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PARLIAMENT OF VICTORIA
Criminal Procedure Legislation Amendment Bill
2007
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2--SENTENCE DISCOUNTS AND SENTENCE
INDICATIONS 3
3 New section 6AAA inserted in Sentencing Act 1991 3
6AAA Sentence discount for guilty plea 3
4 New section 362A inserted in Children, Youth and Families
Act 2005 4
362A Sentence discount for guilty plea 4
5 New section 50A inserted in Magistrates' Court Act 1989 6
50A Sentence indication 6
6 Supreme Court--limitation of jurisdiction 7
7 New section 23A inserted in Crimes (Criminal Trials)
Act 1999 8
23A Sentence indication 8
8 New section 32A inserted in Crimes (Criminal Trials)
Act 1999 10
32A Supreme Court--limitation of jurisdiction 10
9 Rule-making power of Supreme Court judges 10
10 Rule-making power of County Court judges 10
11 Rule-making power of Magistrates 11
PART 3--MISCELLANEOUS AMENDMENTS 12
12 Common law offence of wilful exposure 12
13 Summons issued by prescribed persons 12
14 Contest mention hearings 12
3A Contest mention hearing 12
15 Committal proceedings 14
16 Wilful damage 15
561101B.I-20/11/2007 i BILL LA INTRODUCTION 20/11/2007
Clause Page
17 New section 135 inserted in Sentencing Act 1991 15
135 Transitional provision--Criminal Procedure
Legislation Amendment Act 2007 15
18 New section 607 inserted in Children, Youth and Families
Act 2005 16
607 Transitional provision--Criminal Procedure
Legislation Amendment Act 2007 16
19 Amendment of Schedule 8 to the Magistrates' Court
Act 1989 16
20 New section 34 inserted in Crimes (Criminal Trials)
Act 1999 17
34 Transitional provision--Criminal Procedure
Legislation Amendment Act 2007 17
21 Statute law revision 17
22 Repeal of amending Act 17
ENDNOTES 18
561101B.I-20/11/2007 ii BILL LA INTRODUCTION 20/11/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Criminal Procedure Legislation
Amendment Bill 2007
A Bill for an Act to amend the Children, Youth and Families Act
2005, the County Court Act 1958, the Crimes Act 1958, the Crimes
(Criminal Trials) Act 1999, the Magistrates' Court Act 1989, the
Sentencing Act 1991, the Summary Offences Act 1966 and the
Supreme Court Act 1986 and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purposes of this Act are--
(a) to enable courts to give sentencing
5 indications and to identify sentence
discounts;
(b) to abolish reserved pleas;
561101B.I-20/11/2007 1 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 1--Preliminary
s. 2
(c) to amend the obligation to strike out a charge
for a summary offence when the charge-
sheet and summons have not been filed
within time;
5 (d) to amend the penalty for the common law
offence of exposure;
(e) to amend the summary offence of wilful
damage;
(f) to make other minor amendments.
10 2 Commencement
(1) This Part and section 21(2) come into operation
on the day after the day on which this Act receives
the Royal Assent.
(2) Section 21(1) is deemed to have come into
15 operation on 23 April 2007.
(3) Subject to subsection (4), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(4) If a provision referred to in subsection (3) does
20 not come into operation before 1 July 2008, it
comes into operation on that day.
__________________
561101B.I-20/11/2007 2 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 3
PART 2--SENTENCE DISCOUNTS AND SENTENCE
INDICATIONS
3 New section 6AAA inserted in Sentencing Act 1991 See:
Act No.
49/1991.
In Part 2 of the Sentencing Act 1991, after Reprint No. 10
5 section 6 insert-- as at
23 April 2007
"6AAA Sentence discount for guilty plea and
amending
(1) If-- Act Nos
97/2005,
23/2006,
(a) in sentencing an offender, a court 24/2006 and
imposes a less severe sentence than it 56/2007.
