Untitled document
Justice Legislation Amendment Act 2010
No. 30 of 2010
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of Sentencing Act 1991
3Definitions
4Sentencing orders
5Aggregate sentence of imprisonment
6New section 14A inserted
14AHome detention direction by sentencing court
7Time held in custody before trial etc. to be deducted from sentence
8New section 18SA inserted
18SAHome detention condition when order is imposed
9Section 18W substituted
18WProceeding for contravention of combined custody
and treatment order18WABringing a proceeding for contravention of combined custody treatment order—offender before a court
18WBBringing of a proceeding for contravention of
combined custody and treatment order—offender not before a court18WCIssue of a contravention summons or warrant to
arrest by a registrar18WDPower to amend a contravention summons or
warrant to arrest18WEForm of a contravention summons
18WFExtension of a return date for a contravention
summons18WGService of a contravention summons
18WHIssue of a warrant to arrest
18WIUnrepresented accused
18WJPowers of court hearing a proceeding
18WKPractice and procedure at hearing
10New section 18ZGA inserted
18ZGAHome detention condition when order is imposed
11Subdivision (1D) of Division 2 of Part 3 repealed
12New section 21A inserted
21AHome detention condition when order is imposed
13Section 26 substituted
26Proceeding for contravention of an intensive
correction order26ABringing a proceeding for contravention of an
intensive correction order—offender before a court26BBringing of a proceeding for contravention of an intensive correction order—offender not before a
court26CIssue of a contravention summons or warrant to arrest
by a registrar26DPower to amend a contravention summons or warrant
to arrest26EForm of a contravention summons
26FExtension of a return date for a contravention summons
26GService of a contravention summons
26HIssue of a warrant to arrest
26IUnrepresented accused
26JPowers of court on determination of proceeding
26KPractice and procedure at hearing
14New Subdivision (2A) of Division 2 of Part 3 inserted
Subdivision (2A)—Home detention orders
26LDefinitions
26MHome detention order
26NCircumstances where offender is ineligible for home detention
26OCircumstances where offender may be ineligible for home detention—certain previous convictions
26POrder not to be made if residents object
26QSuitability of the offender for home detention
26RConditions of home detention order not to contravene intervention order
26SUndertaking by offender
26TObligations of offender
26UCore conditions governing home detention
26VSpecial conditions
26WWithdrawal of consent
26XRevocation of order on application by offender or Secretary
26YSuspension of home detention order
26ZVariation of home detention order
26ZAProceeding for contravention of an undertaking or a home detention order
26ZBBringing a proceeding for contravention of a home detention order—offender before a court
26ZCBringing of a proceeding for contravention of home detention order—offender not before a court
26ZDIssue of a contravention summons or warrant to arrest
by a registrar26ZEPower to amend a contravention summons or warrant
to arrest26ZFForm of a contravention summons
26ZGExtension of a return date for a contravention
summons26ZHService of a contravention summons
26ZIIssue of a warrant to arrest
26ZJUnrepresented accused
26ZKPowers of court on determination of a contravention proceeding
26ZLPractice and procedure at hearing
26ZMAlternative sanction for minor breach of home
detention order26ZNReconsideration of revocation if approved residence available
26ZORevocation of order by court
26ZPExpiry of home detention order
26ZQService of notices on offender
26ZRAnnual report
15New section 27A inserted
27AHome detention condition when order is imposed
16Breach of suspended sentence
17New section 41A inserted
41AHome detention condition when order is imposed
18Substitution of section 47
47Proceeding for contravention of community-based
order47APowers of the court on commencement of a
proceeding for contravention of an order47BBringing of a proceeding for contravention of a community-based order—offender not before a
court47CIssue of a contravention summons or warrant to
arrest by a registrar47DPower to amend a contravention summons or warrant
to arrest47EForm of a contravention summons
47FExtension of a return date for a contravention
summons47GService of a contravention summons
47HIssue of a warrant to arrest
47IUnrepresented accused
47JPowers of court on determination of a contravention proceeding
47KPractice and procedure at hearing
47LPowers of the court where a community-based order is made in default of payment of a fine
19Aggregate fines
20Heading to Subdivision (4) of Division 5 of Part 3
21New section 77A inserted
77ADefinition
22Substitution of section 79
79Proceeding for contravention of order for release on adjournment
79ABringing of proceeding for contravention of order
for release on adjournment—offender before a court79BBringing of proceeding for contravention of order for release on adjournment—offender not before a court
79CIssue of a contravention summons or warrant to arrest
by a registrar79DPower to amend a contravention summons or warrant
to arrest79EForm of a contravention summons
79FExtension of a return date for a contravention
summons79GService of a contravention summons
79HIssue of a warrant to arrest
79IUnrepresented accused
79JPowers of court on determination of a contravention proceeding
79KPractice and procedure at hearing
23Insertion of new section at the end of Part 12
141Transitional provision—Justice Legislation
Amendment Act 2010
24Sentencing guidelines
25Sentence by another judge or magistrate
26Termination of assessment orders and diagnosis, assessment
and treatment orders27Restricted involuntary treatment orders
28Contents of home detention assessment report
29Regulations
Part 3—Amendment of Children, Youth and Families Act 2005
30Matters to be taken into account
31Sentence discount for guilty plea
32Determination of appeal by offender
33Determination of DPP appeal against sentence
34New Division 2A inserted in Part 5.4
Division 2A—Appeal by DPP—Failure to fulfil undertaking
429ADPP's right of appeal—failure to fulfil undertaking
429BHow appeal is commenced
429CDetermination of DPP's appeal—failure to fulfil undertaking
35Abandonment of appeal
36Appellant's failure to appear
37Respondent's failure to appear on appeal by DPP
38Application of Division
39Right of appeal against sentence of detention imposed on
appeal from Children's Court40Orders etc. on successful appeal
41Court to have powers of Magistrates' Court
42Rules
43New section 616 inserted
616Transitional provision—Justice Legislation Amendment Act 2010
44Statute law revision
Part 4—Amendments to Corrections Act 1986
Division 1—Amendments relating to home detention orders
45Definitions
46Victim may be given certain information about a prisoner
47Substitute section 59
58FDefinition
59Home detention orders
48Section 60A substituted
60ACircumstances where prisoner not eligible for home detention
60ABCircumstances where prisoner may be ineligible for home detention—certain previous convictions
49Suitability of prisoner for home detention
50New section 60DA inserted
60DAConditions of home detention order not to contravene intervention order
51Contents of home detention assessment report
52Core conditions governing home detention
53Functions of Board
54New section 119 inserted
119Transitional provision—Justice Legislation
Amendment Act 2010
Division 2—Statute law revision
55Statute law revision
Part 5—Amendment of Criminal Procedure
Act 2009
56Commencement
57Definition
58When full brief must be served
59Summary case conference
60Transfer of summary offences that are related offences on or
after committal61Court may transfer certain charges to Magistrates' Court
62New Division 4 inserted in Part 5.8
Division 4—Procedure on guilty plea or guilty verdict
253AAbolition of allocutus
253BWhen finding of guilt occurs
63Abandonment of appeal
64Appellant's failure to appear
65Determination of application for leave during sentencing
hearing66Application of Division—alternative arrangements for
giving evidence67Jury warning concerning alternative arrangements
68When court must direct use of closed-circuit television or
other facilities for complainant69When court must direct use of screens for complainant
70When court must direct presence of support person for complainant
71Personal service
72Regulations
73Repeal of sunset provision concerning sentence indications in Supreme Court and County Court
74Persons who may witness statements in preliminary brief, full brief or hand-up brief
75Transitional provisions—Trial
76New section 440 inserted
440Transitional provisions—Justice Legislation
Amendment Act 2010
77Statute law revision
Part 6—Amendment of Gambling Regulation Act 2003
78Publication and use approval
79New section 2.5.19DA inserted
2.5.19DATransitional race field publication and use fee
Part 7—Amendment to Miscellaneous Acts
Division 1—County Court Act 1958
80Circumstances in which order may be made under section 80
Division 2—Family Violence Protection Act 2008
81Procedural requirements for person directed to a police
station, or person apprehended and detained82Application for family violence safety notice
83New section 176A inserted
