and sections 1, 3, 16 and 17 come

into operation on the day on which this Act

receives the Royal Assent.

(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a
day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does

not come into operation before 1 January 2000, it
comes into operation on that day.

3. Principal Act

In this Act, the Sentencing Act 1991 is called the	No. 49/1991. Reprint No. 4
Principal Act.	as at 1 July 1998. Further
amended by No. 57/1998.

4. Deferred sentencing order

In section 7 of the Principal Act, at the end of the section insert—

Sentencing (Amendment) Act 1999

s. 5 Act No. 19/1999

"(2) If the Magistrates' Court finds a person aged

17 years or more but under 25 years of age
guilty of an offence, it may defer sentencing
the person in accordance with section 83A.".

5. Combined custody and treatment orders

(1) In section 18Q(7) of the Principal Act, after

"section" insert "18VA or".

(2) In section 18R(1)(a) of the Principal Act, after

"commit" insert ", whether in or outside

Victoria,".

(3) In section 18R(1) of the Principal Act, after

paragraph (a) insert—

"(ab) while serving the sentence in custody must

undergo treatment for alcohol or drug
addiction as directed by a prescribed person
or a member of a prescribed class of

persons;".

(4) In section 18S(1)(a) of the Principal Act, for

"while serving the sentence in the community"
substitute "during the period of the order".

(5) In section 18W(5)(b) of the Principal Act, before

"order" insert "whether or not the offender has
served any part of the sentence in the
community,".

(6) In section 18W(8)(a) of the Principal Act, after "immediately" insert "or, if the offender is still serving the original custodial part of the sentence,

immediately on the completion of service of that
part of the sentence".

Sentencing (Amendment) Act 1999

Act No. 19/1999 s. 6

6. New section 18VA inserted

After section 18V of the Principal Act insert—

"18VA. Variation of combined custody and

treatment order

(1) If on an application under this sub-section the court which made a combined custody and treatment order is satisfied—

(a) that 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)	that the circumstances of the offender were wrongly stated or were not accurately presented to the court or the author of a pre-sentence report before the order was made; or
(c)	that the offender is no longer willing to comply with the order—

it may vary the order or cancel it and, subject to sub-section (2), deal with the offender for the offence or offences with respect to which it was made in any manner in which the

court could deal with the offender if it had just convicted him or her of that offence or those offences.

(2) In determining how to deal with an offender

following the cancellation by it of a
combined custody and treatment order, a
court must take into account the extent to
which the offender had complied with the
order before its cancellation.

(3) An application under sub-section (1) may be

made at any time while the order is in force
by—

Sentencing (Amendment) Act 1999

s. 7 Act No. 19/1999

(a) the offender; or

(b) a prescribed person or a member of a prescribed class of persons; or

(c) the Director of Public Prosecutions.

(4) Notice of an application under sub-section (1) must be given—

(a) to the offender; and

(b) to the Director of Public Prosecutions (if the sentencing court was the Supreme Court or the County Court) or to the informant or police prosecutor (if the sentencing court was the Magistrates' Court).

(5) The court may order that a warrant to arrest be issued against the offender if he or she is serving the sentence in the community and

does not attend before the court on the

hearing of the application.".

7. Intensive correction orders

(1) In section 20(1)(a) of the Principal Act, after

"commit" insert ", whether in or outside
Victoria,".

(2) In section 20(1)(c) and (d) of the Principal Act, for "that the order is in force" substitute "of the period of the order or a shorter period specified in

the order for this purpose".

(3) In section 21(1) of the Principal Act, after

"program" insert "during the period of the order or a shorter period specified in the order for this purpose".

(4) In section 24 of the Principal Act, after "force"
insert "or a condition is to be complied with".

Sentencing (Amendment) Act 1999

Act No. 19/1999 s. 8

(5) In section 25(3) of the Principal Act, for

paragraph (b) substitute—

"(b) a prescribed person or a member of a

prescribed class of persons; or".

(6) In section 26(3B) of the Principal Act, after "committing" insert ", whether in or outside Victoria,".

8. Community-based orders

(1) In section 37(1)(a) of the Principal Act, after

"commit" insert ", whether in or outside

Victoria,".

(2) In section 46(3) of the Principal Act, for

paragraph (b) substitute—

"(b) a prescribed person or a member of a

prescribed class of persons; or".

