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PARLIAMENT OF VICTORIA
Sentencing and Other Acts (Amendment) Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 3
PART 2--AMENDMENT OF SENTENCING ACT 1991 5
3. Principal Act 5
4. Definitions 5
5. Sentencing guidelines 6
6. New Part 2A inserted in Principal Act 6
PART 2A--SERIOUS OFFENDERS 7
6A. Application of Part 7
6B. Definitions for purposes of this Part 7
6C. Factors relevant to consideration of whether offender is a
serious offender 9
6D. Factors relevant to length of prison sentence 10
6E. Sentences to be served cumulatively 11
6F. Serious offender status to be noted on record 11
7. Amendments consequential on insertion of new Part 2A 11
8. Sentencing orders 12
9. New section 9 substituted 13
9. Aggregate sentence of imprisonment 13
10. Sentencing offenders who commit offences while on parole or
bail 13
11. Time held in custody before sentencing 14
12. New Subdivision (1B) inserted in Division 2 of Part 3 15
Subdivision (1B)--Combined Custody and Treatment Orders 16
18Q. Combined custody and treatment order 16
18R. Core conditions 17
18S. Program conditions 18
18T. Offender may be fined as well 19
18U. Secretary may direct offender to report at another place 19
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Clause Page
18V. Suspension of combined custody and treatment order 19
18W. Breach of combined custody and treatment order 20
13. Breach of intensive correction order 22
14. Suspended sentences of imprisonment 25
15. Breach of order suspending sentence 27
16. Youth training centre orders 30
17. Youth residential centre orders 31
18. Gaol term combined with community-based order 32
19. Breach of community-based order 32
20. Release on adjournment 34
21. Breach of order for release on adjournment 35
22. Discharge as security patient 37
23. Pre-sentence reports 37
24. New Division 2A inserted in Part 6 37
Division 2A--Drug and Alcohol Reports 37
99A. Drug and alcohol assessment report 37
99B. Distribution of drug and alcohol assessment report 38
99C. Disputed drug and alcohol assessment report 38
99D. Drug and alcohol pre-release report 39
99E. Approved drug and alcohol assessment agencies 40
25. Consequential amendments 40
26. Correction of judgment or sentence 40
104A. Power to correct clerical mistakes, etc. 40
27. New penalty scale 42
28. Amendments consequential on new penalty scale 42
29. New section 109A inserted 44
109A. Operation of penalty provisions 44
30. Penalty provisions 45
31. New sections 113A to 113C inserted 45
113A. Maximum term of imprisonment for summary offence 45
113B. Maximum cumulative term of imprisonment imposable by
Magistrates' Court 45
113C. Maximum term of imprisonment where none prescribed 46
32. Minor amendments 46
33. New section 118 inserted 46
118. Transitional provisions (1997 amendments) 46
34. New Schedules substituted in Principal Act 48
SCHEDULE 1--Serious offender offences 48
SCHEDULE 2--Forms for use where other offences taken into
account in sentencing 56
PART 3--AMENDMENT OF DRUGS, POISONS AND
CONTROLLED SUBSTANCES ACT 1981 59
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Clause Page
35. Principal Act 59
36. Amendment of section 4--definitions 59
37. Amendment of section 70--definitions 61
38. Increased penalty for trafficking to a child 63
39. Sections 71A and 71B inserted--new offences 64
71A. Possession of substance, material, documents or equipment
for trafficking in a drug of dependence 64
71B. Supply of drug of dependence to a child 64
40. Amendment of section 72 65
41. Expression of penalties in terms of levels 65
42. Amendment of sections 73 and 75 67
43. Drug education and information programs 67
44. Warrant to search premises 69
45. Amendment of Part 1 and 2 of Schedule Eleven 72
46. Substitution of Part 3 of Schedule Eleven 73
47. Consequential amendments 74
PART 4--AMENDMENT OF BAIL ACT 1977 75
48. Refusal of bail unless exceptional circumstances exist 75
49. New section 34 inserted 75
34. Transitional provisions 75
PART 5--AMENDMENT OF CHILDREN AND YOUNG
PERSONS ACT 1989 76
50. Jurisdiction of Criminal Division 76
51. Youth detention orders 76
52. Sentencing powers of Supreme Court or County Court 77
53. Transitional provisions 77
PART 6--AMENDMENT OF CRIMES ACT 1958 79
54. Aggravated burglary 79
55. New section 197A inserted 80
197A. Arson causing death 80
56. New Division 9A inserted in Part I 80
Division 9A--Penalties for Certain Common Law Offences 80
320. Maximum term of imprisonment for certain common law
offences 80
57. Certified statement of conviction 81
58. Alternative verdict on charge of arson causing death 82
59. Determination of appeals by Court of Appeal 82
60. Alteration of maximum penalties 83
61. Consequential amendment 83
62. Statute law revision 83
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Clause Page
63. Transitional provisions 84
PART 7--AMENDMENT OF MAGISTRATES' COURT ACT 1989 85
64. Definition of "sentencing order" 85
65. Indictable offences triable summarily 85
66. Appeals 86
PART 8--AMENDMENT OF OTHER ACTS 88
67. Alcoholics and Drug-dependent Persons Act 1968 88
68. Prisoners (Interstate Transfer) Act 1983 88
69. Crimes (Confiscation of Profits) Act 1986 88
70. Prostitution Control Act 1994 89
71. Legal Practice Act 1996 90
__________________
SCHEDULE 1--Alteration of maximum penalties in Crimes Act 1958 91
NOTES 102
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PARLIAMENT OF VICTORIA
A BILL
to amend the Sentencing Act 1991, the Drugs, Poisons and
Controlled Substances Act 1981, the Bail Act 1977, the Children
and Young Persons Act 1989, the Crimes Act 1958, the
Magistrates' Court Act 1989 and certain other Acts and for other
purposes.
Sentencing and Other Acts
(Amendment) Act 1997
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purposes of this Act are--
(a) to amend the Sentencing Act 1991 so as
5 to--
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s. 1
Act No.
(i) make fresh provision for the sentencing
of serious drug offenders and serious
arson offenders;
(ii) introduce a new penalty scale for
5 offences punishable by imprisonment
and impose a limit on the maximum
term of imprisonment for summary
offences;
(iii) provide for a new sentencing order
10 where drunkenness or drug addiction
contributed to the criminal behaviour;
(iv) improve the procedures for dealing
with breaches of sentencing orders;
(v) extend the range of sentencing orders
15 available to adult courts when dealing
with young offenders;
(vi) generally improve the operation of the
Act;
(b) to amend the Drugs, Poisons and
20 Controlled Substances Act 1981 so as to--
(i) specify new commercial quantities and
traffickable quantities in relation to
certain drugs of dependence;
(ii) increase the penalty for trafficking in a
25 drug of dependence to a child and make
it a new offence for an adult to supply a
drug of dependence to a child;
(iii) make it an offence to possess certain
substances with intent to manufacture a
30 drug of dependence for the purpose of
trafficking;
(iv) make fresh provision for the destruction
of drugs and other items in certain
circumstances;
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Act No.
(v) amend the provisions relating to search
warrants;
(c) to amend the Bail Act 1977 to require a
court to refuse bail to a person charged with
5 trafficking in a commercial quantity of a
drug of dependence unless exceptional
circumstances exist;
(d) to amend the Children and Young Persons
Act 1989 so as to limit the jurisdiction of the
10 Children's Court to hear and determine
offences of attempted murder, culpable
driving or arson causing death;
(e) to amend the Crimes Act 1958 so as to--
(i) alter the maximum penalties for
15 offences under that Act and impose a
limit on the maximum term of
imprisonment for certain common law
offences;
(ii) create a new offence of arson causing
20 death;
(iii) provide for new circumstances in which
an offence of aggravated burglary may
be committed;
(iv) enlarge the powers available to the
25 Court of Appeal on an appeal against
sentence.
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
30 (2) Part 2 (except sections 4(a), 8(1), 8(2)(a), 9, 12,
13(2) to (4), 15, 19(2) and (3), 21, 23, 24 and 26),
Part 3 (except section 43), Parts 4 and 5, Part 6
(except section 59), Part 7 (except section 66(1)),
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Part 8 (except section 67) and Schedule 1 come
into operation on 1 September 1997.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
5 day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) does
not come into operation before 1 July 1998, it
comes into operation on that day.
_______________
10
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Sentencing and Other Acts (Amendment) Act 1997
s. 3
Act No.
PART 2--AMENDMENT OF SENTENCING ACT 1991
3. Principal Act
No. 49/1991.
In this Part, the Sentencing Act 1991 is called the
Reprinted to
Principal Act. No. 98/1995.
Subsequently
amended by
Nos 22/1996,
45/1996 and
81/1996.
5 4. Definitions
In section 3(1) of the Principal Act--
(a) after the definition of "chief psychiatrist"
insert--
' "combined custody and treatment
10 order" means an order made under
Subdivision (1B) of Division 2 of Part
3 sentencing an offender to a term of
imprisonment of not more than 12
months and specifying a part of the
15 term to be served in the community;'.
(b) after the definition of "community service
condition" insert--
' "detention", in relation to an order or
sentence of a court, means detention in
20 a youth training centre or youth
residential centre;';
(c) the definition of "young person" is repealed;
(d) in the definition of "young offender" omit
"aged 17 or more but is";
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Act No.
(e) after the definition of "Youth Parole Board"
insert--
' "youth residential centre" has the same
meaning as in the Children and Young
5 Persons Act 1989;
"youth residential centre order" means an
order made under Subdivision (4) of
Division 2 of Part 3 directing the
detention of a young offender in a
10 youth residential centre;
"youth training centre" has the same
meaning as in the Children and Young
Persons Act 1989;
"youth training centre order" means an
15 order made under Subdivision (4) of
Division 2 of Part 3 directing the
detention of a young offender in a
youth training centre.'.
5. Sentencing guidelines
20 In section 5 of the Principal Act, after sub-section
(2) insert--
"(2AA) Despite anything to the contrary in this Act,
in sentencing an offender a court must not
have regard to--
25 (a) any possibility or likelihood that the
length of time actually spent in custody
by the offender will be affected by
executive action of any kind; or
(b) any sentencing practices arising at any
30 time out of section 10 of this Act as in
force at any time before its expiry.".
6. New Part 2A inserted in Principal Act
After Part 2 of the Principal Act insert--
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s. 6
Act No.
'PART 2A--SERIOUS OFFENDERS
6A. Application of Part
This Part applies to a court in sentencing--
(a) a serious sexual offender for a sexual
5 offence or a violent offence;
(b) a serious violent offender for a serious
violent offence;
(c) a serious drug offender for a drug
offence;
10 (d) a serious arson offender for an arson
offence.
6B. Definitions for purposes of this Part
(1) In this Part--
''arson offence" means an offence to which
15 clause 5 of Schedule 1 applies;
"drug offence" means an offence to which
clause 4 of Schedule 1 applies;
"serious violent offence" means an offence
to which clause 3 of Schedule 1
20 applies;
"sexual offence" means an offence to which
clause 1 of Schedule 1 applies;
"violent offence" means an offence to
which clause 2 of Schedule 1 applies.
25 (2) In this Part--
"serious arson offender" means an
offender (other than a young offender)
who has been convicted of an arson
offence for which he or she has been
30 sentenced to a term of imprisonment or
detention in a youth training centre;
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Act No.
"serious drug offender" means an offender
(other than a young offender) who has
been convicted of a drug offence for
which he or she has been sentenced to a
5 term of imprisonment or detention in a
youth training centre;
"serious sexual offender" means an
offender (other than a young
offender)--
10 (a) who has been convicted of 2 or
more sexual offences for each of
which he or she has been
sentenced to a term of
imprisonment or detention in a
15 youth training centre; or
(b) who has been convicted of at least
one sexual offence and at least
one violent offence arising out of
the one course of conduct for each
20 of which he or she has been
sentenced to a term of
imprisonment or detention in a
youth training centre;
"serious violent offender" means an
25 offender (other than a young offender)
who has been convicted of a serious
violent offence for which he or she has
been sentenced to a term of
imprisonment or detention in a youth
30 training centre.
(3) In this Part--
"relevant offence", in relation to a serious
offender, means--
(a) an arson offence in the case of a
35 serious arson offender;
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s. 6
Act No.
(b) a drug offence in the case of a
serious drug offender;
(c) a sexual offence or a violent
offence in the case of a serious
5 sexual offender;
(d) a serious violent offence in the
case of a serious violent offender;
"serious offender" means--
(a) serious arson offender; or
10 (b) serious drug offender; or
(c) serious sexual offender; or
(d) serious violent offender.
6C. Factors relevant to consideration of
whether offender is a serious offender
15 (1) In considering whether an offender being
sentenced is a serious offender, a court must
have regard to a conviction or convictions
for a relevant offence irrespective of whether
recorded--
20 (a) in the current trial or hearing; or
(b) in another trial or hearing; or
(c) in different trials or hearings held at
different times; or
(d) in separate trials of different counts in
25 the one presentment.
(2) In sentencing an offender a court may only
treat a conviction for an offence as a
conviction for a relevant offence if it is
satisfied beyond reasonable doubt that it is.
30 (3) Despite sub-section (2), in sentencing an
offender a court must have regard to a
conviction for an offence against a law of the
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Act No.
Commonwealth or of a place outside
Victoria (whether or not in Australia) and
must treat it as a conviction for a relevant
offence if it is satisfied beyond reasonable
5 doubt that--
(a) the offence is substantially similar to an
arson offence, drug offence, serious
violent offence, sexual offence or
violent offence (as the case requires);
10 and
(b) the offender was for that offence
sentenced to a term of imprisonment or
detention.
(4) Section 395 of the Crimes Act 1958 applies
15 for the purposes of sub-section (3) in relation
to the proof of a previous conviction within
the meaning of that section.
6D. Factors relevant to length of prison
sentence
20 If under section 5 the Supreme Court or the
County Court in sentencing a serious
offender for a relevant offence considers that
a sentence of imprisonment is justified, the
Court, in determining the length of that
25 sentence--
(a) must regard the protection of the
community from the offender as the
principal purpose for which the
sentence is imposed; and
30 (b) may, in order to achieve that purpose,
impose a sentence longer than that
which is proportionate to the gravity of
the offence considered in the light of its
objective circumstances.
35
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s. 7
Act No.
6E. Sentences to be served cumulatively
Every term of imprisonment imposed by a
court on a serious offender for a relevant
offence must, unless otherwise directed by
5 the court, be served cumulatively on any
uncompleted sentence or sentences of
imprisonment imposed on that offender,
whether before or at the same time as that
term.
10 6F. Serious offender status to be noted on
record
(1) A court that sentences a serious offender for
a relevant offence must, at the time of doing
so, cause to be entered in the records of the
15 court in respect of that offence the fact that
the offender was sentenced for it as a serious
offender.
(2) Despite anything to the contrary in the
Evidence Act 1958 or the Crimes Act 1958,
20 a statement of the fact that an offender was
sentenced for a relevant offence as a serious
offender may be included in a certificate
issued under section 87(1) of the Evidence
Act 1958 or in a certified statement of
25 conviction issued under section 395 of the
Crimes Act 1958.'.