176ARelationship with certain orders under the
Sentencing Act 1991 and the Corrections
Act 1986
Division 3—Justice Legislation Miscellaneous Amendments
Act 2009
84Statute law revision—Justice Legislation Miscellaneous Amendments Act 2009
Division 4—Magistrates' Court Act 1989
85Extent of jurisdiction
86Warrants
87Power to close proceedings to the public
Division 5—Marine Act 1988
88Appeal to the County Court
89New Division 6 inserted in Part 11
Division 6—Transitional provision—Justice Legislation Amendment Act 2010
160Appeal against disqualification, cancellation,
suspension or variation
90Statute law revision
Division 6—Road Safety Act 1986
91Appeal to the County Court
92New section 103ZA inserted
103ZATransitional provision—Justice Legislation
Amendment Act 2010
Division 7—Stalking Intervention Orders Act 2008
93New section 51A inserted
51ARelationship with certain orders under the
Sentencing Act 1991 and the Corrections
Act 1986
Division 8—Supreme Court Act 1986
94Circumstances in which order may be made under section 18
Part 8—Repeal of Amending Act
95Repeal of amending Act
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Endnotes
Justice Legislation Amendment Act 2010
No. 30 of 2010
[Assented to 8 June 2010]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Sentencing Act 1991—
(i)in relation to aggregate sentences of imprisonment and aggregate fines imposed by the Supreme Court or the County Court for summary offences;
(ii)to repeal the offence for the breach of—
(A)a combined custody and treatment order;
(B)an intensive correction order;
(C)a community-based order; and
(D)an adjourned undertaking;
(iii)to make further provision for the enforcement of an order or sentence listed in paragraph (ii);
(iv)to make the necessary consequential and transitional provisions required on the repeal of the offence for breach of an order or sentence listed in paragraph (ii);
(v)to make further provision for home detention orders;
(b)to amend the Children, Youth and Families Act 2005—
(i)in relation to the imposition of less severe sentences if an offender gives an undertaking to assist law enforcement authorities and to empower the Director of Public Prosecutions to appeal against such a sentence in the event of failure to fulfil an undertaking;
(ii)to expand the range of sentences that a court may impose on certain appeals against sentence;
(iii)to empower the prothonotary of the Supreme Court and the registrar of the County Court to issue warrants to detain in certain circumstances;
(iv)to remove the power of an appellate court to set aside an order striking out an appeal made when an appellant abandons an appeal;
(v)to remove references to aggregate sentences of detention;
(vi)to remove the requirement for the holding of a summary case conference if a preliminary brief is served on a child within 7 days after the filing of the charge-sheet;
(vii)to amend the rule-making power to enable the making of rules in relation to the Children and Young Persons Infringement Notice System;
(c)to amend the Corrections Act 1986 in relation to home detention orders;
(d)to amend the Criminal Procedure Act 2009—
(i)in relation to summary case conferences;
(ii)in relation to the transfer of related summary offences on or after committal;
(iii)to enable the transfer of a charge for an indictable offence from the Supreme Court or the County Court to the Children's Court;
(iv)to abolish the common law procedure of administering the allocutus;
(v)to remove the power of the County Court to set aside an order striking out an appeal made when an appellant abandons an appeal;
(vi)to empower the prothonotary of the Supreme Court and the registrar of the County Court to issue a warrant to imprison in certain circumstances;
(vii)in relation to evidence sought to be admitted during a sentencing hearing in relation to a sexual offence;
(viii)in relation to alternative arrangements for giving evidence;
(ix)to provide for personal service on a legal practitioner by delivery to a document exchange;
(x)in relation to regulation-making powers;
(xi)to repeal sunset provisions for sentence indications in the Supreme Court and the County Court;
(xii)to insert additional transitional arrangements;
(e)to amend the Gambling Regulation Act 2003 to make further provision in relation to the payment of fees by wagering service providers who publish, use or otherwise make available race fields during the course of business;
(f)to make minor amendments to these and other Acts.
2Commencement
(1)This Part comes into operation on the day on which this Act receives the Royal Assent.
(2)Sections 44(2) and 77 are deemed to have come into operation on 1 January 2010.
(3)Section 84(2) is deemed to have come into operation on 16 December 2009.
(4)Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(5)If a provision referred to in subsection (4) does not come into operation before 1 January 2012, it comes into operation on that day.
__________________
Part 2—Amendment of Sentencing Act 1991
3Definitions
In section 3 of the Sentencing Act 1991—
(a)insert the following definitions—
"authorised person means a person who is prescribed or of a class of persons who are prescribed to bring proceedings under Subdivision (1B), (1C), (2), (2A) or (3) of Division 2, or under Division 3 or Division 5 of Part 3;
contravention in relation to a provision of an order or a sentence includes a failure to comply with that provision;
contravention summons means a summons issued under section 18WC(1)(a), 26C(1)(a), 26ZD(1)(a), 47C(1)(a) or 79C(1)(a);
family violence intervention order means—
(a)a family violence intervention order within the meaning of section 11 of the Family Violence Protection Act 2008; or
(b)one of the following orders made under the Crimes (Family Violence) Act 1987 as in force immediately before its repeal—
(i)an intervention order made on grounds referred to in section 4 or 4A of that Act, and subsequently varied or extended under section 16 or 16A of that Act;
(ii)an intervention order made on grounds referred to in section 4 or 4A of that Act, and subsequently varied or extended under section 16 or 16A of that Act;
(iii)an interim intervention order made on grounds referred to in section 8 of that Act;
stalking intervention order means—
(a)an intervention order within the meaning of the Stalking Intervention Orders Act 2008; or
(b)an order made under section 4 of the Crimes (Family Violence) Act 1987 of a kind referred to in section 21A(5) of the Crimes Act 1958, both as in force immediately before their repeal;";
(b)for the definition of home detention order substitute—
"home detention order means an order made under section 26M;".
4Sentencing orders
After section 7(1)(b) of the Sentencing Act 1991 insert—
"(ba)record a conviction and order that the offender serve a term of imprisonment by way of home detention (a home detention order); or".
5Aggregate sentence of imprisonment
After section 9(3) of the Sentencing Act 1991 insert—
"(4)If the Supreme Court or the County Court hears and determines charges for summary offences under section 242 or 243 of the Criminal Procedure Act 2009 and imposes an aggregate sentence of imprisonment in respect of 2 or more of those offences, the court—
(a)is not required to identify separate events giving rise to specific charges; and
(b)is not required to announce—
(i)the sentences that would have been imposed for each offence had separate sentences been imposed; or
(ii)whether those sentences would have been imposed concurrently or cumulatively.
(5)Subsection (4) does not affect the requirements of section 6AAA.".
6New section 14A inserted
After section 14 in the Sentencing Act 1991 insert—
"14A Home detention direction by sentencing court
(1)A court may direct that an offender sentenced to a term of imprisonment is not entitled to make a request under section 59 of the Corrections Act 1986.
(2)In exercising its discretion whether or not to make a direction under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.".
7Time held in custody before trial etc. to be deducted from sentence
In section 18 of the Sentencing Act 1991—
(a)subsections (1A), (4A) and (5A) are repealed;
(b)in subsections (2) and (3), omit "or (1A)" (wherever occurring);
(c)after subsection (2)(ba) insert—
"(bb)to a home detention order; or";
(d)in subsection (7), omit "or (4A)".
8New section 18SA inserted
After section 18S of the Sentencing Act 1991 insert—
"18SA Home detention condition when order is imposed
(1)A court may when imposing a combined custody treatment order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986.
(2)In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.".
9Section 18W substituted
For section 18W of the Sentencing Act 1991 substitute—
"18W Proceeding for contravention of combined custody and treatment order
(1)If a person who is the subject of a combined custody and treatment order (the offender) contravenes any condition of the order while the order is in force, a proceeding may be brought against the person, in accordance with this Subdivision, to answer to the contravention.
(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 whichever is the later of—
(i)6 months of the offence being found proven; or
(ii)within 2 years of the order ceasing to be in force; or
(b)in any other case, within one year of the order ceasing to be in force.
