Untitled document
Sentencing Amendment Act 2010
No. 77 of 2010
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of the Sentencing Act 1991
3Definitions
4Sentencing guidelines
5Sentences
6Repeal of reference to intensive correction order
7Repeal of Subdivision 1B of Division 2 of Part 3
8Repeal of references to certain orders
9Drug Court to hear and determine certain offences
10Repeal of Subdivision 2 of Division 2 of Part 3
11Time for bringing proceeding for contravention of home detention order
12Suspended sentences
13Insertion of new Division 2A of Part 3
Division 2A—Intensive correction management orders
Subdivision 1—Preliminary
35ADefinitions
Subdivision 2—General
35BIntensive correction management order (general)
35CIntensive correction management order (drug and alcohol)
35DAgreement of offender to comply with order
35EPurposes for which order may be made
35FPeriod and commencement of intensive correction management order
35GSupervision period
35HOrder made by Court of Appeal
35IIntensive correction management order can cover multiple offences
35JConcurrency of conditions for multiple intensive correction management orders
35KIntensive correction management order may be made in addition to term of imprisonment
35LIntensive correction management order may be made together with community-based order where there are multiple offences
Subdivision 3—Core conditions
35MCore conditions
Subdivision 4—Reporting and monitoring conditions
35NReporting condition
35OJudicial monitoring condition
35PPower of court on review of condition
35QPeriod of judicial monitoring condition
Subdivision 5—Unpaid community work condition
35RUnpaid community work condition, intensive correction management order (general)
35SUnpaid community work condition, intensive correction management order (drug and alcohol)
35TPurpose and operation of unpaid community work condition
Subdivision 6—Program conditions
35UAttachment of program conditions, intensive correction management order (general)
35VAttachment of program conditions, intensive correction management order (drug and alcohol)
35WProgram conditions
35XFurther requirements as to program conditions
Subdivision 7—Special conditions
35YSpecial prescribed program condition
35ZSpecial residence or association condition
Subdivision 8—Suspension and variation etc. of intensive correction management order
35ZASuspension of intensive correction management order
35ZBVariation etc. of intensive correction management
order35ZCApplication for variation etc. of an intensive correction management order
Subdivision 9—Contravention of intensive correction management order
35ZDProceeding for contravention of an intensive correction management order
35ZEBringing a proceeding for contravention of an intensive correction management order—offender before a court
35ZFBringing of a proceeding for contravention of an intensive correction management order—offender not before a court
35ZGIssue of a contravention summons or warrant to arrest by a registrar
35ZHPower to amend a contravention summons or warrant to arrest
35ZIForm of a contravention summons
35ZJExtension of a return date for a contravention summons
35ZKService of a contravention summons
35ZLIssue of a warrant to arrest
35ZMUnrepresented accused
35ZNPowers of court on determination of proceeding
35ZOPractice and procedure at hearing
Subdivision 10—Miscellaneous provisions
35ZPOffender may be fined as well
35ZQSecretary may direct offender to report at another
place
14Community-based order in addition to term of imprisonment
15Insertion of heading to section 39
"Unpaid community work condition".
16Unpaid community work condition
17Section 46 substituted
46Variation of community-based order
46AApplication for variation of a community-based order
18Powers of court on determination of contravention proceeding
19Time for bringing proceeding for contravention of community-based order
20New heading to section 48
21Deferral of sentencing
22Pre-sentence reports
23Drug and alcohol reports
24Drug and alcohol pre-release reports
25Penalty scale
26Regulations
27New section 143 inserted
143Transitional provision—Sentencing Amendment Act 2010
Part 3—Amendment of other Acts
28Amendment of the Road Safety Act 1986—Offence to drive while disqualified etc.
29Amendment of the Magistrates' Court Act 1989—deferred sentences
Part 4—Repeal of Amending Act
30Repeal of amending Act
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Endnotes
Sentencing Amendment Act 2010
No. 77 of 2010
[Assented to 19 October 2010]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Sentencing Act 1991, to repeal suspended sentences for serious offences, to provide for new intensive correction management orders and to make related and other provisions in that Act; and
(b)to amend the Road Safety Act 1986 to remove the mandatory term of imprisonment for a subsequent offence of driving whilst disqualified or suspended; and
(c)make minor and consequential amendments to other Acts.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 January 2012, it comes into operation on that day.
__________________
Part 2—Amendment of the Sentencing Act 1991
3Definitions
In section 3(1) of the Sentencing Act 1991—
(a)insert the following definitions—
"Chief Commissioner of Police means the Chief Commissioner of Police appointed under the Police Regulation Act 1958;
Director of Public Prosecutions means the Director of Public Prosecutions appointed under the Constitution Act 1975;
intensive correction management order means an order made under section 35B or section 35C;
intensive correction management order (drug and alcohol) means an intensive correction management order made under section 35C;
intensive correction management order (general) means an intensive correction management order made under section 35B;
unpaid community work condition in relation to a community-based order, means the condition referred to in section 39;";
(b)the definition of community service condition is repealed;
(c)the definition of intensive correction order is repealed;
(d)the definition of combined custody and treatment order is repealed;
(e)in the definition of Regional Manager, for "an intensive correction order" substitute "an intensive correction management order".
4Sentencing guidelines
(1)Section 5(4A) of the Sentencing Act 1991 is repealed.
(2)In section 5(4B) of the Sentencing Act 1991, for "intensive correction order" substitute "intensive correction management order".
(3)In section 5(5) of the Sentencing Act 1991, for "intensive correction order" substitute "intensive correction management order".
