PENALTIES AND SENTENCES ACT 1992 - SECT 43J Making a banning order

PENALTIES AND SENTENCES ACT 1992 - SECT 43J

43J Making a banning order

(1) A court may make a banning order for an offender if—

(a) the offender has been convicted of—

(i) an offence that involved the use, threatened use or attempted use of unlawful violence to a person or property; or

(ii) an offence against the Drugs Misuse Act 1986 , section 5 or 6 ; and

(b) having regard to the evidence available to the court, the court is satisfied that the offence was committed in licensed premises or in a public place in the vicinity of licensed premises; and

(c) the court is satisfied that, unless the order is made, the offender would pose an unacceptable risk to—

(i) the good order of licensed premises and areas in the vicinity of licensed premises; or

(ii) the safety and welfare of persons attending licensed premises and areas in the vicinity of licensed premises.

(2) The order may be made in addition to any other order the court may make under this or another Act.

(3) In considering whether to make the order, the court must have regard to all of the circumstances of the case, including, for example, the following—

(a) whether the offender is, or has been, subject to another banning order;

(b) whether the offender is, or has been, subject to—

(i) a special condition mentioned in the Bail Act 1980 , section 11 (3) ; or

(ii) a police banning notice;

(c) the offender’s criminal history;

(d) the offender’s personal circumstances and the likely effect of the order on those circumstances;

(e) anything else the court considers relevant.

(4) The court may impose any conditions it considers necessary on a banning order, including a condition that the offender report to a police station within 48 hours after the banning order is made to be photographed for an image to distribute to relevant persons under the Police Powers and Responsibilities Act 2000 , chapter 19 , part 5B .

(4A) Subsection (4B) applies if—

(a) the court has regard to a police banning notice when considering whether to make the order; and

(b) the notice is in effect when the court considers making the order.

(4B) The court must decide whether the police banning notice should be—

(a) cancelled; or

(b) amended and how it should be amended.

(4C) The banning order must state the court’s decision under subsection (4B) .

(5) A banning order does not stop the offender from—

(a) entering or remaining in any of the following—

(i) the offender’s residence;

(ii) the offender’s place of employment;

(iii) a place at which the offender is receiving formal education;

(iv) a mode of transport required to be used by the offender;

(v) any other place that the court considers necessary in order to prevent undue hardship to the offender or a member of the offender’s family; or

(b) entering any place that it is reasonably necessary for the offender to enter for the purpose of entering or remaining in a place or mode of transport mentioned in paragraph (a) .

(6) If a place mentioned in subsection (5) is located within the area to which the banning order applies, the banning order must—

(a) describe the place in sufficient detail to identify the place; and

(b) state that the offender is not stopped from entering or remaining in the place.

Example for subsection (6)—

If an offender’s residence is located within the area to which the banning order applies, the banning order must state the address of the residence and state that the offender is not stopped from entering or remaining in the residence.

(7) If a mode of transport mentioned in subsection (5) operates within an area to which the banning order applies, the banning order must—

(a) describe the mode of transport in sufficient detail to identify the mode of transport; and

(b) state that the offender is not stopped from entering or remaining in the mode of transport.

Example for subsection (7)—

If a bus route required to be used by the offender operates within the area to which the banning order applies, the banning order must describe the bus route and state that the offender is not stopped from entering or remaining in a bus on that route.

(8) The offender bears the onus of proving the following—

(a) for subsection (5) (a) (i) —that a place is the offender’s residence;

(b) for subsection (5) (a) (ii) —that a place is the offender’s place of employment;

(c) for subsection (5) (a) (iii) —that the offender is receiving formal education at a place;

(d) for subsection (5) (a) (iv) —that a mode of transport is required to be used by the offender;

(e) for subsection (5) (a) (v) —that undue hardship would be caused to the offender or a member of the offender’s family if the offender was prevented from entering or remaining in a place.