18WABringing a proceeding for contravention of combined custody treatment order—offender before a court
(1)If a court finds an offender guilty of an offence punishable by imprisonment committed while a combined custody and treatment 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 combined custody and treatment order, proceed to exercise any power under section 18WJ; or
(d)if it is not the court that imposed the combined custody and treatment order, transfer the proceeding to the court that imposed the order.
(2)If a combined custody treatment 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 combined custody and treatment order.
18WBBringing of a proceeding for contravention of combined custody and treatment order—offender not before a court
(1)If an offender contravenes a combined custody and treatment order an authorised person may, if an application has not been made under section 18WA 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 combined custody treatment 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 any offender is required to attend at the Magistrates' Court under a summons or warrant to arrest issued under section 18WC(1), his or her attendance must be at the proper venue of the court.
18WCIssue of a contravention summons or warrant to arrest by a registrar
(1)On an application under section 18WB(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of a combined custody and treatment order issue—
(a)a summons to answer to the contravention of the combined custody and treatment 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.
18WDPower 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 combined custody and treatment order was imposed.
18WEForm 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 combined custody treatment 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 them; 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.
18WFExtension 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 thereafter 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.
18WGService 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.
18WHIssue 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 18WG, 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.
18WIUnrepresented accused
(1)If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 18WA, or a contravention summons or warrant to arrest issued, under section 18WC, 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 18WA, or a contravention summons or warrant to arrest issued under section 18WC 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.
18WJPowers of court hearing a proceeding
(1)If on the hearing of the proceeding under section 18W(1) the court finds the offender has contravened the order it must, subject to subsection (2), either—
(a)confirm the order originally made; or
(b)whether or not the offender has served any part of the sentence in the community, order the offender to serve in custody the whole part of the sentence that was to be served in the community.
(2)The court must make an order under subsection (1)(b) unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the combined custody and treatment order was made.
(3)If the court decides not to exercise the power referred to in subsection (1)(b), it must state in writing its reasons for so deciding.
(4)The part of a term of imprisonment which a court orders an offender to serve in custody must be served—
(a)immediately 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; and
(b)unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.
18WKPractice 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 18W(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.".
10New section 18ZGA inserted
After section 18ZG of the Sentencing Act 1991 insert—
"18ZGA Home detention condition when order is imposed
(1)A court may when imposing a drug treatment order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986.
(2)In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.".
11Subdivision (1D) of Division 2 of Part 3 repealed
Subdivision (1D) of Division 2 of Part 3 of the Sentencing Act 1991 is repealed.
12New section 21A inserted
After section 21 of the Sentencing Act 1991 insert—
"21A Home detention condition when order is imposed
(1)A court may when imposing an intensive correction order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986.
(2)In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.".
13Section 26 substituted
For section 26 of the Sentencing Act 1991 substitute—
"26 Proceeding for contravention of an intensive correction order
(1)If a person who is the subject of an intensive correction 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 whichever is the later of—
(i)6 months of the offence being found proven; or
(ii)within 2 years of the order ceasing to be in force; or
(b)in any other case, within one year of the order ceasing to be in force.
26ABringing a proceeding for contravention of an intensive correction order—offender before a court
(1)If a court finds an offender guilty of an offence punishable by imprisonment committed while an intensive correction 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 order, proceed to exercise any power conferred on it by section 26J; or
(d)if it is not the court that imposed the intensive correction order transfer the proceeding to the court that imposed the order.
(2)If an intensive correction 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 order.
26BBringing of a proceeding for contravention of an intensive correction order—offender not before a court
(1)If an offender contravenes an intensive correction order an authorised person may, if an application has not been made under section 26A 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 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 26C(1)(a), his or her attendance must be at the proper venue of the court.
26CIssue of a contravention summons or warrant to arrest by a registrar
(1)On an application under section 26B(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of an intensive correction order issue—
(a)a summons to answer to the contravention of the intensive correction 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.
26DPower 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 order was imposed.
26EForm 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 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 them; 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.
26FExtension 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 thereafter 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.
26GService 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.
26HIssue 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 26G, 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.
26IUnrepresented accused
(1)If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 26A, or a contravention summons or warrant issued under section 26C, 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 26A, or a contravention summons or warrant to arrest issued under section 26C 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.
26JPowers of court on determination of proceeding
(1)If on the hearing of the proceeding under section 26(1) the court finds the offender has contravened the order it must, subject to subsection (2), either—
(a)vary the intensive correction order; or
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force) and, whether or not it is still in force, commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date of the contravention of the order.
(2)The court must make an order under subsection (1)(c) unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the intensive correction order was made.
(3)If the court decides not to exercise the power referred to in subsection (1)(c), it must state in writing its reasons for so deciding.
(4)If a court orders an offender to serve in prison the unexpired portion of the term of imprisonment, the term must be served—
(a)immediately; and
(b)unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.
26KPractice 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 26(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.".
14New Subdivision (2A) of Division 2 of Part 3 inserted
After Subdivision (2) of Division 2 of Part 3 of the Sentencing Act 1991 insert—
"Subdivision (2A)—Home detention orders
26LDefinitions
(1)In this Subdivision, a reference to victim does not include a body.
(2)In this Subdivision, contravention of a home detention order includes a contravention of—
(a)a condition of a home detention order; or
(b)any requirement of any condition of a home detention order; or
(c)an obligation set out in an undertaking given under a home detention order.
26MHome detention order
(1)If a person is convicted by a court of an offence and—
(a)the court is considering sentencing him or her to a term of imprisonment; and
(b)the offender is eligible for a home detention order under this Subdivision; and
(c)the court has received a home detention assessment report—
the court, if satisfied that it is desirable to do so in the circumstances, may impose a sentence of imprisonment of not more than one year and order that it be served by way of home detention.
(2)A court must not make a home detention order if the sentence of imprisonment by itself would not be appropriate in the circumstances having regard to the provisions of this Act.
(3)If an offender is convicted of more than one offence in the same proceeding, the court may only make a home detention order if the aggregate period of imprisonment imposed in respect of all the offences does not exceed one year.
(4)A home detention order must be taken to be a sentence of imprisonment for the purposes of all enactments except any enactment providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits.
(5)The period of a home detention order is the period of the term of imprisonment imposed.
(6)For the purpose of any proceedings under section 26Z or 26ZA, a home detention order made on appeal by the Court of Appeal must be taken to have been made by the court from whose decision the appeal was brought.
26NCircumstances where offender is ineligible for home detention
(1)An offender is not eligible for a home detention order if the sentence will be imposed for a conviction for any of the following offences—
(a)an offence to which clause 1, 2, 3 or 4 of Schedule 1 applies; or
(b)an offence which, in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or
(c)an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or
(d)subject to subsection (4), a contravention of a family violence intervention order, or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or
(e)subject to subsection (5), a contravention of a stalking intervention order, or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; or
(f)an offence under section 21A of the Crimes Act 1958 (stalking).
(2)An offender is not eligible for a home detention order if the offender has previously been convicted of an offence to which clause 1, 2 or 3 of Schedule 1 applies.
(3)An offender is not eligible for a home detention order if—
(a)in the previous 10 years the offender has been convicted for a contravention of—
(i)a family violence intervention order or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or
(ii)a stalking intervention order or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; and
(b)if a home detention order were to be made—
(i)in the case of a family violence intervention order, the offender would reside, or would be likely to reside, with a person who is a protected person or affected family member under the family violence intervention order; or
(ii)in the case of a stalking intervention order, the offender would reside, or would be likely to reside, in close proximity to a person who is an affected person under the stalking intervention order.
(4)Subsection (1)(d) only applies if the result of making a home detention order would be that the offender—
(a)would reside with, or be likely to reside with, a protected person or affected family member (as the case requires) under the family violence intervention order contravened by the offender; or
(b)would continue, or be likely to continue, a close personal association with a protected person or affected family member (as the case requires) under the family violence intervention order contravened by the offender.
