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PARLIAMENT OF VICTORIA
Justice Legislation Amendment Bill 2010
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 5
PART 2--AMENDMENT OF SENTENCING ACT 1991 6
3 Definitions 6
4 Sentencing orders 7
5 Aggregate sentence of imprisonment 8
6 New section 14A inserted 8
14A Home detention direction by sentencing court 8
7 Time held in custody before trial etc. to be deducted from
sentence 9
8 New section 18SA inserted 9
18SA Home detention condition when order is imposed 9
9 Section 18W substituted 10
18W Proceeding for contravention of combined custody and
treatment order 10
18WA Bringing a proceeding for contravention of combined
custody treatment order--offender before a court 10
18WB Bringing of a proceeding for contravention of
combined custody and treatment order--offender not
before a court 11
18WC Issue of a contravention summons or warrant to arrest
by a registrar 12
18WD Power to amend a contravention summons or warrant
to arrest 13
18WE Form of a contravention summons 13
18WF Extension of a return date for a contravention summons 14
18WG Service of a contravention summons 14
18WH Issue of a warrant to arrest 14
18WI Unrepresented accused 15
18WJ Powers of court hearing a proceeding 15
18WK Practice and procedure at hearing 16
10 New section 18ZGA inserted 17
18ZGA Home detention condition when order is imposed 17
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11 Subdivision (1D) of Division 2 of Part 3 repealed 17
12 New section 21A inserted 17
21A Home detention condition when order is imposed 17
13 Section 26 substituted 18
26 Proceeding for contravention of an intensive
correction order 18
26A Bringing a proceeding for contravention of an
intensive correction order--offender before a court 18
26B Bringing of a proceeding for contravention of an
intensive correction order--offender not before a
court 19
26C Issue of a contravention summons or warrant to
arrest by a registrar 20
26D Power to amend a contravention summons or warrant
to arrest 21
26E Form of a contravention summons 21
26F Extension of a return date for a contravention
summons 22
26G Service of a contravention summons 22
26H Issue of a warrant to arrest 22
26I Unrepresented accused 23
26J Powers of court on determination of proceeding 23
26K Practice and procedure at hearing 24
14 New Subdivision (2A) of Division 2 of Part 3 inserted 25
Subdivision (2A)--Home detention orders 25
26L Definitions 25
26M Home detention order 25
26N Circumstances where offender is ineligible for home
detention 26
26O Circumstances where offender may be ineligible for
home detention--certain previous convictions 29
26P Order not to be made if residents object 31
26Q Suitability of the offender for home detention 32
26R Conditions of home detention order not to contravene
intervention order 34
26S Undertaking by offender 34
26T Obligations of offender 35
26U Core conditions governing home detention 35
26V Special conditions 39
26W Withdrawal of consent 40
26X Revocation of order on application by offender or
Secretary 40
26Y Suspension of home detention order 41
26Z Variation of home detention order 42
26ZA Proceeding for contravention of an undertaking or a
home detention order 43
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26ZB Bringing a proceeding for contravention of a home
detention order--offender before a court 44
26ZC Bringing of a proceeding for contravention of home
detention order--offender not before a court 45
26ZD Issue of a contravention summons or warrant to arrest
by a registrar 46
26ZE Power to amend a contravention summons or warrant
to arrest 46
26ZF Form of a contravention summons 47
26ZG Extension of a return date for a contravention
summons 47
26ZH Service of a contravention summons 48
26ZI Issue of a warrant to arrest 48
26ZJ Unrepresented accused 48
26ZK Powers of court on determination of a contravention
proceeding 49
26ZL Practice and procedure at hearing 50
26ZM Alternative sanction for minor breach of home
detention order 50
26ZN Reconsideration of revocation if approved residence
available 51
26ZO Revocation of order by court 52
26ZP Expiry of home detention order 53
26ZQ Service of notices on offender 53
26ZR Annual report 53
15 New section 27A inserted 54
27A Home detention condition when order is imposed 54
16 Breach of suspended sentence 54
17 New section 41A inserted 55
41A Home detention condition when order is imposed 55
18 Substitution of section 47 55
47 Proceeding for contravention of community-based
order 55
47A Powers of the court on commencement of a
proceeding for contravention of an order 56
47B Bringing of a proceeding for contravention of a
community-based order--offender not before a court 57
47C Issue of a contravention summons or warrant to arrest
by a registrar 58
47D Power to amend a contravention summons or warrant
to arrest 58
47E Form of a contravention summons 59
47F Extension of a return date for a contravention
summons 59
47G Service of a contravention summons 60
47H Issue of a warrant to arrest 60
47I Unrepresented accused 60
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47J Powers of court on determination of a contravention
proceeding 61
47K Practice and procedure at hearing 62
47L Powers of the court where a community-based order
is made in default of payment of a fine 62
19 Aggregate fines 63
20 Heading to Subdivision (4) of Division 5 of Part 3 63
21 New section 77A inserted 64
77A Definition 64
22 Substitution of section 79 64
79 Proceeding for contravention of order for release on
adjournment 64
79A Bringing of proceeding for contravention of order for
release on adjournment--offender before a court 65
79B Bringing of proceeding for contravention of order for
release on adjournment--offender not before a court 66
79C Issue of a contravention summons or warrant to arrest
by a registrar 66
79D Power to amend a contravention summons or warrant
to arrest 67
79E Form of a contravention summons 67
79F Extension of a return date for a contravention
summons 68
79G Service of a contravention summons 68
79H Issue of a warrant to arrest 69
79I Unrepresented accused 69
79J Powers of court on determination of a contravention
proceeding 70
79K Practice and procedure at hearing 70
23 Insertion of new section at the end of Part 12 71
141 Transitional provision--Justice Legislation
Amendment Act 2010 71
24 Sentencing guidelines 73
25 Sentence by another judge or magistrate 73
26 Termination of assessment orders and diagnosis, assessment and
treatment orders 74
27 Restricted involuntary treatment orders 74
28 Contents of home detention assessment report 74
29 Regulations 74
PART 3--AMENDMENT OF CHILDREN, YOUTH AND
FAMILIES ACT 2005 75
30 Matters to be taken into account 75
31 Sentence discount for guilty plea 75
32 Determination of appeal by offender 76
33 Determination of DPP appeal against sentence 76
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34 New Division 2A inserted in Part 5.4 76
Division 2A--Appeal by DPP--Failure to fulfil undertaking 76
429A DPP's right of appeal--failure to fulfil undertaking 76
429B How appeal is commenced 77
429C Determination of DPP's appeal--failure to fulfil
undertaking 78
35 Abandonment of appeal 78
36 Appellant's failure to appear 79
37 Respondent's failure to appear on appeal by DPP 79
38 Application of Division 80
39 Right of appeal against sentence of detention imposed on
appeal from Children's Court 80
40 Orders etc. on successful appeal 80
41 Court to have powers of Magistrates' Court 80
42 Rules 80
43 New section 611 inserted 81
611 Transitional provision--Justice Legislation
Amendment Act 2010 81
44 Statute law revision 81
PART 4--AMENDMENTS TO CORRECTIONS ACT 1986 82
Division 1--Amendments relating to home detention orders 82
45 Definitions 82
46 Victim may be given certain information about a prisoner 83
47 Substitute section 59 83
58F Definition 83
59 Home detention orders 83
48 Section 60A substituted 86
60A Circumstances where prisoner not eligible for home
detention 86
60AB Circumstances where prisoner may be ineligible for
home detention--certain previous convictions 89
49 Suitability of prisoner for home detention 91
50 New section 60DA inserted 91
60DA Conditions of home detention order not to contravene
intervention order 91
51 Contents of home detention assessment report 92
52 Core conditions governing home detention 92
53 Functions of Board 92
54 New section 119 inserted 92
119 Transitional provision--Justice Legislation
Amendment Act 2010 92
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Division 2--Statute law revision 93
55 Statute law revision 93
PART 5--AMENDMENT OF CRIMINAL PROCEDURE
ACT 2009 94
56 Commencement 94
57 Definition 94
58 When full brief must be served 95
59 Summary case conference 95
60 Transfer of summary offences that are related offences on or
after committal 95
61 Court may transfer certain charges to Magistrates' Court 96
62 New Division 4 inserted in Part 5.8 97
Division 4--Procedure on guilty plea or guilty verdict 97
253A Abolition of allocutus 97
253B When finding of guilt occurs 97
63 Abandonment of appeal 97
64 Appellant's failure to appear 98
65 Determination of application for leave during sentencing
hearing 98
66 Application of Division--alternative arrangements for giving
evidence 99
67 Jury warning concerning alternative arrangements 99
68 When court must direct use of closed-circuit television or other
facilities for complainant 99
69 When court must direct use of screens for complainant 99
70 When court must direct presence of support person for
complainant 100
71 Personal service 100
72 Regulations 101
73 Repeal of sunset provision concerning sentence indications in
Supreme Court and County Court 101
74 Persons who may witness statements in preliminary brief, full
brief or hand-up brief 101
75 Transitional provisions--Trial 101
76 New section 440 inserted 103
440 Transitional provisions--Justice Legislation
Amendment Act 2010 103
77 Statute law revision 104
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PART 6--GAMING ACTS AMENDMENTS 105
Division 1--Gambling Regulation Act 2003 105
Subdivision 1--Race fields 105
78 Publication and use approval 105
79 New section 2.5.19DA inserted 105
2.5.19DA Transitional race field publication and use fee 105
Subdivision 2--Constitution of the Victorian Commission for
Gambling Regulation 107
80 Constitution of the Commission 107
81 Position of Executive Commissioner abolished 108
82 How may Commission's functions be performed? 108
83 Delegation 108
84 New Part 25 of Schedule 7 inserted 109
PART 25--JUSTICE LEGISLATION AMENDMENT
ACT 2010 109
25.1 Constitution of the Commission 109
25.2 Delegation by Executive Commissioner 109
25.3 References to Executive Commissioner 109
25.4 Inspectors deemed to be appointed by the Executive
Commissioner 110
25.5 Inspectors appointed by the Executive Commissioner 110
Subdivision 3--Consequential amendments 111
85 Investigation of application--functions of a commissioner 111
86 Photographs, finger prints and palm prints--functions of
a commissioner 112
87 Police inquiry and report--functions of a commissioner 113
88 Commission may require further information--functions
of a commissioner 115
89 Appointment of inspectors--functions of a commissioner 116
90 Other amendments related to abolition of position of
Executive Commissioner 116
Division 2--Casino Control Act 1991 117
91 Repeal of definition of Executive Commissioner 117
92 Amendments to Division 1 of Part 3--substitution of
references to Executive Commissioner 118
PART 7--AMENDMENT TO MISCELLANEOUS ACTS 119
Division 1--County Court Act 1958 119
93 Circumstances in which order may be made under section 80 119
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Division 2--Family Violence Protection Act 2008 119
94 Procedural requirements for person directed to a police station,
or person apprehended and detained 119
95 Application for family violence safety notice 120
96 New section 176A inserted 120
176A Relationship with certain orders under the Sentencing
Act 1991 and the Corrections Act 1986 120
Division 3--Justice Legislation Miscellaneous Amendments
Act 2009 121
97 Statute law revision--Justice Legislation Miscellaneous
Amendments Act 2009 121
Division 4--Magistrates' Court Act 1989 122
98 Extent of jurisdiction 122
99 Warrants 122
100 Power to close proceedings to the public 123
Division 5--Marine Act 1988 123
101 Appeal to the County Court 123
102 New Division 6 inserted in Part 11 124
Division 6--Transitional provision--Justice Legislation
Amendment Act 2010 124
160 Appeal against disqualification, cancellation,
suspension or variation 124
103 Statute law revision 124
Division 6--Road Safety Act 1986 125
104 Appeal to the County Court 125
105 New section 103ZA inserted 125
103ZA Transitional provision--Justice Legislation
Amendment Act 2010 125
Division 7--Stalking Intervention Orders Act 2008 126
106 New section 51A inserted 126
51A Relationship with certain orders under the Sentencing
Act 1991 and the Corrections Act 1986 126
Division 8--Supreme Court Act 1986 127
107 Circumstances in which order may be made under section 18 127
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PART 8--REPEAL OF AMENDING ACT 128
108 Repeal of amending Act 128
ENDNOTES 129
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PARLIAMENT OF VICTORIA
Introduced in the Assembly
Justice Legislation Amendment Bill
2010
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.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purposes of this Act are--
(a) to amend the Sentencing Act 1991--
5 (i) in relation to aggregate sentences of
imprisonment and aggregate fines
imposed by the Supreme Court or the
County Court for summary offences;
561464B.I-9/3/2010 1 BILL LA INTRODUCTION 9/3/2010
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Part 1--Preliminary
s. 1
(ii) to repeal the offence for the breach
of--
(A) a combined custody and treatment
order;
5 (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
10 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
15 paragraph (ii);
(v) to make further provision for home
detention orders;
(b) to amend the Children, Youth and Families
Act 2005--
20 (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
25 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;
30 (iii) to empower the prothonotary of the
Supreme Court and the registrar of the
County Court to issue warrants to
detain in certain circumstances;
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Part 1--Preliminary
s. 1
(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;
5 (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
10 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
15 Infringement Notice System;
(c) to amend the Corrections Act 1986 in
relation to home detention orders;
(d) to amend the Criminal Procedure Act
2009--
20 (i) in relation to summary case
conferences;
(ii) in relation to the transfer of related
summary offences on or after
committal;
25 (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
30 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;
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Part 1--Preliminary
s. 1
(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;
5 (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;
10 (ix) to provide for personal service on a
legal practitioner by delivery to a
document exchange;
(x) in relation to regulation-making
powers;
15 (xi) to repeal sunset provisions for sentence
indications in the Supreme Court and
the County Court;
(xii) to insert additional transitional
arrangements;
20 (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
25 of business;
(f) to amend the Gambling Regulation Act
2003 to abolish the position of Executive
Commissioner of the Victorian Commission
for Gambling Regulation and to make
30 consequential amendments to that Act and
the Casino Control Act 1991;
(g) to make minor amendments to these and
other Acts.