7. Amendments consequential on insertion of new Part
2A
(1) In section 3(1) of the Principal Act, the definitions
30 of "serious sexual offender", "serious violent
offence", "serious violent offender", "sexual
offence" and "violent offence" are repealed.
(2) Section 3(2) of the Principal Act is repealed.
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s. 8
Act No.
(3) Section 5A of the Principal Act is repealed.
(4) In section 16(1A) of the Principal Act, for
paragraph (c) substitute--
"(c) on a serious offender within the meaning of
5 Part 2A for a relevant offence within the
meaning of that Part; or".
(5) Section 16(3A) of the Principal Act is repealed.
8. Sentencing orders
(1) In section 5 of the Principal Act, after sub-section
10 (4) insert--
"(4A) A court must not impose a combined custody
and treatment order unless it considers that
the purpose or purposes for which the
sentence is imposed cannot be achieved by
15 an intensive correction order.".
(2) In section 7 of the Principal Act--
(a) after paragraph (a) insert--
"(ab) record a conviction and order that the
offender serve a term of imprisonment
20 partly in custody and partly in the
community (a combined custody and
treatment order); or";
(b) in paragraph (d)--
(i) before "record" insert "in the case of a
25 young offender,";
(ii) after "that the" insert "young";
(c) after paragraph (d) insert--
"(da) in the case of a young offender, record
a conviction and order that the young
30 offender be detained in a youth
residential centre; or".
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Sentencing and Other Acts (Amendment) Act 1997
s. 9
Act No.
9. New section 9 substituted1
For section 9 of the Principal Act substitute--
"9. Aggregate sentence of imprisonment
(1) If an offender is convicted by the
5 Magistrates' Court of two or more offences
which are founded on the same facts, or
form, or are part of, a series of offences of
the same or a similar character, the Court
may impose an aggregate sentence of
10 imprisonment in respect of those offences in
place of a separate sentence of imprisonment
in respect of each of them.
(2) The term of an aggregate sentence of
imprisonment imposed in accordance with
15 sub-section (1) must not exceed the total
effective period of imprisonment that could
have been imposed in respect of the offences
in accordance with this Act if the
Magistrates' Court had imposed a separate
20 sentence of imprisonment in respect of each
of them.
(3) If the Magistrates' Court proposes to impose
an aggregate sentence of imprisonment, it
must before doing so announce in open
25 court, in language likely to be readily
understood by the offender--
(a) the decision to impose an aggregate
sentence and the reasons for doing so;
and
30 (b) the effect of the proposed aggregate
sentence.".
10. Sentencing offenders who commit offences while on
parole or bail
(1) In section 16(1A) of the Principal Act, for
35 paragraph (d) substitute--
13
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Sentencing and Other Acts (Amendment) Act 1997
s. 11
Act No.
"(d) on any person for an offence committed
while released under a parole order; or
(e) on any person for an offence committed
while released on bail in relation to another
5 offence.".
(2) In section 16 of the Principal Act, for sub-section
(3B) substitute--
'(3B) Every term of imprisonment imposed on a
person for an offence committed while
10 released under a parole order made in respect
of another sentence of imprisonment ("the
parole sentence") must, unless otherwise
directed by the court because of the
existence of exceptional circumstances, be
15 served cumulatively on any period of
imprisonment which he or she may be
required to serve in custody in a prison on
cancellation of the parole order.
(3C) Every term of imprisonment imposed on a
20 person for an offence committed while
released on bail in relation to any other
offence or offences must, unless otherwise
directed by the court, be served cumulatively
on any uncompleted sentence or sentences of
25 imprisonment imposed on that offender,
whether before or at the same time as that
term.'.
11. Time held in custody before sentencing
(1) In section 18(1) of the Principal Act, omit "and
30 for no other reason".
(2) In section 18(2) of the Principal Act--
(a) after paragraph (b) insert--
"(ba) to an intensive correction order; or";
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s. 12
Act No.
(b) after paragraph (c) insert--
"; or
(d) to a period of custody declared on a
previous occasion under this section or
5 section 35 as reckoned to be a period of
imprisonment or detention already
served under another sentence of
imprisonment or detention imposed on
the offender.".
10 (3) In section 18(4) of the Principal Act, for
paragraphs (a) and (b) substitute "the fact that the
declaration was made and its details".
(4) In section 35(1) of the Principal Act, omit "and
for no other reason".
15 (5) In section 35(2) of the Principal Act, after
paragraph (b) insert--
"; or
(c) to a period of custody declared on a previous
occasion under this section or section 18 as
20 reckoned to be a period of detention or
imprisonment already served under another
sentence of detention or imprisonment
imposed on the offender.".
(6) In section 35(4) of the Principal Act, for
25 paragraphs (a) and (b) substitute "the fact that the
declaration was made and its details".
12. New Subdivision (1B) inserted in Division 2 of Part 3
In Division 2 of Part 3, after Subdivision (1A)
insert--
30
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s. 12
Act No.
"Subdivision (1B)--Combined Custody and Treatment Orders
18Q. Combined custody and treatment order
(1) If a person is convicted by a court of an
offence and the court--
5 (a) is satisfied that drunkenness or drug
addiction contributed to the
commission of the offence; and
(b) is considering sentencing him or her to
a term of imprisonment of not more
10 than 12 months; and
(c) has received a pre-sentence report--
the court, if satisfied that it is desirable to do
so in the circumstances, may impose a
sentence of imprisonment of not more than
15 12 months and order that not less than 6
months of that sentence be served in custody
and the balance be served in the community
on the conditions attached to the order.
(2) Before making a combined custody and
20 treatment order a court may order a drug and
alcohol assessment report in respect of the
offender and adjourn the proceeding to
enable the report to be prepared.
(3) A court may only make a combined custody
25 and treatment order if the offender agrees to
comply with the conditions attached to it.
(4) A court must not make a combined custody
and treatment order if the sentence of
imprisonment by itself for the whole term
30 stated by the court would not be appropriate
in the circumstances having regard to the
provisions of this Act.
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Act No.
(5) If the offender is convicted of more than one
offence in the same proceeding the court
may only make a combined custody and
treatment order if the aggregate period of
5 imprisonment imposed in respect of all the
offences does not exceed 12 months.
(6) A combined custody and treatment order
must be taken for all purposes to be a
sentence of imprisonment for the whole term
10 stated by the court.
(7) For the purposes of any proceedings under
section 18W, a combined custody and
treatment order made on appeal by the Court
of Appeal must be taken to have been made
15 by the court from whose decision the appeal
was brought.
18R. Core conditions
(1) Core conditions of a combined custody and
treatment order are that the offender--
20 (a) must not during the period of the order
commit another offence punishable on
conviction by imprisonment;
(b) while serving the sentence in the
community must--
25 (i) report to a specified community
corrections centre within 2 clear
working days after being released
from custody under the order;
(ii) undergo treatment for alcohol or
30 drug addiction as specified in a
drug and alcohol pre-release
report;
(iii) report to, and receive visits from,
a community corrections officer;
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s. 12
Act No.
(iv) notify an officer at the specified
community corrections centre of
any change of address or
employment within 2 clear
5 working days after the change;
(v) not leave Victoria except with the
permission of an officer at the
specified community corrections
centre granted either generally or
10 in relation to the particular case;
(vi) obey all lawful instructions and
directions of community
corrections officers.
(2) A combined custody and treatment order
15 must have all the core conditions attached to
it.
(3) On making a combined custody and
treatment order a court must order that a
drug and alcohol pre-release report be
20 prepared in respect of the offender prior to
his or her release from custody under the
order.
18S. Program conditions
(1) The court may attach to a combined custody
25 and treatment order--
(a) a condition that the offender while
serving the sentence in the community
submit to testing for alcohol or drug use
as specified in the order; or
30 (b) any other condition relevant to the
offender's drug or alcohol addiction or
usage that the court considers necessary
or desirable.
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(2) A court is not required to attach any program
conditions to a combined custody and
treatment order.
(3) A court must not impose any more program
5 conditions than are necessary to achieve the
purpose or purposes for which the order is
made.
18T. Offender may be fined as well
A court may impose on an offender a fine
10 authorised by law in addition to making a
combined custody and treatment order.
18U. Secretary may direct offender to report at
another place
(1) If, because an offender has changed his or
15 her place of residence or for any other reason
it is not convenient that the offender should
report at a place or to a person specified in a
combined custody and treatment order, the
Secretary to the Department of Justice may
20 direct the offender to report at another place
or to another person.
(2) An offender must report as directed under
sub-section (1) as if that place or person had
been specified in the order.
25 18V. Suspension of combined custody and
treatment order
At any time after the release from custody of
an offender under a combined custody and
treatment order, the Secretary to the
30 Department of Justice may--
(a) if the offender is ill; or
19
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(b) in other exceptional circumstances--
suspend for a period the operation of the
order or of any condition of the order and, if
so, that period does not count in calculating
5 the period for which the order is to remain in
force.
18W. Breach of combined custody and treatment
order
(1) If at any time while a combined custody and
10 treatment order is in force the offender fails
without reasonable excuse to comply with
any condition of it, the offender is guilty of
an offence for which he or she may be
proceeded against on a charge filed by a
15 prescribed person or a member of a
prescribed class of persons.
(2) A proceeding for an offence under sub-
section (1) may be commenced at any time
up until 3 years after the date on which the
20 offence is alleged to have been committed.
(3) Despite anything to the contrary in the
Magistrates' Court Act 1989--
(a) on the filing of a charge referred to in
sub-section (1), an application under
25 section 28(1) of that Act for the issue of
a summons to answer to the charge or a
warrant to arrest may be made to the
registrar at any venue of the
Magistrates' Court;
30 (b) a summons to answer to the charge
issued on an application referred to in
paragraph (a) must direct the defendant
to attend--
(i) at the proper venue of the
35 Magistrates' Court, if the
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combined custody and treatment
order was made by the
Magistrates' Court; and
(ii) at the Supreme Court or the
5 County Court, if the combined
custody and treatment order was
made by that court--
to answer the charge;
(c) a warrant to arrest issued on an
10 application referred to in paragraph (a)
authorises the person to whom it is
directed to bring the defendant when
arrested before a bail justice or before
the court by which the combined
15 custody and treatment order was made
to be dealt with according to law.
(4) Despite anything to the contrary in this or
any other Act or in any rule of law, the
Supreme Court or the County Court may, if
20 the combined custody and treatment order
was made by it, hear and determine without
a jury an offence against sub-section (1) and,
subject to any rules of court, the practice and
procedure applicable in the Magistrates'
25 Court to the hearing and determination of
summary offences applies so far as is
appropriate to the hearing of the offence.
(5) If on the hearing of a charge under sub-
section (1) the court finds the offender guilty
30 of the offence, it may impose a level 12 fine
and in addition must either--
(a) confirm the order originally made; or
(b) order the offender to serve in custody
the whole part of the sentence that was
35 to be served in the community.
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(6) Despite anything to the contrary in sub-
section (5), if on the hearing of a charge the
court finds the offender guilty of the offence
it must, in addition to any fine it may impose
5 under sub-section (5), exercise the power
referred to in paragraph (b) of that sub-
section unless it is of the opinion that it
would be unjust to do so in view of any
exceptional circumstances which have arisen
10 since the combined custody and treatment
order was made.
(7) If the court decides not to exercise the power
referred to in sub-section (5)(b), it must state
in writing its reasons for so deciding.
15 (8) The part of a term of imprisonment which a
court orders an offender to serve in custody
under sub-section (5) must be served--
(a) immediately; and
(b) unless the court otherwise orders,
20 cumulatively on any other term of
imprisonment previously imposed on
the offender by that or any other court.
(9) A fine imposed under this section must be
taken for all purposes to be a fine payable on
25 a conviction of an offence.".
13. Breach of intensive correction order
(1) In section 19 of the Principal Act, for sub-sections
(7) and (8) substitute--
"(7) For the purpose of any proceedings under
30 section 25 or 26, an intensive correction
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.".
35 (2) In section 26(1) of the Principal Act--
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(a) omit "in the supervising court";
(b) for "the Secretary to the Department of
Justice or a community corrections officer"
substitute "a prescribed person or a member
5 of a prescribed class of persons".
(3) In section 26 of the Principal Act, for sub-sections
(2) and (3) substitute--
'(2) Despite anything to the contrary in the
Magistrates' Court Act 1989--
10 (a) on the filing of a charge referred to in
sub-section (1), an application under
section 28(1) of that Act for the issue of
a summons to answer to the charge or a
warrant to arrest may be made to the
15 registrar at any venue of the
Magistrates' Court;
(b) a summons to answer to the charge
issued on an application referred to in
paragraph (a) must direct the defendant
20 to attend--
(i) at the proper venue of the
Magistrates' Court, if the intensive
correction order was made by the
Magistrates' Court; and
25 (ii) at the Supreme Court or the
County Court, if the intensive
correction order was made by that
court--
to answer the charge;
30 (c) a warrant to arrest issued on an
application referred to in paragraph (a)
authorises the person to whom it is
directed to bring the defendant when
arrested before a bail justice or before
35 the court by which the intensive
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correction order was made to be dealt
with according to law.
(3) Despite anything to the contrary in this or
any other Act or in any rule of law, the
5 Supreme Court or the County Court may, if
the intensive correction order was made by
it, hear and determine without a jury an
offence against sub-section (1) and, subject
to any rules of court, the practice and
10 procedure applicable in the Magistrates'
Court to the hearing and determination of
summary offences applies so far as is
appropriate to the hearing of the offence.
(3A) If on the hearing of a charge under sub-
15 section (1) the court finds the offender guilty
of the offence, it may impose a level 12 fine
and in addition must--
(a) vary the intensive correction 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 of the offence
under sub-section (1).
(3B) Despite anything to the contrary in sub-
section (3A), if on the hearing of a charge
the court finds the offender guilty of the
30 offence and is satisfied that the offence was
constituted, in whole or in part, by the
offender committing another offence
punishable by imprisonment during the
period of the intensive correction order, it
35 must, in addition to any fine it may impose
under sub-section (3A), exercise the power
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referred to in paragraph (c) of that sub-
section unless it is of the opinion that it
would be unjust to do so in view of any
exceptional circumstances which have arisen
5 since the intensive correction order was
made.
(3C) If the court decides not to exercise the power
referred to in sub-section (3A)(c), it must
state in writing its reasons for so deciding.'.
10 (4) In section 26(4) of the Principal Act--
(a) omit ", unless the court otherwise orders,";
(b) in paragraph (b), for "concurrently with"
substitute "unless the court otherwise
orders, cumulatively on".
15 14. Suspended sentences of imprisonment
(1) In section 3(1) of the Principal Act--
(a) in the definition of "operational period", for
"specified under section 27(6)" substitute
"for which the whole or a part of the
20 sentence is suspended under section 27(1)";
(b) for the definition of "prescribed officer"
substitute--
' "prescribed person" means a person
prescribed under the regulations;';
25 (c) the definition of "treatment period" is
repealed.