(5)Subsection (1)(e) applies unless the court is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following—
(a)the period of time since the offence was committed;
(b)the offender's age at the time the offence was committed;
(c)the nature and gravity of the offence;
(d)the offender's behaviour and history since he or she committed the offence;
(e)the likely proximity of the offender to any victim of the offence if the court were to make a home detention order;
(f)any other matter the court considers relevant.
(6)For the purposes of subsection (4)(b), a close personal association means communication or social interaction but does not include performance of obligations, such as payment of child support.
26OCircumstances where offender may be ineligible for home detention—certain previous convictions
(1)Subject to subsection (2), this section applies to the following offences—
(a)an offence which, in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or
(b)an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or
(c)a contravention of a family violence intervention order, or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or
(d)a contravention of a stalking intervention order, or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; or
(e)an offence under section 21A of the Crimes Act 1958 (stalking).
(2)This section does not apply to an offence referred to in section 26N(2) or 26N(3), or to which section 26N(4) or 26N(5) applies.
(3)If an offender has been previously convicted of an offence to which this section applies, the offender is not eligible for a home detention order unless the court is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following—
(a)the period of time since the offence was committed;
(b)the sentence imposed for the offence;
(c)the offender's age at the time the offence was committed;
(d)the nature and gravity of the offence;
(e)the offender's behaviour and history since he or she committed the offence;
(f)the likely proximity of the offender to any victim of the offence if the court were to make a home detention order;
(g)any other matter the court considers relevant.
26POrder not to be made if residents object
(1)A court must not make a home detention order unless the court is satisfied that all persons aged 18 years or over who will be residing with the offender—
(a)have been consulted by the Secretary to the Department of Justice or a person authorised by that Secretary, without the offender being present, about the making of the home detention order; and
(b)have acknowledged in writing that they understand the requirements of the home detention order and are prepared to live in conformity with them; and
(c)subject to subsection (3), have consented in writing to the offender residing with them under a home detention order.
(2)The court must not make a home detention order unless the court is satisfied that—
(a)so far as practicable the wishes and feelings of any person under the age of 18 years who will be residing with the offender under a home detention order have been ascertained; and
(b)due consideration has been given to them, having regard to the age and understanding of the person.
(3)The court may dispense with the consent of a person under subsection (1) if the court is satisfied that the person lacks the capacity to give that consent.
(4)If the court dispenses with the consent of a person, the court must not make the order unless the court is satisfied that—
(a)so far as practicable the wishes and feelings of the person have been ascertained; and
(b)due consideration has been given to them, having regard to the understanding of the person.
26QSuitability of the offender for home detention
(1)A court may only make a home detention order if the court is satisfied—
(a)that the offender is a suitable person to serve a home detention order; and
(b)that it is appropriate in all of the circumstances that the sentence be served by way of home detention; and
(c)on written advice received from the Secretary to the Department of Justice, that—
(i)a place will be available for the offender in a home detention program approved by the Secretary to the Department of Justice from the day on which the offender commences serving his or her sentence of imprisonment by way of home detention; and
(ii)the home detention program is located close enough to the place where the offender will reside during the period of the order to ensure adequate support and supervision; and
(d)that the offender has consented in writing to the making of the order and has made the written undertakings required by section 26S; and
(e)that a home detention assessment report has been prepared on the offender in accordance with section 99F.
(2)In deciding whether or not to make a home detention order, the court must have regard to the contents of a home detention assessment report on the offender.
(3)A court may, for any reason it considers sufficient, decline to make a home detention order despite the contents of a home detention assessment report.
(4)A court may make a home detention order only if a home detention assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve a sentence of imprisonment by way of home detention.
(5)The court must not make a home detention order if the court is satisfied that the order may pose a risk to the safety of any person under the age of 18 who will be—
(a)residing with the offender under a home detention order; or
(b)regularly attending the residence where the offender will be residing under a home detention order.
(6)In subsection (5), safety has the meaning given in section 4 of the Family Violence Protection Act 2008.
26RConditions of home detention order not to contravene intervention order
(1)This section applies if the court is considering making a home detention order in respect of an offender who is a respondent to—
(a)a current family violence intervention order; or
(b)a current stalking intervention order.
(2)The court must not make a home detention order unless satisfied that the terms of the home detention order will not conflict with the conditions of the family violence intervention order or the stalking intervention order to the extent that the offender could not legally comply with both orders at once.
Example
A home detention order could not require the offender to reside at a particular place if, by residing at that place, the offender would contravene a family violence intervention order.
26SUndertaking by offender
(1)Before a home detention order may be made in respect of an offender, the offender must give the following undertakings—
(a)that the offender will comply with the offender's obligations under this Subdivision;
(b)that the offender will agree and submit to any monitoring or testing required or directed under the home detention order to ensure compliance with those obligations;
(c)that the offender will pay the incidental costs (if any) incurred by the offender as a result of the home detention order that are determined by the Secretary to the Department of Justice to be payable by the offender.
(2)An undertaking under this section must—
(a)be in writing; and
(b)set out the obligations of the offender under a home detention order.
26TObligations of offender
The obligations of an offender while serving a sentence of imprisonment by way of home detention are—
(a)to comply with any requirements of this Subdivision that relate to the offender; and
(b)to comply with the requirements of any conditions to which the offender's home detention order is subject.
26UCore conditions governing home detention
The core conditions of a home detention order are—
(a)that the offender must be of good behaviour and must not commit any offence during the period of the order;
(b)that the offender must advise the Secretary to the Department of Justice as soon as possible if arrested or detained by a member of the police force;
(c)that the offender must reside only at premises approved by the Secretary to the Department of Justice;
(d)that the offender must remain at the approved residence at all times other than—
(i)when the absence is authorised by the Secretary to the Department of Justice; or
(ii)when it is unsafe to remain there due to immediate danger (such as fire, family violence or medical emergency); or
(iii)when a person residing at the approved residence has withdrawn his or her consent under section 26W;
(e)that during authorised absences from the approved residence the offender must adhere to a specified activity plan that—
(i)sets out the activities that the offender must carry out in accordance with the other core conditions; and
(ii)is approved or arranged by the Secretary to the Department of Justice;
(f)that the offender must advise the Secretary to the Department of Justice as soon as practicable after departure from the approved residence because—
(i)it was unsafe to remain there due to immediate danger; or
(ii)a person residing at the approved residence has withdrawn his or her consent under section 26W;
(g)that the offender must accept any visit to the approved residence by the Secretary to the Department of Justice at any time;
(h)that the offender must submit to searches of places or things under the immediate control of the offender, as required by the Secretary to the Department of Justice;
(i)that the offender must submit to electronic monitoring (including voice recording) of compliance with the home detention order and comply with all instructions given by the Secretary to the Department of Justice in relation to the operation of monitoring systems;
(j)that the offender must not tamper with, damage or disable monitoring equipment;
(k)that the offender must comply with any reasonable direction of the Secretary to the Department of Justice in relation to association with specified persons;
(l)that the offender must not consume alcohol;
(m)that the offender must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind;
(n)that the offender must submit, as required by the Secretary to the Department of Justice, to breath testing, urinalysis or other test procedures approved by the Secretary for detecting alcohol or drug use;
(o)that the offender must accept any reasonable direction of the Secretary to the Department of Justice in relation to the maintenance of or obtaining of employment;
(p)that the offender must inform any employer of the home detention order and, if directed by the Secretary to the Department of Justice, of the nature of the offence that occasioned it;
(q)that the offender must authorise and make reasonable attempts to facilitate contact between any employer of the offender and the Secretary to the Department of Justice;
(r)that the offender must engage in personal development activities or in counselling or treatment programs, as directed by the Secretary to the Department of Justice;
(s)that the offender must undertake unpaid community work (not exceeding 20 hours per week) as directed by the Secretary to the Department of Justice when not otherwise employed;
(t)that the offender must not possess or have in his or her control—
(i)any firearm; or
(ii)any prohibited weapon within the meaning of the Control of Weapons Act 1990; or
(iii)any controlled weapon or dangerous article within the meaning of the Control of Weapons Act 1990 in contravention of that Act;
(u)that the offender must comply with any order made under section 84 or 86(1) (whether before or after the making of the home detention order) in relation to the offence for which the home detention order is made;
(v)that the offender must comply with all reasonable directions made by the Secretary to the Department of Justice.