5Sentences
In section 7(1) of the Sentencing Act 1991—
(a)paragraph (ab) is repealed;
(b)paragraph (b) is repealed;
(c)after paragraph (da) insert—
"(db)with or without recording a conviction, make an intensive correction management order in respect of the offender; or".
6Repeal of reference to intensive correction order
Section 18(2)(ba) of the Sentencing Act 1991 is repealed.
7Repeal of Subdivision 1B of Division 2 of Part 3
Subdivision 1B of Division 2 of Part 3 of the Sentencing Act 1991 is repealed.
8Repeal of references to certain orders
(1)For section 18Z(1)(d)(ii) of the Sentencing Act 1991 substitute—
"(ii)it would not have suspended the sentence in whole or in part; and".
(2)Section 18Z(2)(b) of the Sentencing Act 1991 is repealed.
9Drug Court to hear and determine certain offences
(1)For section 18ZO(2)(b) of the Sentencing Act 1991 substitute—
"(b)the Drug Court does not suspend the sentence in whole or in part; and".
(2)For section 18ZO(3)(b) of the Sentencing Act 1991 substitute—
"(b)the Drug Court does not suspend the sentence in whole or in part; and".
10Repeal of Subdivision 2 of Division 2 of Part 3
Subdivision 2 of Division 2 of Part 3 of the Sentencing Act 1991 is repealed.
11Time for bringing proceeding for contravention of home detention order
(1)For section 26ZA(2)(a) of the Sentencing Act 1991 substitute—
"(a)if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within 6 months after the offence is found proven, subject to subsection (3); or".
(2)After section 26ZA(2) of the Sentencing Act 1991 insert—
"(3)A proceeding for the contravention of an order to which subsection (2)(a) applies must not be commenced more than 2 years after the order ceases to be in force.".
12Suspended sentences
For section 27(2B) of the Sentencing Act 1991 substitute—
"(2B)Despite subsection (1), a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence.
Note
A suspended sentence may be available for a serious offence committed before the commencement of section 12 of the Sentencing Amendment Act 2010.".
13Insertion of new Division 2A of Part 3
After Division 2 of Part 3 of the Sentencing Act 1991 insert—
"Division 2A—Intensive correction management orders
Subdivision 1—Preliminary
35ADefinitions
In this Division—
core condition, in relation to an intensive correction management order, means a condition attached to the order under section 35M(1);
judicial monitoring condition, in relation to an intensive correction management order (drug and alcohol), means a condition attached to the order under section 35O;
program condition, in relation to an intensive correction management order, means a condition attached to the order under section 35W;
reporting condition, in relation to an intensive correction management order, means a condition attached to the order under section 35N;
special prescribed program condition, in relation to an intensive correction management order, means a condition attached to the order under section 35Y;
special residence or association condition, in relation to an intensive correction management order, means a condition attached to the order under section 35Z;
supervision period, in relation to an intensive correction management order, means the period fixed by the court under section 35G;
unpaid community work condition, in relation to—
(a)an intensive correction management order (general), means a condition attached to the order under section 35R;
(b)an intensive correction management order (drug and alcohol), means a condition attached to the order under section 35S.
Subdivision 2—General
35BIntensive correction management order (general)
(1)If a person is convicted or found guilty by a court of an offence that is punishable by imprisonment, the court, may make an order for intensive supervision of the offender in the community.
(2)The court must not make an order under subsection (1) unless the court is satisfied that, if the order were not available, the court would consider sentencing the offender to a term of imprisonment.
(3)The court must not make an order under subsection (1) unless the court has received a pre-sentence report.
35CIntensive correction management order (drug and alcohol)
(1)If a person is convicted or found guilty of an offence that is punishable by imprisonment, the court, may make an order for the intensive supervision and treatment of the offender in the community.
(2)The court must not make an order under subsection (1) unless the court is satisfied that—
(a)the offender is dependent on or abuses drugs or alcohol; and
(b)the offender's dependency on or abuse of drugs or alcohol contributed to the commission of the offence; and
(c)there is a risk of the offender committing further offences; and
(d)if the order were not available, the court would consider sentencing the offender to a term of imprisonment.
(3)The court must not make an order under subsection (1) unless the court has received—
(a)a pre-sentence report; and
(b)a drug and alcohol assessment report under Division 2A of Part 6.
35DAgreement of offender to comply with order
The court may only make an intensive correction management order if the offender agrees in writing to comply with the order.
35EPurposes for which order may be made
(1)The purposes for which an intensive correction management order may be made are as follows—
(a)particularly to facilitate the rehabilitation of the offender by promoting the re-integration of the offender into the community through intensive supervision and treatment (if necessary) of the offender in the community; and
(b)the other purposes set out in section 5(1), as appropriate to the case.
(2)An intensive correction management order (drug and alcohol), may be made for the following purposes to the extent that they are consistent with subsection (1)—
(a)to facilitate the rehabilitation of the offender into the community through the offender undergoing a drug or alcohol treatment regime that is supervised and monitored by the court or the Regional Manager;
(b)to take account of the offender's drug or alcohol dependency or abuse;
(c)to reduce the offender's health risks associated with drug or alcohol dependency or abuse.
35FPeriod and commencement of intensive correction management order
(1)The period of an intensive correction management order is the period determined by the court which must not exceed—
(a)in the case of an order made by the Magistrates' Court, 2 years; or
(b)in the case of an order made by the County Court or the Supreme Court, 3 years.
(2)The court must fix the date on which an intensive correction management order commences, which must not be more than 3 months after the order is made.
35GSupervision period
(1)If the court is making an intensive correction management order for a period of 6 months or longer, the court may fix a period (being part of the period for which the order is in force) as the supervision period.