LawToday:
10 would otherwise have imposed because www.
the offender pleaded guilty to the legislation.
vic.gov.au
offence; and
(b) the sentence imposed on the offender is
or includes--
15 (i) an order under Division 2 of
Part 3; or
(ii) a fine exceeding 10 penalty units;
or
(iii) an aggregate fine exceeding
20 20 penalty units--
the court must state the sentence and the
non-parole period, if any, that it would have
imposed but for the plea of guilty.
(2) If an offender is sentenced for more than one
25 offence in the same proceeding and
subsection (1)(a) and (b) apply, the court
must state, in respect of any total effective
period of imprisonment--
(a) the sentence; and
561101B.I-20/11/2007 3 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 4
(b) the non-parole period, if any--
that it would have imposed but for the plea
of guilty and need not state those matters in
respect of each offence.
5 (3) In the case of a sentence other than a
sentence referred to in subsection (1)(b), the
court may state the sentence that it would
have imposed but for the plea of guilty.
(4) If the court makes a statement under this
10 section, it must cause to be noted in the
records of the court, in respect of each
offence and the total effective period of
imprisonment, if any, the sentence and the
non-parole period, if any, that it would have
15 imposed but for the plea of guilty.
(5) For the purposes of this section, an aggregate
sentence imposed in respect of two or more
offences is to be treated as a sentence
imposed in respect of one offence.".
20 See: 4 New section 362A inserted in Children, Youth and
Act No.
96/2005. Families Act 2005
Reprint No. 1
as at After section 362 of the Children, Youth and
23 April 2007
and
Families Act 2005 insert--
amending
Act Nos "362A Sentence discount for guilty plea
97/2005,
25 23/2006, (1) If--
24/2006,
51/2006, (a) in sentencing a child, the Court imposes
81/2006,
24/2007,
a less severe sentence than it would
28/2007 and otherwise have imposed because the
56/2007.
LawToday:
child pleaded guilty to the offence; and
www.
30 legislation. (b) the sentence imposed on the child is or
vic.gov.au includes--
(i) a youth attendance order; or
561101B.I-20/11/2007 4 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 4
(ii) a youth residential centre order; or
(iii) a youth justice centre order--
the Court must state in respect of--
(c) each offence; or
5 (d) if an aggregate sentence is imposed in
respect of two or more offences, those
offences--
the sentence that it would have imposed but
for the plea of guilty.
10 (2) In the case of a sentence other than a
sentence referred to in subsection (1)(b), the
Court may state the sentence that it would
have imposed but for the plea of guilty.
(3) If the Court makes a statement under this
15 section, it must cause to be noted in the
records of the Court, in respect of--
(a) each offence; or
(b) if an aggregate sentence is imposed in
respect of two or more offences, those
20 offences--
the sentence that it would have imposed but
for the plea of guilty.
(4) The failure of the Court to comply with this
section does not invalidate any sentence
25 imposed by it.
(5) Nothing in subsection (4) prevents a court on
an appeal against sentence from reviewing a
sentence imposed by the Court in
circumstances where there has been a failure
30 to comply with this section.".
561101B.I-20/11/2007 5 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 5
See: 5 New section 50A inserted in Magistrates' Court
Act No. Act 1989
51/1989.
Reprint No. 13 In Subdivision 1 of Division 2 of Part 4 of the
as at
15 August Magistrates' Court Act 1989, after section 50
5 2007
and
insert--
amending
Act Nos
"50A Sentence indication
77/2004,
62/2005, (1) At any time during a proceeding for a
51/2006, summary offence or an indictable offence
50/2007,
52/2007 and that may be heard and determined
10 53/2007. summarily, the Court may indicate that, if
LawToday:
www. the defendant pleads guilty to the charge for
legislation. the offence at that time, the Court would be
vic.gov.au
likely to impose on the defendant--
(a) a sentence of imprisonment that
15 commences immediately; or
(b) a sentence of a specified type.