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Justice Legislation Amendment Bill 2010
Part 1--Preliminary
s. 2
2 Commencement
(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
5 into operation on 1 January 2010.
(3) Section 97(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
10 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.
__________________
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Justice Legislation Amendment Bill 2010
Part 2--Amendment of Sentencing Act 1991
s. 3
PART 2--AMENDMENT OF SENTENCING ACT 1991
3 Definitions
See: In section 3 of the Sentencing Act 1991--
Act No.
49/1991.
Reprint No. 11
(a) insert the following definitions--
as at 15
5 January 2009 "authorised person means a person who is
and prescribed or of a class of persons who
amending
Act Nos are prescribed to bring proceedings
46/2008, under Subdivision (1B), (1C), (2), (2A)
7/2009,
22/2009, or (3) of Division 2, or under
10 68/2009, Division 3 or Division 5 of Part 3;
69/2009,
77/2009, contravention in relation to a provision of an
87/2009,
91/2009 and order or a sentence includes a failure to
93/2009. comply with that provision;
LawToday:
www.
legislation.
contravention summons means a summons
15 vic.gov.au 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
20 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
25 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,
30 and subsequently varied or
extended under section 16
or 16A of that Act;
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Part 2--Amendment of Sentencing Act 1991
s. 4
(ii) an intervention order made
on grounds referred to in
section 4 or 4A of that Act,
and subsequently varied or
5 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;
10 stalking intervention order means--
(a) an intervention order within the
meaning of the Stalking
Intervention Orders Act 2008;
or
15 (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
20 before their repeal;";
(b) for the definition of home detention order
substitute--
"home detention order means an order made
under section 26M;".
25 4 Sentencing 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
30 way of home detention (a home detention
order); or".
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Part 2--Amendment of Sentencing Act 1991
s. 5
5 Aggregate sentence of imprisonment
After section 9(3) of the Sentencing Act 1991
insert--
"(4) If the Supreme Court or the County Court
5 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
10 court--
(a) is not required to identify separate
events giving rise to specific charges;
and
(b) is not required to announce--
15 (i) the sentences that would have
been imposed for each offence
had separate sentences been
imposed; or
(ii) whether those sentences would
20 have been imposed concurrently
or cumulatively.
(5) Subsection (4) does not affect the
requirements of section 6AAA.".
6 New section 14A inserted
25 After section 14 in the Sentencing Act 1991
insert--
"14A Home detention direction by sentencing
court
(1) A court may direct that an offender
30 sentenced to a term of imprisonment is not
entitled to make a request under section 59
of the Corrections Act 1986.
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Part 2--Amendment of Sentencing Act 1991
s. 7
(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
5 nature and gravity of the offence.".
7 Time 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
10 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";
15 (d) in subsection (7), omit "or (4A)".
8 New section 18SA inserted
After section 18S of the Sentencing Act 1991
insert--
"18SA Home detention condition when order is
20 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
25 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
30 nature and gravity of the offence.".
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Part 2--Amendment of Sentencing Act 1991
s. 9
9 Section 18W substituted
For section 18W of the Sentencing Act 1991
substitute--
"18W Proceeding for contravention of combined
5 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
10 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
15 commenced--
(a) if the contravention is constituted by
the offender committing another
offence punishable by imprisonment
during the period of the order, within
20 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
25 (b) in any other case, within one year of the
order ceasing to be in force.
18WA Bringing a proceeding for contravention
of combined custody treatment order--
offender before a court
30 (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--
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Part 2--Amendment of Sentencing Act 1991
s. 9
(a) on application, in the prescribed form,
by an authorised person; and
(b) if the offender is then present before the
court--
5 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
10 (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
15 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
20 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
25 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.
30 18WB Bringing of a proceeding for
contravention of combined custody and
treatment order--offender not before a
court
(1) If an offender contravenes a combined
35 custody and treatment order an authorised
person may, if an application has not been
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Part 2--Amendment of Sentencing Act 1991
s. 9
made under section 18WA in respect of the
contravention, apply to the Magistrates'
Court for the issue of--
(a) a contravention summons; or
5 (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
10 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
15 warrant to arrest issued under section
18WC(1), his or her attendance must be at
the proper venue of the court.
18WC Issue of a contravention summons or
warrant to arrest by a registrar
20 (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
25 issue--
(a) a summons to answer to the
contravention of the combined custody
and treatment order; or
(b) a warrant to arrest.
30 (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
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Part 2--Amendment of Sentencing Act 1991
s. 9
(b) the offender has absconded, is likely to
abscond or is avoiding service of a
contravention summons that has been
issued; or
5 (c) a warrant to arrest is required or
authorised for other good cause.
18WD Power to amend a contravention
summons or warrant to arrest
Section 50 of the Magistrates' Court Act
10 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
15 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.
20 18WE Form 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
25 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
30 (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.
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18WF Extension of a return date for a
contravention summons
On the application of the authorised person
who applied for the issue of the
5 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--
10 (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
15 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
20 evidence on oath or by affidavit that
reasonable efforts have been made to serve
the contravention summons.
18WG Service of a contravention summons
Service of a contravention summons may be
25 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.
18WH Issue of a warrant to arrest
30 (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.
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(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
5 arrest with any necessary modifications.
18WI Unrepresented 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
10 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
15 (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
20 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
25 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.
30 18WJ Powers 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--
35 (a) confirm the order originally made; or
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(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
5 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
10 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
15 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
20 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,
25 cumulatively on any other term of
imprisonment previously imposed on
the offender by that or any other court.
18WK Practice and procedure at hearing
(1) The practice and procedure applicable to the
30 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
35 proceeding is the Supreme Court, the County
Court or the Magistrates' Court.
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(2) Subsection (1) is subject to any rules of
court.".
10 New section 18ZGA inserted
After section 18ZG of the Sentencing Act 1991
5 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
10 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
15 circumstances of the case including the
nature and gravity of the offence.".
11 Subdivision (1D) of Division 2 of Part 3 repealed
Subdivision (1D) of Division 2 of Part 3 of the
Sentencing Act 1991 is repealed.
20 12 New section 21A inserted
After section 21 of the Sentencing Act 1991
insert--
"21A Home detention condition when order is
imposed
25 (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.
30 (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.".
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13 Section 26 substituted
For section 26 of the Sentencing Act 1991
substitute--
"26 Proceeding for contravention of an
5 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
10 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
15 commenced--
(a) if the contravention is constituted by
the offender committing another
offence punishable by imprisonment
during the period of the order, within
20 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
25 (b) in any other case, within one year of the
order ceasing to be in force.
26A Bringing a proceeding for contravention
of an intensive correction order--offender
before a court
30 (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--
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(a) on application, in the prescribed form,
by an authorised person; and
(b) if the offender is then present before the
court--
5 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
10 (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
15 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
20 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
25 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.
26B Bringing of a proceeding for
30 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
35 section 26A in respect of the contravention,
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apply to the Magistrates' Court for the issue
of--
(a) a contravention summons; or
(b) a warrant to arrest--
5 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
10 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
15 or her attendance must be at the proper
venue of the court.
26C Issue of a contravention summons or
warrant to arrest by a registrar
(1) On an application under section 26B(1), the
20 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
25 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
30 evidence on oath or by affidavit that--
(a) it is probable that the offender will not
answer a contravention summons; or
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(b) the offender has absconded, is likely to
abscond or is avoiding service of a
contravention summons that has been
issued; or
5 (c) a warrant to arrest is required or
authorised for other good cause.
26D Power to amend a contravention
summons or warrant to arrest
Section 50 of the Magistrates' Court Act
10 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
15 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.
20 26E Form 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
25 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
30 (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.
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26F Extension of a return date for a
contravention summons
On the application of the authorised person
who applied for the issue of the
5 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--
10 (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
15 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
20 evidence on oath or by affidavit that
reasonable efforts have been made to serve
the contravention summons.
26G Service of a contravention summons
Service of a contravention summons may be
25 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.
26H Issue of a warrant to arrest
30 (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.
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(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
5 arrest with any necessary modifications.
