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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Sentencing (Amendment) Act 1999
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Deferred sentencing order 2
5. Combined custody and treatment orders 3
6. New section 18VA inserted 4
18VA. Variation of combined custody and treatment order 4
7. Intensive correction orders 5
8. Community-based orders 6
9. New Division 7 inserted in Part 3 6
Division 7--Deferral of Sentencing in Magistrates' Court 6
83A. Deferral of sentencing 6
10. Application under section 86 by child or person under disability 8
11. Use of victim impact statements in compensation application 9
12. Power to award costs on application under section 86 9
13. New section 95BA inserted 9
95BA. Medical reports 9
14. Victim impact statements 11
15. New section 122 inserted 12
122. Transitional provisions--Sentencing (Amendment) Act
1999 12
16. Statute law revision 13
17. Amendment of Children and Young Persons Act 1989 13
NOTES 15
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532181B.I1-23/3/99
PARLIAMENT OF VICTORIA
A BILL
to amend the Sentencing Act 1991 and the Children and Young
Persons Act 1989 and for other purposes.
Sentencing (Amendment) Act 1999
The Parliament of Victoria enacts as follows:
1. Purpose
(1) The main purpose of this Act is to amend the
Sentencing Act 1991 so as to--
(a) enable the Magistrates' Court to defer the
5 sentencing of certain offenders; and
(b) make further provision with respect to the
conditions, and enable the variation, of a
combined custody and treatment order;
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Sentencing (Amendment) Act 1999
s. 2
Act No.
(c) allow conditions to be imposed under an
intensive correction order for a period
shorter than the duration of the order;
(d) make miscellaneous amendments in relation
5 to applications for compensation orders;
(e) enable medical reports to be attached to
victim impact statements.
(2) Another purpose of this Act is to amend the
Children and Young Persons Act 1989 so as to
10 widen the sentencing options available on dealing
with a breach of the conditions of a temporary
leave permit.
2. Commencement
(1) This section and sections 1, 3, 16 and 17 come
15 into operation on the day on which this Act
receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
20 (3) If a provision referred to in sub-section (2) does
not come into operation before 1 January 2000, it
comes into operation on that day.
3. Principal Act
No. 49/1991. In this Act, the Sentencing Act 1991 is called the
Reprint No. 4
25 Principal Act.
as at 1 July
1998. Further
amended by
No. 57/1998.
4. Deferred sentencing order
In section 7 of the Principal Act, at the end of the
section insert--
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s. 5
Act No.
"(2) If the Magistrates' Court finds a person aged
17 years or more but under 25 years of age
guilty of an offence, it may defer sentencing
the person in accordance with section 83A.".
5 5. Combined custody and treatment orders
(1) In section 18Q(7) of the Principal Act, after
"section" insert "18VA or".
(2) In section 18R(1)(a) of the Principal Act, after
"commit" insert ", whether in or outside
10 Victoria,".
(3) In section 18R(1) of the Principal Act, after
paragraph (a) insert--
"(ab) while serving the sentence in custody must
undergo treatment for alcohol or drug
15 addiction as directed by a prescribed person
or a member of a prescribed class of
persons;".
(4) In section 18S(1)(a) of the Principal Act, for
"while serving the sentence in the community"
20 substitute "during the period of the order".
(5) In section 18W(5)(b) of the Principal Act, before
"order" insert "whether or not the offender has
served any part of the sentence in the
community,".
25 (6) In section 18W(8)(a) of the Principal Act, after
"immediately" insert "or, if the offender is still
serving the original custodial part of the sentence,
immediately on the completion of service of that
part of the sentence".