(2) If--
(a) the Court gives a sentence indication
under subsection (1); and
20 (b) the defendant pleads guilty to the
charge for the offence at the first
available opportunity--
the Court, when sentencing the defendant for
the offence, must not impose a more severe
25 type of sentence than the type of sentence
indicated.
(3) If--
(a) the Court gives a sentence indication
under subsection (1); and
561101B.I-20/11/2007 6 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 6
(b) the defendant does not plead guilty to
the charge for the offence at the first
available opportunity--
the Court that hears and determines the
5 charge must be constituted by a different
magistrate, unless all the parties otherwise
agree.
Note
Section 126 enables the Court to close a proceeding to
10 the public.
(4) A sentence indication does not bind the
Court on any hearing before the Court
constituted by a different magistrate.
(5) A decision to give or not to give a sentence
15 indication is final and conclusive.
(6) An application for a sentence indication and
the determination of the application are not
admissible in evidence against the defendant
in any proceeding.
20 (7) This section does not affect any right to
appeal against sentence.".
6 Supreme Court--limitation of jurisdiction
After section 139A(3) of the Magistrates' Court
Act 1989 insert--
25 "(4) It is the intention of section 50A(5) to alter
or vary section 85 of the Constitution Act
1975.".
561101B.I-20/11/2007 7 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 7
See: 7 New section 23A inserted in Crimes (Criminal
Act No. Trials) Act 1999
35/1999
and After section 23 of the Crimes (Criminal Trials)
amending
Act Nos Act 1999 insert--
53/2000,
5 18/2005, "23A Sentence indication
2/2006 (as
amended by (1) At any time after the filing of the
No. 76/2006)
and 50/2006. presentment, the court may indicate that, if
LawToday: the accused pleads guilty to the charge on the
www.
legislation. presentment at that time or another charge,
10 vic.gov.au the court would or would not (as the case
may be) be likely to impose on the accused a
sentence of imprisonment that commences
immediately.
(2) A sentence indication under subsection (1)--
15 (a) may be given only on the application of
the accused; and
(b) may be given only once during the
proceeding, unless the prosecutor
otherwise consents.
20 (3) An application under subsection (2)(a) may
be made only with the consent of the
prosecutor.
(4) If an application under subsection (2)(a) is
made in respect of a charge that is not on the
25 presentment, the accused must specify the
charge in the application.
(5) The court may refuse to give a sentence
indication under subsection (1).
(6) If--
30 (a) the court indicates that it would not be
likely to impose on the accused a
sentence of imprisonment that
commences immediately; and
561101B.I-20/11/2007 8 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 7
(b) the accused pleads guilty to the charge
for the offence at the first available
opportunity--
the court, when sentencing the accused for
5 the offence, must not impose a sentence of
imprisonment that commences immediately.
(7) If--
(a) the court gives a sentence indication
under subsection (1); and
10 (b) the accused does not plead guilty to the
charge for the offence at the first
available opportunity--
at trial the court must be constituted by a
different judge, unless all the parties
15 otherwise agree.
Note
Section 18 of the Supreme Court Act 1986 and
section 80 of the County Court Act 1958 enable the
court to close a proceeding to the public.
20 (8) A sentence indication does not bind the court
on any hearing before the court constituted
by a different judge.
(9) A decision to give or not to give a sentence
indication is final and conclusive.
25 (10) An application for a sentence indication and
the determination of the application are not
admissible in evidence against the accused in
any proceeding.
(11) This section does not affect any right to
30 appeal against sentence.".
561101B.I-20/11/2007 9 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 8
8 New section 32A inserted in Crimes (Criminal
Trials) Act 1999
After section 32 of the Crimes (Criminal Trials)
Act 1999 insert--
5 "32A Supreme Court--limitation of jurisdiction
It is the intention of section 23A(9) to alter
or vary section 85 of the Constitution Act
1975.".
9 Rule-making power of Supreme Court judges
10 See:
Act No.
After section 25(1)(ec) of the Supreme Court
110/1986. Act 1986 insert--
Reprint No. 6
as at "(ed) any matter relating to sentence indications in
28 April 2006
and
criminal proceedings;".
amending
Act Nos
48/2006 and
24/2007.