26I Unrepresented 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
10 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
15 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,
20 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
25 participate in, the proceeding, it must not
hear and determine the proceeding without a
competent interpreter interpreting it.
26J Powers of court on determination of
proceeding
30 (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
35 (b) confirm the order originally made; or
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(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
5 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
10 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
15 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--
20 (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.
25 26K Practice 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
30 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
35 court.".
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s. 14
14 New Subdivision (2A) of Division 2 of Part 3
inserted
After Subdivision (2) of Division 2 of Part 3 of
the Sentencing Act 1991 insert--
5 "Subdivision (2A)--Home detention orders
26L Definitions
(1) In this Subdivision, a reference to victim
does not include a body.
(2) In this Subdivision, contravention of a home
10 detention order includes a contravention
of--
(a) a condition of a home detention order;
or
(b) any requirement of any condition of a
15 home detention order; or
(c) an obligation set out in an undertaking
given under a home detention order.
26M Home detention order
(1) If a person is convicted by a court of an
20 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;
25 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
30 sentence of imprisonment of not more than
one year and order that it be served by way
of home detention.
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(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
5 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
10 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
15 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.
20 (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.
25 26N Circumstances 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
30 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
35 which involved behaviour of a sexual
nature; or
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(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
5 (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
10 2008; or
(e) subject to subsection (5), a
contravention of a stalking intervention
order, or a corresponding interstate
order within the meaning of the
15 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
20 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--
25 (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
30 order within the meaning of the
Family Violence Protection Act
2008; or
(ii) a stalking intervention order or a
corresponding interstate order
35 within the meaning of the
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Stalking Intervention Orders
Act 2008; and
(b) if a home detention order were to be
made--
5 (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
10 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
15 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
20 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)
25 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
30 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
35 pose an unjustifiable risk to the community,
having regard to the following--
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(a) the period of time since the offence was
committed;
(b) the offender's age at the time the
offence was committed;
5 (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
10 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
15 or social interaction but does not include
performance of obligations, such as payment
of child support.
26O Circumstances where offender may be
ineligible for home detention--certain
20 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
25 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
30 Weapons Act 1990); or
(c) a contravention of a family violence
intervention order, or a corresponding
interstate order within the meaning of
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the Family Violence Protection Act
2008; or
(d) a contravention of a stalking
intervention order, or a corresponding
5 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).
10 (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,
15 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--
20 (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;
25 (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
30 were to make a home detention order;
(g) any other matter the court considers
relevant.
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26P Order 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
5 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
10 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
15 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.
20 (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
25 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.
30 (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.
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(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
5 feelings of the person have been
ascertained; and
(b) due consideration has been given to
them, having regard to the
understanding of the person.
10 26Q Suitability 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
15 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
20 Secretary to the Department of Justice,
that--
(i) a place will be available for the
offender in a home detention
program approved by the
25 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
30 (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
35 supervision; and
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(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
5 (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
10 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
15 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
20 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
25 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
30 home detention order.
(6) In subsection (5), safety has the meaning
given in section 4 of the Family Violence
Protection Act 2008.
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26R Conditions of home detention order not to
contravene intervention order
(1) This section applies if the court is
considering making a home detention order
5 in respect of an offender who is a respondent
to--
(a) a current family violence intervention
order; or
(b) a current stalking intervention order.
10 (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
15 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
20 to reside at a particular place if, by residing at that
place, the offender would contravene a family
violence intervention order.
26S Undertaking by offender
(1) Before a home detention order may be made
25 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;
30 (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;
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(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
5 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
10 under a home detention order.
26T Obligations of offender
The obligations of an offender while serving
a sentence of imprisonment by way of home
detention are--
15 (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
20 detention order is subject.
26U Core conditions governing home detention
The core conditions of a home detention
order are--
(a) that the offender must be of good
25 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
30 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;
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(d) that the offender must remain at the
approved residence at all times other
than--
(i) when the absence is authorised by
5 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
10 emergency); or
(iii) when a person residing at the
approved residence has withdrawn
his or her consent under
section 26W;
15 (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
20 offender must carry out in
accordance with the other core
conditions; and
(ii) is approved or arranged by the
Secretary to the Department of
25 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--
30 (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;
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(g) that the offender must accept any visit
to the approved residence by the
Secretary to the Department of Justice
at any time;
5 (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;
10 (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
15 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;
20 (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
25 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
30 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;
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(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
5 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
10 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
15 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
20 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
25 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
30 meaning of the Control of
Weapons Act 1990; or
(iii) any controlled weapon or
dangerous article within the
meaning of the Control of
35 Weapons Act 1990 in
contravention of that Act;
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(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
5 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.
10 26V Special 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
15 under subsection (1) on its own motion or on
application of--
(a) the offender; or
(b) the Secretary to the Department of
Justice; or
20 (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--
25 (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.
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26W Withdrawal 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,
5 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
10 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
15 residing in the residence to which the notice
relates.
26X Revocation of order on application by
offender or Secretary
(1) If there is no longer any approved residence
20 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.
25 (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
30 not required to give notice under subsection
(2) if the court is satisfied that the matter is
urgent.
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(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 (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
10 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
15 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
20 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.
25 (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.
30 26Y Suspension of home detention order
The Secretary to the Department of Justice
may--
(a) if the offender is ill; or
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(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
5 calculating the period for which the order is
to remain in force or a condition is to be
complied with.
26Z Variation of home detention order
(1) If on application under this subsection the
10 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
15 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
20 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
25 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
30 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
35 complied with the order before its
cancellation.
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(3) An application under subsection (1) may be
made at any time while the order is in force
by--
(a) the offender; or
5 (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--
10 (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
15 (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
20 hearing of the application.
26ZA Proceeding 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,
25 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.
30 (2) A proceeding for the contravention of an
order under subsection (1) must be
commenced--
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(a) if the contravention is constituted by
the offender committing another
offence punishable by imprisonment
during the period of the order, within
5 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
10 (b) in any other case, within one year of the
order ceasing to be in force.
26ZB Bringing a proceeding for contravention
of a home detention order--offender
before a court
15 (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,
20 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
25 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
30 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
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contravention proceeding as if it were an
unrelated summary offence under
section 243 of the Criminal Procedure Act
2009.
5 (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
10 for, or remand the offender in custody
pending his or her attendance at the court
that imposed the home detention order.
26ZC Bringing of a proceeding for
contravention of home detention order--
15 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
20 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
25 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
30 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
35 of the court.
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26ZD Issue 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
5 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
10 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 --
15 (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
20 issued; or
(c) a warrant to arrest is required or
authorised for other good cause.
26ZE Power to amend a contravention
summons or warrant to arrest
25 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
30 reference to a contravention summons
or warrant to arrest issued under this
section; and
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(b) to the court were a reference to the
court by which the home detention
order was imposed.
26ZF Form of a contravention summons
5 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
10 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
15 a summons to answer a charge may be
served under sections 16 and 17 of the
Criminal Procedure Act 2009.
26ZG Extension of a return date for a
contravention summons
20 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)
25 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
30 issued on one occasion and thereafter may be
extended--
(c) before the current return date; or
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(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
5 reasonable efforts have been made to serve
the contravention summons.
26ZH Service of a contravention summons
Service of a contravention summons may be
proved in any manner in which service of a
10 summons to answer to a charge may be
proved under section 399 of the Criminal
Procedure Act 2009.
26ZI Issue of a warrant to arrest
(1) When an offender does not attend before a
15 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
20 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.
26ZJ Unrepresented accused
25 (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--
30 (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
35 requested by the offender.
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(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
5 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
10 proceeding without a competent interpreter
interpreting it.
26ZK Powers of court on determination of a
contravention proceeding
(1) If on the hearing of a proceeding under
15 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
20 (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
25 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
30 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
35 offender has contravened a condition of the
home detention order, but that contravention
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is not a serious contravention within the
meaning of section 26ZM, the court may
impose a sanction by way of a formal
warning.
5 (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
10 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
15 the offender by that or any other court.
26ZL Practice and procedure at hearing
(1) The practice and procedure applicable to the
hearing and determination of summary
offences in the Magistrates' Court applies, so
20 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.
25 (2) Subsection (1) is subject to any rules of
court.
26ZM Alternative sanction for minor breach of
home detention order
(1) This section does not apply in case of a
30 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
35 comply with a home detention order, the
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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
5 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
10 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
15 (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
20 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).
26ZN Reconsideration of revocation if approved
25 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
30 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--
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(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
5 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
10 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
15 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
20 not to have been revoked.
26ZO Revocation 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
25 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
30 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
35 term of imprisonment to which he or she was
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sentenced that was unexpired at the date of
the revocation of the order.
26ZP Expiry of home detention order
Unless a home detention order is revoked
5 under this Subdivision, the order expires at
the end of the minimum term of
imprisonment to which the offender was
sentenced.
26ZQ Service of notices on offender
10 (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.
15 (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
20 must notify the offender of any notice served
on him or her under subsection (2).
26ZR Annual report
The Secretary to the Department of Justice
must include in each report of operations
25 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
30 (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
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(c) details of the impact of home detention
orders on persons residing with
offenders; and
(d) any other matters in relation to home
5 detention that the Minister directs to be
included.".
15 New section 27A inserted
After section 27 of the Sentencing Act 1991
insert--
10 "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
15 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
20 circumstances of the case including the
nature and gravity of the offence.".
16 Breach of suspended sentence
After section 31(1) of the Sentencing Act 1991
insert--
25 "(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
30 section 243 of the Criminal Procedure Act
2009.".
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17 New section 41A inserted
After section 41 of the Sentencing Act 1991
insert--
"41A Home detention condition when order is
5 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
10 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
15 circumstances of the case including the
nature and gravity of the offence.".
18 Substitution of section 47
For section 47 of the Sentencing Act 1991
substitute--
20 "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
25 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
30 order under subsection (1) must be
commenced--
(a) if the contravention is constituted by
the offender committing another
offence punishable by imprisonment
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during the period of the order, within
whichever is the later of--
(i) 6 months of the offence being
found proven; or
5 (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.
47A Powers of the court on commencement of
10 a proceeding for contravention of an
order
(1) If a court finds an offender guilty of an
offence punishable by imprisonment
committed while a community-based order is
15 in force it may--
(a) on the application, in the prescribed
form, of an authorised person; and
(b) if the offender is then present before the
court--
20 do either of the following--
(c) if it is the court that imposed the
community-based order, proceed to
exercise any power conferred on it by
section 47J; or
25 (d) if it is not the court that imposed the
community-based order transfer the
proceeding to the court that imposed
the order.
(2) If a community-based order was made in the
30 Magistrates' Court; the Supreme Court or
County Court may deal with the
contravention proceeding as if it were an
unrelated summary offence under
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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
5 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
10 that imposed the community-based order.
47B Bringing of a proceeding for
contravention of a community-based
order--offender not before a court
(1) If an offender contravenes a community-
15 based order an authorised person may, if an
application has not been made under
section 47A in respect of the contravention
apply to the Magistrates' Court for the issue
of--
20 (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
community-based order.
25 (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
30 Magistrates' Court under a summons or
warrant issued under section 47C(1)(a),
attendance must be at the proper venue of the
court.