26VSpecial conditions
(1)The court may attach to a home detention order any special conditions that it considers appropriate.
(2)The court may attach special conditions under subsection (1) on its own motion or on application of—
(a)the offender; or
(b)the Secretary to the Department of Justice; or
(c)the Director of Public Prosecutions, the informant or the police prosecutor.
(3)The court may at any time vary or revoke any special conditions attached to a home detention order on the application of—
(a)the offender; or
(b)the Secretary to the Department of Justice; or
(c)the Director of Public Prosecutions, the informant or the police prosecutor.
26WWithdrawal of consent
(1)A person who resides with an offender and who has given a consent under section 26P may at any time, by notice in writing, withdraw that consent.
(2)A notice of withdrawal of consent must be served on the Secretary to the Department of Justice.
(3)The Secretary to the Department of Justice must notify the offender if a notice of withdrawal of consent has been served under this section.
(4)On being notified that a notice of consent has been withdrawn, the offender must cease residing in the residence to which the notice relates.
26XRevocation of order on application by offender or Secretary
(1)If there is no longer any approved residence at which an offender can reside under a home detention order, the Secretary to the Department of Justice may apply to the court for the revocation of the home detention order.
(2)Subject to subsection (3), the Secretary to the Department of Justice must notify the offender of an application under subsection (1).
(3)The Secretary to the Department of Justice is not required to give notice under subsection (2) if the court is satisfied that the matter is urgent.
(4)An offender who is serving a sentence of imprisonment by way of home detention may apply to the court for the revocation of the home detention order.
(5)The offender must notify the Secretary to the Department of Justice of an application under subsection (4).
(6)The Secretary to the Department of Justice may make written submissions to the court in respect of an application under this section.
(7)The offender concerned may make written submissions to the court in respect of—
(a)an application under subsection (1) of which the offender is given notice under this section; or
(b)an application under subsection (4).
(8)The court may, in its discretion, give an offender an opportunity to appear before the court to be heard in relation to an application.
(9)On an application under this section, the court after considering any submissions may revoke the home detention order.
(10)If the court revokes a home detention order under this section, the court may issue a warrant authorising any member of the police force to arrest the offender and take the offender to prison.
26YSuspension of home detention 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 a home detention 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.
26ZVariation of home detention order
(1)If on application under this subsection the court that made a home detention 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 home detention assessment 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 subsection (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 home detention 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 subsection (1) may be made at any time while the order is in force by—
(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 subsection (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 does not attend before the court on the hearing of the application.
26ZAProceeding for contravention of an undertaking or a home detention order
(1)If a person who is the subject of a home detention order (the offender) contravenes, without reasonable excuse, a home detention order while the order is in force, a proceeding may be brought against the person, in accordance with this Subdivision, to answer to the contravention.
(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 whichever is the later of—
(i)6 months of the offence being found proven; or
(ii)within 2 years of the order ceasing to be in force; or
(b)in any other case, within one year of the order ceasing to be in force.
26ZBBringing a proceeding for contravention of a home detention order—offender before a court
(1)If a court finds an offender guilty of an offence punishable by imprisonment committed while a home detention 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 home detention order, proceed to exercise any power conferred on it by section 26ZK; or
(d)if it is not the court that imposed the home detention order transfer the proceeding to the court that imposed the order.
(2)If a home detention 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 home detention order.
26ZCBringing of a proceeding for contravention of home detention order—offender not before a court
(1)If an offender contravenes a home detention order an authorised person may, if an application has not been made under section 26ZB 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 home detention 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 26ZD(1), his or her attendance must be at the proper venue of the court.
26ZDIssue of a contravention summons or warrant to arrest by a registrar
(1)On an application under section 26ZC(2), the registrar must, if satisfied that there are reasonable grounds to believe the offender has contravened a home detention order issue—
(a)a summons to answer to the contravention of the home detention 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.
26ZEPower 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 home detention order was imposed.
26ZFForm 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 home detention 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 them; 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.
26ZGExtension of a return date for a contravention summons
On the application of the 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 thereafter 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.
26ZHService 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.
26ZIIssue 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 26ZH, 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.
26ZJUnrepresented accused
(1)If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 26ZB, or a contravention summons or warrant to arrest issued under section 26ZD, 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 26ZB, or a contravention summons or warrant to arrest issued, under section 26ZD 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.
26ZKPowers of court on determination of a contravention proceeding
(1)If on the hearing of a proceeding under section 26ZA(1) the court finds the offender has contravened a home detention order, it must, subject to subsection (2), either—
(a)vary the home detention order; or
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force) and, whether or not it is still in force, commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date on which the contravention occurred.
(2)The court must make an order under subsection (1)(c) unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the home detention order was made.
(3)If on the hearing of a proceeding under section 26ZA(1) the court finds that the offender has contravened a condition of the home detention order, but that contravention is not a serious contravention within the meaning of section 26ZM, the court may impose a sanction by way of a formal warning.
(4)If the court decides not to exercise the power referred to in subsection (1)(c), it must state in writing its reasons for so deciding.
(5)If a court orders an offender to serve in prison the unexpired portion of the term of imprisonment, the term must be served—
(a)immediately; and
(b)unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.
26ZLPractice 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 26ZA(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.
26ZMAlternative sanction for minor breach of home detention order
(1)This section does not apply in case of a serious contravention of a home detention order.
(2)If, after completing the relevant inquiries, the Secretary to the Department of Justice is satisfied that the offender has failed to comply with a home detention order, the Secretary may impose a sanction for the contravention by way of a formal warning.
(3)The Secretary to the Department of Justice must notify an offender of any sanction imposed on the offender under subsection (2).
(4)In this section, serious contravention in relation to a home detention order means—
(a)a contravention that compromises the safety and security of the community, any person residing with the offender or the offender's family; or
(b)a contravention that involves the commission of an offence; or
(c)a contravention that involves non compliance with an order made under section 84 or 86(1); or
(d)a contravention that occurs after repeated failure to comply with the conditions of the order; or
(e)a contravention of a core condition of the home detention order set out in section 26U(d) or section 26U(e).
26ZNReconsideration of revocation if approved residence available
(1)If the court revokes a home detention order under section 26X, the offender may apply to the court to rescind the revocation of the home detention order on the ground that an approved residence at which the offender can reside has become available.
(2)On an application under subsection (1), the court may rescind the revocation of a home detention order if it is satisfied—
(a)that a residence at which the offender can reside is available; and
(b)that the premises have been approved by the Secretary to the Department of Justice; and
(c)on the advice of the Secretary, that the rescission is not prohibited under subsection (3); and
(d)that it is appropriate in all the circumstances to do so.
(3)Section 26P applies to a rescission order under this section as if a reference in that section (except in subsections (1)(b) and (c) and (2)(a) to the making of a home detention order) were a reference to the making of the rescission order.
(4)If the revocation of the home detention order is rescinded, the home detention order must be taken for the purposes of this Subdivision not to have been revoked.
26ZORevocation of order by court
(1)Subject to subsection (2), if a court imposes a sentence for another offence on an offender to whom a home detention order relates, the court may revoke the home detention order.
(2)If a court imposes a sentence of imprisonment that is to be served in custody in a prison for another offence on an offender to whom a home detention order relates, the court must revoke the home detention order.
(3)If a court revokes a home detention order under subsection (2), the court must commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date of the revocation of the order.
26ZPExpiry of home detention order
Unless a home detention order is revoked under this Subdivision, the order expires at the end of the minimum term of imprisonment to which the offender was sentenced.
26ZQService of notices on offender
(1)Any notice required to be served under this Subdivision on an offender in respect of a home detention order may be served on him or her personally or by posting it to the offender's approved residence.
(2)Any notice required under this Subdivision to be served on an offender in custody in a prison must be served on the Secretary to the Department of Justice.
(3)The Secretary to the Department of Justice must notify the offender of any notice served on him or her under subsection (2).