Example
Where a court is making an intensive correction management order that has a period of, for example, 2 years, the supervision period fixed by the court may be for a lesser period of, for example, 8 months.
Note
Where a supervision period is fixed for an intensive correction management order certain conditions of the order must be completed within the supervision period, see sections 35T(6) and 35X(1) and certain conditions of the order only apply for the supervision period, see section 35N(2).
(2)If—
(a)a court is sentencing an offender in respect of two or more offences in the same proceeding; and
(b)the court makes separate intensive correction management orders in respect of any two or more of the offences, the periods of which are cumulative; and
(c)the court fixes supervision periods for the orders that are cumulative—
the supervision periods are to run cumulatively from the commencement of the first order and then the balance of the period of the orders are to run cumulatively.
35HOrder made by Court of Appeal
For the purpose of any proceeding under Subdivision 8 or Subdivision 9, an intensive correction management 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.
35IIntensive correction management order can cover multiple offences
(1)If an offender is convicted or found guilty by a court of two or more offences which are founded on the same facts, or form or are part of a series of offences of the same or a similar character, the court may make one intensive correction management order in respect of those offences in place of separate orders in respect of all or any two or more of them.
(2)An intensive correction management order that is being made in respect of more than one offence must not exceed the maximum period for which an intensive correction management order may be made under section 35F.
35JConcurrency of conditions for multiple intensive correction management orders
(1)If a court makes separate intensive correction management orders in respect of two or more offences committed by an offender, the conditions of those orders are concurrent unless the court otherwise directs.
(2)The conditions of an intensive correction management order made in respect of an offender are, unless the court otherwise directs, concurrent with those of any other intensive correction management order in force in respect of that offender.
35KIntensive correction management order may be made in addition to term of imprisonment
(1)Subject to subsection (2), a court may make an intensive correction management order in respect of the offender in addition to sentencing the offender to a term of imprisonment of not more than 3 months provided that the sentence of imprisonment is not suspended in whole or in part.
(2)If a court is sentencing an offender for two or more offences in the same proceeding to two or more sentences of imprisonment, the court may not make any intensive correction management order in respect of the offender if the aggregate of those terms of imprisonment is more than 3 months, whether or not the terms of imprisonment are to be served (in whole or in part) concurrently or cumulatively.
(3)If a court makes an intensive correction management order in respect of an offender in addition to a term of imprisonment, the intensive correction management order commences on the release of the offender from imprisonment.
35LIntensive correction management order may be made together with community-based order where there are multiple offences
(1)If a court is sentencing an offender for two or more offences in the same proceeding, the court may make an intensive correction management order in respect of one or more offences for which the offender is being sentenced and a community-based order in respect of one or more other offences for which the offender is being sentenced.
(2)If a court makes one or more intensive correction management orders and one or more community based orders in respect of an offender in the same proceeding—
(a)the conditions of those orders are concurrent unless the court otherwise directs; and
(b)the conditions of those orders are concurrent with any other intensive correction management orders or community-based orders in force in respect of that offender at the time the offender is sentenced.
Subdivision 3—Core conditions
35MCore conditions
(1)The following are core conditions that are attached to an intensive correction management order—
(a)that the offender does not commit, whether in or outside Victoria, during the period of the order, another offence punishable on conviction by imprisonment;
(b)that the offender reports to the community corrections centre specified in the order within 2 clear working days after the coming into force of the order;
(c)that the offender notifies an officer at the specified community corrections centre of any change of address or employment within 2 clear working days after the change;
(d)that the offender does not leave Victoria except with the permission of an officer at the specified community corrections centre granted either generally or in relation to the particular case;
(e)that the offender obeys all lawful instructions and directions of community corrections officers.
(2)The core conditions attached to an intensive correction management order remain in force for the period of the order.
Subdivision 4—Reporting and monitoring conditions
35NReporting condition
(1)An intensive correction management order has attached to it the condition that the offender reports to, or receives visits from, a community corrections officer, as specified in the order—
(a)at least once a week in the first three months during which the order is in force;
(b)after the period specified in paragraph (a), every 28 days or as directed by the Regional Manager.
(2)The reporting condition for an intensive correction management order remains in force for the period for which the order is in force, or, if there is a supervision period for the order, for the supervision period.
35OJudicial monitoring condition
(1)If a court is making an intensive correction management order (drug and alcohol) the court may attach to the order a condition as to the monitoring of the offender by the court if the court is satisfied that it is necessary to review (during the course of the order) the offender's compliance with the order.
(2)In attaching a condition to an order under subsection (1) the court must have regard to—
(a)the circumstances of the offender; and
(b)the circumstances of the offending; and
(c)the nature of the offence; and
(d)the need to reduce the risk of the offender committing further offences by rehabilitating the offender and re-integrating the offender into the community.
(3)The court may provide for the following matters in a judicial monitoring condition—
(a)a time or times at which the offender must re-appear before the court for a review of the condition;
(b)any medical or other test or tests that must be carried out in relation to the offender;
(c)any medical or other report or reports that must be given to the court by the offender's medical practitioner or the Regional Manager.
(4)A provision in a judicial monitoring condition made by the court under subsection (3)(b) or (c) is not to be taken to empower the medical testing of the offender or the making of a medical report as to the offender without the consent of the offender.
(5)Any of the following is not to be taken to be a contravention of the intensive correction management order for the purposes of Subdivision 9—
(a)the mere refusal of an offender to consent to medical testing or the making of a medical report under a judicial monitoring condition;
(b)the mere withdrawal of consent by an offender to medical testing or the making of a medical report under a judicial monitoring condition.
(6)Any proceeding where an offender re-appears before the court for review in accordance with a judicial monitoring condition may be conducted by the court constituted by the judicial officer who made the order or by the court constituted by another judicial officer.