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47C Issue of a contravention summons or
warrant to arrest by a registrar
(1) On an application under section 47B(1), the
registrar must, if satisfied that there are
5 reasonable grounds to believe the offender
has committed a contravention of a
community-based order issue--
(a) a summons to answer to the
contravention of the community-based
10 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--
15 (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
20 issued; or
(c) a warrant to arrest is required or
authorised for other good cause.
47D Power to amend a contravention
summons or warrant to arrest
25 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
30 reference to a breach summons or
warrant to arrest issued under this
section; and
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(b) to the court were a reference to the
court by which the community-based
order was imposed.
47E Form of a contravention summons
5 A contravention summons--
(a) must direct the offender to attend at the
proper venue of the Magistrates' Court
or, if the community-based order was
imposed by the Supreme Court or the
10 County Court, at that court, on a
specified date on a specified time to
answer the proceeding against them;
and
(b) may be served in any manner in which
15 a summons to answer a charge may be
served under sections 16 and 17 of the
Criminal Procedure Act 2009.
47F Extension of a return date for a
contravention summons
20 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)
25 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
30 issued on one occasion and thereafter may be
extended--
(c) before the current return date; or
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(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
5 reasonable efforts have been made to serve
the contravention summons.
47G Service of a contravention summons
Service of a contravention summons may be
proved in any manner in which service of a
10 summons to answer to a charge may be
proved under section 399 of the Criminal
Procedure Act 2009.
47H Issue of a warrant to arrest
(1) When an offender does not attend before a
15 court in answer to a contravention summons
which has been served in accordance with
section 47G, the court may issue a warrant to
arrest the offender.
(2) A warrant to arrest authorised to be issued
20 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.
47I Unrepresented accused
25 (1) If the offender is unrepresented on his or her
first appearance before the court in answer to
bail granted under section 47A, or a
contravention summons or warrant issued
under section 47C, the court must--
30 (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
35 requested by the offender.
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(2) If the court before which an offender appears
in answer to bail granted under section 47A,
or a contravention summons or warrant
issued under section 47C is satisfied that the
5 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
10 competent interpreter interpreting it.
47J Powers of court on determination of a
contravention proceeding
(1) If on the hearing of the proceeding under
section 47(1) the court finds the offender has
15 contravened the community-based order it
must--
(a) vary the community-based order; or
(b) confirm the order originally made; or
(c) cancel the order (if it is still in force)
20 and, whether or not it is still in force,
subject to subsection (2), deal with the
offender for the offence or offences
with respect to which the order was
made in any manner in which the court
25 could deal with the offender if it had
just found him or her guilty of that
offence or those offences.
(2) In determining how to deal with an offender
following the cancellation by it of a
30 community-based order, a court must take
into account the extent to which the offender
had complied with the order before its
cancellation.
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47K Practice and procedure at hearing
(1) The practice and procedure applicable to the
hearing and determination of summary
offences in the Magistrates' Court applies, so
5 far as is appropriate, to the hearing and
determination of a proceeding under section
47(1), whether or not the court hearing the
proceeding is the Supreme Court, the County
Court or the Magistrates' Court.
10 (2) Subsection (1) is subject to any rules of
court.
47L Powers of the court where a community-
based order is made in default of payment
of a fine
15 This section applies also to a community-
based order made under Division 4 in default
of payment of a fine or an instalment under
an instalment order but if the court considers
that the orders that it may make under this
20 section in respect of such a community-
based order are not adequate in the light of--
(a) the nature of the offence that led to the
community-based order; and
(b) the characteristics of the offender; and
25 (c) the offender's wilful refusal to pay the
fine or instalment and to perform
unpaid community work--
the court may impose a sentence of
imprisonment of 1 day for each penalty unit
30 or part of a penalty unit then remaining
unpaid up to a maximum of 24 months.".
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19 Aggregate fines
At the end of section 51 of the Sentencing Act
1991 insert--
"(2) If the Supreme Court or the County Court
5 hears and determines charges for summary
offences under section 242 or 243 of the
Criminal Procedure Act 2009 and proposes
to impose an aggregate fine in respect of 2 or
more of those offences, the court--
10 (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
15 been imposed for each offence
had separate sentences been
imposed; or
(ii) whether those sentences would
have been imposed concurrently
20 or cumulatively.
(3) Subsection (2) does not affect the
requirements of section 6AAA.".
20 Heading to Subdivision (4) of Division 5 of Part 3
For the heading to Subdivision (4) of Part 3 of the
25 Sentencing Act 1991 substitute--
"Variation and contravention of orders for
release on adjournment".
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21 New section 77A inserted
After the heading to Subdivision (4) of Division 5
of Part 3 of the Sentencing Act 1991 insert--
"77A Definition
5 In this Subdivision contravention of an
undertaking means a contravention of any
condition or requirement of an undertaking
given under--
(a) Subdivision (2) of Division 5 of Part 3;
10 or
(b) Subdivision (3) of Division 5 of
Part 3."
22 Substitution of section 79
For section 79 of the Sentencing Act 1991
15 substitute--
"79 Proceeding for contravention of order for
release on adjournment
(1) If a person who has given an undertaking
(the offender) contravenes, without
20 reasonable excuse, any condition of the
undertaking while the undertaking is in
force, a proceeding may be brought against
the person, in accordance with this
Subdivision, to answer to the contravention.
25 (2) A proceeding for a contravention of an
undertaking under subsection (1) must be
commenced--
(a) if the contravention is constituted by
the offender committing another
30 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
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(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.
5 79A Bringing of proceeding for contravention
of order for release on adjournment--
offender before a court
(1) If a court finds an offender who has
previously given an undertaking has
10 committed a contravention of the
undertaking while it is in force it may--
(a) on the application, in the prescribed
form, of an authorised person; and
(b) if the offender is then present before the
15 court--
do either of the following--
(c) if it is the court to whom the
undertaking was given, proceed to
exercise any power under section 79J;
20 or
(d) if it is not the court to whom the
undertaking was given, transfer the
proceeding to the court to whom the
undertaking was given.
25 (2) If an adjourned undertaking 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
30 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
35 relation to the other offence or for any other
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reason, grant bail to the offender conditioned
for, or remand the offender in custody
pending his or her attendance at the court to
whom the undertaking was given.
5 79B Bringing of proceeding for contravention
of order for release on adjournment--
offender not before a court
(1) If an offender contravenes an undertaking an
authorised person may, if an application has
10 not been made under section 79A(1) in
respect of the contravention apply to the
Magistrates' Court for the issue of--
(a) a contravention summons; or
(b) a warrant to arrest--
15 in order to compel the attendance of the
offender at the court to whom the
undertaking was given.
(2) An authorised person may make an
application under subsection (1) to a registrar
20 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 79C(1),
25 attendance must be at the proper venue of the
court.
79C Issue of a contravention summons or
warrant to arrest by a registrar
(1) On an application under section 79B(1), the
30 registrar must, if satisfied that there are
reasonable grounds to believe the offender
has committed a contravention of an
undertaking issue--
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(a) a summons to answer to the
contravention of the undertaking; or
(b) a warrant to arrest.
(2) A registrar must not issue in the first instance
5 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
10 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.
15 79D Power 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 section 79C as
20 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
section 79C; and
25 (b) to the court were a reference to the
court by which the undertaking was
imposed.
79E Form of a contravention summons
A contravention summons--
30 (a) must direct the offender to attend at the
proper venue of the Magistrates' Court
or, if the undertaking was imposed by
the Supreme Court or the County
Court, at that court, on a specified date
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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
5 served under sections 16 and 17 of the
Criminal Procedure Act 2009.
79F Extension of a return date for a
contravention summons
On the application of the person who applied
10 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--
15 (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
20 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
25 evidence on oath or by affidavit that
reasonable efforts have been made to serve
the contravention summons.
79G Service of a contravention summons
Service of a contravention summons may be
30 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.
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79H Issue 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
5 section 79G, 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
10 and that Part applies to such a warrant to
arrest with any necessary modifications.
79I Unrepresented accused
(1) If the offender is unrepresented on his or her
first appearance before the court in answer to
15 bail granted under section 79A, or a
contravention summons or warrant issued
under section 79C, the court must--
(a) ask the offender whether he or she has
sought legal advice; and
20 (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
25 in answer to bail granted under section 79A,
or a contravention summons or warrant to
arrest issued, under section 79C is satisfied
that the offender does not have a knowledge
of the English language that is sufficient to
30 enable the offender to understand, or
participate in, the proceeding, it must not
hear and determine the proceeding without a
competent interpreter interpreting it.
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79J Powers of court on determination of a
contravention proceeding
(1) If on the hearing of a proceeding under
section 79(1) the court finds the offender has
5 contravened an undertaking, it may--
(a) vary the undertaking; or
(b) confirm the undertaking originally
made; or
(c) cancel the undertaking (if it is still in
10 force) and, whether or not it is still in
force, subject to subsection (2), deal
with the offender for the offence or
offences with respect to which the
undertaking was given in any manner in
15 which the court could deal with the
offender if it had just found the
offender guilty of that offence or those
offences.
(2) In determining how to deal with an offender
20 following the cancellation by it of an
undertaking made under Subdivision (2)
or (3), a court must take into account the
extent to which the offender had complied
with the undertaking before its cancellation.
25 79K Practice 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
30 determination of a proceeding under section
79(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
35 court.".
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s. 23
23 Insertion of new section at the end of Part 12
At the end of Part 12 of the Sentencing Act 1991
insert--
"141 Transitional provision--Justice
5 Legislation Amendment Act 2010
(1) Section 9 as amended by section 5 of the
Justice Legislation Amendment Act 2010
applies to the sentencing of a person for an
offence on or after the commencement of
10 section 5 of that Act, irrespective of when
the offences were committed or the findings
of guilt were made.
(2) Section 14A applies to the sentencing of a
person on or after the commencement of
15 section 6 of the Justice Legislation
Amendment Act 2010, irrespective of when
the offence was committed or the finding of
guilt was made.
(3) Section 18SA applies to the sentencing of a
20 person on or after the commencement of
section 8 of the Justice Legislation
Amendment Act 2010, irrespective of when
the offence was committed or the finding of
guilt was made.
25 (4) An order may be made under section 18WJ
of this Act on or after the commencement of
section 9 of the Justice Legislation
Amendment Act 2010 consequent on a
finding of a contravention made on or after
30 that commencement, irrespective of when
that contravention was committed.
(5) Section 18ZGA applies to the sentencing of a
person on or after the commencement of
section 10 of the Justice Legislation
35 Amendment Act 2010, irrespective of when
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Part 2--Amendment of Sentencing Act 1991
s. 23
the offence was committed or the finding of
guilt was made.
(6) Section 21A applies to the sentencing of a
person on or after the commencement of
5 section 12 of the Justice Legislation
Amendment Act 2010, irrespective of when
the offence was committed or the finding of
guilt was made.
(7) An order may be made under section 26J on
10 or after the commencement of section 13 of
the Justice Legislation Amendment Act
2010 consequent on a finding of a
contravention made on or after that
commencement, irrespective of when that
15 contravention was committed.