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6. New section 18VA inserted
After section 18V of the Principal Act insert--
"18VA. Variation of combined custody and
treatment order
5 (1) If on an application under this sub-section
the court which made a combined custody
and treatment order is satisfied--
(a) that the circumstances of the offender
have materially altered since the order
10 was made and as a result the offender
will not be able to comply with any
condition of the order; or
(b) that the circumstances of the offender
were wrongly stated or were not
15 accurately presented to the court or the
author of a pre-sentence report before
the order was made; or
(c) that the offender is no longer willing to
comply with the order--
20 it may vary the order or cancel it and, subject
to sub-section (2), deal with the offender for
the offence or offences with respect to which
it was made in any manner in which the
court could deal with the offender if it had
25 just convicted him or her of that offence or
those offences.
(2) In determining how to deal with an offender
following the cancellation by it of a
combined custody and treatment order, a
30 court must take into account the extent to
which the offender had complied with the
order before its cancellation.
(3) An application under sub-section (1) may be
made at any time while the order is in force
35 by--
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s. 7
Act No.
(a) the offender; or
(b) a prescribed person or a member of a
prescribed class of persons; or
(c) the Director of Public Prosecutions.
5 (4) Notice of an application under sub-section
(1) must be given--
(a) to the offender; and
(b) to the Director of Public Prosecutions
(if the sentencing court was the
10 Supreme Court or the County Court) or
to the informant or police prosecutor (if
the sentencing court was the
Magistrates' Court).
(5) The court may order that a warrant to arrest
15 be issued against the offender if he or she is
serving the sentence in the community and
does not attend before the court on the
hearing of the application.".
7. Intensive correction orders
20 (1) In section 20(1)(a) of the Principal Act, after
"commit" insert ", whether in or outside
Victoria,".
(2) In section 20(1)(c) and (d) of the Principal Act,
for "that the order is in force" substitute "of the
25 period of the order or a shorter period specified in
the order for this purpose".
(3) In section 21(1) of the Principal Act, after
"program" insert "during the period of the order
or a shorter period specified in the order for this
30 purpose".
(4) In section 24 of the Principal Act, after "force"
insert "or a condition is to be complied with".
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s. 8
Act No.
(5) In section 25(3) of the Principal Act, for
paragraph (b) substitute--
"(b) a prescribed person or a member of a
prescribed class of persons; or".
5 (6) In section 26(3B) of the Principal Act, after
"committing" insert ", whether in or outside
Victoria,".
8. Community-based orders
(1) In section 37(1)(a) of the Principal Act, after
10 "commit" insert ", whether in or outside
Victoria,".
(2) In section 46(3) of the Principal Act, for
paragraph (b) substitute--
"(b) a prescribed person or a member of a
15 prescribed class of persons; or".
9. New Division 7 inserted in Part 3
In Part 3 of the Principal Act, at the end of the
Part insert--
"Division 7--Deferral of Sentencing in
20 Magistrates' Court
83A. Deferral of sentencing
(1) If the Magistrates' Court finds a person
guilty of an offence and--
(a) the offender is, at the time of the
25 finding, aged 17 years or more but
under 25 years of age; and
(b) the Magistrates' Court is of the opinion
that sentencing should, in the interests
of the offender, be deferred; and
30 (c) the offender agrees to a deferral of
sentencing--
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Sentencing (Amendment) Act 1999
s. 9
Act No.
the Magistrates' Court may defer sentencing
the offender for a period not exceeding
6 months.
(2) If the Magistrates' Court defers sentencing
5 an offender, it--
(a) must adjourn the proceeding for a
period of up to 6 months; and
(b) may release the offender on his or her
undertaking to appear before the
10 Magistrates' Court on the date fixed for
sentence or release the offender on bail
or extend his or her bail to that date;
and
(c) may order a pre-sentence report in
15 respect of the offender.
(3) On the adjourned hearing, the Magistrates'
Court must, in determining the appropriate
sentence for an offender, have regard to--
(a) the offender's behaviour during the
20 period of deferral; and
(b) subject to section 99, any pre-sentence
report ordered under sub-section (2)(c);
and
(c) any other relevant matter.
