Sentencing (Emergency Service Costs) Act 2001 (Vic)

Sentencing (Emergency Service Costs) Act 2001

Act No. 80/2001

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	1
3.	Principal Act	2
4.	New Division 2B inserted in Part 4 of the Principal Act	2
Division 2B—Recovery of Costs incurred by Emergency
Service Agencies	2

87C.	Definitions	2
87D.	Cost recovery order	5
87E.	Application for cost recovery order	6
87F.	Extension of time for making application	7
87G.	How offender may appear on an application	7
87H.	Court may have regard to relevant facts	7
87I.	Evidence	8
87J.	Court may take financial circumstances of offender into
account	9
87K.	Court to give reasons for its decision	10
87L.	Costs of proceeding	10
87M.	Right to bring civil proceedings unaffected	11
87N.	Enforcement of order	11

5. New section 126 inserted in Principal Act 11

125.        Transitional provisions—Sentencing (Emergency

Service Costs) Act 2001 11

6.	Amendment of Summary Offences Act 1966	11
7.	Amendment of Crimes Act 1958	12

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ENDNOTES 14

i

Victoria

No. 80 of 2001

Sentencing (Emergency Service Costs)

Act 2001†

[Assented to 4 December 2001]

The Parliament of Victoria enacts as follows:

1. Purpose

The main purpose of this Act is to amend the Sentencing Act 1991 to provide for the recovery of costs incurred by emergency services in certain circumstances.

2. Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

Sentencing (Emergency Service Costs) Act 2001

s. 3 Act No. 80/2001

3. Principal Act

See:

Act No.	In this Act, the Sentencing Act 1991 is called the
49/1991.	Principal Act.
Reprint No. 6
as at
1 August 2001
and
amending Act Nos 45/2001 and 61/2001. LawToday: dpc.vic. gov.au

4.  New Division 2B inserted in Part 4 of the Principal Act

In Part 4 of the Principal Act, after Division 2A insert—

'Division 2B—Recovery of Costs incurred by Emergency Service Agencies

87C. Definitions

In this Division—

"cost recovery order" means an order

under section 87D(1);

"emergency" includes an apparent

emergency;

"emergency service agency" means—

(a) the police force of Victoria; or

(b) the Metropolitan Fire and
Emergency Services Board
established under the
Metropolitan Fire Brigades Act
1958; or

Sentencing (Emergency Service Costs) Act 2001

Act No. 80/2001	s. 4
(c)	the Country Fire Authority appointed under the Country Fire Authority Act 1958; or
(d)	the Victorian State Emergency Service established under the Victoria State Emergency Service Act 1987; or
(e)	Ambulance Service—Victoria within the meaning of the Ambulance Services Act 1986; or
(f)	denominational hospital or privately-operated hospital within

a public hospital, private hospital, Services Act 1988; or

(g)

any other person who, or body emergency service worker;

"emergency service worker" means—

(a)	an officer or other member of the police force of Victoria under the Police Regulation Act 1958; or
(b)	Reserve of Victoria appointed

a member of the Retired Police Regulation Act 1958; or

(c)

a protective services officer Police Regulation Act 1958; or

(d) Metropolitan Fire and Emergency

a person employed by the the Metropolitan Fire Brigades

Sentencing (Emergency Service Costs) Act 2001

s. 4 Act No. 80/2001

Act 1958 or a member of a fire or emergency service unit established under that Act; or

(e) Country Fire Authority under the

an officer or employee of the 1958; or

(f) under the Country Fire
Authority Act 1958, whether a
part-time officer or member, a
permanent officer or member or a

an officer or member of a brigade within the meaning of that Act; or

(g)	a casual fire-fighter within the meaning of Part V of the Country Fire Authority Act 1958; or
(h)	a volunteer auxiliary worker appointed under section 17A of the Country Fire Authority Act 1958; or
(i)	Department of Natural Resources

a person employed in the response duties; or

(j) probationary member within the
meaning of the Victoria State
Emergency Service Act 1987 or

a registered member or Emergency Service; or

(k) a volunteer emergency worker
within the meaning of the
Emergency Management Act
1986; or

Sentencing (Emergency Service Costs) Act 2001

Act No. 80/2001	s. 4
(l)	an employee of Ambulance Service—Victoria within the meaning of the Ambulance Services Act 1986; or
(m)	a person employed, or engaged to provide services or perform work, by a public hospital, private
hospital, denominational hospital or privately-operated hospital within the meaning of the Health Services Act 1988; or

(n) any other person or body—

(i)	required or permitted under the terms of their employment by, or contract for services with, the Crown or a government agency to respond to an emergency; or
(ii)	government agency to provide services or perform

engaged by the Crown or a particular emergency;

"government agency" has the same

meaning as in the Victoria State

Emergency Service Act 1987;

"statement of costs" means a statement

referred to in section 87H(2)(d).