(2) In section 27 of the Principal Act, for sub-sections
(1) and (2) substitute--
"(1) On sentencing an offender to a term of
30 imprisonment a court may make an order
suspending, for a period specified by the
court, the whole or a part of the sentence if it
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is satisfied that it is desirable to do so in the
circumstances.
(2) A court may only make an order suspending
a sentence of imprisonment if the period of
5 imprisonment imposed, or the aggregate
period of imprisonment where the offender is
convicted of more than one offence in the
proceeding--
(a) does not exceed 3 years in the case of
10 the Supreme Court or the County
Court; and
(b) does not exceed 2 years in the case of
the Magistrates' Court.
(2A) The period for which the whole or a part of a
15 sentence of imprisonment may be suspended
is--
(a) the length of the suspended term of
imprisonment; or
(b) another period specified by the court
20 not exceeding 3 years, in the case of the
Supreme Court or the County Court, or
2 years, in the case of the Magistrates'
Court--
whichever is the longer.".
25 (3) In section 27 of the Principal Act, for sub-section
(4) substitute--
"(4) A court proposing to make an order
suspending a sentence of imprisonment must
before making the order explain, or cause to
30 be explained, to the offender in language
likely to be readily understood by him or
her--
(a) the purpose and effect of the proposed
order; and
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(b) the consequences that may follow if he
or she commits, whether in or outside
Victoria, another offence punishable by
imprisonment during the operational
5 period of the sentence.".
(4) In section 27 of the Principal Act, sub-section (6)
is repealed.
(5) In section 27 of the Principal Act, for sub-section
(9) substitute--
10 "(9) For the purpose of any proceedings under
section 31, a suspended sentence of
imprisonment imposed on an offender on
appeal by the Court of Appeal must be taken
to have been imposed by the court from
15 whose decision the appeal was brought.".
(6) Sections 28 and 30 of the Principal Act are
repealed.
(7) In section 29 of the Principal Act, omit "or 28".
(8) In section 80(1) of the Principal Act, paragraph
20 (a) is repealed.
(9) In sections 81(2)(c) and 82(2)(c) of the Principal
Act, omit "a suspended sentence or".
(10) In section 96(3) of the Principal Act, paragraph
(b) is repealed.
25 15. Breach of order suspending sentence
(1) In section 31 of the Principal Act, for sub-sections
(1) to (5) substitute--
"(1) If at any time during the operational period
of a suspended sentence of imprisonment,
30 the offender commits, whether in or outside
Victoria, another offence punishable by
imprisonment, the offender is guilty of an
offence for which he or she may be
proceeded against on a charge filed by a
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prescribed person or a member of a
prescribed class of persons.
(2) A proceeding for an offence under sub-
section (1) may be commenced at any time
5 up until 3 years after the date on which the
offence is alleged to have been committed.
(3) Despite anything to the contrary in the
Magistrates' Court Act 1989--
(a) on the filing of a charge referred to in
10 sub-section (1), an application under
section 28(1) of that Act for the issue of
a summons to answer to the charge or a
warrant to arrest may be made to the
registrar at any venue of the
15 Magistrates' Court;
(b) a summons to answer to the charge
issued on an application referred to in
paragraph (a) must direct the defendant
to attend--
20 (i) at the proper venue of the
Magistrates' Court, if the
suspended sentence was imposed
by the Magistrates' Court; and
(ii) at the Supreme Court or the
25 County Court, if the suspended
sentence was imposed by that
court--
to answer the charge;
(c) a warrant to arrest issued on an
30 application referred to in paragraph (a)
authorises the person to whom it is
directed to bring the defendant when
arrested before a bail justice or before
the court by which the suspended
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sentence was imposed to be dealt with
according to law.
(4) Despite anything to the contrary in this or
any other Act or in any rule of law, the
5 Supreme Court or the County Court may, if
the suspended sentence was imposed by it,
hear and determine without a jury an offence
against sub-section (1) and, subject to any
rules of court, the practice and procedure
10 applicable in the Magistrates' Court to the
hearing and determination of summary
offences applies so far as is appropriate to
the hearing of the offence.
(5) If on the hearing of a charge under sub-
15 section (1) the court finds the offender guilty
of the offence, it may impose a level 12 fine
and in addition must--
(a) restore the sentence or part sentence
held in suspense and order the offender
20 to serve it; or
(b) restore part of the sentence or part
sentence held in suspense and order the
offender to serve it; or
(c) in the case of a wholly suspended
25 sentence, extend the period of the order
suspending the sentence to a date not
later than 12 months after the date of
the order under this sub-section; or
(d) make no order with respect to the
30 suspended sentence.
(5A) Despite anything to the contrary in sub-
section (5), if on the hearing of a charge the
court finds the offender guilty of the offence
it must, in addition to any fine it may impose
35 under sub-section (5), exercise the power
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referred to in paragraph (a) of that sub-
section unless it is of the opinion that it
would be unjust to do so in view of any
exceptional circumstances which have arisen
5 since the order suspending the sentence was
made.
(5B) If the court decides not to exercise the power
referred to in sub-section (5)(a), it must state
in writing its reasons for so deciding.".
10 (2) In section 31(6) of the Principal Act--
(a) omit ", unless the court otherwise orders,";
(b) in paragraph (b), for "concurrently with"
substitute "unless the court otherwise
orders, cumulatively on".
15 (3) Section 31(7) of the Principal Act is repealed.
16. Youth training centre orders
(1) In sections 32(2)(b), 32(4), 34(1)(a), 34(1)(b),
34(1)(c), 35(5) and 35(8)(a) of the Principal Act,
for "offender" substitute "young offender".
20 (2) In section 32(1) of the Principal Act, for "If"
substitute "Subject to sub-sections (2A) and (2B),
if".
(3) In section 32 of the Principal Act, after sub-
section (2) insert--
25 "(2A) A court must not make a youth training
centre order in respect of a young offender
who at the time of being sentenced is under
the age of 15 years.".
(4) In sections 32(3), 32(5)(a), 34(2), 34(3), 34(5),
30 34(6), 35(1), 35(3) and 35(4) of the Principal Act,
for "an offender" substitute "a young offender".
(5) In section 32(3) of the Principal Act--
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(a) in paragraph (a), for "24 months" substitute
"2 years";
(b) in paragraph (b), for "36 months" substitute
"3 years".
5 (6) In sections 32(5) and 35(3)(a) of the Principal
Act, for "the offender" substitute "the young
offender".
(7) In sections 33(1), 33(2), 33(3) and 35(6) of the
Principal Act, for "a person" substitute "a young
10 offender".
(8) In sections 33(1), 33(2)(a) and 33(2)(b) of the
Principal Act, for "that person" substitute "the
young offender".
(9) In section 33(3) of the Principal Act, for "the
15 person" substitute "the young offender".
17. Youth residential centre orders
(1) In sections 16(1), 16(2)(a), 16(3), 17(5) and 17(6)
of the Principal Act, after "centre" insert "or
youth residential centre".
20 (2) In the heading to Subdivision (4) of Division 2 of
Part 3 of the Principal Act, after "Orders" insert
"and Youth Residential Centre Orders".
(3) In sections 32(1) and 32(2) of the Principal Act,
after "order" insert "or a youth residential centre
25 order".
(4) In section 32 of the Principal Act, before sub-
section (3) insert--
"(2B) A court must not make a youth residential
centre order in respect of a young offender
30 who at the time of being sentenced is aged
15 or more.".
(5) In section 32(3) of the Principal Act, after "centre"
insert "or youth residential centre".
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(6) In section 32(5) of the Principal Act, omit "in a
youth training centre" (where twice occurring).
(7) In sections 33(1), 33(2), 33(3), 34(1) (where first
occurring), 34(2), 34(3), 34(4), 34(5), 34(6)
5 (where twice occurring) and 35(1) of the Principal
Act, omit "in a youth training centre".
(8) In section 34(1)(c) of the Principal Act, after
"centre" insert "or a youth residential centre".
(9) In section 96(2) of the Principal Act, after "youth
10 training centre order" insert ", a youth residential
centre order".
(10) In section 96(3)(a) of the Principal Act, after
"order" insert "or a youth residential centre
order".
15 18. Gaol term combined with community-based order
In section 36(2) of the Principal Act, after
"months" insert "provided that the sentence of
imprisonment is not--
(a) ordered to be served by way of intensive
20 correction in the community; or
(b) suspended in whole or in part".
19. Breach of community-based order
(1) In section 36 of the Principal Act, for sub-sections
(4) and (5) substitute--
25 "(4) For the purpose of any proceedings under
section 46 or 47, a community-based 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
30 brought.".
(2) In section 47(1) of the Principal Act--
(a) omit "in the supervising court";
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(b) for "the Secretary to the Department of
Justice or a community corrections officer"
substitute "a prescribed person or a member
of a prescribed class of persons".
5 (3) In section 47 of the Principal Act, for sub-sections
(2) and (3) substitute--
"(2) Despite anything to the contrary in the
Magistrates' Court Act 1989--
(a) on the filing of a charge referred to in
10 sub-section (1), an application under
section 28(1) of that Act for the issue of
a summons to answer to the charge or a
warrant to arrest may be made to the
registrar at any venue of the
15 Magistrates' Court;
(b) a summons to answer to the charge
issued on an application referred to in
paragraph (a) must direct the defendant
to attend--
20 (i) at the proper venue of the
Magistrates' Court, if the
community-based order was made
by the Magistrates' Court; and
(ii) at the Supreme Court or the
25 County Court, if the community-
based order was made by that
court--
to answer the charge;
(c) a warrant to arrest issued on an
30 application referred to in paragraph (a)
authorises the person to whom it is
directed to bring the defendant when
arrested before a bail justice or before
the court by which the community-
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based order was made to be dealt with
according to law.
(3) Despite anything to the contrary in this or
any other Act or in any rule of law, the
5 Supreme Court or the County Court may, if
the community-based order was made by it,
hear and determine without a jury an offence
against sub-section (1) and, subject to any
rules of court, the practice and procedure
10 applicable in the Magistrates' Court to the
hearing and determination of summary
offences applies so far as is appropriate to
the hearing of the offence.
(3A) If on the hearing of a charge under sub-
15 section (1) the court finds the offender guilty
of the offence, it may impose a level 12 fine
and in addition may--
(a) vary the community-based 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,
subject to sub-section (4), deal with the
offender for the offence or offences
with respect to which the order was
25 made in any manner in which the court
could deal with the offender if it had
just found him or her guilty of that
offence or those offences.".
20. Release on adjournment
30 (1) In section 70 of the Principal Act, before "An"
insert "(1)".
(2) At the end of section 70 of the Principal Act
insert--
"(2) For the purpose of any proceedings under
35 Subdivision (4), an order made under this
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Division on appeal by the Court of Appeal
must be taken to have been made by the
court from whose decision the appeal was
brought.".
5 21. Breach of order for release on adjournment
(1) In section 79 of the Principal Act, for sub-sections
(1) to (3) substitute--
"(1) If at any time while an undertaking given
under Subdivision (2) or (3) is in force the
10 offender fails without reasonable excuse to
comply with any condition of it, the offender
is guilty of an offence for which he or she
may be proceeded against on a charge filed
by a prescribed person or a member of a
15 prescribed class of persons.
(2) A proceeding for an offence under sub-
section (1) may be commenced at any time
up until 3 years after the date on which the
offence is alleged to have been committed.
20 (3) Despite anything to the contrary in the
Magistrates' Court Act 1989--
(a) on the filing of a charge referred to in
sub-section (1), an application under
section 28(1) of that Act for the issue of
25 a summons to answer to the charge or a
warrant to arrest may be made to the
registrar at any venue of the
Magistrates' Court;
(b) a summons to answer to the charge
30 issued on an application referred to in
paragraph (a) must direct the defendant
to attend--
(i) at the proper venue of the
Magistrates' Court, if the order for
35 the release of the offender was
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made by the Magistrates' Court;
and
(ii) at the Supreme Court or the
County Court, if the order for the
5 release of the offender was made
by that court--
to answer the charge;
(c) a warrant to arrest issued on an
application referred to in paragraph (a)
10 authorises the person to whom it is
directed to bring the defendant when
arrested before a bail justice or before
the court by which the order for the
release of the offender was made to be
15 dealt with according to law.
(3A) Despite anything to the contrary in this or
any other Act or in any rule of law, the
Supreme Court or the County Court may, if
the order for the release of the offender was
20 made by it, hear and determine without a
jury an offence against sub-section (1) and,
subject to any rules of court, the practice and
procedure applicable in the Magistrates'
Court to the hearing and determination of
25 summary offences applies so far as is
appropriate to the hearing of the offence.".
(2) In section 79(4) of the Principal Act--
(a) for "an application under this section the
court is satisfied by evidence on oath or by
30 affidavit or by the admission of the offender
that the offender has failed without
reasonable excuse to comply with any
condition of the undertaking" substitute "a
charge under sub-section (1) the court finds
35 the offender guilty of the offence";
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(b) for "fine not exceeding level 12" substitute
"level 12 fine".
22. Discharge as security patient
In section 93(5) of the Principal Act, for
5 "discharges the person under the Mental Health
Act 1986" substitute "orders under Division 4 of
Part 4 of the Mental Health Act 1986 that the
person be discharged as a security patient".
23. Pre-sentence reports
10 In section 96(2) of the Principal Act, after
"making" insert "a combined custody and
treatment order,".
24. New Division 2A inserted in Part 6
After Division 2 of Part 6 of the Principal Act
15 insert--
"Division 2A--Drug and Alcohol Reports
99A. Drug and alcohol assessment report
(1) If a court considering making a combined
custody and treatment order orders a drug
20 and alcohol assessment report, it must be
prepared by an approved drug and alcohol
assessment agency.
(2) The purpose of a drug and alcohol
assessment report is--
25 (a) to assess whether the offender is an
alcoholic or drug-dependent person;
and
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(b) to make recommendations as to his or
her suitability to undergo treatment
under a combined custody and
treatment order.
5 (3) A drug and alcohol assessment report may
set out any matters which, on investigation,
appear to the author of the report to be
relevant to the assessment of the offender
and are readily ascertainable by him or her.
10 (4) The author of a drug and alcohol assessment
report must conduct any investigation that he
or she thinks appropriate or that is directed
by the court.
99B. Distribution of drug and alcohol
15 assessment report
(1) A drug and alcohol assessment report must
be filed with the court no later than the time
directed by the court.
(2) The author of a drug and alcohol assessment
20 report must, a reasonable time before
sentencing is to take place, provide a copy of
the report to--
(a) the prosecutor; and
(b) the legal practitioners representing the
25 offender; and
(c) if the court has so directed, the
offender.
99C. Disputed drug and alcohol assessment
report
30 (1) The prosecution or the defence may file with
the court a notice of intention to dispute the
whole or any part of a drug and alcohol
assessment report.