26ZRAnnual report
The Secretary to the Department of Justice must include in each report of operations prepared in respect of the Department under the Financial Management Act 1994—
(a)details of the number of persons placed on home detention orders during the period of the report; and
(b)details of the number of persons in respect of whom a home detention order has been revoked and who were taken to prison during that period; and
(c)details of the impact of home detention orders on persons residing with offenders; and
(d)any other matters in relation to home detention that the Minister directs to be included.".
15New section 27A inserted
After section 27 of the Sentencing Act 1991 insert—
"27A Home detention condition when order is imposed
(1)A court may when imposing a partly suspended sentence of imprisonment attach a condition to the order that the offender is not entitled to make a request under section 59 of the Corrections Act 1986.
(2)In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.".
16Breach of suspended sentence
After section 31(1) of the Sentencing Act 1991 insert—
"(1AA)If a suspended sentence of imprisonment was imposed in the Magistrates' Court; the Supreme Court or County Court may deal with the breach proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009.".
17New section 41A inserted
After section 41 of the Sentencing Act 1991 insert—
"41A Home detention condition when order is imposed
(1)A court may when imposing a sentence of imprisonment made in addition to a community-based order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986.
(2)In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.".
18Substitution of section 47
For section 47 of the Sentencing Act 1991 substitute—
"47 Proceeding for contravention of community-based order
(1)If a person who is the subject of a community-based 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, in accordance with this Subdivision, to answer to the contravention.
(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 whichever is the later of—
(b)would continue, or be likely to continue, a close personal association with a protected person or affected family member (as the case requires) under the family violence intervention order contravened by the offender.
(5)Subsection (1)(e) applies unless the Board is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following—
(a)the period of time since the offence was committed;
(b)the prisoner's age at the time the offence was committed;
(c)the nature and gravity of the offence;
(d)the prisoner's behaviour and history since he or she committed the offence;
(e)the likely proximity of the offender to any victim of the offence if the Board were to make a home detention order;
(f)any other matter the Board considers relevant.
(6)For the purposes of subsection (4)(b), a close personal association means communication or social interaction but does not include performance of obligations, such as payment of child support.
60ABCircumstances where prisoner may be ineligible for home detention—certain previous convictions
(1)Subject to subsection (2), this section applies to the following offences—
(a)an offence which, in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or
(b)an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or
(c)a contravention of a family violence intervention order, or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or
(d)a contravention of a stalking intervention order, or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; or
(e)an offence under section 21A of the Crimes Act 1958 (stalking).
(2)This section does not apply to an offence referred to in section 60A(2) or 60A(3), or to which section 60A(4) or 60A(5) applies.
(3)If, before the conviction for which the prisoner is serving a sentence of imprisonment, the prisoner was convicted of an offence to which this section applies, the prisoner is not eligible for a home detention order unless the Board is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following—
(a)the period of time since the offence was committed;
(b)the sentence imposed for the offence;
(c)the prisoner's age at the time the offence was committed;
(d)the nature and gravity of the offence;
(e)the prisoner's behaviour and history since he or she committed the offence;
(f)the likely proximity of the prisoner to any victim of the offence if the court were to make a home detention order;
(g)any other matter the Board considers relevant.".
49Suitability of prisoner for home detention
(1)After section 60B(4) of the Corrections Act 1986 insert—
"(5)The Board must not make a home detention order if the Board is satisfied that the order may pose a risk to the safety of any person under the age of 18 who will be—
(a)residing with the prisoner under a home detention order; or
(b)regularly attending the residence where the prisoner will be residing under a home detention order.
(6)In subsection (5), safety has the meaning given in section 4 of the Family Violence Protection Act 2008.".
50New section 60DA inserted
After section 60D of the Corrections Act 1986 insert—
"60DA Conditions of home detention order not to contravene intervention order
(1)This section applies if the Board is considering making a home detention order in respect of a prisoner who is a respondent to—
(a)a current family violence intervention order; or
(b)a current stalking intervention order.
(2)The Board must not make a home detention order unless satisfied that the terms of the home detention order will not conflict with the conditions of the family violence intervention order or the stalking intervention order to the extent that the prisoner could not legally comply with both orders at once.
Example
A home detention order could not require the prisoner to reside at a particular place if, by residing at that place, the prisoner would contravene a family violence intervention order.".
51Contents of home detention assessment report
In section 60E(1)(l) of the Corrections Act 1986, before "commit" insert "engage in behaviour or".
52Core conditions governing home detention
In section 60J of the Corrections Act 1986 in paragraph (d)(ii), for "fire" substitute "fire, family violence".
53Functions of Board
(1)In section 69(1)(c) of the Corrections Act 1986, for "Subdivision; and" substitute "Subdivision.".
(2)Section 69(1)(d) of the Corrections Act 1986 is repealed.
(3)In section 69(5)(c) of the Corrections Act 1986, omit "or (1D)".
54New section 119 inserted
After section 118 of the Corrections Act 1986 insert—
"119 Transitional provision—Justice Legislation Amendment Act 2010
(1)This Act, as in force immediately before the commencement of Division 1 of Part 4 of the Justice Legislation Amendment Act 2010, continues to apply in respect of an application under Division 4 of Part 8 for a home detention order that was made but not determined by the Adult Parole Board before that commencement.
(2)Despite the commencement of Division 1 of Part 4 of the Justice Legislation Amendment Act 2010, this Act, as in force immediately before the commencement of Division 1 of Part 4 of that Act, continues to apply in respect of a prisoner who was the subject of a home detention order immediately before that commencement.
(3)Despite the commencement of Division 1 of Part 4 of the Justice Legislation Amendment Act 2010, this Act, as in force immediately before the commencement of Division 1 of Part 4 of that Act, continues to apply in respect of an offender who was serving a sentence of imprisonment by way of home detention under the Sentencing Act 1991 immediately before that commencement.".
Division 2—Statute law revision
55Statute law revision
In section 104ZP(c) of the Corrections Act 1986, for "section 128A of the Magistrates' Court Act 1989" substitute "section 59 of the Criminal Procedure Act 2009".
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Part 5—Amendment of Criminal Procedure Act 2009
56Commencement
Section 2(2) of the Criminal Procedure Act 2009 is repealed.
57Definition
In section 3 of the Criminal Procedure Act 2009 for the definition of direct indictment substitute—
"direct indictment means an indictment filed against an accused—
(a)who has not been committed for trial in respect of the offence charged in the indictment or a related offence; or
(b)whose prosecution for the offence charged in the indictment or a related offence—
(i)was discontinued under section 177; or
(ii)was the subject of a nolle prosequi;".
58When full brief must be served
For section 39(1) of the Criminal Procedure Act 2009 substitute—
"(1)The accused, by written notice to the informant, may request that a full brief be served.
(1A)A request under subsection (1) may be made—
(a)if a preliminary brief is served within 7 days after the day on which the charge-sheet is filed, at any time after a summary case conference is held; or
(b)in any other case, at any time after the criminal proceeding has commenced.".
59Summary case conference
(1)In section 54(2) of the Criminal Procedure Act 2009, for "in accordance with section 24" substitute "within 7 days after the day on which the charge-sheet is filed".
(2)For section 54(5) and (6) of the Criminal Procedure Act 2009 substitute—
"(5)If an accused is not legally represented, the Magistrates' Court may dispense with the requirement under subsection (2) to conduct a summary case conference.
(6)A summary case conference must be conducted in accordance with the rules of court.".
60Transfer of summary offences that are related offences on or after committal
In section 145(3) of the Criminal Procedure Act 2009, after "related offence" insert "or, if the DPP is prosecuting the charge, the DPP".
61Court may transfer certain charges to Magistrates' Court
(1)In the heading to section 168 of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or Children's Court".
(2)In section 168(1) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court (as the case requires)".
(3)For section 168(1)(b) of the Criminal Procedure Act 2009 substitute—
"(b)the court considers that the charge is appropriate to be determined summarily, having regard to—
(i)in the case of the Magistrates' Court, the matters in section 29(2); or
(ii)in the case of the Children's Court, whether the Children's Court is required to hear and determine the charge summarily by section 356(3) of the Children, Youth and Families Act 2005.".
(4)In section 168(2) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court".
(5)In section 168(4)(a) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court (as the case requires)".