(8) An order may be made under section 26ZK
on or after the commencement of section 14
of the Justice Legislation Amendment Act
2010 consequent on a finding of a
20 contravention made on or after that
commencement, irrespective of when that
contravention was committed.
(9) Section 27A applies to the sentencing of a
person on or after the commencement of
25 section 15 of the Justice Legislation
Amendment Act 2010, irrespective of when
the offence was committed or the finding of
guilt was made.
(10) Section 41A applies to the sentencing of a
30 person on or after the commencement of
section 17 of the Justice Legislation
Amendment Act 2010, irrespective of when
the offence was committed or the finding of
guilt was made.
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(11) An order may be made under section 47J on
or after the commencement of section 18 of
the Justice Legislation Amendment Act
2010 consequent on a finding of a
5 contravention made on or after that
commencement, irrespective of when that
contravention was committed.
(12) Section 51 as amended by section 19 of the
Justice Legislation Amendment Act 2010
10 applies to the sentencing of a person for an
offence on or after the commencement of
section 19 of that Act, irrespective of when
the offences were committed or the findings
of guilt were made.
15 (13) An order may be made under section 79J on
or after the commencement of section 22 of
the Justice Legislation Amendment Act
2010 consequent on a finding of a
contravention made on or after that
20 commencement, irrespective of when that
contravention was committed.".
24 Sentencing guidelines
In section 5(2D) of the Sentencing Act 1991, for
"the Part 5.5" substitute "Part 5.5".
25 25 Sentence by another judge or magistrate
In section 102 of the Sentencing Act 1991--
(a) for "passed" (wherever occurring) substitute
"imposed";
(b) for "pass" (wherever occurring) substitute
30 "impose";
(c) for "passing" (wherever occurring)
substitute "imposing".
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26 Termination of assessment orders and diagnosis,
assessment and treatment orders
In section 92(b) of the Sentencing Act 1991, for
"pass" substitute "impose".
5 27 Restricted involuntary treatment orders
In section 93(1) of the Sentencing Act 1991, for
"passing" substitute "imposing".
28 Contents of home detention assessment report
In section 99G(1)(l) of the Sentencing Act 1991,
10 before "commit" insert "engage in behaviour or".
29 Regulations
In section 116(1)(f) of the Sentencing Act 1991,
for "or breach" substitute ", breach or
contravention".
__________________
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 30
PART 3--AMENDMENT OF CHILDREN, YOUTH AND
FAMILIES ACT 2005
30 Matters to be taken into account
After section 362(4) of the Children, Youth and See:
Act No.
5 Families Act 2005 insert-- 96/2005.
Reprint No. 2
"(5) If, in sentencing a child, the Court imposes a as at
19 August
less severe sentence than it would otherwise 2009
have imposed because of an undertaking and
amending
given by the child to assist, after sentencing, Act Nos
10 law enforcement authorities in the 51/2006,
77/2008,
investigation or prosecution of an offence, 4/2009,
the Court must-- 7/2009,
22/2009,
(a) announce that it is doing so; and 26/2009,
50/2009,
(b) cause to be noted in the records of the 68/2009 and
69/2009.
15 Court the fact that the undertaking was LawToday:
given and its details. www.
legislation.
vic.gov.au
(6) Nothing in subsection (5) requires the Court
to state the sentence that it would have
imposed but for the undertaking that was
20 given.".
31 Sentence discount for guilty plea
(1) In section 362A(1) of the Children, Youth and
Families Act 2005, for the words and expressions
commencing "the Court must state" and ending at
25 the end of the subsection substitute "the Court
must state in respect of each offence the sentence
that it would have imposed but for the plea of
guilty.".
(2) For section 362A(3) of the Children, Youth and
30 Families Act 2005 substitute--
"(3) If the Court makes a statement under this
section, it must record or cause to be
recorded (whether in writing or in another
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s. 32
form) in respect of each offence the sentence
that it would have imposed but for the plea
of guilty.".
32 Determination of appeal by offender
5 Section 426(7) and (8) of the Children, Youth
and Families Act 2005 are repealed.
33 Determination of DPP appeal against sentence
(1) Section 429(3), (4) and (5) of the Children,
Youth and Families Act 2005 are repealed.
10 (2) In section 429(6), (7) and (8) of the Children,
Youth and Families Act 2005, for "subsection
(2), (3) or (4)" substitute "subsection (2)".
34 New Division 2A inserted in Part 5.4
After Division 2 of Part 5.4 of Chapter 5 of the
15 Children, Youth and Families Act 2005
insert--
"Division 2A--Appeal by DPP--Failure to
fulfil undertaking
429A DPP's right of appeal--failure to fulfil
20 undertaking
(1) Without limiting any right of appeal under
section 427, the DPP may appeal to the
County Court or, if the Children's Court was
constituted by the President, to the Trial
25 Division of the Supreme Court against a
sentence imposed on a child in respect of an
indictable offence that was heard and
determined summarily by the Children's
Court if--
30 (a) the sentence was less severe because of
an undertaking given by the child to
assist, after sentencing, law
enforcement authorities in the
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 34
investigation or prosecution of an
offence, whether or not proceedings for
that offence had commenced at the time
of sentencing; and
5 (b) the DPP considers that the child has
failed, wholly or partly, to fulfil the
undertaking.
(2) The DPP may bring an appeal under this
section at any time, whether or not the
10 sentence has been served.
429B How appeal is commenced
(1) An appeal under section 429A is commenced
by filing a notice of appeal, signed by the
DPP personally, with a registrar of the
15 Children's Court at any venue of the
Children's Court.
(2) A copy of the notice of appeal must be
served personally on the respondent within
14 days after the day on which the notice is
20 filed.
(3) A notice of appeal must be in the form
prescribed by the rules of the appellate court.
(4) The DPP must provide a copy of the notice
of appeal to the legal practitioner who last
25 represented the respondent in the criminal
proceeding to which the appeal relates, if
that legal practitioner can reasonably be
identified.
(5) A notice of appeal filed under this section
30 must be transmitted to the appellate court.
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429C Determination of DPP's appeal--failure to
fulfil undertaking
(1) An appeal under section 429A must not be
conducted as a rehearing.
5 (2) On an appeal under section 429A, if the
appellate court considers that the respondent
has failed, wholly or partly, to fulfil the
undertaking referred to in section
429A(1)(a), the appellate court may--
10 (a) set aside the sentence imposed by the
Children's Court; and
(b) impose the sentence that it considers
appropriate, having regard to the failure
of the respondent to fulfil the
15 undertaking.
(3) In imposing a sentence under subsection (2),
the appellate court must not take into account
the element of double jeopardy involved in
the respondent being sentenced again, in
20 order to impose a less severe sentence than
the court would otherwise consider
appropriate.".
35 Abandonment of appeal
After section 430C(6) of the Children, Youth
25 and Families Act 2005 insert--
"(6A) The appellate court may not set aside an
order under subsection (6).".
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 36
36 Appellant's failure to appear
(1) After section 430D(1) of the Children, Youth
and Families Act 2005 insert--
"(1A) If--
5 (a) the appellate court strikes out an appeal
under subsection (1)(a); and
(b) the appellant had been sentenced to a
period of detention in a youth
residential centre or a youth justice
10 centre by the Children's Court--
the registrar of the County Court or the
prothonotary of the Supreme Court (as the
case requires) may issue, in accordance with
the Magistrates' Court Act 1989, a warrant
15 to detain the person in a youth residential
centre or a youth justice centre (as the case
requires) and may recall and cancel that
warrant.".
(2) After section 430D(6) of the Children, Youth
20 and Families Act 2005 insert--
"(6A) An application under section 430B for bail
pending the reinstated appeal may be made
to the County Court or the Trial Division of
the Supreme Court (as the case requires).".
25 37 Respondent's failure to appear on appeal by DPP
(1) In section 430E(1) of the Children, Youth and
Families Act 2005--
(a) after "section 427" insert "or 429A"; and
(b) in paragraph (b), after "section 428" insert
30 "or 429B (as the case requires)".
(2) In section 430E(2) of the Children, Youth and
Families Act 2005, after "section 428" insert
"or 429B (as the case requires)".
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 38
38 Application of Division
In section 430H of the Children, Youth and
Families Act 2005, for "Division 1 or 2"
substitute "Division 1, 2 or 2A".
5 39 Right of appeal against sentence of detention
imposed on appeal from Children's Court
In section 430R(2) of the Children, Youth and
Families Act 2005, for "section 426 or 429"
substitute "section 426, 429 or 429C".
10 40 Orders etc. on successful appeal
Section 430U(3) and (4) of the Children, Youth
and Families Act 2005 are repealed.
41 Court to have powers of Magistrates' Court
(1) In section 528(2)(b) of the Children, Youth and
15 Families Act 2005, for "notice to appear and
appeals" substitute "section 54(2), Division 2 of
Part 2.3 and Chapter 6".
(2) After section 528(2) of the Children, Youth and
Families Act 2005 insert--
20 "(2A) Despite section 39(1A) of the Criminal
Procedure Act 2009 (as applied by
subsection (2) of this section), a request
under section 39(1) of that Act may be made
at any time after the criminal proceeding has
25 commenced.".
42 Rules
After section 588(1A) of the Children, Youth
and Families Act 2005 insert--
"(1B) The President together with 2 or more
30 magistrates for the Court may jointly make
Rules for or with respect to--
(a) prescribing forms for the purposes of
the procedure set out in Schedule 3;
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s. 43
(b) generally any matter relating to the
procedure set out in Schedule 3.".
43 New section 611 inserted
After section 610 of the Children, Youth and
5 Families Act 2005 insert--
"611 Transitional provision--Justice
Legislation Amendment Act 2010
(1) Section 429 as amended by section 33 of the
Justice Legislation Amendment Act 2010
10 applies to the determination of an appeal in
relation to a sentence imposed by the
Children's Court on or after the
commencement of section 33 of that Act.
(2) Division 2A of Part 5.4, as inserted by
15 section 34 of the Justice Legislation
Amendment Act 2010, applies to a sentence
imposed by the Children's Court on or after
the commencement of section 34 of that Act.
(3) Section 430U as amended by section 40 of
20 the Justice Legislation Amendment Act
2010 applies to an appeal in relation to a
sentence imposed by the Children's Court on
or after the commencement of section 40 of
that Act.".
25 44 Statute law revision
(1) In section 184(1) of the Children, Youth and
Families Act 2005, for "162(c) or 162(d)"
substitute "162(1)(c) or 162(1)(d)".
(2) In section 426(3) of the Children, Youth and
30 Families Act 2005, for "424" substitute
"section 424".
(3) In section 430Z(3) of the Children, Youth and
Families Act 2005, for "Court of appeal"
substitute "Court of Appeal".
__________________
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Part 4--Amendments to Corrections Act 1986
s. 45
PART 4--AMENDMENTS TO CORRECTIONS ACT 1986
Division 1--Amendments relating to home detention orders
45 Definitions
See: In section 3(1) of the Corrections Act 1986--
Act No.
117/1986.