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(2) If a notice is filed under sub-section (1)
before sentencing is to take place, the court
must not take the report or the part in dispute
(as the case requires) into consideration
5 when determining sentence unless the party
that filed the notice has been given the
opportunity--
(a) to lead evidence on the disputed
matters; and
10 (b) to cross-examine the author of the
report on its contents.
99D. Drug and alcohol pre-release report
(1) A drug and alcohol pre-release report in
respect of an offender must be prepared by
15 an approved drug and alcohol assessment
agency.
(2) A drug and alcohol pre-release report must
specify any treatment for alcohol or drug
addiction that the offender is to undergo
20 during the period of the combined custody
and treatment order on release from custody.
(3) The author of a drug and alcohol pre-release
report must conduct any investigation that he
or she thinks appropriate or that is directed
25 by the court.
(4) The author of a drug and alcohol pre-release
report must, a reasonable time before the
offender's release from custody is to take
place, provide a copy of the report to--
30 (a) the officer in charge of the community
corrections centre specified in the
combined custody and treatment order;
and
(b) the offender.
35
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99E. Approved drug and alcohol assessment
agencies
(1) A person or body may apply to the Secretary
to the Department of Human Services for
5 approval for the purposes of this Division.
(2) The Secretary to the Department of Human
Services--
(a) may grant an approval subject to any
conditions, limitations or restrictions
10 specified in the approval; and
(b) must specify the period during which
an approval continues in force.".
25. Consequential amendments
(1) In section 3(1) of the Principal Act, after the
15 definition of "alcoholic" insert--
' "approved drug and alcohol assessment
agency" means a person or body approved
under section 99E by the Secretary to the
Department of Human Services for the
20 purposes of Division 2A of Part 6;'.
(2) In section 100(1)(a) and 100(7) of the Principal
Act, for "Schedule 1" substitute "Schedule 2".
26. Correction of judgment or sentence
In Part 7 of the Principal Act, after section 104
25 insert--
"104A. Power to correct clerical mistakes, etc.
(1) The judge or magistrate who gave judgment
or passed sentence, or purported to give
judgment or pass sentence, on the trial or
30 hearing of an offence may, on his or her own
initiative or on an application made on
behalf
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s. 26
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of the defence or the prosecution, amend the
judgment or sentence or purported judgment
or sentence if satisfied--
(a) that it contains--
5 (i) a clerical mistake; or
(ii) an error arising from an accidental
slip or omission; or
(iii) a material miscalculation of
figures or a material mistake in
10 the description of any person,
thing or matter; or
(iv) a defect of form; or
(b) that it fails to deal with a matter that it
would have undoubtedly dealt with in
15 accordance with the amendment if the
attention of the judge or magistrate had
been drawn to it.
(2) The power conferred by sub-section (1) on a
judge or magistrate may be exercised at any
20 time up until the end of the fourteenth day
after the judgment was given or purportedly
given or the sentence was passed or
purportedly passed.
(3) The power conferred by sub-section (1) on a
25 judge or magistrate may be exercised by any
other judge of the Supreme Court or the
County Court or magistrate (as the case
requires) if the first-mentioned judge or
magistrate is unable for any reason to do so
30 within a reasonable time.
(4) It is not necessary for a proceeding under
this section to be conducted in open court, or
for a judge or magistrate considering the
exercise of the power conferred by sub-
35 section (1) to hear or invite written
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submissions from any other party, unless the
judge or magistrate considers that it is
desirable or necessary to do so in the
interests of justice in the particular case.
5 (5) This section applies, with any necessary
modifications, in relation to any judgment
given or sentence passed, or purportedly
given or passed, by the Court of Appeal.
(6) This section does not take away from--
10 (a) any power possessed by a judge or
magistrate under statute or at common
law; or
(b) any right to appeal against, or to seek
leave to appeal against or a review of, a
15 judgment or sentence that any party to a
criminal proceeding otherwise has.".
27. New penalty scale
For Table 1 in section 109(1) of the Principal Act
substitute--
"TABLE 1
Column 1 Column 2
Maximum Term of
Level Imprisonment
1 Life
2 25 years
3 20 years
4 15 years
5 10 years
6 5 years
7 2 years
8 1 year
9 6 months.".
20 28. Amendments consequential on new penalty scale
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(1) In sections 11(1)(b), 11(2), 36(3), 72(3), 75(3),
80(2) of the Principal Act, for "24 months"
substitute "2 years".
(2) In sections 11(2), 13(3), 19(1), 19(4), 38(1)(c),
5 81(1)(a) of the Principal Act, for "12 months"
(wherever occurring) substitute "one year".
(3) In section 72(1) of the Principal Act, for "60
months" substitute "5 years".
(4) For Table 3 in section 109(3) of the Principal Act
10 substitute--
"TABLE 3
Column 1 Column 2
Term of Imprisonment Unpaid Community Work
3 years or more 500 hours over a 2 year
period
2 years or more but less 375 hours over a 1½ year
than 3 period
1 years or more but less 250 hours over a 1 year
than 2 period
6 months or more but less 125 hours over a 6 month
than 1 year period
Less than 6 months 50 hours over a 3 month
period.".
(5) For Table 4 in section 109(4) of the Principal Act
substitute--
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"TABLE 4
Column 1 Column 2
Fine Unpaid Community Work
360 penalty units or more 500 hours over a 2 year
period
240 penalty units or more 375 hours over a 1½ year
but less than 360 period
120 penalty units or more 250 hours over a 1 year
but less than 240 period
60 penalty units or more 125 hours over a 6 month
but less than 120 period
10 penalty units or more 50 hours over a 3 month
but less than 60 period.".
(6) In section 112(1) of the Principal Act, for sub-
section (1) substitute--
"(1) An offence that is described in a provision of
5 an Act (other than the Crimes Act 1958 or
the Wrongs Act 1958), subordinate
instrument or local law as being level 1, 2, 3,
4, 5 or 6 or as being punishable by level 1, 2,
3, 4, 5 or 6 imprisonment or level 1, 2, 3, 4,
10 5, 6, 7 or 8 fine or both is, unless the
contrary intention appears, an indictable
offence.".
(7) In section 113(1) of the Principal Act, for "level
9" substitute "2 years".
15 29. New section 109A inserted
After section 109 of the Principal Act insert--
"109A. Operation of penalty provisions
If an offence is described in a provision of an
Act, subordinate instrument or local law as
20 being an offence of a specified level or as
being punishable by imprisonment or a fine
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of a specified level and there is included in
that provision a description in years or
months or both of the term of imprisonment,
or in penalty units or dollars of the amount
5 of the fine, by which that offence is
punishable, that description--
(a) is inserted for convenience of reference
only and does not affect the operation
of the penalty provision as expressed in
10 terms of levels; and
(b) must be disregarded if it is inconsistent
with that penalty provision--
unless the contrary intention appears.".
30. Penalty provisions
15 In section 111 of the Principal Act, for
"conviction" substitute "a finding of guilt (with
or without recording a conviction as required by
section 7)".
31. New sections 113A to 113C inserted
20 After section 113 of the Principal Act insert--
"113A. Maximum term of imprisonment for
summary offence
(1) If a person is convicted of a summary
offence, the maximum term of imprisonment
25 to which a court may sentence the offender
in respect of that offence is 2 years.
(2) This section has effect despite anything to
the contrary in any Act.
113B. Maximum cumulative term of
30 imprisonment imposable by Magistrates'
Court
The Magistrates' Court must not impose on
any person in respect of several offences
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committed at the same time cumulative
sentences of imprisonment to take effect in
succession for a term exceeding in the whole
5 years unless that term is expressly
5 provided by an Act.
113C. Maximum term of imprisonment where
none prescribed
If a person is convicted of an offence against
an enactment punishable by imprisonment
10 but the maximum term of imprisonment is
not prescribed anywhere, the maximum term
of imprisonment to which a court may
sentence the offender in respect of that
offence is 2 years.".
15 32. Minor amendments
(1) Section 16(5) of the Principal Act is repealed.
(2) In the heading to Part 12 of the Principal Act,
omit ", REPEALS AND AMENDMENTS".
33. New section 118 inserted
20 For sections 118 and 119 of the Principal Act
substitute--
"118. Transitional provisions (1997 amendments)
(1) The amendments of this Act made by a
provision of section 5, 9, 11, 12, 14, 16 to
25 18, 26, 30 or 31 of the Sentencing and
Other Acts (Amendment) Act 1997 apply
to a sentence imposed, or judgment given,
after the commencement of that provision,
irrespective of when the offence was
30 committed.
(2) The amendments of this Act made by a
provision of section 6 or 10 of the
Sentencing and Other Acts (Amendment)
Act 1997 apply to a proceeding for an
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offence that is commenced after the
commencement of that provision,
irrespective of when the offence to which the
proceeding relates is alleged to have been
5 committed.
(3) The amendments of this Act made by a
provision of section 13, 15, 19 or 21 of the
Sentencing and Other Acts (Amendment)
Act 1997 apply to a failure to comply with a
10 sentencing order that is alleged to have
occurred after the commencement of that
provision, irrespective of when the
sentencing order was made.
(4) A person in respect of whom a suspended
15 sentence imposed under section 28 is in
force immediately before the commencement
of section 14(5) continues to be subject to
the requirements of that sentence in all
respects as if the Sentencing and Other
20 Acts (Amendment) Act 1997 had not been
passed and that sentence may be cancelled or
varied and any failure to comply with it may
be dealt with under this Act as in force
immediately before that commencement
25 despite anything to the contrary in this
section.
(5) A person referred to in sub-section (4) may
continue to be dealt with under the
Alcoholics and Drug-dependent Persons
30 Act 1968 as in force immediately before the
commencement of section 67 of the
Sentencing and Other Acts (Amendment)
Act 1997.
(6) For the purposes of this section a sentence
35 imposed by an appellate court on setting
aside a sentencing order must be taken to
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have been imposed at the time the original
sentencing order was made.".
34. New Schedules substituted in Principal Act
For the Schedules to the Principal Act
5 substitute--
"SCHEDULE 1
SERIOUS OFFENDER OFFENCES
1. Sexual offences
This clause applies to the following offences--
10 (a) an offence against any of the following sections of the
Crimes Act 1958:
(i) section 38 (rape);
(ii) section 39 (indecent assault) if--
(A) immediately before or during or
15 immediately after the commission of the
offence and at, or in the vicinity of, the
place where the offence was committed,
the offender inflicted serious personal
violence on the victim or did an act
20 which was likely seriously and
substantially to degrade or humiliate the
victim, whether or not the serious
personal violence or that act constituted
or formed part of the indecent assault; or
25 (B) the offender was aided or abetted by
another person who was present; or
(C) the victim was under 16 years of age at
the time of the commission of the
offence;
30 (iii) section 40 (assault with intent to rape);
(iv) section 44(1), (2) or (4) (incest) but not section
44(4) if both people are aged 18 or older and
each consented (as defined in section 36 of the
Crimes Act 1958) to engage in the sexual act;
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(v) section 45(1) (sexual penetration of child under
the age of 10);
(vi) section 46(1) (sexual penetration of child aged
between 10 and 16);
5 (vii) section 47(1) (indecent act with child under the
age of 16);
(viii) section 47A(1) (sexual relationship with child
under the age of 16);
(ix) section 49A(1) (facilitating sexual offences
10 against children);
(x) section 51 (sexual offences against people with
impaired mental functioning);
(xi) section 52 (sexual offences against residents of
residential facilities);
15 (xii) section 53 (administration of drugs, etc.);
(xiii) section 55 (abduction or detention);
(xiv) section 56 (abduction of child under the age of
16);
(xv) section 57 (procuring sexual penetration by
20 threats or fraud);
(xvi) section 58 (procuring sexual penetration of
child under the age of 16);
(xvii) section 76 (burglary) in circumstances where
the offender entered the building or part of the
25 building as a trespasser with intent to commit a
sexual or indecent assault;
(xviii) section 77 (aggravated burglary) in
circumstances where the offender entered the
building or part of the building as a trespasser
30 with intent to commit a sexual or indecent
assault;
(b) an offence against any of the following provisions (as
amended) inserted in the Crimes Act 1958 on 5
August 1991 by section 3 of the Crimes (Sexual
35 Offences) Act 1991 and repealed on 1 January 1992
by section 3 of the Crimes (Rape) Act 1991:
(i) section 40 (rape);
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(ii) section 41 (rape with aggravating
circumstances);
(iii) section 43 (indecent assault with aggravating
circumstances);
5 (c) an offence against any of the following provisions (as
amended) inserted in the Crimes Act 1958 on 1
March 1981 by section 5 of the Crimes (Sexual
Offences) Act 1980 and repealed on 5 August 1991
by section 3 of the Crimes (Sexual Offences) Act
10 1991:
(i) section 44(1) (indecent assault);
(ii) section 44(2) (indecent assault with aggravating
circumstances);
(iii) section 45(1) (rape);
15 (iv) section 45(2) (attempted rape);
(v) section 45(2) (assault with intent to commit
rape);
(vi) section 45(3) (rape with aggravating
circumstances);
20 (vii) section 45(4) (attempted rape with aggravating
circumstances);
(viii) section 45(4) (assault with intent to commit
rape with aggravating circumstances);
(ix) section 47(1) (sexual penetration of child under
25 the age of 10);
(x) section 47(2) attempted sexual penetration of
child under the age of 10);
(xi) section 47(2) (assault with intent to take part in
act of sexual penetration with child under the
30 age of 10);
(xii) section 48(1) (sexual penetration of child aged
between 10 and 16);
(xiii) section 48(2) (attempted sexual penetration of
child aged between 10 and 16);
35 (xiv) section 48(2) (assault with intent to take part in
act of sexual penetration with child aged
between 10 and 16);
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(xv) section 50(1) (gross indecency with child under
the age of 16);
(xvi) section 51 (sexual penetration of mentally ill or
intellectually defective person);
5 (xvii) section 51 (attempted sexual penetration of
mentally ill or intellectually defective person);
(xviii) section 51 (assault with intent to take part in act
of sexual penetration with mentally ill or
intellectually defective person);
10 (xix) section 52 (incest) but not section 52(4) or (5)
if both people are aged 18 or older and each
consented to taking part in the act of sexual
penetration;
(xx) section 54 (procuring persons by threats or
15 fraud);
(xxi) section 55 (administration of drugs, etc.);
(xxii) section 56 (abduction and detention);
(xxiii) section 61 (unlawful detention for purposes of
sexual penetration);
20 (d) an offence against any of the following provisions (as
amended) of the Crimes Act 1958 repealed on 1
March 1981 by section 5 of the Crimes (Sexual
Offences) Act 1980:
(i) section 44(1) (rape);
25 (ii) section 44(2) (rape with mitigating
circumstances);
(iii) section 45 (attempted rape);
(iv) section 45 (assault with intent to rape);
(v) section 46 (unlawfully and carnally knowing
30 and abusing a girl under the age of 10);
(vi) section 47 (attempting to unlawfully and
carnally know and abuse girl under the age of
10);
(vii) section 47 (assault with intent to unlawfully
35 and carnally know and abuse girl under the age
of 10);
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(viii) section 48(1) (unlawfully and carnally knowing
and abusing girl aged between 10 and 16);
(ix) section 48(2) (attempting to unlawfully and
carnally know and abuse girl aged between 10
5 and 16);
(x) section 48(2) (assault with intent to unlawfully
and carnally know and abuse girl aged between
10 and 16);
(xi) section 52 (incest) but not section 52(3) or (4)
10 if the woman or girl is the sister of the offender
and both are aged 18 or older and the carnal
knowledge or attempt or assault with intent to
have unlawful carnal knowledge was or was
made with the consent of the sister;
15 (xii) section 54 (carnal knowledge of female
mentally ill or intellectually defective person);
(xiii) section 54 (attempted carnal knowledge of
female mentally ill or intellectually defective
person);
20 (xiv) section 54 (assault with intent to carnally know
female mentally ill or intellectually defective
person);
(xv) section 55(1) (indecent assault);
(xvi) section 55(3) (felonious indecent assault);
25 (xvii) section 57(1) or (2) (procuring defilement of
woman by threats or fraud or administering
drugs);
(xviii) section 62 (forcible abduction of woman);
(xix) section 68(1) (buggery);
30 (xx) section 68(3A) or (3B) (indecent assault on
male person);
(xxi) section 69(1) (act of gross indecency with girl
under the age of 16);
(e) any of the following common law offences:
35 (i) rape;
(ii) attempted rape;
(iii) assault with intent to rape;
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(f) an offence of conspiracy to commit, incitement to
commit or attempting to commit an offence referred
to in paragraphs (a) to (e).