25 (4) If an offender is found guilty of an offence
during a period of deferral under this section,
the Magistrates' Court may--
(a) re-list the adjourned proceeding on a
day earlier than the day to which it was
30 adjourned under sub-section (2)(a); and
(b) on the adjourned hearing make any
order that the Magistrates' Court could
have made if it had not deferred
sentencing.
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Sentencing (Amendment) Act 1999
s. 10
Act No.
(5) The Magistrates' Court may order that a
warrant to arrest be issued against the
offender if he or she does not attend before
the Court on the adjourned hearing.
5 (6) Nothing in this section removes any
requirement imposed on the Magistrates'
Court by or under this or any other Act to
impose any disqualification on, or make any
other order in respect of, a person found
10 guilty or convicted of an offence, including
an order cancelling or suspending a driver
licence or permit or disqualifying the
offender from obtaining one for any period.".
10. Application under section 86 by child or person under
15 disability
In section 86 of the Principal Act, after sub-
section (6) insert--
"(6A) A proceeding in a court on an application
under this section made by or on behalf of a
20 child or a person who is incapable by reason
of injury, disease, senility, illness or physical
or mental infirmity of managing his or her
affairs in relation to the proceeding must be
taken to be a civil proceeding for the purpose
25 of any provision of an Act or rule of court
relating to--
(a) the appointment or removal, and the
power or authority, of a litigation
guardian in a civil proceeding in that
30 court; or
(b) the administration of money ordered to
be paid to a child or such an incapable
person--
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Sentencing (Amendment) Act 1999
s. 11
13
Act No.
and any such provision applies in relation to
a proceeding on an application under this
section with any necessary modifications.".
11. Use of victim impact statements in compensation
5 application
In section 86(9) of the Principal Act, at the end of
paragraph (c) insert--
"; or
(d) any victim impact statement made to the
10 court for the purpose of assisting it in
determining sentence, including any medical
report attached to it.".
12. Power to award costs on application under section 86
(1) In the definition of "fine" in section 3(1) of the
15 Principal Act, after "compensation" insert "or any
costs of or incidental to an application for
restitution or compensation payable by an
offender under an order of a court".
(2) In section 86 of the Principal Act, after sub-
20 section (9C) insert--
"(9D) Despite any rule of law or practice to the
contrary or any provision to the contrary
made by or under any other Act, each party
to a proceeding under this section must bear
25 their own costs of the proceeding unless the
court otherwise determines.".
(3) In section 87 of the Principal Act, after "86(1)"
insert ", including costs ordered to be paid by the
offender on the proceeding for that order,".
30
13. New section 95BA inserted
After section 95B of the Principal Act insert--
'95BA. Medical reports
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Sentencing (Amendment) Act 1999
Act No.
(1) A medical report may be attached to a victim
impact statement.
(2) In this section--
"dentist" means--
5 (a) a person registered or qualified to
be registered as a dentist under the
Dentists Act 1972 or any
corresponding enactment of
another State or a Territory of the
10 Commonwealth; or
(b) a person entitled to practise
dentistry in a place out of
Australia under an enactment of
that place corresponding to the
15 Dentists Act 1972, whether or not
the person does so practise;
"medical expert" means medical
practitioner, dentist or psychologist;
"medical matters" includes dental matters
20 and psychological matters;
"medical practitioner" means--
(a) a person registered or qualified to
be registered as a medical
practitioner under the Medical
25 Practice Act 1994 or any
corresponding enactment of
another State or a Territory of the
Commonwealth; or
(b) a person entitled to practise
30 medicine in a place out of
Australia under an enactment of
that place corresponding to the
Medical Practice Act 1994,
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Sentencing (Amendment) Act 1999
s. 14
Act No.
whether or not the person does so
practise;
"medical report" means a written statement
on medical matters concerning the
5 victim made and signed by a medical
expert and includes any document
which the medical expert intends
should be read with the statement,
whether the document was in existence
10 at the time the statement was made or
was a document which the medical
expert obtained or caused to be brought
into existence subsequently;
"psychologist" means--
15 (a) a registered psychologist as
defined by the Psychologists
Registration Act 1987; or
(b) a person who meets the
requirements of paragraphs (b)
20 and (c) of section 13 of the
Psychologists Registration Act
1987; or
(c) a person who practises
psychology in a place out of
25 Victoria.'.
14. Victim impact statements
(1) In section 95B(2) of the Principal Act, after
"statement" insert ", including the whole or any
part of a medical report attached to it".