5 Reprint No. 8
(a) in paragraph (i) of the definition of
as at correctional order, for "section 18ZT of the
2 April 2009
and
Sentencing Act 1991" substitute "section
amending 26M of the Sentencing Act 1991";
Act Nos
55/2009, (b) insert the following definitions--
68/2009,
10 69/2009 and "family violence intervention order means--
91/2009.
LawToday:
www.
(a) a family violence intervention
legislation. order within the meaning of
vic.gov.au
section 11 of the Family Violence
Protection Act 2008; or
15 (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
20 on grounds referred to in
section 4 or 4A of that Act;
(ii) an intervention order made
on grounds referred to in
section 4 or 4A of that Act,
25 and subsequently varied or
extended under section 16
or 16A of that Act;
(iii) an interim intervention order
made on grounds referred to
30 in section 8 of that Act;
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Part 4--Amendments to Corrections Act 1986
s. 46
stalking intervention order means--
(a) an intervention order within the
meaning of the Stalking
Intervention Orders Act 2008;
5 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
10 1958, both as in force immediately
before their repeal;".
46 Victim may be given certain information about a
prisoner
In section 30A(1) of the Corrections Act 1986, in
15 paragraph (d)(ii) of the definition of victim for
"final order" substitute "family violence
intervention order".
47 Substitute section 59
For section 59 of the Corrections Act 1986
20 substitute--
"58F Definition
In this Division--
victim, in relation to an offence, means a
person who has suffered injury, loss or
25 damage (including grief, distress,
trauma or other significant adverse
effect) as a direct result of the offence,
whether or not that injury, loss or
damage was reasonably foreseeable by
30 the offender.
59 Home detention orders
(1) At the request of a prisoner, the Board may
make a home detention order in respect of
the prisoner if the Board is satisfied that--
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s. 47
(a) on the date the order takes effect the
prisoner will have served at least two-
thirds of the minimum term of
imprisonment; and
5 (b) the prisoner is due for release or will be
eligible for parole within 6 months of
the date the order takes effect; and
(c) the prisoner is being held under
minimum security conditions.
10 (2) The Board must not make a home detention
order in respect of a prisoner if--
(a) the prisoner is serving an indefinite
sentence; or
(b) the prisoner is eligible for parole but
15 has not been granted parole; or
(c) the prisoner is on parole; or
(d) the prisoner is serving a sentence or
part sentence of imprisonment that was
held in suspense and has been restored
20 under section 31 of the Sentencing Act
1991; or
(e) the prisoner was committed to prison to
serve the unexpired portion of an
intensive corrections order under
25 section 26J of the Sentencing Act
1991; or
(f) the prisoner was sentenced to a
combined custody and treatment order
and is serving in custody the whole part
30 of the sentence that was to be served in
the community under section 18WJ of
the Sentencing Act 1991; or
(g) the prisoner is subject to a home
detention direction or a home detention
35 condition; or
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Part 4--Amendments to Corrections Act 1986
s. 47
(h) the prisoner is ineligible under section
60A or 60AB for a home detention
order.
(3) A prisoner who is subject to a home
5 detention order must be taken for all
purposes to be serving a sentence of
imprisonment for the whole term stated in
the order except for the purpose of any
enactment providing for disqualification for,
10 or the forfeiture or suspension of, pensions
or other benefits.
(4) In this section--
home detention condition means a condition
attached to--
15 (a) a combined custody treatment
order under section 18SA of the
Sentencing Act 1991; or
(b) a drug treatment order under
section 18ZGA of the Sentencing
20 Act 1991; or
(c) an intensive corrections order
under section 21A of the
Sentencing Act 1991; or
(d) an order sentencing a person to a
25 partly suspended sentence of
imprisonment under section 27A
of the Sentencing Act 1991; or
(e) a community based order under
section 41A of the Sentencing
30 Act 1991;
home detention direction means a direction
given by the court under section 14A of
the Sentencing Act 1991;
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Part 4--Amendments to Corrections Act 1986
s. 48
minimum term of imprisonment means--
(a) if a non-parole period was fixed in
respect of a sentence, the non-
parole period; or
5 (b) in the case of a person who is
serving a partly suspended
sentence, the part of that sentence
that is not suspended; or
(c) in the case of a person who is
10 serving a Recognizance Release
Order under the Crimes Act 1914
of the Commonwealth, the
pre-release period within the
meaning of that Act; or
15 (d) in any other case, the term of
imprisonment imposed by the
sentence.".
48 Section 60A substituted
For section 60A of the Corrections Act 1986
20 substitute--
"60A Circumstances where prisoner not eligible
for home detention
(1) The prisoner is not eligible for a home
detention order if the sentence of
25 imprisonment that the prisoner is serving
was imposed for a conviction for any of the
following offences--
(a) an offence to which clause 1, 2, 3 or 4
of Schedule 1 to the Sentencing Act
30 1991 applies; or
(b) an offence which, in the opinion of the
court, was committed in circumstances
which involved behaviour of a sexual
nature; or
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s. 48
(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
5 (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
10 2008; or
(e) subject to subsection (5), a
contravention of a stalking intervention
order, or a corresponding interstate
order within the meaning of the
15 Stalking Intervention Orders Act
2008; or
(f) an offence under section 21A of the
Crimes Act 1958 (stalking).
(2) The prisoner is not eligible for a home
20 detention order if the prisoner has previously
been convicted of an offence to which
clause 1, 2 or 3 of Schedule 1 to the
Sentencing Act 1991 applies.
(3) The prisoner is not eligible for a home
25 detention order if--
(a) in the previous 10 years the prisoner
has been convicted for a contravention
of--
(i) a family violence intervention
30 order or a corresponding interstate
order within the meaning of the
Family Violence Protection Act
2008; or
(ii) a stalking intervention order or a
35 corresponding interstate order
within the meaning of the
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s. 48
Stalking Intervention Orders
Act 2008; and
(b) if a home detention order were to be
made--
5 (i) in the case of a family violence
intervention order, the prisoner
would reside, or would be likely
to reside, with a person who is a
protected person or affected
10 family member under the family
violence intervention order; or
(ii) in the case of a stalking
intervention order, the prisoner
would reside, or would be likely
15 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
20 making a home detention order would be that
the prisoner--
(a) would reside with, or be likely to reside
with, a protected person or affected
family member (as the case requires)
25 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
30 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
35 pose an unjustifiable risk to the community,
having regard to the following--
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s. 48
(a) the period of time since the offence was
committed;
(b) the prisoner's age at the time the
offence was committed;
5 (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
10 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
15 or social interaction but does not include
performance of obligations, such as payment
of child support.
60AB Circumstances where prisoner may be
ineligible for home detention--certain
20 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
25 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
30 Weapons Act 1990); or
(c) a contravention of a family violence
intervention order, or a corresponding
interstate order within the meaning of
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Part 4--Amendments to Corrections Act 1986
s. 48
the Family Violence Protection Act
2008; or
(d) a contravention of a stalking
intervention order, or a corresponding
5 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).
10 (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
15 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
20 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;
25 (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;
30 (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.".
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Part 4--Amendments to Corrections Act 1986
s. 49
49 Suitability 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
5 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
10 (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
15 Protection Act 2008.".
50 New section 60DA inserted
After section 60D of the Corrections Act 1986
insert--
"60DA Conditions of home detention order not to
20 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--
25 (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
30 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
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Part 4--Amendments to Corrections Act 1986
s. 51
prisoner could not legally comply with both
orders at once.
Example
A home detention order could not require the prisoner
5 to reside at a particular place if, by residing at that
place, the prisoner would contravene a family
violence intervention order.".
51 Contents of home detention assessment report
In section 60E(1)(l) of the Corrections Act 1986,
10 before "commit" insert "engage in behaviour or".
52 Core conditions governing home detention
In section 60J of the Corrections Act 1986 in
paragraph (d)(ii), for "fire" substitute "fire,
family violence".
15 53 Functions 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.
20 (3) In section 69(5)(c) of the Corrections Act 1986,
omit "or (1D)".
54 New section 119 inserted
After section 118 of the Corrections Act 1986
insert--
25 "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,
30 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.
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Part 4--Amendments to Corrections Act 1986
s. 55
(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
5 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
10 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
15 serving a sentence of imprisonment by way
of home detention under the Sentencing Act
1991 immediately before that
commencement.".
Division 2--Statute law revision
20 55 Statute 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
s. 56
PART 5--AMENDMENT OF CRIMINAL PROCEDURE
ACT 2009
56 Commencement
See: Section 2(2) of the Criminal Procedure Act 2009
Act No.
5 7/2009. is repealed.
Reprint No. 1
as at
1 January
2010
and
amending
Act Nos
7/2009 and
13/2009.
LawToday:
www.
legislation.
vic.gov.au
57 Definition
In section 3 of the Criminal Procedure Act 2009
for the definition of direct indictment
substitute--
10 "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
15 (b) whose prosecution for the offence
charged in the indictment or a related
offence--
(i) was discontinued under
section 177; or
20 (ii) was the subject of a nolle
prosequi;".
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Part 5--Amendment of Criminal Procedure Act 2009
s. 58
58 When full brief must be served
For section 39(1) of the Criminal Procedure Act
2009 substitute--
"(1) The accused, by written notice to the
5 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
10 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.".
15 59 Summary 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".
20 (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
25 a summary case conference.
(6) A summary case conference must be
conducted in accordance with the rules of
court.".
60 Transfer of summary offences that are related
30 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".
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Part 5--Amendment of Criminal Procedure Act 2009
s. 61
61 Court may transfer certain charges to Magistrates'
Court
(1) In the heading to section 168 of the Criminal
Procedure Act 2009, after "Magistrates' Court"
5 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
10 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,
15 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
20 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".
25 (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
30 Children's Court (as the case requires)".
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Part 5--Amendment of Criminal Procedure Act 2009
s. 62
62 New 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
5 verdict
253A Abolition of allocutus
The common law procedure of administering
the allocutus is abolished.
Note
10 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.
15 253B When finding of guilt occurs
If--
(a) on arraignment, an accused enters a
plea of guilty to a charge for an
offence; or
20 (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.".
25 63 Abandonment 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.".
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Part 5--Amendment of Criminal Procedure Act 2009
s. 64
64 Appellant's failure to appear
(1) After section 267(1) of the Criminal Procedure
Act 2009 insert--
"(1A) If--
5 (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--
10 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.".
15 (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.".
20 65 Determination 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--
25 "(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
30 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
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the age of the complainant and the
number and nature of the questions that
the complainant is likely to be asked;
and
5 (b) the need to respect the complainant's
personal dignity and privacy.".
66 Application of Division--alternative arrangements
for giving evidence
(1) In section 359(1)(b) of the Criminal Procedure
10 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.".
15 67 Jury warning concerning alternative arrangements
In section 361 of the Criminal Procedure Act
2009, after "made" insert "in a trial".
68 When court must direct use of closed-circuit
television or other facilities for complainant
20 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".
25 69 When 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
30 (wholly or partly) to a charge for a sexual
offence".
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70 When court must direct presence of support person
for complainant
In section 365(1) of the Criminal Procedure Act
2009, after "complainant" (where first occurring)
5 insert "in a criminal proceeding that relates
(wholly or partly) to a charge for a sexual
offence".