87D. Cost recovery order

(1) If a court finds a person guilty, or convicts a person, of an offence against—

(a) Division 4 of Part I of the Crimes Act 1958 (contamination of goods); or

Sentencing (Emergency Service Costs) Act 2001

s. 4 Act No. 80/2001

(b) section 317A(1) or (2) of the Crimes Act 1958 (bomb hoaxes)—

it may, on application, order the offender to
pay to the State such amount as the court
thinks fit for costs reasonably incurred by
any emergency service agency in providing
an immediate response to an emergency
arising out of the commission of the offence.

(2) A cost recovery order may include amounts

in respect of remuneration (including long
service leave entitlements, holiday pay,
superannuation contributions and any other
employment benefits) payable to an
emergency service worker involved in the
provision of the immediate response referred
to in sub-section (1).

(3) In making a cost recovery order the court

may direct that the costs covered by the order be paid by instalments and that, in default of payment of any one instalment, the
whole of those costs remaining unpaid shall

become due and payable.

87E. Application for cost recovery order

An application for a cost recovery order—

(a)	may only be made by the Director of Public Prosecutions or, in the case of the Magistrates' Court, by the Director
of Public Prosecutions or the informant or police prosecutor; and
(b)	must be made within 12 months after the offender is found guilty, or convicted, of the offence.

Sentencing (Emergency Service Costs) Act 2001

Act No. 80/2001 s. 4

87F. Extension of time for making application

(1) A court may, on the application of a person

who wishes to apply for a cost recovery
order, extend the time within which an
application for a cost recovery order may be
made if it is of the opinion that it is in the
interests of justice to do so.

(2) A court may extend time under sub-section

(1) before or after the time expires and
whether or not an application for an
extension is made before the time expires.

(3) A court must not extend time under sub- section (1) without giving the offender a reasonable opportunity to be heard on the

matter.

87G. How offender may appear on an

application

In a proceeding on an application for a cost recovery order the offender—

(a) may appear personally; or

(b) may be represented—

(i) by a legal practitioner; or

(ii)  with the leave of the court, by any other person.

87H. Court may have regard to relevant facts

(1) In hearing and determining an application for

a cost recovery order, a court may have
regard to any relevant facts appearing

from—

(a)	evidence given at the hearing of the charge; or
(b)	any statement of the material facts relevant to the charge given to a court

Sentencing (Emergency Service Costs) Act 2001

s. 4	Act No. 80/2001
in a proceeding for the offence by the prosecution and not disputed by or on behalf of the defendant; or

(c) the available documents—

together with admissions made by or on
behalf of any person in connection with the

application.

(2) In sub-section (1)(c) "the available

documents" means—

(a)	any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or
(b)	the depositions taken at the committal proceeding; or
(c)

any written statements or admissions proceeding; or

(d) a written statement made by or on behalf of an emergency service agency detailing costs reasonably incurred by it in providing an immediate response to an emergency arising out of the commission of the offence.

87I. Evidence

On an application for a cost recovery order—

(a)	the court must give the offender a reasonable opportunity to be heard; and
(b)	the applicant may give evidence or may call another person to give evidence in relation to the application, including in support of a statement of costs; and

Sentencing (Emergency Service Costs) Act 2001

Act No. 80/2001	s. 4
(c)	the offender may give evidence or may call another person to give evidence in relation to the application, including in relation to any matter contained in a

statement of costs; and

(d)	the court may, at the request of the offender or the applicant, call a person who has made a statement of costs to give evidence; and
(e)	a person who gives evidence may be cross-examined and re-examined; and
(f)	a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the

contrary, proof of that fact; and

(g) production of a document under the

the finding may be proved by appears; and

(h) the court may have regard to any evidence or statement referred to in section 87H(1) and, with the consent of the parties, to any available documents or admissions referred to in that section.

87J. Court may take financial circumstances of offender into account

(1) If a court decides to make a cost recovery

order, it may, in determining the amount and
method of payment of the costs covered by
the order, take into account, as far as
practicable, the financial circumstances of
the offender and the nature of the burden that
payment of the costs will impose.

Sentencing (Emergency Service Costs) Act 2001

s. 4 Act No. 80/2001

(2) A court is not prevented from making a cost

recovery order only because it has been
unable to find out the financial
circumstances of the offender.

(3) If the court considers—

(a)	that it would be appropriate, in addition to making a cost recovery order, to impose a fine or make a compensation order under Division 2 or both impose a fine and make such a compensation order; but
(b)	that the offender has insufficient means to pay them all—

the court must give first preference to any
compensation order, second preference to a
cost recovery order and third preference to a

fine.