LawToday:
www.
legislation.
vic.gov.au
10 Rule-making power of County Court judges
15 See:
Act No.
After section 78(1)(hg) of the County Court Act
6230. 1958 insert--
Reprint No. 12
as at "(hh) any matter relating to sentence indications in
28 April 2006
and
criminal proceedings;".
amending
Act Nos
22/2006,
50/2006,
24/2007,
26/2007 and
28/2007.
LawToday:
www.
legislation.
vic.gov.au
561101B.I-20/11/2007 10 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 2--Sentence Discounts and Sentence Indications
s. 11
11 Rule-making power of Magistrates
After section 16(1A)(c) of the Magistrates'
Court Act 1989 insert--
"(ca) any matter relating to sentence indications
5 under section 50A;".
__________________
561101B.I-20/11/2007 11 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 3--Miscellaneous Amendments
s. 12
PART 3--MISCELLANEOUS AMENDMENTS
12 Common law offence of wilful exposure
See: In the Table in section 320 of the Crimes Act
Act No.
6231. 1958, after the offence of Unlawful assembly
5 Reprint No. 19
as at
insert--
1 December "Wilful exposure Level 6 imprisonment
2006 (5 years maximum).".
and
amending
Act Nos
16/2004,
97/2005,
23/2006,
48/2006,
50/2006,
32/2007 and
50/2007.
LawToday:
www.
legislation.
vic.gov.au
13 Summons issued by prescribed persons
For section 30(3) of the Magistrates' Court
Act 1989 substitute--
"(3) Subject to subsection (4), if it appears to the
10 Court that subsection (2)(a) has not been
complied with in relation to a proceeding,
the Court may strike out the charge.
Note
Section 131 permits the Court to award costs if a
15 proceeding is struck out.".
14 Contest mention hearings
After clause 3 of Schedule 2 to the Magistrates'
Court Act 1989 insert--
"3A Contest mention hearing
20 (1) This clause applies to a proceeding for a
summary offence or an indictable offence
that may be heard and determined
summarily.
561101B.I-20/11/2007 12 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 3--Miscellaneous Amendments
s. 14
(2) The Court may, between the mention date
and the day on which the charge is due to be
heard, from time to time on the application
of a party or on its own motion, conduct a
5 contest mention hearing.
(3) At a contest mention hearing, the Court
may--
(a) require the parties to provide an
estimate of the time expected to be
10 needed for the hearing of the charge;
(b) require the parties to advise as to the
estimated number and the availability
of witnesses for the hearing of the
charge, not including the defendant as a
15 witness, and whether any witnesses are
from interstate or overseas;
(c) request each party to indicate the
evidence it is proposed to adduce and to
identify the issues in dispute;
20 (d) require the defendant to advise whether
the defendant is legally represented and
has funding for continued legal
representation up to and including the
hearing of the charge;
25 (e) require the parties to advise whether
there are any particular requirements of,
or facilities needed for, witnesses and
interpreters;
(f) order a party to make, file in Court or
30 serve (as the case requires) any written
or oral material required by the Court
for the purposes of the proceeding;
(g) allow a party to amend a document that
has been prepared by or on behalf of
35 that party for the purposes of the
proceeding;
561101B.I-20/11/2007 13 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 3--Miscellaneous Amendments
s. 15
(h) if the Court considers that it is in the
interests of justice to do so, dispense
with or vary any requirement imposed
on a party by or under section 37
5 or 37A or clause 1A or 1B of this
Schedule;
(i) require or request a party to do
anything else for the case management
of the proceeding.
10 (4) The defendant in person must be present at
the first contest mention hearing and, except
with the leave of the Court, at any
subsequent contest mention hearing.".