35PPower of court on review of condition
(1)In any proceeding where an offender re-appears before a court for review in accordance with a judicial monitoring condition—
(a)the court may require the offender, or may provide the offender with an opportunity to answer questions or produce information (including reports or the results of medical examinations or medical tests);
(b)the court may provide an opportunity for the offender's medical practitioner or any medical practitioner who has examined the offender to produce any medical report about the offender or the results of any medical test about the offender to the court;
(c)the court may provide any of the following persons with an opportunity to provide information to the court either verbally or in any written form—
(i)the Regional Manager;
(ii)the Secretary;
(iii)the person or body who prosecuted the offender for the offence;
(iv)any other person the court considers appropriate;
(d)the court may require any of the following persons to provide information to the court either verbally or in any written form—
(i)the Regional Manager;
(ii)the Secretary;
(iii)the person or body who prosecuted the offender for the offence;
(iv)any other person the court considers appropriate.
(2)In any proceeding where an offender re-appears before a court for review in accordance with the terms of a judicial monitoring condition, the court—
(a)may, under section 35ZB(2)(c) to (f), deal with the condition and any program condition of the intensive correction management order, irrespective of the fact that an application has not been made to the court under section 35ZC; or
(b)take no action in relation to the offender.
35QPeriod of judicial monitoring condition
A judicial monitoring condition attached to an intensive correction management order remains in force for the period specified by the court in the order, or, if no period is specified in the order, for the period of the order.
Subdivision 5—Unpaid community work condition
35RUnpaid community work condition, intensive correction management order (general)
An intensive correction management order (general) has attached to it the condition that the offender performs unpaid community work, as determined by the court in accordance with this Subdivision.
35SUnpaid community work condition, intensive correction management order (drug and alcohol)
If a court is making an intensive correction management order (drug and alcohol) the court may attach to the order a condition that the offender performs unpaid community work, as determined by the court in accordance with this Subdivision.
35TPurpose and operation of unpaid community work condition
(1)The purpose of an unpaid community work condition attached to an intensive correction management order is to allow for the adequate punishment of an offender in the community.
(2)The total number of hours for which an offender may be required to perform unpaid community work under an unpaid community work condition must be determined by the court and must not exceed—
(a)in the case of an order being made by the Magistrates' Court, more than 500 hours over a two year period; or
(b)in the case of an order being made by the County Court or Supreme Court, more than 600 hours over a 3 year period.
(3)Subject to subsection (2), the number of hours for which an offender may be required to perform unpaid community work under an unpaid community work condition must be determined under section 109(3)(b) according to the level of the offence or of the term of imprisonment that may be imposed in respect of the offence.
(4)The total number of hours of unpaid community work that the offender must perform in any 7 day period must not exceed 20.
(5)Despite subsection (4), an offender may perform an activity for up to 40 hours in a period of 7 days if he or she requests to do so and signs a written consent to performing the extra number of hours.
(6)If the court fixes a supervision period for an intensive correction management order, all the hours of unpaid community work that must be performed under the unpaid community work condition of the order must be completed within the supervision period.
(7)Where an offender is or will be subject to—
(a)more than one intensive correction management order; or
(b)a combination of one or more intensive correction management orders and one or more community based orders—
the court must not make a direction under this Act that causes the time limits that apply under all unpaid community work conditions under the orders to exceed the maximum time limits that apply in respect of one condition under this section.
Subdivision 6—Program conditions
35UAttachment of program conditions, intensive correction management order (general)
The court may attach any one or more of the conditions provided for in section 35W to an intensive correction management order (general).
35VAttachment of program conditions, intensive correction management order (drug and alcohol)
The court must attach at least one and may attach more than one of the conditions provided for in section 35W to an intensive correction management order (drug and alcohol).
35WProgram conditions
For the purposes of section 35U and 35V, the following conditions are program conditions that may be attached to an intensive correction management order—
(a)that the offender undergo assessment and treatment for alcohol or drug use as specified in the order or as directed by the Regional Manager;
(b)that the offender submit to medical, psychological or psychiatric assessment and treatment as specified in the order or as directed by the Regional Manager;
(c)that the offender attend educational, vocational, cultural, rehabilitative, re-integrational or personal development programs or courses as specified in the order or as directed by the Regional Manager;
(d)that the offender live at the place specified by the court in the order or by the Regional Manager for the period specified by the court in the order or by the Regional Manager;
(e)that the offender submit to testing for drug or alcohol use as specified in the order or as directed by the Regional Manager;
(f)in the case of an intensive correction management order (drug and alcohol), any other condition that the court considers necessary or desirable relevant to the offender's drug or alcohol dependency or abuse;
(g)any other condition that the court considers necessary or desirable to reduce the likelihood of further offending, other than a condition about the making of restitution or the payment of compensation, costs or damages.
35XFurther requirements as to program conditions
(1)If the court fixes a supervision period for an intensive correction management order, any program condition that is attached to the order must be completed within the supervision period.
(2)The court must not attach any more program conditions to an intensive correction management order than are necessary to achieve the purpose or purposes for which the order is made.
Subdivision 7—Special conditions
35YSpecial prescribed program condition
(1)If the pre-sentence report so recommends, the court may attach to an intensive correction management order a special condition that the offender attend at one, or more than one, specified prescribed program during the period of the order or a shorter period specified in the order for this purpose.
(2)A prescribed program specified in a special condition—
(a)may be residential or community-based; and
(b)must be designed to address the personal factors which contribute to the offender's criminal behaviour.