9. New Division 7 inserted in Part 3

In Part 3 of the Principal Act, at the end of the

Part insert—

"Division 7—Deferral of Sentencing in

Magistrates' Court

83A. Deferral of sentencing

(1) If the Magistrates' Court finds a person

guilty of an offence and—

(a)	the offender is, at the time of the finding, aged 17 years or more but under 25 years of age; and
(b)	the Magistrates' Court is of the opinion that sentencing should, in the interests of the offender, be deferred; and
(c)	the offender agrees to a deferral of sentencing—

Sentencing (Amendment) Act 1999

s. 9 Act No. 19/1999

the Magistrates' Court may defer sentencing
the offender for a period not exceeding
6 months.

(2) If the Magistrates' Court defers sentencing an offender, it—

(a)	must adjourn the proceeding for a period of up to 6 months; and
(b)	may release the offender on his or her undertaking to appear before the Magistrates' Court on the date fixed for sentence or release the offender on bail or extend his or her bail to that date; and
(c)	may order a pre-sentence report in respect of the offender.

(3) On the adjourned hearing, the Magistrates'
Court must, in determining the appropriate

sentence for an offender, have regard to—

(a)	the offender's behaviour during the period of deferral; and
(b)	subject to section 99, any pre-sentence report ordered under sub-section (2)(c); and

(c) any other relevant matter. (4) If an offender is found guilty of an offence

during a period of deferral under this section,

the Magistrates' Court may—

(a)	re-list the adjourned proceeding on a day earlier than the day to which it was adjourned under sub-section (2)(a); and
(b)	on the adjourned hearing make any order that the Magistrates' Court could have made if it had not deferred sentencing.

Sentencing (Amendment) Act 1999

Act No. 19/1999 s. 10

(5) The Magistrates' 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 adjourned hearing.

(6) Nothing in this section removes any

requirement imposed on the Magistrates' Court by or under this or any other Act to impose any disqualification on, or make any
other order in respect of, a person found
guilty or convicted of an offence, including
an order cancelling or suspending a driver
licence or permit or disqualifying the
offender from obtaining one for any period.".

10.  Application under section 86 by child or person under disability

In section 86 of the Principal Act, after sub- section (6) insert—

"(6A) A proceeding in a court on an application

under this section made by or on behalf of a child or a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her
affairs in relation to the proceeding must be
taken to be a civil proceeding for the purpose
of any provision of an Act or rule of court

relating to—

(a)	the appointment or removal, and the power or authority, of a litigation guardian in a civil proceeding in that court; or
(b)	the administration of money ordered to be paid to a child or such an incapable person—

Sentencing (Amendment) Act 1999

s. 11

s. 13 Act No. 19/1999

and any such provision applies in relation to
a proceeding on an application under this
section with any necessary modifications.".

11.  Use of victim impact statements in compensation application

In section 86(9) of the Principal Act, at the end of paragraph (c) insert—

"; or

(d) any victim impact statement made to the court for the purpose of assisting it in determining sentence, including any medical report attached to it.".

12. Power to award costs on application under section 86

(1) In the definition of "fine" in section 3(1) of the

Principal Act, after "compensation" insert "or any
costs of or incidental to an application for
restitution or compensation payable by an

offender under an order of a court".

(2) In section 86 of the Principal Act, after sub-

section (9C) insert—

"(9D) Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party

to a proceeding under this section must bear their own costs of the proceeding unless the court otherwise determines.".

(3) In section 87 of the Principal Act, after "86(1)"

insert ", including costs ordered to be paid by the

offender on the proceeding for that order,".

13. New section 95BA inserted

After section 95B of the Principal Act insert—

'95BA. Medical reports

Sentencing (Amendment) Act 1999
Act No. 19/1999

(1) A medical report may be attached to a victim impact statement.

(2) In this section—

"dentist" means—

(a)	a person registered or qualified to be registered as a dentist under the Dentists Act 1972 or any
corresponding enactment of another State or a Territory of the Commonwealth; or
(b)	dentistry in a place out of Australia under an enactment of that place corresponding to the

a person entitled to practise the person does so practise;

"medical expert" means medical

practitioner, dentist or psychologist;

"medical matters" includes dental matters and psychological matters;

"medical practitioner" means—

(a) be registered as a medical
practitioner under the Medical
Practice Act 1994 or any
corresponding enactment of

a person registered or qualified to Commonwealth; or

(b) medicine in a place out of
Australia under an enactment of

a person entitled to practise Medical Practice Act 1994,

Sentencing (Amendment) Act 1999

s. 14 Act No. 19/1999

whether or not the person does so
practise;

"medical report" means a written statement

on medical matters concerning the
victim made and signed by a medical
expert and includes any document
which the medical expert intends
should be read with the statement,
whether the document was in existence
at the time the statement was made or
was a document which the medical
expert obtained or caused to be brought
into existence subsequently;

"psychologist" means—

(a)	a registered psychologist as defined by the Psychologists Registration Act 1987; or
(b)	requirements of paragraphs (b) and (c) of section 13 of the

a person who meets the 1987; or

(c)

a person who practises Victoria.'.