2. Violent offences
5 This clause applies to the following offences--
(a) murder;
(b) manslaughter;
(c) an offence against any of the following sections of the
Crimes Act 1958:
10 (i) section 16 (causing serious injury
intentionally);
(ii) section 17 (causing serious injury recklessly);
(iii) section 19A (intentionally causing a very
serious disease);
15 (iv) section 20 (threats to kill);
(v) section 21 (threats to inflict serious injury);
(vi) section 63A (kidnapping);
(d) an offence against any of the following provisions (as
amended) of the Crimes Act 1958 repealed on 24
20 March 1986 by section 8(2) of the Crimes
(Amendment) Act 1985:
(i) section 17 (intentionally causing grievous
bodily harm or shooting, etc. with intention to
do grievous bodily harm or to resist or prevent
25 arrest);
(ii) section 19A (inflicting grievous bodily harm);
(iii) section 20 (attempting to choke, etc, in order to
commit an indictable offence);
(iv) section 35B (making demand with threat to kill
30 or injure or endanger life);
(e) the common law offence of kidnapping;
(f) an offence of conspiracy to commit, incitement to
commit or attempting to commit an offence referred
to in paragraphs (a) to (e).
35 3. Serious violent offences
This clause applies to the following offences--
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(a) murder;
(b) an offence against any of the following sections of the
Crimes Act 1958:
(i) section 16 (causing serious injury
5 intentionally);
(ii) section 19A (intentionally causing a very
serious disease);
(iii) section 20 (threats to kill);
(c) an offence against any of the following provisions (as
10 amended) of the Crimes Act 1958 repealed on 24
March 1986 by section 8(2) of the Crimes
(Amendment) Act 1985:
(i) section 17 (intentionally causing grievous
bodily harm or shooting, etc. with intention to
15 do grievous bodily harm or to resist or prevent
arrest);
(ii) section 35B (making demand with threat to kill
or injure or endanger life);
(d) an offence of conspiracy to commit, incitement to
20 commit or attempting to commit an offence referred
to in paragraphs (a) to (c).
4. Drug offences
This clause applies to the following offences--
(a) an offence against any of the following sections of the
25 Drugs, Poisons and Controlled Substances Act
1981:
(i) section 71 (trafficking in a drug of dependence)
in circumstances where the offence is
committed in relation to a quantity of a drug of
30 dependence that is not less than the commercial
quantity applicable to that drug of dependence;
(ii) section 72 (cultivation of narcotic plants) in
circumstances where the offence is committed
in relation to a quantity of a drug of
35 dependence, being a narcotic plant, that is not
less than the commercial quantity applicable to
that narcotic plant;
(iii) section 79(1) or 80(3)(a) (conspiracy) in
circumstances where the conspiracy is to
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commit an offence against section 71 of that
Act in relation to a quantity of a drug of
dependence that is not less than the commercial
quantity applicable to that drug of dependence
5 or an offence under a law in force in a place
outside Victoria that is a corresponding law in
relation to that section in relation to that
quantity;
(iv) section 80(1) or 80(3)(b) (aiding and abetting,
10 etc.) in circumstances where the offence aided,
abetted, counselled, procured, solicited or
incited is an offence against section 71 of that
Act in relation to a quantity of a drug of
dependence that is not less than the commercial
15 quantity applicable to that drug of dependence
or an offence under a law in force in a place
outside Victoria that is a corresponding law in
relation to that section in relation to that
quantity;
20 (v) section 80(4) (preparatory act) in circumstances
where the offence to which the act relates is an
offence under a law in force in a place outside
Victoria that is a corresponding law in relation
to section 71 of that Act in relation to a quantity
25 of a drug of dependence that is not less than the
commercial quantity applicable to that drug of
dependence;
(b) an offence against section 233B(1) of the Customs
Act 1901 of the Commonwealth (narcotic goods) in
30 the circumstances referred to in the following sections
of that Act:
(i) section 235(2)(c)(i) (commercial quantity);
(ii) section 235(2)(c)(ii)(A) (trafficable quantity
and previous conviction involving trafficable
35 quantity);
(iii) section 235(2)(c)(ii)(B) (trafficable quantity
and previous finding that offender had
committed offence involving trafficable
quantity without conviction recorded);
40 (iv) section 235(2)(d)(i) (trafficable quantity of
narcotic goods other than cannabis);
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(c) an offence of attempting to commit an offence
referred to in paragraph (a)(i).
5. Arson offences
This clause applies to the following offences--
5 (a) an offence against any of the following sections of the
Crimes Act 1958:
(i) section 197 (destroying or damaging property)
in circumstances where the offence is charged
as arson;
10 (ii) section 197A (arson causing death);
(b) the common law offence of arson;
(c) an offence of conspiracy to commit, incitement to
commit or attempting to commit an offence referred
to in paragraph (a) or (b).
15 _______________
SCHEDULE 2
FORMS FOR USE WHERE OTHER OFFENCES TAKEN INTO
ACCOUNT IN SENTENCING
PART A
20 To
Charged with (1)
(2)
(3)
(4)
25 Before the Court at
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MEMORANDUM FOR THE ACCUSED'S INFORMATION
(1) The list on the back of this form gives particulars of
other alleged offences with which you are charged.
(2) If you are convicted on the charge(s) set out above you may, before
5 sentence is passed, ask to be allowed to admit all or any of the other
offences listed on the back of this form and to have them taken into
account by the court in passing sentence on you.
(3) If at your request any of the other offences listed on the back are taken
into account by the court, then--
10 (a) this does not amount to a conviction in respect of the other
offences taken into account;
(b) the sentence that may be imposed on you by the court for each
offence of which you have in fact been convicted cannot exceed
the maximum that might have been imposed for it if there had
15 been no taking into account of other offences listed on the back.
(4) No further proceedings may be taken against you in respect of any
other offences taken into account at your request unless your
conviction for the offence(s) above is quashed or set aside.
(5) If any proceedings are taken against you in respect of any offence that
20 you have asked to have taken into account your admission of that
offence cannot be used as evidence against you in those proceedings.
Signature of (member of police force) or
(Associate Crown Prosecutor) or (Crown Prosecutor) or
(Director of Public Prosecutions)
25 Date
Signature of accused acknowledging receipt of a
copy of this document
Date
PART B
30 CERTIFICATE
In sentencing for the offence(s) of
1
2
3
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this day the court has taken into account the following offences
alleged against and admitted by the accused, that is to say the offences
numbered on the back of this form.
Dated
5 Signature of (Judge)
or
(Magistrate)
PART C
Place where Date of Description of offence
Number offence committed offence (with particulars)
1
2
3
4
etc. ".
__________________
10
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PART 3--AMENDMENT OF DRUGS, POISONS AND
CONTROLLED SUBSTANCES ACT 1981
35. Principal Act
No. 9719.
In this Part, the Drugs, Poisons and Controlled
Reprinted to
5 Substances Act 1981 is called the Principal Act. No. 52/1994.
Subsequently
amended by
Nos 66/1995,
56/1996 and
68/1996.
36. Amendment of section 4--definitions
(1) In section 4(1) of the Principal Act--
(a) for the definition of "drug of dependence"
substitute--
10 ' "drug of dependence" means a substance
that is--
(a) a drug--
(i) specified in column 1 of
Part 1 of Schedule Eleven or
15 added thereto by regulations
made under section 12M; or
(ii) included in a class of drug
specified in column 1 of
Part 1 of Schedule Eleven or
20 added thereto by regulations
made under section 12M; or
(b) any fresh or dried parts of any
plant specified in column 1 of
Part 2 of Schedule Eleven or
25 added thereto by regulations
made under section 12M; or
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(c) a drug--
(i) specified in column 1 of
Part 3 of Schedule Eleven or
added thereto by regulations
5 made under section 12M; or
(ii) included in a class of drug
specified in column 1 of
Part 3 of Schedule Eleven or
added thereto by regulations
10 made under section 12M--
and includes--
(d) any form of a drug specified in
column 1 of Part 1 or column 1 of
Part 3 of Schedule Eleven,
15 whether natural or synthetic, and
the salts, derivatives and isomers
of that drug and any salt of those
derivatives and isomers; and
(e) any--
20 (i) drug specified in, or drug
included in a class of drug
specified in column 1 of
Part 1 or column 1 of Part 3
of Schedule Eleven, whether
25 natural or synthetic; or
(ii) salts, derivatives or isomers
of a drug specified in
column 1 of Part 1 or
column 1 of Part 3 of
30 Schedule Eleven; or
(iii) any salt of any derivative or
isomer mentioned in sub-
paragraph (ii)--
contained in or mixed with
35 another substance;';
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(b) in the definition of "substance" after
"preparation," insert "extract".
(2) In section 4 of the Principal Act, sub-section (3) is
repealed.
5 37. Amendment of section 70--definitions
In section 70(1) of the Principal Act--
(a) for the definition of "cannabis" substitute--
' "cannabis" means any fresh or dried parts
of a plant of the genus Cannabis L;
10 "child" means a person under 18 years of
age;';
(b) for the definition of "commercial quantity "
substitute--
' "commercial quantity", in relation to a
15 drug of dependence--
(a) the name of which is specified in
column 1 of Part 1 of Schedule
Eleven, means the quantity that is
specified in column 2 of that Part
20 of that Schedule opposite to the
name of that drug of dependence;
(b) the name of which is specified in
column 1 of Part 2 of Schedule
Eleven, means the quantity, or the
25 number of plants, that is specified
in column 2 of that Part of that
Schedule opposite to the name of
that drug of dependence;
(c) the name of which is specified in
30 column 1 of Part 3 of Schedule
Eleven--
(i) if that drug of dependence is
contained in or mixed with
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another substance and the
quantity of that mixture of
drug of dependence and
other substance is not less
5 than the quantity specified
in column 2A of that Part of
that Schedule opposite to the
name of that drug of
dependence, means any
10 amount of that drug of
dependence; or
(ii) in any other case, means the
quantity that is specified in
column 2 of that Part of that
15 Schedule opposite to the
name of that drug of
dependence;';
(c) in the definition of "small quantity", for
paragraph (b) substitute--
20 "(b) in relation to any drug of dependence
the name of which is specified in
column 1 of Part 3 of Schedule Eleven,
means the quantity of that drug,
including any other substance in which
25 it is contained or with which it is
mixed, that is specified in column 4 of
that Part of that Schedule opposite to
the name of that drug of dependence;";
(d) for the definition of "traffickable quantity"
30 substitute--
' "traffickable quantity", in relation to a
drug of dependence--
(a) the name of which is specified in
column 1 of Part 1 of Schedule
35 Eleven, means the quantity that is
specified in column 3 of that Part
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of that Schedule opposite to the
name of that drug of dependence;
(b) the name of which is specified in
column 1 of Part 2 of Schedule
5 Eleven, means the quantity, or the
number of plants, that is specified
in column 3 of that Part of that
Schedule opposite to the name of
that drug of dependence;
10 (c) the name of which is specified in
column 1 of Part 3 of Schedule
Eleven means the quantity of that
drug, including any other
substance in which it is contained
15 or with which it is mixed, that is
specified in column 3 of that Part
of that Schedule opposite to the
name of that drug of
dependence;';
20 38. Increased penalty for trafficking to a child
(1) In section 71(1) of the Principal Act, after
paragraph (a) insert--
"(ab) where the court is satisfied beyond
reasonable doubt that the offence committed
25 involved trafficking or attempting to traffick
to a child in relation to a quantity of a drug
of dependence that is less than the
commercial quantity applicable to that drug
of dependence, to a penalty of not more than
30 2400 penalty units or level 3 imprisonment
(20 years maximum) or both; or".
(2) In section 71(2) of the Principal Act--
(a) for "that paragraph (a)" substitute "that
paragraph (a) or paragraph (ab)";
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(b) after "paragraph (a)(i)" insert "or paragraph
(ab)".
39. Sections 71A and 71B inserted--new offences
After section 71 of the Principal Act insert--
5 '71A. Possession of substance, material,
documents or equipment for trafficking in a
drug of dependence
A person who, without being authorised by
or licensed under this Act or the regulations
10 to do so, possesses a substance, material,
document containing instructions relating to
the preparation, cultivation or manufacture
of a drug of dependence or equipment with
the intention of using the substance, material,
15 document or equipment for the purpose of
trafficking in a drug of dependence is guilty
of an indictable offence and liable to level 5
imprisonment (10 years maximum).
71B. Supply of drug of dependence to a child
20 (1) A person who, without being authorised by
or licensed under this Act or the regulations
to do so--
(a) supplies a drug of dependence to a
child for the purposes of the supply of
25 that drug of dependence by that child to
another child; or
(b) supplies a drug of dependence to a
child for the use of that drug of
dependence by that child--
30 is guilty of an indictable offence and liable to
a penalty of not more than 1000 penalty units
or level 4 imprisonment (15 years maximum)
or both.
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(2) Despite section 70(2), in this section
"supply" has the same meaning as in
section 4(1) of this Act.
(3) This section does not apply to a person who
5 supplies a drug of dependence to a child if, at
the time of supplying that drug, that person
was also a child.
(4) It is a defence to a charge under this section
for a person charged to prove that he or she
10 believed on reasonable grounds that the
person to whom the drug of dependence was
supplied was 18 years of age or older.'.
40. Amendment of section 72
(1) In section 72(1) of the Principal Act, after
15 paragraph (a) insert--
"(ab) where the court is satisfied beyond
reasonable doubt that the offence is
committed in relation to a quantity of a drug
of dependence, being a narcotic plant, that is
20 not less than the commercial quantity
applicable to that narcotic plant--
(i) to level 2 imprisonment (25 years
maximum); and
(ii) in addition to imprisonment, to a
25 penalty of not more than 2500 penalty
units; or"
(2) In section 72 of the Principal Act, sub-sections (3)
and (4) are repealed.