35ZSpecial residence or association condition
(1)The court may attach to an intensive correction management order any one or more of the conditions provided for in subsection (2), if the court is satisfied that—
(a)there is a risk of further offending by the offender; and
(b)the attaching of the condition or conditions is reasonably necessary to reduce that risk; and
(c)the attaching of conditions under other Subdivisions of this Division would not sufficiently address that risk.
(2)For the purposes of subsection (1), the following conditions are conditions that may be attached to an order—
(a)a condition that the offender must not associate with—
(i)a person specified in the order; or
(ii)a class of person specified in the order—
for the period of the order or for any lesser period specified in the order;
(b)a condition that the offender—
(i)must not reside at a place specified in the order; or
(ii)must reside at the place specified in the order—
for the period of the order or for any lesser period specified in the order;
(c)a condition that the offender must not enter a place or area specified in the order for the period of the order or for any lesser period specified in the order.
(3)If the court attaches a condition under subsection (2)(a), the court must give notice of the attachment of the condition and of the provisions of the condition to—
(a)the person or persons with whom the offender is not to associate; and
(b)the Regional Manager; and
(c)the Chief Commissioner of Police; and
(d)the Director of Public Prosecutions.
(4)A notice under subsection (3) must be given within 7 days of the making of the order by the court.
Subdivision 8—Suspension and variation etc. of intensive correction management order
35ZASuspension of intensive correction management order
The Secretary to the Department of Justice may—
(a)if the offender is ill; or
(b)in other exceptional circumstances—
suspend for a period the operation of an intensive correction management order or of any condition of the order and, if so, that period does not count in calculating the period for which the order is to remain in force or a condition is to be complied with.
35ZBVariation etc. of intensive correction management order
(1)On an application under section 35ZC, the court which made an intensive correction management order may decide to deal with the order under subsection (2), if the court is satisfied that—
(a)the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or
(b)the circumstances of the offender were wrongly stated or were not accurately presented to the court or the author of a pre-sentence report before the order was made; or
(c)the offender is no longer willing to comply with the order; or
(d)the rehabilitation and reintegration of the offender would be advanced by the making of the decision in relation to the order; or
(e)the continuation of the sentence is no longer necessary in the interests of the community or the offender.
(2)If satisfied of a matter set out in subsection (1), the court may decide to deal with the order in one or more of the following ways—
(a)by confirming the order or a part of the order;
(b)by cancelling or varying the order;
(c)in relation to a condition of the order, by cancelling, suspending, varying or removing the condition;
(d)by attaching a new condition on the order;
(e)in relation to a program that must be undertaken under the order, by cancelling, suspending, varying or reducing the program;
(f)by imposing an additional program that must be undertaken under the order.
(3)The court may make a decision under subsection (2) based on its assessment of the offender's progress (if any), including the extent to which the offender has complied with the order.
(4)The court may make a decision under subsection (2) as a reward for the offender if the court is satisfied of a matter referred to in subsection (1)(d) or (e).
(5)If the court decides under subsection (2) to cancel the order the court may—
(a)determine that no further action be taken in relation to the offender; or
(b)deal 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.
35ZCApplication for variation etc. of an intensive correction management order
(1)An application for the court to deal with an intensive correction management order under section 35ZB 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.
(2)Notice of an application under subsection (1) must be given—
(a)to the offender; and
(b)to the Director of Public Prosecutions or to the informant or police prosecutor (if the sentencing court was the Magistrates' Court).
(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.
Subdivision 9—Contravention of intensive correction management order
35ZDProceeding for contravention of an intensive correction management order
(1)If a person who is the subject of an intensive correction management order (the offender), without reasonable excuse, contravenes any condition of the order while the order is in force, a proceeding may be brought against the person to answer to the contravention in accordance with this Subdivision.
(2)A proceeding for the contravention of an order under subsection (1) must be commenced—
(a)if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within 6 months after the offence is found proven, subject to subsection (3); or
(b)in any other case, within one year of the order ceasing to be in force.
(3)A proceeding for the contravention of an order to which subsection (2)(a) applies must not be commenced more than 2 years after the order ceases to be in force.
35ZEBringing a proceeding for contravention of an intensive correction management order—offender before a court
(1)If a court finds an offender guilty of an offence punishable by imprisonment committed while an intensive correction management order is in force it may—
(a)on application, in the prescribed form, by an authorised person; 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 intensive correction management order, proceed to exercise any power conferred on it by section 35ZN; or
(d)if it is not the court that imposed the intensive correction management order transfer the proceeding to the court that imposed the order.
(2)If an intensive correction management order was made in the Magistrates' Court, the Supreme Court or County Court may deal with the contravention proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009.
(3)For the purpose of transferring a proceeding under subsection (1)(d), the court may, 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 attendance at the court that imposed the intensive correction management order.
35ZFBringing of a proceeding for contravention of an intensive correction management order—offender not before a court
(1)If an offender contravenes an intensive correction management order an authorised person may, if an application has not been made under section 35ZE in respect of the contravention, apply to the Magistrates' Court for the issue of—
(a)a contravention summons; or
(b)a warrant to arrest—
in order to compel the attendance of the offender at the court that imposed the intensive correction management order.
(2)An authorised person may make an application under subsection (1) to a registrar of the Magistrates' Court in person or by post at any venue of the court.
(3)If an offender is required to attend at the Magistrates' Court under a summons or warrant issued under section 35ZG(1), his or her attendance must be at the proper venue of the court.
35ZGIssue of a contravention summons or warrant to arrest by a registrar
(1)On an application under section 35ZF(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of an intensive correction management order issue—
(a)a summons to answer to the contravention of the intensive correction management order; or
(b)a warrant to arrest.