14. Victim impact statements

(1) In section 95B(2) of the Principal Act, after

"statement" insert ", including the whole or any

part of a medical report attached to it".

(2) In section 95C of the Principal Act, after

"prosecutor" insert—

"—

Sentencing (Amendment) Act 1999

Act No. 19/1999 s. 15

and the copy must include a copy of any
medical report attached to the victim impact

statement".

(3) In section 95D(1) of the Principal Act, after

"victim," insert "or a medical expert who made a
medical report attached to a victim impact

statement,".

(4) In section 95E(1) of the Principal Act, after

"statement" (where secondly occurring) insert "or

in a medical report attached to it".

(5) In section 95E(3) of the Principal Act, after

"statement" insert "or in a medical report attached

to it".

15. New section 122 inserted

After section 121 of the Principal Act insert—

"122. Transitional provisions—Sentencing

(Amendment) Act 1999

(1) An amendment of this Act made by a provision of section 5, 6, 7 or 8 of the Sentencing (Amendment) Act 1999 applies

to a sentence imposed after the
commencement of that provision,
irrespective of when the offence was
committed and, for this purpose, a sentence
imposed by an appellate court on setting
aside a sentencing order must be taken to
have been imposed at the time the original
sentencing order was made.

(2) Section 83A applies to any finding of guilt made after the commencement of section 9 of the Sentencing (Amendment) Act 1999,

irrespective of when the offence was

committed.

(3) The amendment of section 86 of this Act

made by a provision of section 10 or 12(2) of

Sentencing (Amendment) Act 1999

s. 16

s. 17 Act No. 19/1999

the Sentencing (Amendment) Act 1999 applies to an application made under that section of this Act after the commencement

of that provision, irrespective of when the
offence was committed or the finding of guilt
made or conviction recorded.

(4) The amendment of this Act made by section

11 of the Sentencing (Amendment) Act
1999 applies to an application under section
86 of this Act heard or determined after the
commencement of that section of that Act,
irrespective of when the offence was
committed or the finding of guilt made or
conviction recorded or the application made.

(5) The amendment of section 87 of this Act made by section 12(3) of the Sentencing (Amendment) Act 1999 applies to an order

made under section 86(1) of this Act after the commencement of that section of that Act.

(6) Section 95BA and the amendments made to

this Act by section 14 apply to a victim
impact statement made to a court after the
commencement of sections 13 and 14 of the
Sentencing (Amendment) Act 1999.".

16. Statute law revision

(1) In section 3(1) of the Principal Act, the definition of "Full Court" is repealed.

(2) In section 5(2E) of the Principal Act, omit "Full

Court or".

(3) In section 13(1)(a) of the Principal Act, for "Full Court" substitute "Court of Appeal".

17. Amendment of Children and Young Persons Act 1989

Sentencing (Amendment) Act 1999

Act No. 19/1999

(1) In paragraph (b) of the penalty set out at the foot of section 256(10) of the Children and Young	No. 56/1989.
Reprint No. 5 as at 1 July
Persons Act 1989, after "imprisonment" insert	1998. Further
"or detention in a youth training centre".	amended by No. 69/1992
(2) In Schedule 3 to the Children and Young	(as amended
by No.
Persons Act 1989, after clause 23 insert—	19/1994).

"24. The amendment of the penalty set out at the foot of
section 256(10) made by section 17 of the Sentencing
(Amendment) Act 1999 applies only to offences
committed after the commencement of that section of
that Act.".

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Sentencing (Amendment) Act 1999

Notes Act No. 19/1999

NOTES

†

Minister's second reading speech—

Legislative Assembly: 25 March 1999

Legislative Council: 5 May 1999

The long title for the Bill for this Act was "to amend the Sentencing Act
1991 and the Children and Young Persons Act 1989 and for other
purposes."