71 Personal service
(1) In section 391(4)(c) of the Criminal Procedure
10 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--
15 (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
20 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
25 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--
30 (a) the day following the day on which it is
so delivered; or
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(b) if the document is delivered on a
Friday, the following Monday--
or on any other day that may be proved.".
72 Regulations
5 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,".
10 73 Repeal of sunset provision concerning sentence
indications in Supreme Court and County Court
Section 437 of the Criminal Procedure Act 2009
is repealed.
74 Persons who may witness statements in preliminary
15 brief, full brief or hand-up brief
For item 22 of Schedule 3 to the Criminal
Procedure Act 2009 substitute--
"22 An authorised officer within the meaning of
the Conservation, Forests and Lands Act
20 1987.
22A An enforcement officer within the meaning
of the Electricity Safety Act 1998.
22B An inspector within the meaning of the Gas
Safety Act 1997.".
25 75 Transitional 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
30 offence in respect of which that accused,
before the commencement day--
(a) was committed for trial; or
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(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
5 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,
10 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
15 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)--
20 (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
25 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
30 related offence is taken to be a fresh
indictment filed under section 164.".
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76 New section 440 inserted
In Chapter 10 of the Criminal Procedure Act
2009, after section 439 insert--
"440 Transitional provisions--Justice
5 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
10 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--
15 (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 rule 2.03.1 of the Supreme
20 Court (Criminal Procedure) Rules 2008
as in force immediately before the
commencement of section 315(1) of
this Act.
(2) Section 350 as amended by section 65 of the
25 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
30 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.".
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77 Statute law revision
(1) In section 3 of the Criminal Procedure Act 2009,
in paragraph (c) of the definition of public
official--
5 (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
10 Act 2009, for "section 158" substitute
"section 156".
__________________
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Part 6--Gaming Acts Amendments
s. 78
PART 6--GAMING ACTS AMENDMENTS
Division 1--Gambling Regulation Act 2003
Subdivision 1--Race fields
78 Publication and use approval
5 In section 2.5.19D(4) of the Gambling See:
Act No.
Regulation Act 2003, for "a fee or a series of fees 114/2003.
of an amount or amounts and in the manner Reprint No. 3
as at
specified in the approval" substitute ", in the 6 August 2009
manner specified in the approval, a fee or a series and
amending
10 of fees of an amount or amounts-- Act Nos
72/2007,
(a) specified in the approval; or 71/2008,
25/2009,
(b) calculated in accordance with a formula or 29/2009,
43/2009,
formulae specified in the approval". 52/2009,
58/2009,
59/2009,
63/2009,
68/2009 and
69/2009.
LawToday:
www.
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79 New section 2.5.19DA inserted
15 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
20 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
25 provider's period of use).
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(2) On determining a fee under subsection (1),
the appropriate controlling body must give
written notice of that determination to the
wagering service provider.
5 (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--
10 (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
15 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
20 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
25 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
30 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
35 approval or a condition to which the
approval is subject.
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(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
5 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
10 competent jurisdiction by that body.
(8) In this section--
specified period means the period--
(a) beginning on 4 September 2008;
and
15 (b) ending on the day section 78 of
the Justice Legislation
Amendment Act 2010 comes into
operation.".
Subdivision 2--Constitution of the Victorian Commission
20 for Gambling Regulation
80 Constitution of the Commission
For section 10.1.6(1) of the Gambling
Regulation Act 2003 substitute--
"(1) The Commission consists of not less than
25 3 commissioners appointed in accordance
with this Division comprising--
(a) a commissioner appointed as
Chairperson;
(b) one or more commissioners appointed
30 as Deputy Chairpersons;
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(c) as many additional commissioners and
sessional commissioners as the Minister
considers necessary to enable the
Commission to perform its functions.".
5 81 Position of Executive Commissioner abolished
Section 10.1.9 of the Gambling Regulation Act
2003 is repealed.
82 How may Commission's functions be performed?
(1) For section 10.1.17(1) of the Gambling
10 Regulation Act 2003 substitute--
"(1) A function of the Commission is to be
performed by the Commission at a meeting,
or on an inquiry, in accordance with this
Division, other than a function that an Act or
15 subordinate instrument provides may be
performed by any commissioner.".
(2) In section 10.1.17(2) of the Gambling
Regulation Act 2003 omit "by the Executive
Commissioner or".
20 83 Delegation
(1) In section 10.1.26(1) of the Gambling
Regulation Act 2003 omit "(other than a function
under section 10.1.32(3))".
(2) In section 10.1.26(2) of the Gambling
25 Regulation Act 2003, for "section 10.1.6(1)(a),
(b) or (c)" substitute "section 10.1.6(1)(a) or (b)".
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s. 84
84 New Part 25 of Schedule 7 inserted
After Part 24 of Schedule 7 to the Gambling
Regulation Act 2003 insert--
"PART 25--JUSTICE LEGISLATION
5 AMENDMENT ACT 2010
25.1 Constitution of the Commission
The Commission is to be taken to be the
same body despite the changes made to its
composition by section 80 of the Justice
10 Legislation Amendment Act 2010 and no
act, matter or thing is to be affected because
of those changes.
25.2 Delegation by Executive Commissioner
(1) This clause applies to a delegation made by
15 the Executive Commissioner under section
10.1.26 that was in force immediately before
the commencement of section 83(2) of the
Justice Legislation Amendment Act 2010.
(2) On the commencement of section 83(2) of
20 the Justice Legislation Amendment Act
2010, a delegation to which this clause
applies is taken to be a delegation made by
the Chairperson of the Commission under
section 10.1.26.
25 25.3 References to Executive Commissioner
(1) On and after the commencement day, a
reference to the Executive Commissioner in
any Act (other than this Act), or in any
instrument made under any Act or in any
30 other document of any kind is taken to be a
reference to the Chairperson of the
Commission unless the context otherwise
requires.
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(2) In this clause--
commencement day means the day on which
section 81 of the Justice Legislation
Amendment Act 2010 comes into
5 operation.
25.4 Inspectors deemed to be appointed by the
Executive Commissioner
(1) This clause applies to an inspector--
(a) to whom clause 10.5 of this Schedule
10 applies; and
(b) who holds office immediately before
the commencement of section 89 of the
Justice Legislation Amendment Act
2010.
15 (2) On the commencement of section 89 of the
Justice Legislation Amendment Act 2010
an inspector to whom this clause applies is
taken to be appointed by the Chairperson of
the Commission under section 10.5.1.
20 (3) To avoid doubt, an inspector to whom this
clause and clause 10.5(2) of this Schedule
applies may only perform the functions of an
inspector for the purposes of Chapter 9
unless the inspector is also an inspector to
25 whom clause 10.5(1) of this Schedule
applies.
25.5 Inspectors appointed by the Executive
Commissioner
(1) This clause applies to an inspector--
30 (a) appointed by the Executive
Commissioner under section 10.5.1 on
or after the commencement of
clause 10.5 of this Schedule; and
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(b) who holds office immediately before
the commencement of section 89 of the
Justice Legislation Amendment Act
2010.
5 (2) On the commencement of section 89 of the
Justice Legislation Amendment Act 2010
an inspector to whom this clause applies is
taken to be appointed by the Chairperson of
the Commission under section 10.5.1.".
10 Subdivision 3--Consequential amendments
85 Investigation of application--functions of a
commissioner
For section 10.4.2(2) of the Gambling
Regulation Act 2003 substitute--
15 "(2) A function of the Commission under this
section may be performed by any
commissioner in relation to an application
for--
(a) a venue operator's licence;
20 (b) a gaming operator's licence;
(c) a gaming industry employee's licence;
(d) registration as a bookmaker or
bookmaker's key employee under
Part 5A of Chapter 4;
25 (e) approval as a nominee of a venue
operator under section 3.4.14;
(f) approval of a wholly-owned subsidiary
of the holder of a gaming operator's
licence under Division 1 of Part 9 of
30 Chapter 3;
(g) approval of a wholly-owned subsidiary
of the licensee under Division 4 of
Part 3 of Chapter 4;
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(h) approval of a wholly-owned subsidiary
of the holder of a gaming operator's
licence under Part 5 of Chapter 6;
(i) approval as a nominee of a bingo centre
5 operator under section 8.5.9;
(j) approval as a nominee of a commercial
raffle organiser under section 8.5A.10;
(k) approval as a sports controlling body
under Division 4 of Part 5 of Chapter 4;
10 (l) approval--
(i) to become an associate of the
wagering and betting licensee
under section 4.3A.25;
(ii) to become an associate of the keno
15 licensee under section 6A.3.25;
(m) listing on the Roll;
(n) approval of premises under Part 3 of
Chapter 3.".
86 Photographs, finger prints and palm prints--
20 functions of a commissioner
For section 10.4.3(3) of the Gambling
Regulation Act 2003 substitute--
"(3) A function of the Commission under this
section may be performed by any
25 commissioner in relation to an application
for--
(a) a venue operator's licence;
(b) a gaming operator's licence;
(c) a gaming industry employee's licence;
30 (d) registration as a bookmaker or
bookmaker's key employee under
Part 5A of Chapter 4;
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(e) approval as a nominee of a venue
operator under section 3.4.14;
(f) approval of a wholly-owned subsidiary
of the holder of a gaming operator's
5 licence under Division 1 of Part 9 of
Chapter 3;
(g) approval of a wholly-owned subsidiary
of the licensee under Division 4 of
Part 3 of Chapter 4;
10 (h) approval of a wholly-owned subsidiary
of the holder of a gaming operator's
licence under Part 5 of Chapter 6;
(i) approval as a nominee of a bingo centre
operator under section 8.5.9;
15 (j) approval as a nominee of a commercial
raffle organiser under section 8.5A.10;
(k) approval--
(i) to become an associate of the
wagering and betting licensee
20 under section 4.3A.25;
(ii) to become an associate of the keno
licensee under section 6A.3.25;
(l) listing on the Roll.".
87 Police inquiry and report--functions of a
25 commissioner
For section 10.4.4(3) of the Gambling
Regulation Act 2003 substitute--
"(3) A function of the Commission under this
section may be performed by any
30 commissioner in relation to an application
for--
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(a) a venue operator's licence;
(b) a gaming operator's licence;
(c) a gaming industry employee's licence;
(d) registration as a bookmaker or
5 bookmaker's key employee under
Part 5A of Chapter 4;
(e) approval as a nominee of a venue
operator under section 3.4.14;
(f) approval of a wholly-owned subsidiary
10 of the holder of a gaming operator's
licence under Division 1 of Part 9 of
Chapter 3;
(g) approval of a wholly-owned subsidiary
of the licensee under Division 4 of
15 Part 3 of Chapter 4;
(h) approval of a wholly-owned subsidiary
of the holder of a gaming operator's
licence under Part 5 of Chapter 6;
(i) approval as a nominee of a bingo centre
20 operator under section 8.5.9;
(j) approval as a nominee of a commercial
raffle organiser under section 8.5A.10;
(k) approval--
(i) to become an associate of the
25 wagering and betting licensee
under section 4.3A.25;
(ii) to become an associate of the keno
licensee under section 6A.3.25;
(l) listing on the Roll.".