(6)In section 168(4)(b) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court (as the case requires)".
62New Division 4 inserted in Part 5.8
After Division 3 of Part 5.8 of Chapter 5 of the Criminal Procedure Act 2009 insert—
"Division 4—Procedure on guilty plea or guilty verdict
253AAbolition of allocutus
The common law procedure of administering the allocutus is abolished.
Note
Administering the allocutus is the step in a criminal proceeding which occurs when, after a plea of guilty or a finding of guilt by the jury, the court asks the accused whether there is any reason why the court should not proceed to pass judgment according to law.
253BWhen finding of guilt occurs
If—
(a)on arraignment, an accused enters a plea of guilty to a charge for an offence; or
(b)a jury delivers a verdict finding an accused guilty of an offence—
then at that moment the accused is found guilty of the offence unless the trial judge sets aside the plea or verdict.".
63Abandonment of appeal
After section 266(5) of the Criminal Procedure Act 2009 insert—
"(6)The County Court may not set aside an order under subsection (4) striking out an appeal.".
64Appellant's failure to appear
(1)After section 267(1) of the Criminal Procedure Act 2009 insert—
"(1A)If—
(a)the County Court strikes out an appeal under subsection (1)(a); and
(b)the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court—
the registrar of the County Court may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the appellant and may recall and cancel that warrant.".
(2)After section 267(6) of the Criminal Procedure Act 2009 insert—
"(6A)An application under section 265 for bail pending the reinstated appeal may be made to the County Court.".
65Determination of application for leave during sentencing hearing
At the end of section 350 of the Criminal Procedure Act 2009 and before the note to that provision insert—
"(2)In determining, under subsection (1), whether the evidence has substantial relevance to the issue of appropriate sentence, the court must have regard to—
(a)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and
(b)the need to respect the complainant's personal dignity and privacy.".
66Application of Division—alternative arrangements for giving evidence
(1)In section 359(1)(b) of the Criminal Procedure Act 2009, for "2008." substitute "2008; or".
(2)After section 359(1)(b) of the Criminal Procedure Act 2009 insert—
"(c)an offence against section 17(1) or 19 of the Summary Offences Act 1966.".
67Jury warning concerning alternative arrangements
In section 361 of the Criminal Procedure Act 2009, after "made" insert "in a trial".
68When court must direct use of closed-circuit television or other facilities for complainant
In section 363 of the Criminal Procedure Act 2009, after "complainant" (where first occurring) insert "in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence".
69When court must direct use of screens for complainant
In section 364 of the Criminal Procedure Act 2009, after "complainant" (where first occurring) insert "in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence".
70When court must direct presence of support person for complainant
In section 365(1) of the Criminal Procedure Act 2009, after "complainant" (where first occurring) insert "in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence".
71Personal service
(1)In section 391(4)(c) of the Criminal Procedure Act 2009, for "legal practitioner." substitute "legal practitioner; or".
(2)After section 391(4)(c) of the Criminal Procedure Act 2009 insert—
"(d)if the legal practitioner—
(i)has facilities for the reception of documents in a document exchange; and
(ii)consents to accepting personal service of documents by delivery to those facilities in the document exchange—
by delivering a copy of the document addressed to the legal practitioner into those facilities.".
(3)After section 391(4) of the Criminal Procedure Act 2009 insert—
"(5)If a document is delivered into the facilities of a document exchange in accordance with subsection (4)(d), the day of service of the document is taken to be—
(a)the day following the day on which it is so delivered; or
(b)if the document is delivered on a Friday, the following Monday—
or on any other day that may be proved.".
72Regulations
In section 420(1)(ea) of the Criminal Procedure Act 2009—
(a)after "use" insert "(including for training purposes)"; and
(b)after "possession," insert "copying,".
73Repeal of sunset provision concerning sentence indications in Supreme Court and County Court
Section 437 of the Criminal Procedure Act 2009 is repealed.
74Persons who may witness statements in preliminary brief, full brief or hand-up brief
For item 22 of Schedule 3 to the Criminal Procedure Act 2009 substitute—
"22An authorised officer within the meaning of the Conservation, Forests and Lands Act 1987.
22AAn enforcement officer within the meaning of the Electricity Safety Act 1998.
22BAn inspector within the meaning of the Gas Safety Act1997.".
75Transitional provisions—Trial
After clause 8(3) of Schedule 4 to the Criminal Procedure Act 2009 insert—
"(3A)An indictment may be filed in accordance with Part 5.2 charging an accused with an offence in respect of which that accused, before the commencement day—
(a)was committed for trial; or
(b)was given a notice of trial or a notice of intention to prefer a presentment—
if the indictment charges the same or a related offence against at least one other accused who was not committed for trial for that offence before the commencement day.
(3B)An indictment may be filed in accordance with Part 5.2 charging an accused with an offence in respect of which that accused, before the commencement day—
(a)was committed for trial; or
(b)was given a notice of trial or a notice of intention to prefer a presentment—
if the indictment charges a related offence in respect of which the accused was not committed for trial before the commencement day.
(3C)If an indictment is filed under subclause (3A) or (3B)—
(a)Chapter 5 applies to each charge in the indictment; and
(b)the criminal proceeding against each accused is taken to be a criminal proceeding commenced under Chapter 2; and
(c)where presentment of an accused has already been made, a charge in the indictment for the same offence as an offence charged in the presentment or a related offence is taken to be a fresh indictment filed under section 164.".
76New section 440 inserted
In Chapter 10 of the Criminal Procedure Act 2009, after section 439 insert—
"440 Transitional provisions—Justice Legislation Amendment Act 2010
(1)An application for leave to appeal against sentence under section 567(d) of the Crimes Act 1958 as in force immediately before its repeal that has been commenced but not determined on the commencement of section 76 of the Justice Legislation Amendment Act 2010 is to be determined in accordance with section 280 of this Act as if—
(a)a reference to section 278 were a reference to section 567(d) of the Crimes Act 1958; and
(b)a reference to section 315(1) were a reference to section 582 of the Crimes Act 1958 as in force immediately before its repeal.
(2)Section 350 as amended by section 65 of the Justice Legislation Amendment Act 2010 applies to a sentencing hearing that commences on or after the commencement of section 65 of that Act.
(3)Section 359 as amended by section 66 of the Justice Legislation Amendment Act 2010 applies to a hearing in a criminal proceeding if the hearing commences on or after the commencement of section 66 of that Act.".
77Statute law revision
(1)In section 3 of the Criminal Procedure Act 2009, in paragraph (c) of the definition of public official—
(a)for "section 24(1)" substitute
"section 24ZW(1)"; and
(b)for "section 24(1)(b)" substitute
"section 24ZW(1)(b)".
(2)In section 328(d)(ii) of the Criminal Procedure Act 2009, for "section 158" substitute
"section 156".
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Part 6—Amendment of Gambling Regulation Act 2003
78Publication and use approval
In section 2.5.19D(4) of the Gambling Regulation Act 2003, for "a fee or a series of fees of an amount or amounts and in the manner specified in the approval" substitute ", in the manner specified in the approval, a fee or a series of fees of an amount or amounts—
(a)specified in the approval; or
(b)calculated in accordance with a formula or formulae specified in the approval".
79New section 2.5.19DA inserted
After section 2.5.19D of the Gambling Regulation Act 2003 insert—
"2.5.19DA Transitional race field publication and use fee
(1)An appropriate controlling body may determine, for the specified period, a fee to be paid by a wagering service provider that has, in the specified period, published, used or otherwise made available in the course of business a race field (the wagering service provider's period of use).
(2)On determining a fee under subsection (1), the appropriate controlling body must give written notice of that determination to the wagering service provider.
(3)A notice under subsection (2) must specify the amount of the fee to be paid by the wagering service provider.
(4)The amount of the fee specified in a notice under subsection (2) must be—
(a)if the appropriate controlling body specifies an amount or amounts in a publication and use approval on or after the commencement of section 78 of the Justice Legislation Amendment Act 2010—an amount that is equivalent to the amount or amounts specified in the first publication and use approval on or after that commencement that equates to the wagering service provider's period of use;
(b)if the appropriate controlling body specifies a formula or formulae in a publication and use approval on or after the commencement of section 78 of the Justice Legislation Amendment Act 2010—an amount calculated in accordance with the formula or formulae specified in the first publication and use approval on or after that commencement that equates to the wagering service provider's period of use.