(2)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 contravention summons; or
(b)the offender has absconded, is likely to abscond or is avoiding service of a contravention summons that has been issued; or
(c)a warrant to arrest is required or authorised for other good cause.
35ZHPower to amend a contravention summons or warrant to arrest
Section 50 of the Magistrates' Court Act 1989 applies to a contravention 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 contravention summons or warrant to arrest issued under this section; and
(b)to the court were a reference to the court by which the intensive correction management order was imposed.
35ZIForm of a contravention summons
A contravention summons—
(a)must direct the offender to attend at the proper venue of the Magistrates' Court or, if the intensive correction management order 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 proceeding against him or her; and
(b)may be served in any manner in which a summons to answer a charge may be served under sections 16 and 17 of the Criminal Procedure Act 2009.
35ZJExtension of a return date for a contravention summons
On the application of the authorised person who applied for the issue of the contravention summons at any time before it is served, the date specified in the contravention summons for the offender to attend court (the return date) may be extended without cause—
(a)before the return date; or
(b)within 28 days after the return date—
by a registrar at the venue of the court at which the contravention summons was issued on one occasion and after that may be extended—
(c)before the current return date; or
(d)within 28 days 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 contravention summons.
35ZKService of a contravention summons
Service of a contravention summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 399 of the Criminal Procedure Act 2009.
35ZLIssue of a warrant to arrest
(1)When an offender does not attend before a court in answer to a contravention summons which has been served in accordance with section 35ZK, the court may issue a warrant to arrest the offender.
(2)A warrant to arrest authorised to be issued under this section is to be in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant to arrest with any necessary modifications.
35ZMUnrepresented accused
(1)If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 35ZE, or a contravention summons or warrant to arrest issued under section 35ZL, the court must—
(a)ask the offender 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.
(2)If the court before which an offender appears in answer to bail granted under section 35ZE, or a contravention summons or warrant to arrest issued under section 35ZL 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.
35ZNPowers of court on determination of proceeding
(1)If on the hearing of the proceeding under section 35ZD(1) the court finds the offender has contravened the order it must, subject to subsection (2), either—
(a)vary the intensive correction management order, in any manner set out in section 35ZB(2); or
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force).
(2)If the court cancels the order under subsection (1)(c) because the offender has breached the order by committing another offence punishable by imprisonment—
(a)the court must deal with the offender for the offence or offences in respect of 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 the offence or offences in respect of which the order was made; or
(b)if the court is of the opinion that, having regard to circumstances that have arisen since the order was made, it is unjust to deal with the offender under paragraph (a), take no further action in relation to sentencing the offender for the offence or offences in respect of which the order was made.
(3)If the court cancels the order under subsection (1)(c) and subsection (2) does not apply, the court may—
(a)whether or not the order is still in force, subject to subsection (4), deal with the offender for the offence or offences in respect of 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
(b)take no further action in relation to sentencing the offender for the offence or offences in respect of which the order was made.
(4)In determining how to deal with an offender following the cancellation by it of an intensive correction management order, a court must take into account the extent to which the offender had complied with the order before its cancellation.
35ZOPractice and procedure at hearing
(1)The practice and procedure applicable to the hearing and determination of summary offences in the Magistrates' Court applies, so far as is appropriate, to the hearing and determination of a proceeding under section 35ZD(1), whether or not the court hearing the proceeding is the Supreme Court, the County Court or the Magistrates' Court.
(2)Subsection (1) is subject to any rules of court.
Subdivision 10—Miscellaneous provisions
35ZPOffender may be fined as well
A court may impose on an offender a fine authorised by law in addition to making an intensive correction management order.
35ZQSecretary may direct offender to report at another place
(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 an intensive correction management order, the Secretary to the Department of Justice 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.".
14Community-based order in addition to term of imprisonment
(1)Section 36(2)(a) of the Sentencing Act 1991 is repealed.
(2)After section 36(2) of the Sentencing Act 1991 insert—
"(2A)If a court is sentencing an offender for two or more offences in the same proceeding, to two or more sentences of imprisonment, the court may not make any intensive correction management order in respect of the offender if the aggregate of those terms of imprisonment is more than 3 months, whether the terms of imprisonment are to be served (in whole or in part) concurrently or cumulatively.".
(3)After section 36(3) of the Sentencing Act 1991 insert—
"(3A) The court must fix the date on which a community-based order commences, which must not be more than 3 months after the order is made.
(3B)If a court makes a community-based order in respect of an offender in addition to a term of imprisonment, the community-based order commences on the release of the offender from imprisonment.".
15Insertion of heading to section 39
Insert the following heading to section 39 of the Sentencing Act 1991—
"Unpaid community work condition".
16Unpaid community work condition
(1)In section 39(1) of the Sentencing Act 1991, for "a community service condition" substitute "an unpaid community work condition".
(2)For section 39(2) and (3) of the Sentencing Act 1991 substitute—
"(2)The total number of hours for which an offender may be required to perform unpaid community work under an unpaid community work condition must not exceed 300 hours over a 2 year period.
(3)Subject to subsection (2), the number of hours for which an offender may be required to perform unpaid community work under an unpaid community work condition must be determined under section 109(3)(b) or (4) according to the level of the offence or of the term of imprisonment or fine that may be imposed in respect of the offence or, if both subsections (3)(b) and (4) are applicable, the number of hours must be determined in accordance with the provision that sets out the lesser number of hours.".
(3)In section 39(6) of the Sentencing Act 1991—
(a)for "a community service condition" substitute "an unpaid community work condition";
(b)for "250" substitute "150".
(4)In section 39(7) of the Sentencing Act 1991—
(a)for "a community service condition" substitute "an unpaid community work condition";
(b)for "250" substitute "150".