41. Expression of penalties in terms of levels
30 (1) In section 71(1) of the Principal Act--
(a) for paragraph (a)(i) substitute--
"(i) to level 2 imprisonment (25 years
maximum); and";
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(b) in paragraph (b), for "imprisonment for a
term of not more than fifteen years"
substitute "level 4 imprisonment (15 years
maximum)".
5 (2) In section 72(1)(a) of the Principal Act, for
"imprisonment for a term of not more than one
year" substitute "level 8 imprisonment (1 year
maximum)".
(3) In section 72(1)(b) of the Principal Act, for
10 "imprisonment for a term of not more than fifteen
years" substitute "level 4 imprisonment (15 years
maximum)".
(4) In section 73(1)(b) of the Principal Act, for
"imprisonment for a term of not more than one
15 year" substitute "level 8 imprisonment (1 year
maximum)".
(5) In section 73(1)(c) of the Principal Act, for
"imprisonment for a term of not more than five
years" substitute "level 6 imprisonment (5 years
20 maximum)".
(6) In section 74 of the Principal Act, for
"imprisonment for a term of not more than one
year" substitute "level 8 imprisonment (1 year
maximum)".
25 (7) In section 75(b) of the Principal Act, for
"imprisonment for a term of not more than one
year" substitute "level 8 imprisonment (1 year
maximum)".
(8) In the penalty set out at the foot of section 77 of
30 the Principal Act, for "imprisonment for one year"
substitute "level 8 imprisonment (1 year
maximum)".
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(9) In the penalty set out at the foot of section 78 of
the Principal Act, for "imprisonment for one year"
substitute "level 8 imprisonment (1 year
maximum)".
5 42. Amendment of sections 73 and 75
(1) In section 73(1)(a) of the Principal Act --
(a) in sub-paragraph (i), after "cannabis" (where
twice occurring) insert "or
tetrahydrocannabinol"; and
10 (b) in sub-paragraph (ii), after "cannabis" insert
"or tetrahydrocannabinol".
(2) In section 75(a) of the Principal Act, after
"cannabis" insert "or tetrahydrocannabinol".
43. Drug education and information programs
15 (1) In section 76(1) of the Principal Act--
(a) after paragraph (a) insert--
"; and
(ab) in relation to any drug of dependence
specified in column 1 of Part 3 of
20 Schedule Eleven--
(i) a person is charged with an
offence under section 73 and at
the hearing the court is satisfied
on the balance of probabilities that
25 the offence--
(A) was committed in relation to
a quantity of that drug which
was not more than the small
quantity applicable to that
30 drug; and
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(B) was not committed for any
purpose relating to
trafficking in that drug; or
(ii) a person is charged with an
5 offence under section 75 and at
the hearing the court is satisfied
on the balance of probabilities that
the offence was committed in
relation to a quantity of that drug
10 which was not more than the
small quantity applicable to that
drug; or
(iii) a person is charged with an
offence under section 79 or
15 section 80, being an offence that
relates to an offence mentioned in
sub-paragraphs (i) or (ii), and the
court is satisfied on the balance of
probabilities that the last-
20 mentioned offence--
(A) would, if committed, have
been committed in relation to
a quantity of that drug which
was not more than the small
25 quantity applicable to that
drug; and
(B) would not have been
committed for any purpose
relating to trafficking in that
30 drug; and";
(b) in paragraphs (b) and (c) after "paragraph
(a)" insert "or (ab)".
(2) In section 76 of the Principal Act, after sub-
section (1) insert--
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"(1A) If a person to whom sub-section (1) applies
is, on a charge for an offence in relation to a
drug of dependence other than cannabis or
tetrahydrocannabinol, released on giving an
5 undertaking under section 75(1) of the
Sentencing Act 1991, the court must attach
to the undertaking a condition that the person
completes an approved drug education and
information program.".
10 (3) In section 76 of the Principal Act, after sub-
section (3) insert--
"(4) A person or body may apply to the Chief
General Manager for approval for a program
for the purposes of this section.
15 (5) An application under sub-section (4) must be
accompanied by the prescribed application
fee.
(6) The Chief General Manager--
(a) may grant an approval subject to any
20 conditions, limitations or restrictions
specified in the approval; and
(b) must specify the period during which
an approval continues in force.".
44. Warrant to search premises
25 (1) In section 81(1) of the Principal Act--
(a) after "that there is" (where secondly
occurring) insert ", or will be within the next
72 hours,";
(b) in paragraph (a), after "committed" insert
30 "or is being or is likely to be committed
within the next 72 hours".
(2) In section 81(3) of the Principal Act--
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(a) in paragraph (d), after "carry away" insert
"or deal with as mentioned in paragraph (e)";
(b) after paragraph (d) insert--
"; and
5 (e) if--
(i) the thing is--
(A) a drug of dependence or a
substance that contains a
drug of dependence; or
10 (B) a poison or controlled
substance; or
(C) an instrument, device or
substance that is or has been
used or is capable of being
15 used for or in the cultivation,
manufacture, sale or use or
in the preparation for
cultivation, manufacture,
sale or use of a drug of
20 dependence; and
(ii) an analyst or botanist within the
meaning of section 120 certifies in
writing to the member of the
police force executing the warrant
25 that destruction or disposal of the
thing is required in the interests of
health or safety--
destroy or dispose of the thing after
taking, where practicable, any samples
30 of it as are required for the purposes of
this Act.".
(3) In section 81(4)(b) of the Principal Act, after sub-
paragraph (iii) insert--
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"; and
(iv) all samples taken; and
(v) all things destroyed or disposed of--".
(4) In section 81(5) of the Principal Act, after
5 paragraph (c) insert--
"; or
(d) the owner of property destroyed or disposed
of in the execution of the warrant.".
(5) In section 81 of the Principal Act, after sub-
10 section (5) insert --
"(6) If a sample of a thing referred to in sub-
section (3)(e) taken in execution of a warrant
is sufficient to enable an analysis or
examination to be made both in the
15 investigation of an offence and on behalf of a
person arrested in the course of the execution
of the warrant, a part of the sample taken
sufficient for analysis or examination must,
on request by the person arrested, be
20 delivered to an analyst or botanist within the
meaning of section 120 nominated by that
person.".
(6) In section 83 of the Principal Act, after sub-
section (4) insert--
25 "(5) If an order is made under sub-section (1)
requiring the destruction or disposal of an
instrument or device or the whole or any part
of any substance, drug of dependence or
poison or controlled substance, the order
30 may be executed before the end of any
appeal period applicable under section 90 if
a sample of the thing to be destroyed or
disposed of is taken in accordance with this
Act and kept
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until the end of that appeal period and the
determination of any appeal made within that
period.".
(7) In Schedule Ten to the Principal Act--
5 (a) below "*are" insert "*will be within the next
72 hours";
(b) after "committed" insert "or is being or is
likely to be committed within the next 72
hours";
10 (c) after "seize and" insert "destroy or dispose
of them in accordance with section 81 of the
Drugs, Poisons and Controlled Substances
Act 1981 or".
45. Amendment of Part 1 and 2 of Schedule Eleven
15 (1) In Part 1 of Schedule Eleven to the Principal Act,
the entries relating to the following items are
repealed--
(a) AMPHETAMINE;
(b) COCAINE;
20 (c) DIACETYLMORPHINE (Heroin);
(d) LYSERGIC ACID DIETHYLAMIDE;
(e) METHYLAMPHETAMINE;
(f) METHYLENEDIOXYAMPHETAMINE;
(g) 3,4-
25 METHYLENEDIOXYAMPHETAMINE ;
(h) 3,4-METHYLENEDIOXY-N-
METHYLAMPHETAMINE.
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(2) In Part 2 of Schedule Eleven to the Principal Act,
for columns 2, 3 and 4 substitute--
"
Column 2 Column 3 Column 4
Quantity Quantity Quantity
25.0 kilograms or 250.0 grams or 50.0 grams
100 plants 10 plants
80.0 kilograms 800.0 grams
80.0 kilograms 800.0 grams
10.0 kilograms 100.0 grams
10.0 kilograms 100.0 grams
10.0 kilograms 100.0 grams ".
46. Substitution of Part 3 of Schedule Eleven
For Part 3 of Schedule Eleven to the Principal Act
5 substitute--
"PART 3
Column 1 Column 2 Column 2A Column 3 Column 4
Drug Quantity Quantity of Quantity Quantity
mixture of
substance
and drug of
dependence
AMPHETAMINE 250.0 1.25 6.0 grams 1.0 gram
grams kilograms
COCAINE 250.0 500.0 3.0 grams 1.0 gram
grams grams
DIACETYLMORPHINE 250.0 500.0 3.0 grams 1.0 gram
(Heroin) grams grams
LYSERGIC ACID 50.0 1.5 0.2
DIETHYLAMIDE milligrams milligrams milligrams
METHYLAMPHETAMINE 250.0 1.25 6.0 grams 1.0 gram
grams kilograms
METHYLENEDIOXY- 100.0 500.0 3.0 grams 0.75
AMPHETAMINES grams grams grams
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Column 1 Column 2 Column 2A Column 3 Column 4
Drug Quantity Quantity of Quantity Quantity
mixture of
substance
and drug of
dependence
3,4-METHYLENEDIOXY- 100.0 500.0 3.0 grams 0.75
AMPHETAMINE (MDA) grams grams grams
3,4-METHYLENEDIOXY-N- 100.0 500.0 3.0 grams 0.75
METHYLAMPHETAMINE grams grams grams
(MDMA)
TETRAHYDROCANNABINOL 1.0 10.0 25.0 1.0 gram
kilogram kilograms grams ".
47. Consequential amendments
In the Principal Act--
(a) in section 79(1), after "sections 71," insert
"71A, 71B,";
5 (b) in section 80(1), after "sections 71," (where
twice occurring) insert "71A, 71B,";
(c) in section 122A(1)(c) , after "section 71,"
insert "71A, 71B,";
(d) in section 125, after "section 71," insert
10 "71A, 71B,";
(e) in section 126(1)(a), after "section 71,"
insert "71A, 71B,".
_______________
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PART 4--AMENDMENT OF BAIL ACT 1977
48. Refusal of bail unless exceptional circumstances exist
No. 9008.
In section 4(2)(aa) of the Bail Act 1977--
Reprinted to
(a) in sub-paragraph (i)-- No. 95/1994.
Subsequently
5 amended by
(i) after "trafficking in" insert "relation to
No. 35/1996.
a commercial quantity of ";
(ii) after "section 72 of that Act" insert "in
circumstances where the offence is
committed in relation to a quantity of a
10 drug of dependence that is not less than
the commercial quantity applicable to
that narcotic plant";
(b) omit the expression beginning "and the
offence" and ending at the end of sub-
15 paragraph (v).
49. New section 34 inserted
After section 33 of the Bail Act 1977 insert--
"34. Transitional provisions
The amendment of section 4(2)(aa) made by
20 section 48 of the Sentencing and other Acts
(Amendment) Act 1997 applies only with
respect to a charge for an offence filed after
the commencement of that section of that
Act.".
25 _______________
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PART 5--AMENDMENT OF CHILDREN AND YOUNG
PERSONS ACT 1989
50. Jurisdiction of Criminal Division
No. 56/1989. (1) In section 16(1)(b) of the Children and Young
Reprinted to
5 Persons Act 1989, for "homicide" substitute
No. 109/1994.
"murder, attempted murder, manslaughter, an
Subsequently
amended by
offence against section 197A of the Crimes Act
Nos 40/1995,
1958 (arson causing death) or an offence against
35/1996,
43/1996,
section 318 of the Crimes Act 1958 (culpable
44/1996,
10 driving causing death)".
45/1996 and
53/1996.
(2) In section 134 of the Children and Young
Persons Act 1989, for "homicide" (wherever
occurring) substitute "murder, attempted murder,
manslaughter, an offence against section 197A of
15 the Crimes Act 1958 (arson causing death) or an
offence against section 318 of the Crimes Act
1958 (culpable driving causing death)".
51. Youth detention orders
(1) In section 187 of the Children and Young
20 Persons Act 1989, for sub-section (5)
substitute--
"(5) Subject to this section, the provisions of
Subdivision (4) of Division 2 of Part 3 of the
Sentencing Act 1991 (except sections 32
25 and 33) apply to an order made by the
Criminal Division detaining a child in a
youth residential centre as if a reference to
the Magistrates' Court were a reference to
the Children's Court.".
30 (2) In section 189(1) of the Children and Young
Persons Act 1989, after "1991" insert "(except
sections 32 and 33)".
(3) In section 189 of the Children and Young
Persons Act 1989, after sub-section (3) insert--
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"(3A) Every term of detention in a youth training
centre imposed on a child by a court must,
unless otherwise directed by the court at the
time of pronouncing the sentence, be, as
5 from the date of its commencement, served
concurrently with any uncompleted sentence
or sentences of detention in a youth training
centre imposed on that child, whether before
or at the time the relevant sentence was
10 imposed.".
(4) In section 249(b) of the Children and Young
Persons Act 1989, for "by the Court" substitute
"under this Act or the Sentencing Act 1991".
(5) Section 254 of the Children and Young Persons
15 Act 1989 is repealed.
52. Sentencing powers of Supreme Court or County Court
In section 276 of the Children and Young
Persons Act 1989, for "deal with the child in any
way in which he or she could have been dealt with
20 by the Children's Court under this Act if it had
heard and determined the charge for the offence"
substitute "make any sentencing order which the
Children's Court may make under this Act but an
order that the child be detained in a youth
25 residential centre or youth training centre must be
made in accordance with Subdivision (4) of
Division 2 of Part 3 of the Sentencing Act 1991".
53. Transitional provisions
In Schedule 3 to the Children and Young
30 Persons Act 1989, after clause 21 insert--
"22. The amendments of this Act made by section 50 of the
Sentencing and Other Acts (Amendment) Act 1997
apply to a proceeding for an offence that is
commenced after the commencement of that section,
35 irrespective of when the offence to which the
proceeding relates is alleged to have been committed.
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23. The amendments of this Act made by section 51 or 52
of the Sentencing and Other Acts (Amendment) Act
1997 apply to a sentence imposed after the
commencement of that section, irrespective of when
5 the offence was committed.".
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PART 6--AMENDMENT OF CRIMES ACT 1958
54. Aggravated burglary
No. 6231.
In section 77 of the Crimes Act 1958, for sub-
Reprinted to
section (1) substitute-- No. 98/1995.
Subsequently
5 '(1) A person is guilty of aggravated burglary if amended by
he or she commits a burglary and-- Nos 22/1996,
35/1996,
45/1996,
(a) at the time has with him or her any
46/1996 and
firearm or imitation firearm, any 66/1996.
offensive weapon or any explosive or
10 imitation explosive; or
(b) at the time of entering the building or
the part of the building a person was
then present in the building or part of
the building and he or she knew that a
15 person was then so present or was
reckless as to whether or not a person
was then so present.