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88 Commission may require further information--
functions of a commissioner
For section 10.4.5(3) of the Gambling
Regulation Act 2003 substitute--
5 "(3) A function of the Commission under this
section may be performed by any
commissioner in relation to an application
for--
(a) a gaming industry employee's licence;
10 (b) registration as a bookmaker or
bookmaker's key employee under
Part 5A of Chapter 4;
(c) approval as a nominee of a venue
operator under section 3.4.14;
15 (d) approval of a wholly-owned subsidiary
of the holder of a gaming operator's
licence under Division 1 of Part 9 of
Chapter 3;
(e) approval of a wholly-owned subsidiary
20 of the licensee under Division 4 of
Part 3 of Chapter 4;
(f) approval of a wholly-owned subsidiary
of the holder of a gaming operator's
licence under Part 5 of Chapter 6;
25 (g) approval as a nominee of a bingo centre
operator under section 8.5.9;
(h) approval as a nominee of a commercial
raffle organiser under section 8.5A.10;
(i) approval as a sports controlling body
30 under Division 4 of Part 5 of Chapter 4;
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(j) approval--
(i) to become an associate of the
wagering and betting licensee
under section 4.3A.25;
5 (ii) to become an associate of the keno
licensee under section 6A.3.25;
(k) approval of premises under Part 3 of
Chapter 3.".
89 Appointment of inspectors--functions of a
10 commissioner
(1) In section 10.5.1(1) of the Gambling Regulation
Act 2003--
(a) for "The Executive Commissioner"
substitute "A commissioner";
15 (b) for "the Executive Commissioner's"
substitute "the commissioner's".
(2) In section 10.5.1(2) of the Gambling Regulation
Act 2003 for "the Executive Commissioner"
(where twice occurring) substitute
20 "a commissioner".
90 Other amendments related to abolition of position of
Executive Commissioner
(1) In section 1.3(1) of the Gambling Regulation
Act 2003, the definition of Executive
25 Commissioner is repealed.
(2) In sections 3.4.61(5), 5.2.5(7), 5.6.3(3), 5.6.5(3),
6.2.14(6), 6A.2.14(6), 7.7.1(3), 7.7.2(3), 7.7.3(6),
7.7.5(3), 8.5.40(3), 8.5A.21(3), 10.4.7J(2),
10.4.7K(4), 10.4.7L(3) and 10.4.7M(4) of the
30 Gambling Regulation Act 2003 for "the
Executive Commissioner" substitute "any
commissioner".
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(3) In sections 5.7.12(2), 8.3.20(2), 8.5.13(3),
8.5A.14(3), 10.5.3(1), 10.5.6(1), 10.5.12(1) and
10.5.12(6) of the Gambling Regulation Act 2003
for "the Executive Commissioner" substitute
5 "a commissioner".
(4) In section 10.5.2(1) and 10.5.2(2) of the
Gambling Regulation Act 2003 for
"The Executive Commissioner" substitute
"A commissioner".
10 (5) In section 10.5.2(3) of the Gambling Regulation
Act 2003 for "the Executive Commissioner"
(where twice occurring) substitute
"a commissioner".
Division 2--Casino Control Act 1991
15 91 Repeal of definition of Executive Commissioner
In section 3(1) of the Casino Control Act 1991, See:
Act No.
the definition of Executive Commissioner is 47/1991.
repealed. Reprint No. 7
as at
5 April 2006
and
amending
Act Nos
24/2006,
79/2006,
22/2007,
72/2007,
71/2008,
3/2009,
29/2009,
84/2009 and
68/2009.
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s. 92
92 Amendments to Division 1 of Part 3--substitution of
references to Executive Commissioner
In sections 24(4) and 28A(7) of the Casino
Control Act 1991 for "the Executive
5 Commissioner" substitute "any commissioner".
__________________
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Part 7--Amendment to Miscellaneous Acts
s. 93
PART 7--AMENDMENT TO MISCELLANEOUS ACTS
Division 1--County Court Act 1958
93 Circumstances in which order may be made under
section 80
5 (1) In section 80AA(e) of County Court Act 1958, See:
Act No.
for "relates" substitute "relates, wholly or 6230.
partly,". Reprint No. 13
as at
15 January
(2) For section 80AA(f) of the County Court Act 2009
1958 substitute-- and
amending
10 "(f) cause undue distress or embarrassment to a Act Nos
8/2008,
witness under examination in a proceeding 78/2008,
that relates, wholly or partly, to a charge for 83/2008,
9/2009,
a sexual offence.". 38/2009,
50/2009,
68/2009 and
69/2009.
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Division 2--Family Violence Protection Act 2008
15 94 Procedural 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
20 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
25 detained under this Act.".
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s. 95
95 Application 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
5 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
10 violence safety notice; and".
96 New section 176A inserted
After the note to section 176 of the Family
Violence Protection Act 2008 insert--
"176A Relationship with certain orders under
15 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--
20 (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
25 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
30 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--
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Part 7--Amendment to Miscellaneous Acts
s. 97
(a) a copy of the family violence
intervention order; and
(b) written notification that the order may
be inconsistent with a home detention
5 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
10 Act 2009
97 Statute law revision--Justice Legislation See:
Act No.
Miscellaneous Amendments Act 2009 87/2009.
Statute Book:
(1) In section 5 of the Justice Legislation www.
legislation.
Miscellaneous Amendments Act 2009, for "At vic.gov.au
15 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)".
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Part 7--Amendment to Miscellaneous Acts
s. 98
Division 4--Magistrates' Court Act 1989
98 Extent of jurisdiction
See: In section 25(3)(b)(ii) of the Magistrates' Court
Act No.
51/1989. Act 1989, after "manslaughter," insert "child
5 Reprint No. 14 homicide, defensive homicide,".
as at
21 August
2008
and
amending
Act Nos
51/2006,
12/2008,
34/2008,
38/2008,
52/2008,
68/2008,
72/2008,
74/2008,
76/2008,
78/2008,
83/2008,
4/2009, 7/2009,
9/2009,
25/2009,
30/2009,
50/2009,
68/2009,
69/2009 and
87/2009.
LawToday:
www.
legislation.
vic.gov.au
99 Warrants
(1) In section 57(7A) of the Magistrates' Court Act
1989, for "section 266(3A)" substitute "sections
266(3A) and 267(1A)".
10 (2) In section 57(7B) of the Magistrates' Court Act
1989, for "section 430C(5)" substitute "sections
430C(5) and 430D(1A)".
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Part 7--Amendment to Miscellaneous Acts
s. 100
100 Power 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,".
5 (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
10 a sexual offence.".
Division 5--Marine Act 1988
101 Appeal to the County Court
(1) Insert the following heading to section 126 of the See:
Act No.
Marine Act 1988-- 52/1988.
Reprint No. 7
15 "Appeal against disqualification, cancellation, as at
12 December
suspension or variation by order of 2007
Magistrate's Court or Children's Court". and
amending
(2) After section 126(1) of the Marine Act 1988 Act Nos
17/2009,
insert-- 68/2009,
69/2009 and
20 "(1A) A child-- 93/2009.
LawToday:
(a) who is disqualified from obtaining an www.
legislation.
operator licence by order of the vic.gov.au
Children's Court; or
(b) whose operator licence is cancelled or
25 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
30 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
561464B.I-9/3/2010 123 BILL LA INTRODUCTION 9/3/2010
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Part 7--Amendment to Miscellaneous Acts
s. 102
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
5 the Supreme Court (as the case requires)".
102 New Division 6 inserted in Part 11
After Division 5 of Part 11 of the Marine Act
1988 insert--
"Division 6--Transitional provision--Justice
10 Legislation Amendment Act 2010
160 Appeal against disqualification,
cancellation, suspension or variation
The amendments to section 126 of this Act
made by section 101 of the Justice
15 Legislation Amendment Act 2010 apply to
orders of disqualification, cancellation,
suspension or variation made on or after the
commencement of section 101 of that Act.".
103 Statute law revision
20 In section 3(3A) of the Marine Act 1988, for
"Minster" substitute "Minister".
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Part 7--Amendment to Miscellaneous Acts
s. 104
Division 6--Road Safety Act 1986
104 Appeal to the County Court
(1) Insert the following heading to section 29 of the See:
Act No.
Road Safety Act 1986-- 127/1986.
Reprint No. 11
5 "Appeal against disqualification, cancellation, as at
29 September
suspension or variation by order of 2008
Magistrate's Court or Children's Court". and
amending
(2) After section 29(1) of the Road Safety Act 1986 Act Nos
19/1991,
insert-- 30/2007,
2/2008,
10 "(1A) A child who is disqualified from obtaining a 12/2008,
licence or permit by order of the Children's 46/2008,
77/2008,
Court or whose licence is cancelled or 13/2009,
suspended or varied by order of the 17/2009,
28/2009,
Children's Court may, under Division 1 of 55/2009,
15 Part 5.4 of Chapter 5 of the Children, Youth 68/2009,
69/2009 and
and Families Act 2005, appeal to the 93/2009.
County Court or, if the Children's Court was LawToday:
www.
constituted by the President, the Trial legislation.
Division of the Supreme Court, against the vic.gov.au
20 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
25 of the Supreme Court (as the case requires)".
105 New section 103ZA inserted
After section 103Z of the Road Safety Act 1986
insert--
"103ZA Transitional provision--Justice
30 Legislation Amendment Act 2010
The amendments to section 29 of this Act
made by section 104 of the Justice
Legislation Amendment Act 2010 apply to
orders of disqualification, cancellation,
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Part 7--Amendment to Miscellaneous Acts
s. 106
suspension or variation made on or after the
commencement of section 104 of that Act.".
Division 7--Stalking Intervention Orders Act 2008
106 New section 51A inserted
5 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
10 (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;
15 (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
20 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
25 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).".
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Part 7--Amendment to Miscellaneous Acts
s. 107
Division 8--Supreme Court Act 1986
107 Circumstances in which order may be made under
section 18
(1) In section 19(e) of the Supreme Court Act 1986, See:
Act No.
5 for "relates" substitute "relates, wholly or 110/1986.
partly,". Reprint No. 6
as at
28 April 2006
(2) For section 19(f) of the Supreme Court Act 1986 and
substitute-- amending
Act Nos
"(f) cause undue distress or embarrassment to a 48/2006,
24/2007,
10 witness under examination in a proceeding 8/2008, 9/2008,
that relates, wholly or partly, to a charge for 23/2008,
24/2008,
a sexual offence.". 78/2008,
4/2009, 9/2009,
50/2009,
68/2009 and
69/2009.
LawToday:
www.
legislation.
vic.gov.au
__________________
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Justice Legislation Amendment Bill 2010
Part 8--Repeal of Amending Act
s. 108
PART 8--REPEAL OF AMENDING ACT
108 Repeal of amending Act
This Act is repealed on 1 July 2012.
Note
5 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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Justice Legislation Amendment Bill 2010
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561464B.I-9/3/2010 129 BILL LA INTRODUCTION 9/3/2010
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