30 (2) In section 95C of the Principal Act, after
"prosecutor" insert--
"--
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Sentencing (Amendment) Act 1999
s. 15
Act No.
and the copy must include a copy of any
medical report attached to the victim impact
statement".
(3) In section 95D(1) of the Principal Act, after
5 "victim," insert "or a medical expert who made a
medical report attached to a victim impact
statement,".
(4) In section 95E(1) of the Principal Act, after
"statement" (where secondly occurring) insert "or
10 in a medical report attached to it".
(5) In section 95E(3) of the Principal Act, after
"statement" insert "or in a medical report attached
to it".
15. New section 122 inserted
15 After section 121 of the Principal Act insert--
"122. Transitional provisions--Sentencing
(Amendment) Act 1999
(1) An amendment of this Act made by a
provision of section 5, 6, 7 or 8 of the
20 Sentencing (Amendment) Act 1999 applies
to a sentence imposed after the
commencement of that provision,
irrespective of when the offence was
committed and, for this purpose, a sentence
25 imposed by an appellate court on setting
aside a sentencing order must be taken to
have been imposed at the time the original
sentencing order was made.
(2) Section 83A applies to any finding of guilt
30 made after the commencement of section 9
of the Sentencing (Amendment) Act 1999,
irrespective of when the offence was
committed.
(3) The amendment of section 86 of this Act
35 made by a provision of section 10 or 12(2) of
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Sentencing (Amendment) Act 1999
s. 16
17
Act No.
the Sentencing (Amendment) Act 1999
applies to an application made under that
section of this Act after the commencement
of that provision, irrespective of when the
5 offence was committed or the finding of guilt
made or conviction recorded.
(4) The amendment of this Act made by section
11 of the Sentencing (Amendment) Act
1999 applies to an application under section
10 86 of this Act heard or determined after the
commencement of that section of that Act,
irrespective of when the offence was
committed or the finding of guilt made or
conviction recorded or the application made.
15 (5) The amendment of section 87 of this Act
made by section 12(3) of the Sentencing
(Amendment) Act 1999 applies to an order
made under section 86(1) of this Act after
the commencement of that section of that
20 Act.
(6) Section 95BA and the amendments made to
this Act by section 14 apply to a victim
impact statement made to a court after the
commencement of sections 13 and 14 of the
25 Sentencing (Amendment) Act 1999.".
16. Statute law revision
(1) In section 3(1) of the Principal Act, the definition
of "Full Court" is repealed.
(2) In section 5(2E) of the Principal Act, omit "Full
30 Court or".
(3) In section 13(1)(a) of the Principal Act, for "Full
Court" substitute "Court of Appeal".
17. Amendment of Children and Young Persons Act 1989
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Sentencing (Amendment) Act 1999
Act No.
(1) In paragraph (b) of the penalty set out at the foot
No. 56/1989.
of section 256(10) of the Children and Young
Reprint No. 5
as at 1 July
Persons Act 1989, after "imprisonment" insert
1998. Further
"or detention in a youth training centre".
amended by
No. 69/1992
5 (2) In Schedule 3 to the Children and Young
(as amended
by No.
Persons Act 1989, after clause 23 insert--
19/1994).
"24. The amendment of the penalty set out at the foot of
section 256(10) made by section 17 of the Sentencing
(Amendment) Act 1999 applies only to offences
10 committed after the commencement of that section of
that Act.".
14
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Sentencing (Amendment) Act 1999
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Sentencing (Amendment) Act 1999
Act No.
16
532181B.I1-23/3/99
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