(1A) For the purposes of sub-section (1)--
"explosive" means any article manufactured
20 for the purpose of producing a practical
effect by explosion, or intended by the
person having it with him or her for that
purpose;
"firearm" has the same meaning as in the
25 Firearms Act 1996;
"imitation explosive" means any article
which might reasonably be taken to be
or to contain an explosive;
"imitation firearm" means anything which
30 has the appearance of being a firearm,
whether capable of being discharged or
not;
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"offensive weapon" means any article made
or adapted for use for causing injury to
or incapacitating a person, or which the
person having it with him or her intends
5 or threatens to use for such a purpose.'.
55. New section 197A inserted
After section 197 of the Principal Act insert--
"197A. Arson causing death
A person who commits arson as defined in
10 section 197 and thereby causes the death of
another person is guilty of an indictable
offence.
Penalty: Level 2 imprisonment (25 years
maximum).".
15 56. New Division 9A inserted in Part I
After Division 9 of Part I of the Crimes Act 1958,
insert--
"Division 9A--Penalties for Certain Common
Law Offences
20 320. Maximum term of imprisonment for certain
common law offences
An offence at common law specified in
column 1 of the Table is punishable by the
maximum term of imprisonment specified
25 opposite it in column 2 of the Table.
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TABLE
Column 1 Column 2
Maximum Term of
Common law offence Imprisonment
Affray Level 6 imprisonment
(5 years maximum)
Attempt to pervert the Level 2 imprisonment
course of justice (25 years maximum)
Breach of prison Level 6 imprisonment
(5 years maximum)
Bribery of public official Level 5 imprisonment
(10 years maximum)
Common assault Level 6 imprisonment
(5 years maximum)
Conspiracy to cheat and Level 4 imprisonment
defraud (15 years maximum)
Conspiracy to defraud Level 4 imprisonment
(15 years maximum)
Criminal defamation Level 5 imprisonment
(10 years maximum)
Embracery Level 4 imprisonment
(15 years maximum)
False imprisonment Level 5 imprisonment
(10 years maximum)
Kidnapping Level 2 imprisonment
(25 years maximum)
Misconduct in public Level 5 imprisonment
office (10 years maximum)
Perverting the course of Level 2 imprisonment
justice (25 years maximum)
Public nuisance Level 6 imprisonment
(5 years maximum)
Riot Level 5 imprisonment
(10 years maximum)
Rout Level 6 imprisonment
(5 years maximum)
Unlawful assembly Level 6 imprisonment
(5 years maximum).".
57. Certified statement of conviction
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In section 395(3) of the Crimes Act 1958, after
"certificate" insert "in the prescribed form".
58. Alternative verdict on charge of arson causing death
(1) In section 427 of the Crimes Act 1958, before
5 "Where" insert "(1)".
(2) In section 427 of the Crimes Act 1958, at the end
of the section insert--
"(2) If on the trial of a person charged with an
offence against section 197A the jury are not
10 satisfied that he or she is guilty of the
offence charged but are satisfied that he or
she is guilty of an offence against section
197, the jury may acquit the accused of the
offence charged and find him or her guilty of
15 whichever of the offences against section
197 they are satisfied that he or she is guilty
of and he or she is liable to punishment
accordingly.".
59. Determination of appeals by Court of Appeal
20 (1) In section 568 of the Crimes Act 1958, sub-
section (3) is repealed.
(2) In section 568 of the Crimes Act 1958, after sub-
section (4) insert--
"(5) Despite sub-section (4), on an appeal against
25 sentence the Court of Appeal may, if it
thinks that it is appropriate and in the
interests of justice to do so, quash the
sentence passed at the trial and remit the
matter to the trial court.
30 (6) If the Court of Appeal remits a matter to the
trial court under sub-section (5)--
(a) it may give any directions that it thinks
fit concerning the manner and scope of
the further hearing by the trial court,
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including a direction as to whether that
hearing is to be conducted by the same
or a different judge; and
(b) the trial court must hear and determine
5 the matter in accordance with law and
any such directions.
(7) Where a new trial is directed or a matter is
remitted under sub-section (5), the Court of
Appeal may make such order as to it seems
10 fit for the safe custody of the appellant or for
admitting him or her to bail.".
60. Alteration of maximum penalties
(1) The Crimes Act 1958 is amended as set out in
Schedule 12.
15 (2) In section 202 of the Firearms Act 1996, in the
proposed new section 32(1) of the Crimes Act
1958, for "a penalty of imprisonment for not more
than 5 years", substitute "level 6 imprisonment (5
years maximum)".
20 61. Consequential amendment
Section 465(5) of the Crimes Act 1958 is
repealed.
62. Statute law revision
(1) In section 9A(1) of the Crimes Act 1958, for
25 "(b)" (where secondly occurring) substitute "(h)".
(2) In section 70A of the Crimes Act 1958, for "(b)"
(where secondly occurring) substitute "(e)".
(3) In section 177(1) of the Crimes Act 1958, for
"employé" substitute "employee".
30
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63. Transitional provisions
(1) The amendment of the Crimes Act 1958 made by
section 54 or 56 applies only to offences alleged
to have been committed after the commencement
5 of that amendment.
(2) For the purposes of sub-section (1), if an offence
is alleged to have been committed between two
dates and an amendment of the Crimes Act 1958
commences on a date between those two dates, the
10 offence is alleged to have been committed before
the commencement of that amendment.
(3) The amendments of section 568 of the Crimes
Act 1958 made by section 59 apply to appeals
heard and determined by the Court of Appeal after
15 the commencement of section 59, irrespective of
when the notice of appeal or notice of application
for leave to appeal was given.
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PART 7--AMENDMENT OF MAGISTRATES' COURT ACT
1989
64. Definition of "sentencing order"
No. 51/1989.
In the definition of "sentencing order" in section
Reprinted to
5 3(1) of the Magistrates' Court Act 1989, after No. 99/1995.
paragraph (a) insert-- Subsequently
amended by
"(ab) an aggregate sentence of imprisonment Nos 35/1996,
45/1996,
imposed in accordance with section 9(1) of 64/1996,
the Sentencing Act 1991, or an aggregate 66/1996,
70/1996 and
10 fine imposed in accordance with section 51 73/1996.
of that Act, in respect of two or more
offences; and".
65. Indictable offences triable summarily
(1) In section 53(1A) of the Magistrates' Court Act
15 1989, for "level 5, 6, 7 or 8 or as being punishable
by level 5, 6, 7 or 8 imprisonment or fine or both"
substitute "level 5 or 6 or as being punishable by
level 5 or 6 imprisonment or by level 5, 6, 7 or 8
fine or both".
20 (2) In section 53 of the Magistrates' Court Act
1989, after sub-section (1B) insert--
"(1C) Sub-section (1) does not apply to an
indictable offence by virtue of sub-section
(1A) if that offence is referred to in Schedule
25 4 but the reference to that offence in that
Schedule is qualified by reference to a
specified amount or value or a specified kind
of property.".
(3) In Schedule 4 to the Magistrates' Court Act
30 1989--
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(a) for items 1 to 13 substitute--
"1. Causing serious injury recklessly
Offences under section 17 of the Crimes Act
1958.
5 2. Extortion with threat to kill
Offences under section 27 of the Crimes Act
1958.";
(b) items 14A, 14B, 15, 24, 25, 28 and 38 to 42
are repealed;
10 (c) items 43 and 46 to 48B are repealed;
(d) item 56B is repealed;
(e) in items 57, 58, 59 and 60, for "triable
summarily by virtue of any item from 1 to
56" substitute "to which section 53(1) of
15 this Act applies";
(f) item 63 is repealed.
66. Appeals
(1) In section 86(2) of the Magistrates' Court Act
1989, omit "or section 27 or 28 of the Sentencing
20 Act 1991".
(2) In section 91(1) of the Magistrates' Court Act
1989, after "centre" insert "or youth residential
centre".
(3) In clause 2(2)(b) of Schedule 6 to the
25 Magistrates' Court Act 1989, after "youth
training centre" (where twice occurring) insert "or
youth residential centre".
(4) In Schedule 6 to the Magistrates' Court Act
1989, after clause 8 insert--
30 "9. Appeal against aggregate sentence
If the sentencing order appealed against is an aggregate
sentence of imprisonment imposed in accordance with
section 9(1) of the Sentencing Act 1991, or an
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aggregate fine imposed in accordance with section 51
of that Act, the registrar of the Magistrates' Court with
whom the notice of appeal is filed must ensure that the
original charge sheet or charge sheets are transmitted to
5 the registrar of the County Court.".
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PART 8--AMENDMENT OF OTHER ACTS
No. 7772. 67. Alcoholics and Drug-dependent Persons Act 1968
Reprinted to
(1) In section 20(1) of the Alcoholics and Drug-
No. 45/1994.
Subsequently
dependent Persons Act 1968, omit "in the case
amended by
5 of a person in respect of whom there is in force an
Nos 75/1994
and 45/1996.
order under section 28 of the Sentencing Act
1991 wholly suspending a sentence of
imprisonment or".
(2) In section 20(2) of the Alcoholics and Drug-
10 dependent Persons Act 1968, for "Subject to
sub-section (10) of section 28 of the Sentencing
Act 1991 the" substitute "The".
(3) In section 20(3) of the Alcoholics and Drug-
dependent Persons Act 1968, for "Except in the
15 case of a person in respect of whom there is in
force an order under section 28 of the Sentencing
Act 1991 wholly suspending a sentence of
imprisonment but notwithstanding any other"
substitute "Despite any".
No. 9881.
20 68. Prisoners (Interstate Transfer) Act 1983
Reprinted to
In section 33(1) of the Prisoners (Interstate
No. 49/1991.
Subsequently
Transfer) Act 1983, for "imprisonment for a term
amended by
not exceeding seven years" substitute "level 6
No. 94/1994.
imprisonment (5 years maximum)".
No. 101/1986.
25 69. Crimes (Confiscation of Profits) Act 1986
Reprinted to
In section 41Q(1) of the Crimes (Confiscation of
No. 90/1991.
Subsequently
Profits) Act 1986, for "imprisonment for a term
amended by
not exceeding 10 years" substitute "level 3
Nos 31/1994,
45/1994 and
imprisonment (20 years maximum)".
35/1996.
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70. Prostitution Control Act 1994 No. 102/1994.
Reprinted to
(1) In section 5(1) of the Prostitution Control Act No. 99/1995.
1994, for the penalty set out at the foot of that Subsequently
amended by
sub-section substitute "Penalty: Level 5 Nos 53/1996
5 imprisonment (10 years maximum).". and 73/1996.
(2) In section 6(1) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 4
imprisonment (15 years maximum).".
10 (3) In section 7(1) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 4
imprisonment (15 years maximum).".
(4) In section 8(1) of the Prostitution Control Act
15 1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 5
imprisonment (10 years maximum).".
(5) In section 9(1) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
20 sub-section substitute "Penalty: Level 5
imprisonment (10 years maximum).".
(6) In section 10(1) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 6
25 imprisonment (5 years maximum).".
(7) In section 11(1) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 5
imprisonment (10 years maximum).".
30 (8) In section 22(1) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 6
imprisonment (5 years maximum) or 360 penalty
units or both.".
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(9) In section 22(3) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 6
imprisonment (5 years maximum) or 360 penalty
5 units or both.".
(10) In section 75(1) of the Prostitution Control Act
1994, for the penalty set out at the foot of that
sub-section substitute "Penalty: Level 6
imprisonment (5 years maximum) or 600 penalty
10 units or both.".
No. 35/1996. 71. Legal Practice Act 1996
Amended by
(1) In section 188(1) of the Legal Practice Act 1996,
No. 59/1996.
for the penalty set out at the foot of that sub-
section substitute "Penalty: Level 4 imprisonment
15 (15 years maximum).".
(2) In section 263(1) of the Legal Practice Act 1996,
for the penalty set out at the foot of that sub-
section substitute "Penalty: Level 6 imprisonment
(5 years maximum).".
20 __________________
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SCHEDULE 1
ALTERATION OF MAXIMUM PENALTIES IN CRIMES ACT
1958
1. In section 3(a), after "level 1 imprisonment" insert "(life)".
5 2. In section 3A(1)--
(a) for "life imprisonment" substitute "level 1
imprisonment (life)";
(b) for "120 months" substitute "10 years".
3. In section 5, for "level 3 imprisonment" substitute "level 3
10 imprisonment (20 years maximum)".
4. In section 6(1), for "level 7 imprisonment" substitute "level
6 imprisonment (5 years maximum)".
5. In section 6B(1A), for "level 6 imprisonment" substitute
"level 5 imprisonment (10 years maximum)".
15 6. In section 6B(2)--
(a) for "level 7 imprisonment" substitute "level 6
imprisonment (5 years maximum)"; and
(b) for "level 8 imprisonment" substitute "level 6
imprisonment (5 years maximum)".
20 7. In section 9A(1), for paragraph (a) (where secondly
occurring), substitute--
"(g) level 1 imprisonment (life); or".
8. In section 9A(2), for the penalty set out at the foot of the
section substitute "Penalty: Level 3 imprisonment (20 years
25 maximum).".
9. In section 10(1), for "level 5 imprisonment" substitute
"level 4 imprisonment (15 years maximum)".
10. In section 16, for the penalty set out at the foot of the
section substitute "Penalty: Level 3 imprisonment (20 years
30 maximum).".
11. In sections 17, 25 and 27, for the penalty set out at the foot
of the section substitute "Penalty: Level 4 imprisonment
(15 years maximum).".
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12. In section 18, for the penalty set out at the foot of the
section substitute--
"Penalty: If the injury was caused intentionally--level 5
imprisonment (10 years maximum);
5 If the injury was caused recklessly--level 6
imprisonment (5 years maximum).".
13. In section 19A(1), for the penalty set out at the foot of the
section substitute "Penalty: Level 2 imprisonment (25 years
maximum).".
10 14. In sections 20, 21A(1), 22, 26 and 28, for the penalty set out
at the foot of the section substitute "Penalty: Level 5
imprisonment (10 years maximum).".
15. In section 29(1), for the penalty set out at the foot of the
section substitute "Penalty: Level 5 imprisonment (10 years
15 maximum) or level 5 fine.".
16. In sections 19(1), 21, 23, 24, 30 and 31(1), for the penalty
set out at the foot of the section substitute "Penalty: Level 6
imprisonment (5 years maximum).".
17. In section 31A(1), for "a penalty of imprisonment for not
20 more than 5 years", substitute "level 6 imprisonment (5
years maximum)".
18. In sections 32(1), (2) and 33(1), for the penalty set out at the
foot of the section substitute "Penalty: Level 4
imprisonment (15 years maximum).".
25 19. In section 38(1), for the penalty set out at the foot of the
section substitute "Penalty: Level 2 imprisonment (25 years
maximum).".
20. In sections 39(1) and 40(1), for the penalty set out at the
foot of the section substitute "Penalty: Level 5
30 imprisonment (10 years maximum).".