17Section 46 substituted
For section 46 of the Sentencing Act 1991 substitute—
"46 Variation of community-based order
(1)On an application under section 46A, the court which made a community-based order may decide to deal with the order under subsection (2), if the court is satisfied that—
(a)the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or
(b)the circumstances of the offender were wrongly stated or were not accurately presented to the court or the author of a pre-sentence report before the order was made; or
(c)the offender is no longer willing to comply with the order; or
(d)the rehabilitation and reintegration of the offender would be advanced by the making of the decision in relation to the order; or
(e)the continuation of the sentence is no longer necessary in the interests of the community or the offender.
(2)If satisfied of a matter set out in subsection (1), the court may decide to deal with the order in one or more of the following ways—
(a)by confirming the order or a part of the order;
(b)by cancelling or varying the order;
(c)in relation to a condition of the order, by cancelling, suspending, varying or removing the condition;
(d)by attaching a new condition on the order;
(e)in relation to a program that must be undertaken under the order, by cancelling, suspending, varying or reducing the program;
(f)by imposing an additional program that must be undertaken under the order.
(3)The court may make a decision under subsection (2) based on its assessment of the offender's progress (if any), including the extent to which the offender has complied with the order.
(4)The court may make a decision under subsection (2) as a reward for the offender, if the court is satisfied of a matter referred to in subsection (1)(d) or (e).
(5)If the court decides under subsection (2) to cancel the order the court may—
(a)determine that no further action be taken in relation to the offender; or
(b)deal 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.
46AApplication for variation of a community-based order
(1)An application for variation of a community-based order under section 46(1) 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 persons; or
(b)the informant or police prosecutor (if the sentencing court was the Magistrates' Court); or
(c)the Director of Public Prosecutions.
(2)Notice of an application under subsection (1) must be given—
(a)to the offender; and
(b)to the Director of Public Prosecutions or to the informant or police prosecutor (if the sentencing court was the Magistrates' Court).
(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.".
18Powers of court on determination of contravention proceeding
For section 47J(1) of the Sentencing Act 1991 substitute—
"(1)If on the hearing of the proceeding under section 47(1) the court finds the offender has contravened the order it must, subject to subsection (2), either—
(a)vary the community-based order, in any manner set out in section 46(2); or
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force).
(1A)If the court cancels the order under subsection (1)(c), the court may—
(a)whether or not the order is still in force, subject to subsection (2), deal with the offender for the offence or offences in respect of 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
(b)take no further action in relation to sentencing the offender for the offence.".
19Time for bringing proceeding for contravention of community-based order
(1)For section 47(2)(a) of the Sentencing Act 1991 substitute—
"(a)if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within 6 months after the offence is found proven, subject to subsection (3); or".
(2)After section 47(2) of the Sentencing Act 1991 insert—
"(3)A proceeding for the contravention of an order to which subsection (2)(a) applies must not be commenced more than 2 years after the order ceases to be in force.".
20New heading to section 48
Insert the following heading to section 48 of the Sentencing Act 1991—
"Part payment of fine to reduce unpaid community work in default".
21Deferral of sentencing
(1)In section 83A(1) of the Sentencing Act 1991—
(a)after "Magistrates' Court" (where first occurring) insert "or County Court";
(b)paragraph (a) is repealed;
(c)in paragraph (b), for "Magistrates' Court" substitute "court";
(d)for "Magistrates' Court" (where lastly occurring) substitute "court";
(e)for "6 months" substitute "12 months".
(2)After section 83A(1) of the Sentencing Act 1991 insert—
"(1A)The court may defer sentencing the offender under subsection (1) for any one or more of the following purposes—
(a)to allow the offender's capacity for and prospects of rehabilitation to be assessed;
(b)to allow the offender to demonstrate that rehabilitation has taken place;
(c)to allow the offender to participate in a program or programs aimed at addressing the underlying causes of the offending;
(d)to allow the offender to participate in a program or programs aimed at addressing the impact of the offending on the victim;
(e)for any other purpose that the court considers appropriate having regard to the offender and the circumstances of the case.
(1B)In making an order deferring a sentence under subsection (1), the court may determine the date at which the offender must re-appear before the court for a review of the order.
(1C)Dates fixed under subsection (1B) must be between the date on which the order deferring the sentence is made and the date to which the proceeding has been adjourned.
(1D)On the review of an order deferring a sentence under this section, the court may—
(a)take no further action; or
(b)cancel the order deferring the sentence and proceed to sentence the offender, as if the matter were an adjourned hearing to which subsection (3) applies.
(1E)In making an order deferring a sentence under subsection (1), the court may order that any review of the order under subsection (1B) be dealt with by the court constituted by the person who made the order deferring the sentence.".
(3)In section 83A(2) of the Sentencing Act 1991—
(a)after "Magistrates' Court" (where first occurring) insert "or County Court";
(b)in paragraph (a), for "6 months" substitute "12 months";
(c)in paragraph (b), for "Magistrates' Court" substitute "court".
(4)In section 83A(3) of the Sentencing Act 1991, for "Magistrates' Court" substitute "court".
(5)In section 83A(4) of the Sentencing Act 1991, for "Magistrates' Court" (wherever occurring) substitute "court".
(6)In section 83A(5) of the Sentencing Act 1991—
(a)for "Magistrates' Court" substitute "court";
(b)for "Court" substitute "court".
(7)In section 83A(6) of the Sentencing Act 1991, after "Magistrates' Court" insert "or County Court".