(5)Subsection (4) applies despite anything to the contrary in a publication and use approval or a condition to which the approval is subject.
(6)A wagering service provider must pay to the appropriate controlling body that gave the provider a notice under subsection (2) the fee specified in that notice within 3 months after being given that notice.
(7)A fee specified in a notice under subsection (2) is a debt due to the appropriate controlling body that gave the notice and may be recovered in a court of competent jurisdiction by that body.
(8)In this section—
specified period means the period—
(a)beginning on 4 September 2008; and
(b)ending on the day section 78 of the Justice Legislation Amendment Act 2010 comes into operation.".
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Part 7—Amendment to Miscellaneous Acts
Division 1—County Court Act 1958
80Circumstances in which order may be made under section 80
(1)In section 80AA(e) of County Court Act 1958, for "relates" substitute "relates, wholly or partly,".
(2)For section 80AA(f) of the County Court Act 1958 substitute—
"(f)cause undue distress or embarrassment to a witness under examination in a proceeding that relates, wholly or partly, to a charge for a sexual offence.".
Division 2—Family Violence Protection Act 2008
81Procedural requirements for person directed to a police station, or person apprehended and detained
After section 17(7) of the Family Violence Protection Act 2008 insert—
"(8)If the person is subject to a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986, a police officer must notify the Secretary as soon as practicable that the person has been directed or apprehended and detained under this Act.".
82Application for family violence safety notice
After section 24(d) of the Family Violence Protection Act 2008 insert—
"(da)the police officer has no reasonable grounds for suspecting there is a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986 in force that may be inconsistent with the proposed terms of the family violence safety notice; and".
83New section 176A inserted
After the note to section 176 of the Family Violence Protection Act 2008 insert—
"176A Relationship with certain orders under the Sentencing Act 1991 and the Corrections Act 1986
(1)This section applies if the respondent is currently subject to either of the following orders—
(a)a home detention order under the Sentencing Act 1991;
(b)a home detention order under the Corrections Act 1986.
(2)If the court makes a family violence intervention order that is inconsistent with an order referred to in subsection (1)(a) or (b), the family violence intervention order prevails to the extent of any inconsistency.
(3)If the court makes a family violence intervention order that is or may be inconsistent with an order referred to in subsection (1)(a) or (b), the appropriate registrar must give to the Secretary as soon as practicable—
(a)a copy of the family violence intervention order; and
(b)written notification that the order may be inconsistent with a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986 (as the case requires).".
Division 3—Justice Legislation Miscellaneous Amendments Act 2009
84Statute law revision—Justice Legislation Miscellaneous Amendments Act 2009
(1)In section 5 of the Justice Legislation Miscellaneous Amendments Act 2009, for "At the end of Part 7" substitute "After section 613".
(2)In section 56(2) of the Justice Legislation Miscellaneous Amendments Act 2009, for "sections 161(2)" substitute "section 161A(2)".
Division 4—Magistrates' Court Act 1989
85Extent of jurisdiction
In section 25(3)(b)(ii) of the Magistrates' Court Act 1989, after "manslaughter," insert "child homicide, defensive homicide,".
86Warrants
(1)In section 57(7A) of the Magistrates' Court Act 1989, for "section 266(3A)" substitute "sections 266(3A) and 267(1A)".
(2)In section 57(7B) of the Magistrates' Court Act 1989, for "section 430C(5)" substitute "sections 430C(5) and 430D(1A)".
87Power to close proceedings to the public
(1)In section 126(1)(d) of the Magistrates' Court Act 1989, for "relates" substitute "relates, wholly or partly,".
(2)For section 126(1)(e) of the Magistrates' Court Act 1989 substitute—
"(e)cause undue distress or embarrassment to a witness under examination in a proceeding that relates, wholly or partly, to a charge for a sexual offence.".
Division 5—Marine Act 1988
88Appeal to the County Court
(1)Insert the following heading to section 126 of the Marine Act 1988—
"Appeal against disqualification, cancellation, suspension or variation by order of Magistrate's Court or Children's Court".
(2)After section 126(1) of the Marine Act 1988 insert—
"(1A)A child—
(a)who is disqualified from obtaining an operator licence by order of the Children's Court; or
(b)whose operator licence is cancelled or suspended or varied by order of the Children's Court—
may, under Division 1 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005, appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court, against the order in the same manner as a child may appeal from summary conviction by the Children's Court.".
(3)In section 126(2) of the Marine Act 1988, after "County Court" insert "or the Trial Division of the Supreme Court (as the case requires)".
89New Division 6 inserted in Part 11
After Division 5 of Part 11 of the Marine Act 1988 insert—
"Division 6—Transitional provision—Justice Legislation Amendment Act 2010
160Appeal against disqualification, cancellation, suspension or variation
The amendments to section 126 of this Act made by section 88 of the Justice Legislation Amendment Act 2010 apply to orders of disqualification, cancellation, suspension or variation made on or after the commencement of section 88 of that Act.".
90Statute law revision
In section 3(3A) of the Marine Act 1988, for "Minster" substitute "Minister".
Division 6—Road Safety Act 1986
91Appeal to the County Court
(1)Insert the following heading to section 29 of the Road Safety Act 1986—
"Appeal against disqualification, cancellation, suspension or variation by order of Magistrate's Court or Children's Court".
(2)After section 29(1) of the Road Safety Act 1986 insert—
"(1A)A child who is disqualified from obtaining a licence or permit by order of the Children's Court or whose licence is cancelled or suspended or varied by order of the Children's Court may, under Division 1 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005, appeal to the County Court or, if the Children's Court was constituted by the President, the Trial Division of the Supreme Court, against the order in the same manner as a child may appeal from summary conviction by the Children's Court."
(3)In section 29(2) of the Road Safety Act 1986, after "County Court" insert "or the Trial Division of the Supreme Court (as the case requires)".
92New section 103ZA inserted
After section 103Z of the Road Safety Act 1986 insert—
"103ZA Transitional provision—Justice Legislation Amendment Act 2010
The amendments to section 29 of this Act made by section 91 of the Justice Legislation Amendment Act 2010 apply to orders of disqualification, cancellation, suspension or variation made on or after the commencement of section 91 of that Act.".
Division 7—Stalking Intervention Orders Act 2008
93New section 51A inserted
After section 51 of the Stalking Intervention Orders Act 2008 insert—
"51A Relationship with certain orders under the Sentencing Act 1991 and the Corrections Act 1986
(1)This section applies if the respondent is currently subject to either of the following orders—
(a)a home detention order under the Sentencing Act 1991;
(b)a home detention order under the Corrections Act 1986.
(2)If the court makes an intervention order that is or may be inconsistent with an order referred to in subsection (1)(a) or (b), the appropriate registrar must give to the Secretary to the Department of Justice as soon as practicable—
(a)a copy of the intervention order; and
(b)written notification that the intervention order may be inconsistent with a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986 (as the case requires).".
Division 8—Supreme Court Act 1986
94Circumstances in which order may be made under section 18
(1)In section 19(e) of the Supreme Court Act 1986, for "relates" substitute "relates, wholly or partly,".
(2)For section 19(f) of the Supreme Court Act 1986 substitute—
"(f)cause undue distress or embarrassment to a witness under examination in a proceeding that relates, wholly or partly, to a charge for a sexual offence.".
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Part 8—Repeal of Amending Act
95Repeal of amending Act
This Act is repealed on 1 July 2012.
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: 11 March 2010
Legislative Council: 25 March 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Sentencing Act 1991, the Children, Youth and Families Act 2005, the Corrections Act 1986, the County Court Act 1958, the Criminal Procedure Act 2009, the Magistrates' Court Act 1989, the Marine Act 1988, the Road Safety Act 1986, the Supreme Court Act 1986, the Gambling Regulation Act 2003 and other Acts and for other purposes."
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