21. In section 44--
(a) for the penalty set out at the foot of sub-sections (1)
and (2) substitute "Penalty: Level 2 imprisonment
(25 years maximum)."; and
35 (b) for the penalty set out at the foot of sub-sections (3)
and (4) substitute "Penalty: Level 6 imprisonment (5
years maximum).".
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22. In section 45(1), for the penalty set out at the foot of the
sub-section substitute "Penalty: Level 2 imprisonment (25
years maximum).".
23. In section 46(1), for the penalty set out at the foot of the
5 section substitute--
"Penalty: Level 4 imprisonment (15 years maximum) if
the child was, at the time of the offence, under
the care, supervision or authority of the
defendant;
10 Level 5 imprisonment (10 years maximum) in
any other case.".
24. In sections 47(1) and 48(1), for the penalty set out at the
foot of the section substitute "Penalty: Level 5
imprisonment (10 years maximum).".
15 25. For section 47A(4), substitute--
"(4) A person who is guilty of an offence under sub-
section (1) is liable to level 2 imprisonment (25 years
maximum).".
26. In section 49(1), for the penalty set out at the foot of the
20 section substitute "Penalty: Level 6 imprisonment (5 years
maximum).".
27. In section 49A(1), for "level 2 imprisonment" substitute
"level 3 imprisonment (20 years maximum).".
28. In sections 51(1) and 52(1), for the penalty set out at the
25 foot of the section substitute "Penalty: Level 5
imprisonment (10 years maximum).".
29. In sections 51(2) and 52(2), for the penalty set out at the
foot of the section substitute "Penalty: Level 6
imprisonment (5 years maximum).".
30 30. In section 53, for the penalty set out at the foot of the
section substitute "Penalty: Level 5 imprisonment (10 years
maximum).".
31. In section 54, for the penalty set out at the foot of the
section substitute--
35 "Penalty: Level 4 imprisonment (15 years maximum) if
the child is under the age of 13;
Level 5 imprisonment (10 years maximum) if
the child is aged between 13 and 17.".
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32. In section 55, for the penalty set out at the foot of the
section substitute "Penalty: Level 5 imprisonment (10 years
maximum).".
33. In section 56(1), for the penalty set out at the foot of the
5 section substitute "Penalty: Level 6 imprisonment (5 years
maximum).".
34. In section 57--
(a) in sub-section (1), for the penalty set out at the foot of
the sub-section substitute "Penalty: Level 5
10 imprisonment (10 years maximum)."; and
(b) in sub-section (2), for the penalty set out at the foot of
the sub-section substitute "Penalty: Level 6
imprisonment (5 years maximum).".
35. In sections 58(1), (2) and 59(1), for the penalty set out at the
15 foot of the section substitute "Penalty: Level 6
imprisonment (5 years maximum).".
36. In section 60(1), for the penalty set out at the foot of the
section substitute "Penalty: Level 8 imprisonment (1 year
maximum) or level 11 fine.".
20 37. In section 60A(1), for "level 8 imprisonment" substitute
"level 7 imprisonment (2 years maximum)".
38. In section 60B(2), for "level 10 imprisonment or a level 11
fine" substitute "level 8 imprisonment (1 year maximum) or
a level 11 fine".
25 39. In section 63--
(a) in sub-section (1), for "level 6 imprisonment"
substitute "level 6 imprisonment (5 years
maximum)"; and
(b) in sub-section (2), for "level 7 imprisonment"
30 substitute "level 6 imprisonment (5 years
maximum)".
40. In section 63A, for "level 2 imprisonment" substitute "level
2 imprisonment (25 years maximum)".
41. In section 64, for "level 7 imprisonment" substitute "level 6
35 imprisonment (5 years maximum)".
42. In section 65, for "level 6 imprisonment" substitute "level 5
imprisonment (10 years maximum)".
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43. In section 66, for "level 8 imprisonment" substitute "level 6
imprisonment (5 years maximum)".
44. In section 67--
(a) for "an indictable offence" substitute "a summary
5 offence"; and
(b) for "level 11 imprisonment" substitute "level 9
imprisonment (6 months maximum)".
45. In section 68--
(a) for "a summary offence" substitute "an indictable
10 offence"; and
(b) for "level 9 imprisonment" substitute "level 5
imprisonment (10 years maximum)".
46. In section 69, for "level 7 imprisonment" substitute "level 5
imprisonment (10 years maximum)".
15 47. In section 70(1), for "level 10 imprisonment" substitute
"level 7 imprisonment (2 years maximum)".
48. In section 70A, for paragraph (a) (where secondly
occurring), substitute--
"(d) level 3 imprisonment (20 years maximum); or".
20 49. In section 70B(2), for paragraph (a), substitute--
"(a) level 3 imprisonment (20 years maximum); or".
50. In section 70C, for "level 5 imprisonment" substitute "level
5 imprisonment (10 years maximum)".
51. In section 70D(1), for "level 11 imprisonment" substitute
25 "level 6 imprisonment (5 years maximum)".
52. In section 74(1), for "level 5 imprisonment" substitute
"level 5 imprisonment (10 years maximum)".
53. In section 75(2), for "level 4 imprisonment" substitute
"level 4 imprisonment (15 years maximum)".
30 54. In section 75A(2), for "level 2 imprisonment" substitute
"level 2 imprisonment (25 years maximum)".
55. In section 76(3) for "level 4 imprisonment" substitute
"level 5 imprisonment (10 years maximum)".
56. In section 77(2), for "level 3 imprisonment" substitute
35 "level 2 imprisonment (25 years maximum)".
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57. In section 78(4), for "level 7 imprisonment" substitute
"level 6 imprisonment (5 years maximum)".
58. In section 80--
(a) in sub-section (1), for "level 4 imprisonment"
5 substitute "level 4 imprisonment (15 years
maximum)"; and
(b) in sub-section (2), for "level 3 imprisonment"
substitute "level 3 imprisonment (20 years
maximum)".
10 59. In sections 81(1) and 82(1), for "level 5 imprisonment"
substitute "level 5 imprisonment (10 years maximum)".
60. In section 83(1), for "level 6 imprisonment" substitute
"level 5 imprisonment (10 years maximum)".
61. In sections 83A(1), (2), (3), (4), (5), (5A) and (5B), for the
15 penalty set out at the foot of the section substitute "Penalty:
Level 5 imprisonment (10 years maximum).".
62. In section 83A(5C), for the penalty set out at the foot of the
section substitute "Penalty: Level 6 imprisonment (5 years
maximum).".
20 63. In section 85(1), for "level 6 imprisonment" substitute
"level 5 imprisonment (10 years maximum)".
64. In sections 86(1) and (2), for "level 6 imprisonment"
substitute "level 5 imprisonment (10 years maximum)".
65. In section 87(3), for "level 4 imprisonment" substitute
25 "level 4 imprisonment (15 years maximum)".
66. In section 88(2), for "level 5 imprisonment" substitute
"level 4 imprisonment (15 years maximum)".
67. In section 91--
(a) in sub-section (1), for "an offence" substitute "a
30 summary offence"; and
(b) in sub-section (2), for "level 8 imprisonment"
substitute "level 7 imprisonment (2 years
maximum)".
68. In sections 176(2), 178, 179(3)(a), 180(a), 181 and 182(a),
35 for "level 5 imprisonment" substitute "level 5 imprisonment
(10 years maximum)".
69. In section 191(1), for "level 5 imprisonment" substitute
"level 4 imprisonment (15 years maximum)".
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70. In section 197--
(a) in sub-section (1), for "level 6 imprisonment"
substitute "level 5 imprisonment (10 years
maximum)";
5 (b) in sub-sections (2) and (7), for "level 4 imprisonment"
substitute "level 4 imprisonment (15 years
maximum)";
(c) in sub-section (3), for "level 5 imprisonment"
substitute "level 5 imprisonment (10 years
10 maximum)".
71. In section 198, for "level 7 imprisonment" substitute "level
6 imprisonment (5 years maximum)".
72. In section 199, for "level 8 imprisonment" substitute "level
6 imprisonment (5 years maximum)".
15 73. In section 206--
(a) in sub-section (1), for "level 6 imprisonment"
substitute "level 4 imprisonment (15 years
maximum)";
(b) in sub-section (2), for "level 7 imprisonment"
20 substitute "level 6 imprisonment (5 years
maximum)".
74. In section 207(3)--
(a) for "an indictable offence" substitute "a summary
offence";
25 (b) for "level 10 imprisonment" substitute "level 8
imprisonment (1 year maximum)".
75. In sections 225 and 228, for "level 6 imprisonment"
substitute "level 6 imprisonment (5 years maximum)".
76. In sections 232 and 244, for "level 6 imprisonment"
30 substitute "level 5 imprisonment (10 years maximum)".
77. In section 233--
(a) for "an indictable offence" substitute "a summary
offence";
(b) for "level 9 imprisonment" substitute "level 7
35 imprisonment (2 years maximum)".
78. In section 245, for "level 8 imprisonment" substitute "level
6 imprisonment (5 years maximum)".
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79. In section 246A, for "level 5 imprisonment" substitute
"level 4 imprisonment (15 years maximum)".
80. In section 246B, for "level 6 imprisonment" substitute
"level 4 imprisonment (15 years maximum)".
5 81. In section 246C, for "level 7 imprisonment" substitute
"level 5 imprisonment (10 years maximum)".
82. In sections 246D(1) and 246E, for "level 7 imprisonment"
substitute "level 6 imprisonment (5 years maximum)".
83. In section 247, for "level 9 imprisonment" substitute "level
10 6 imprisonment (5 years maximum)".
84. In sections 248(1), (2) and (3), for the penalty set out at the
foot of the section substitute "Penalty: Level 5
imprisonment (10 years maximum) or a level 5 fine or
both.".
15 85. In section 314(1), for "level 4 imprisonment" substitute
"level 4 imprisonment (15 years maximum)".
86. In section 316--
(a) in sub-section (1), for "level 7 imprisonment"
substitute "level 5 imprisonment (10 years
20 maximum)";
(b) in sub-section (2), for "level 8 imprisonment"
substitute "level 6 imprisonment (5 years
maximum)".
87. In section 317--
25 (a) in sub-section (2), for "level 4 imprisonment"
substitute "level 4 imprisonment (15 years
maximum)";
(b) in sub-section (3), for "level 5 imprisonment"
substitute "level 5 imprisonment (10 years
30 maximum)";
(c) in sub-section (4), for "level 7 imprisonment"
substitute "level 6 imprisonment (5 years
maximum)".
88. In sections 317A(1) and (2), for the penalty set out at the
35 foot of the section substitute "Penalty: Level 6
imprisonment (5 years maximum) or a level 7 fine or both.".
89. In section 318(1), for "level 3 imprisonment" substitute
"level 3 imprisonment (20 years maximum)".
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90. In section 321C(1)--
(a) in paragraph (b), for "level 5 imprisonment"
substitute "level 4 imprisonment (15 years
maximum)";
5 (b) in paragraph (ba)--
(i) for ", treason or committing a piratical act,"
substitute "or treason,";
(ii) for sub-paragraph (i) substitute--
"(i) level 1 imprisonment (life); or";
10 (c) in paragraph (d)--
(i) for sub-paragraph (i) substitute--
"(i) level 6 imprisonment (5 years
maximum); or".
91. In section 321C(2)(a), for "level 7 imprisonment" substitute
15 "a term of imprisonment not exceeding the maximum term
of imprisonment prescribed in respect of the relevant
offence".
92. In section 321I(1)--
(a) in paragraph (b), for "level 7 imprisonment"
20 substitute "level 4 imprisonment (15 years
maximum)";
(b) in paragraph (ba)--
(i) for ", treason or committing a piratical act,"
substitute "or treason,";
25 (ii) for sub-paragraph (i) substitute--
"(i) level 1 imprisonment (life); or";
(c) in paragraph (d)--
(i) for sub-paragraph (i) substitute--
"(i) level 6 imprisonment (5 years
30 maximum); or".
93. In section 321I(2)(a), for "level 7 imprisonment" substitute
"a term of imprisonment not exceeding the maximum term
of imprisonment prescribed in respect of the relevant
offence".
35 94. In section 321P(1)--
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(a) in paragraph (a), for the Table substitute--
"TABLE
Column 1 Column 2
Level 1 imprisonment Level 2 imprisonment
(life) (25 years maximum)
Level 2 imprisonment Level 3 imprisonment
(25 years maximum) (20 years maximum)
Level 2 fine Level 3 fine
Level 3 imprisonment Level 4 imprisonment
(20 years maximum) (15 years maximum)
Level 3 fine Level 4 fine
Level 4 imprisonment Level 5 imprisonment
(15 years maximum) (10 years maximum)
Level 4 fine Level 5 fine
Level 5 imprisonment Level 6 imprisonment
(10 years maximum) (5 years maximum)
Level 5 fine Level 6 fine
Level 6 imprisonment (5 Level 7 imprisonment
years maximum) (2 years maximum)
Level 6 fine Level 7 fine
Level 7 imprisonment (2 Level 8 imprisonment
years maximum) (1 year maximum)
Level 7 fine Level 8 fine
Level 8 imprisonment (1 Level 9 imprisonment
year maximum) (6 months maximum)
Level 8 fine Level 9 fine
Level 9 imprisonment (6 Level 12 fine
months maximum)
Level 9 fine Level 10 fine
Level 10 fine Level 11 fine
Level 11 fine Level 12 fine
Level 12 fine Level 13 fine
Level 13 fine Level 14 fine
Level 14 fine Level 14 fine";
(b) in paragraph (c), for "level 7 imprisonment"
substitute "level 6 imprisonment (5 years
5 maximum)".
95. In section 321P(1A)--
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Act No.
(a) for ", treason or a piratical act," substitute "or
treason,";
(b) for "level 2 imprisonment" substitute "level 2
imprisonment (25 years maximum)".
5 96. In section 325(4)--
(a) in paragraph (a), for "level 1 imprisonment to level 2
imprisonment" substitute "level 1 imprisonment (life)
to level 3 imprisonment (20 years maximum)";
(b) in paragraph (b), for sub-paragraph (i) substitute--
10 "(i) more than 5 years in length; nor".
97. In section 326(1)--
(a) for "an indictable offence" substitute "a summary
offence";
(b) for "level 10 imprisonment" substitute "level 8
15 imprisonment (1 year maximum)".
98. In section 343, before "A person" insert "(1)".
99. At the end of section 343, insert--
"(2) An offence under sub-section (1) is a summary
offence.".
20 100. In section 479A, for "level 5 imprisonment" substitute
"level 5 imprisonment (10 years maximum)".
101. In sections 479B and 479C(1), (2), and (3), for "level 7
imprisonment" substitute "level 6 imprisonment (5 years
maximum)".
25
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Notes
Act No.
NOTES
1
Current section 9 is re-enacted as section 113C by clause 31.
2
See section 114 of the Sentencing Act 1991 for effect of alterations in
penalties.
By Authority. Government Printer for the State of Victoria.
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