22Pre-sentence reports
In section 96(2) of the Sentencing Act 1991—
(a)for "a combined custody and treatment order, an intensive correction order" substitute "an intensive correction management order";
(b)in paragraph (c), for "intensive correction order" substitute "intensive correction management order".
23Drug and alcohol reports
(1)In section 99A(1) of the Sentencing Act 1991, for "a combined custody and treatment order" substitute "an intensive correction management order (drug and alcohol)".
(2)In section 99A(2)(b) of the Sentencing Act 1991, for "a combined custody and treatment order" substitute "an intensive correction management order (drug and alcohol)".
24Drug and alcohol pre-release reports
(1)For section 99D(1) of the Sentencing Act 1991 substitute—
"(1)A drug and alcohol pre-release report in respect of an offender must be prepared by an approved drug and alcohol assessment agency if, on the release of the offender from imprisonment the offender is to be subject to an intensive correction management order (drug and alcohol).".
(2)In section 99D(2) of the Sentencing Act 1991, for "combined custody and treatment order" substitute "intensive correction management order (drug and alcohol)".
(3)In section 99D(4)(a) of the Sentencing Act 1991, for "combined custody and treatment order" substitute "intensive correction management order (drug and alcohol)".
25Penalty scale
(1)In section 109(3)(b) of the Sentencing Act 1991, for "a community based order with a community service condition" substitute "an intensive correction management order or a community-based order with an unpaid community work condition".
(2)For the table at the foot of section 109(3)(b) of the Sentencing Act 1991 substitute—
"TABLE 3
Column 1
Term of Imprisonment
Column 2
Unpaid Community Work
More than 5 years 600 hours over a 3 year period More than 2 years but not more than 5 years 500 hours over a 2 year period 2 years 375 hours over an 18 month period 1 year or more but less than 2 years 250 hours over a 12 month period 6 months or more but less than 1 year 125 hours over a 6 month period Less than 6 months 50 hours over a 3 month period
".
(3)In section 109(3)(c) of the Sentencing Act 1991 omit "community-based".
(4)For the table at the foot of section 109(4) of the Sentencing Act 1991 substitute—
"TABLE 4
Column 1
Fine
Column 2
Unpaid Community Work
240 penalty units or more 300 hours over a 24 month period 120 penalty units or more but less than 240 250 hours over a 12 month period 60 penalty units or more but less than 120 125 hours over a 6 month period 10 penalty units or more but less than 60 50 hours over a 3 month period
".
26Regulations
In section 116(1) of the Sentencing Act 1991—
(a)in paragraph (d), after "community-based order" insert "or intensive correction management order";
(b)in paragraph (e), for "intensive correction orders" substitute "intensive correction management orders".
27New section 143 inserted
At the end of Part 12 of the Sentencing Act 1991 insert—
"143 Transitional provision—Sentencing Amendment Act 2010
(1)In this section—
2010 Act means the Sentencing Amendment Act 2010;
old combined custody and treatment order means a combined custody and treatment order within the meaning of section 3 as in force before the commencement of section 7 of the 2010 Act, being an order in force immediately before that commencement;
old intensive correction order means an intensive correction order within the meaning of section 3 as in force before the commencement of section 10 of the 2010 Act, being an order in force immediately before that commencement;
old serious suspended sentence order means an order made under Subdivision 3 of Division 2 of Part 3 as in force before the commencement of section 12 of the 2010 Act as to the suspending of a sentence of imprisonment on an offender for a serious offence, being such an order in force immediately before that commencement.
Combined custody and treatment orders
(2)Despite the commencement of section 7 of the 2010 Act, an old combined custody and treatment order is taken to continue in force on and from that commencement as if this Act, as in force before that commencement, continued to apply to it.
Intensive correction orders
(3)Despite the commencement of section 10 of the 2010 Act, an old intensive correction order is taken to continue in force on and from that commencement as if this Act, as in force before that commencement, continued to apply to it.
Application of new orders in relation to certain matters
(4)The amendment of this Act made by sections 7, 10, 13, 14, 15, 16, 21 and 25 of the 2010 Act applies in respect of an offence which is alleged to have been committed between two dates, one of which occurs before the commencement of those sections and one of which occurs after the commencement of those sections, and for that purpose the offence is taken to have been committed after the commencement of those sections.
Suspended sentences
(5)Despite the commencement of section 12 of the 2010 Act, an old serious suspended sentence order is taken to continue in force on and from that commencement as if this Act, as in force before that commencement, continued to apply to it.
(6)The amendment of this Act made by section 12 of the 2010 Act, does not apply where a finding of guilt is made in relation to a serious offence committed before the commencement of that section, irrespective of whether the finding of guilt is made, before, on or after that commencement.
(7)For the purposes of subsection (6), if a serious offence is alleged to have been committed between two dates, one before and one after the commencement of section 12 of the 2010 Act, the offence is taken to be alleged to have been committed before that commencement.".
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Part 3—Amendment of other Acts
28Amendment of the Road Safety Act 1986—Offence to drive while disqualified etc.
For the penalty at the foot of section 30(1) of the Road Safety Act 1986 substitute—
Penalty:For a first offence, 30 penalty units or imprisonment for 4 months;
For a subsequent offence, 240 penalty units or imprisonment for 2 years.".
29Amendment of the Magistrates' Court Act 1989—deferred sentences
Section 4Q(3) of the Magistrates' Court Act 1989 is repealed.
__________________
Part 4—Repeal of Amending Act
30Repeal of amending Act
This Act is repealed on 1 January 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
Minister's second reading speech—
Legislative Assembly: 6 October 2010
Legislative Council: 7 October 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Sentencing Act 1991 and the Road Safety Act 1986 and to make minor and consequential amendments to other Acts and for other purposes."
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