15 Committal proceedings
15 In clause 24(1) of Schedule 5 to the Magistrates'
Court Act 1989, before paragraph (a) insert--
"(aa) in the manner prescribed by the rules of
court--
(i) ask the defendant whether the
20 defendant pleads guilty or not guilty to
the charge; and
(ii) inform the defendant that the
sentencing court may take into account
a plea of guilty and the stage in the
25 proceeding at which the plea or an
intention to plead guilty is indicated;
and".
561101B.I-20/11/2007 14 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 3--Miscellaneous Amendments
s. 16
16 Wilful damage
In section 9(1)(c) of the Summary Offences See:
Act No.
Act 1966, for "$500" substitute "$5000". 7405.
Reprint No. 9
as at
14 September
2005
and
amending
Act Nos
16/2004,
97/2005,
23/2006,
24/2006,
32/2006,
63/2006 and
49/2007.
LawToday:
www.
legislation.
vic.gov.au
17 New section 135 inserted in Sentencing Act 1991
5 After section 134 of the Sentencing Act 1991
insert--
"135 Transitional provision--Criminal
Procedure Legislation Amendment Act
2007
10 Section 6AAA as inserted by section 3 of the
Criminal Procedure Legislation
Amendment Act 2007 applies to a sentence
imposed on or after the commencement of
section 3 of that Act if the plea hearing
15 commences on or after that
commencement.".
561101B.I-20/11/2007 15 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 3--Miscellaneous Amendments
s. 18
18 New section 607 inserted in Children, Youth and
Families Act 2005
After section 606 of the Children, Youth and
Families Act 2005 insert--
5 "607 Transitional provision--Criminal
Procedure Legislation Amendment Act
2007
Section 362A as inserted by section 4 of the
Criminal Procedure Legislation
10 Amendment Act 2007 applies to a sentence
imposed on or after the commencement of
section 4 of that Act if the plea hearing
commences on or after that
commencement.".
15 19 Amendment of Schedule 8 to the Magistrates' Court
Act 1989
After clause 38 in Schedule 8 to the Magistrates'
Court Act 1989 insert--
"39 Section 50A as inserted by section 5 of the
20 Criminal Procedure Legislation
Amendment Act 2007 applies with respect
to a proceeding for an offence, irrespective
of when the offence was committed or the
proceeding commenced.
25 40 Clause 3A of Schedule 2 as inserted by
section 14 of the Criminal Procedure
Legislation Amendment Act 2007 applies
to a contest mention hearing conducted on or
after the commencement of section 14 of that
30 Act.
41 The amendment of this Act by section 15 of
the Criminal Procedure Legislation
Amendment Act 2007 applies with respect
to a defendant committed for trial on or after
35 the commencement of section 15 of that
Act.".
561101B.I-20/11/2007 16 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Part 3--Miscellaneous Amendments
s. 20
20 New section 34 inserted in Crimes (Criminal Trials)
Act 1999
After section 33A of the Crimes (Criminal
Trials) Act 1999 insert--
5 "34 Transitional provision--Criminal
Procedure Legislation Amendment Act
2007
Section 23A as inserted by section 7 of the
Criminal Procedure Legislation
10 Amendment Act 2007 applies with respect
to a proceeding for an offence, irrespective
of when the offence was committed or the
proceeding commenced.".
21 Statute law revision
15 (1) In sections 48(4)(k), 49(4)(k) and 58(6)(k) of the
Crimes Act 1958, for "youth training centre"
substitute "youth justice centre".
(2) In the Children, Youth and Families Act 2005--
(a) in section 357(1), after "charge" insert
20 "for an offence";
(b) in the heading to section 425, for "Full
Court" substitute "Court of Appeal";
(c) in the heading to section 426, for "Full
Court" substitute "Court of Appeal";
25 (d) in section 529(1)(b)(ii), for "3;" substitute
"3--".
22 Repeal of amending Act
This Act is repealed on 1 July 2009.
Note
30 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).
561101B.I-20/11/2007 17 BILL LA INTRODUCTION 20/11/2007
Criminal Procedure Legislation Amendment Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561101B.I-20/11/2007 18 BILL LA INTRODUCTION 20/11/2007
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