87K. Court to give reasons for its decision

(1) On deciding to grant or refuse an application for a cost recovery order, the court must—

(a)	state in writing the reasons for its decision; and
(b)	cause those reasons to be entered in the records of the court.

(2) The failure of a court to comply with sub- section (1) does not invalidate the decision made by it on the application.

87L. Costs of proceeding

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 Division must
bear their own costs of the proceeding unless
the court otherwise determines.

Sentencing (Emergency Service Costs) Act 2001

Act No. 80/2001 s. 5

87M. Right to bring civil proceedings unaffected Nothing in this Division takes away from, or affects, the right of an emergency service

agency to recover any costs so far as not

recovered under this Division.

87N. Enforcement of order

A cost recovery order, including costs
ordered to be paid by the offender on the
proceeding for that order, must be taken to
be a judgment debt due by the offender to
the State and payment of any amount
remaining unpaid under the order may be

enforced in the court by which it was made.'.

5. New section 126 inserted in Principal Act

At the end of Part 12 of the Principal Act insert—

"125. Transitional provisions—Sentencing

(Emergency Service Costs) Act 2001

(1) The amendment of this Act made by

section 4 of the Sentencing (Emergency Service Costs) Act 2001 applies only to offences alleged to have been committed on

or after the commencement of that Act.

(2) For the purposes of sub-section (1), if an

offence is alleged to have been committed
between two dates, one before and one after
the commencement of the Sentencing
(Emergency Service Costs) Act 2001, the
offence is alleged to have been committed
before that commencement.".

6. Amendment of Summary Offences Act 1966

Sentencing (Emergency Service Costs) Act 2001

s. 7	Act No. 80/2001
See:	(1) In section 53(6A) of the Summary Offences Act
Act No.
7405/1966.	1966, for "members of the police force"
Reprint No. 7	substitute "any emergency service worker within
as at
6 August 1998	the meaning of Division 2B of Part 4 of the
and	Sentencing Act 1991".
amending
Act Nos	(2) In section 62 of the Summary Offences Act
44/1999 and
74/2000.	1966, after sub-section (2) insert—
LawToday:
"(3) The amendment of section 53(6A) made by
dpc.vic.	section 6(1) of the Sentencing (Emergency
gov.au	Service Costs) Act 2001 applies only to offences against section 53 alleged to have been committed on or after the commencement of the Sentencing (Emergency Service Costs) Act 2001.

(4) For the purposes of sub-section (3), if an

offence is alleged to have been committed
between two dates, one before and one after
the commencement of the Sentencing
(Emergency Service Costs) Act 2001, the
offence is alleged to have been committed
before that commencement.".

7. Amendment of Crimes Act 1958

Sentencing (Emergency Service Costs) Act 2001

Act No. 80/2001

(1) At the foot of section 249 of the Crimes Act 1958 See:
Act No.

insert—	6231. Reprint No. 15
"Note: Division 2B of Part 4 of the Sentencing Act 1991	as at
provides for the making of cost recovery orders in	1 September
respect of costs incurred by emergency service	1999
agencies in providing an immediate response to an	and
emergency arising out of the commission of an	amending Act Nos
offence against this section.".	26/1999, 53/2000,

(2) At the foot of section 250 of the Crimes Act 1958 67/2000,

insert—	74/2000, 86/2000,
"Note: Division 2B of Part 4 of the Sentencing Act 1991	92/2000, 45/2001,
provides for the making of cost recovery orders in	58/2001 and
respect of costs incurred by emergency service	61/2001.
agencies in providing an immediate response to an	LawToday:
emergency arising out of the commission of an
offence against this section.".	dpc.vic. gov.au

(3) At the foot of section 251 of the Crimes Act 1958

insert—
"Note: Division 2B of Part 4 of the Sentencing Act 1991 provides for the making of cost recovery orders in respect of costs incurred by emergency service

agencies in providing an immediate response to an
emergency arising out of the commission of an

offence against this section.".

(4) At the foot of section 317A of the Crimes Act

1958 insert—
"Note: Division 2B of Part 4 of the Sentencing Act 1991 provides for the making of cost recovery orders in respect of costs incurred by emergency service

agencies in providing an immediate response to an
emergency arising out of the commission of an

offence against this section.".

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Sentencing (Emergency Service Costs) Act 2001

Endnotes Act No. 80/2001

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 8 November 2001

Legislative Council: 27 November 2001

The long title for the Bill for this Act was "to amend the Sentencing Act 1991 to provide for the recovery of costs incurred by emergency services in certain circumstances, to amend the Crimes Act 1958 and the

Summary Offences Act 1966 and for other purposes."