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PARLIAMENT OF VICTORIA
Sentencing (Amendment) Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Principal Act 2
PART 2--SENTENCING ACT 1991 3
4. Drug treatment order as sentencing order 3
5. New Subdivision (1C) inserted in Division 2 of Part 3 4
Subdivision (1C)--Drug Treatment Orders 4
18X. Purposes of drug treatment order 4
18Y. Order only available at Drug Court 5
18Z. When drug treatment order can be made 5
18ZA. Order can cover multiple offences 7
18ZB. Effect of Drug Court declining to make an order 8
18ZC. The parts of a drug treatment order 8
18ZD. Sentence of imprisonment must be imposed 8
18ZE. Activation of custodial part of an order 9
18ZF. Core conditions 11
18ZG. Program conditions 13
18ZH. Variation on assessing offender's progress 14
18ZI. Case conferences 15
18ZJ. Rewards for complying with conditions 16
18ZK. Cancellation as a reward 17
18ZL. Failure to comply with conditions 17
18ZM. Service in a secure custody facility 20
18ZN. Commission of certain offences 21
18ZO. Drug Court may hear and determine certain offences 23
18ZP. Cancellation 25
18ZQ. Drug treatment order assessment reports 27
18ZR. Appeals 30
18ZS. Immunity from prosecution for certain offences 33
6. Statute law revision 34
7. New section 126 inserted 34
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Clause Page
126. Transitional provisions--Sentencing (Amendment) Act
2001 34
8. Repeal of drug treatment order provisions 34
9. New section 126A inserted 35
126A. Transitional provision--repeal of amendments made by
Sentencing (Amendment) Act 2001 35
PART 3--MAGISTRATES' COURT ACT 1989 37
10. New sections 4A and 4B inserted 37
4A. Establishment of Drug Court Division 37
4B. Intra-venue referrals 37
11. New section 4C inserted 38
4C. Inter-venue referrals 38
PART 4--CORRECTIONS ACT 1986 40
12. Definition of "correctional order" 40
13. Persons not regarded to be in the Secretary's legal custody 40
14. Repeals 41
ENDNOTES 42
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541228B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001
PARLIAMENT OF VICTORIA
Initiated in Assembly 28 November 2001
A BILL
to amend the Sentencing Act 1991 to provide for a drug treatment
order as a new sentencing order, to amend the Magistrates' Court
Act 1989 to establish a Drug Court Division of the Magistrates' Court,
to amend the Corrections Act 1986 with respect to the custody of a
person subject to a drug treatment order and for other purposes.
Sentencing (Amendment) Act 2001
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to amend the Sentencing Act 1991 to
5 provide for a drug treatment order as a new
sentencing order; and
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(b) to amend the Magistrates' Court Act 1989
to establish a Drug Court Division of the
Magistrates' Court; and
(c) to amend the Corrections Act 1986 with
5 respect to the custody of a person subject to
a drug treatment order.
2. Commencement
(1) This Part comes into operation on the day after the
day on which this Act receives the Royal Assent.
10 (2) Sections 8, 9 and 14 come into operation on the
day that is the fourth anniversary of the day on
which section 5 comes into operation.
(3) Subject to sub-sections (4) and (5), the remaining
provisions of this Act come into operation on a
15 day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) (other
than section 11) does not come into operation
before 1 December 2002, it comes into operation
on that day.
20 (5) If section 11 does not come into operation before
1 December 2003, it comes into operation on that
day.
3. Principal Act
See: In this Act, the Sentencing Act 1991 is called the
Act No.
25 Principal Act.
49/1991.
Reprint No. 6
as at
1 August 2001
and
amending
Act Nos
45/2001 and
00/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
_______________
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PART 2--SENTENCING ACT 1991
4. Drug treatment order as sentencing order
(1) In section 3(1) of the Principal Act insert--
' "Drug Court" means the Drug Court Division
5 of the Magistrates' Court;
"Drug Court officer" means a person who--
(a) is employed under Part 3 of the Public
Sector Management and
Employment Act 1998; and
10 (b) exercises powers or performs functions
in relation to the Drug Court;
"drug treatment order" means an order under
Subdivision (1C) of Division 2 of Part 3;
"secure custody facility" means--
15 (a) a prison as defined in section 3 of the
Corrections Act 1986; or
(b) a youth training centre; or
(c) any other place the Minister specifies
under sub-section (2);'.
20 (2) In section 3(1) of the Principal Act, in the
definition of "Regional Manager", after "in
relation to" insert "a drug treatment order,".
(3) In section 3 of the Principal Act, after sub-section
(1) insert--
25 '(2) The Minister may, by notice published in the
Government Gazette, specify a place for the
purposes of paragraph (c) of the definition of
"secure custody facility" in sub-section (1).
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(3) Section 6(b) of the Corrections Act 1986 is
taken to include an order under section
18ZL(1)(f) that a person serve a period in a
place referred to in paragraph (c) of the
5 definition of "secure custody facility" in
sub-section (1).'.
(4) In section 5(4A) of the Principal Act, for "an
intensive correction order" substitute "a drug
treatment order".
10 (5) In section 5 of the Principal Act, after sub-section
(4A) insert--
"(4B) A court must not impose a drug treatment
order unless it considers that the purpose or
purposes for which the sentence is imposed
15 cannot be achieved by an intensive
correction order.".
(6) In section 7(1) of the Principal Act, before
paragraph (b) insert--
"(ac) record a conviction and make a drug
20 treatment order in respect of the offender;
or".
5. New Subdivision (1C) inserted in Division 2 of Part 3
After Subdivision (1B) of Division 2 of Part 3 of
the Principal Act insert--
25 'Subdivision (1C)--Drug Treatment Orders
18X. Purposes of drug treatment order
(1) The particular purposes of a drug treatment
order are--
(a) to facilitate the rehabilitation of the
30 offender by providing a judicially-
supervised, therapeutically-oriented,
integrated drug or alcohol treatment
and supervision regime;
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(b) to take account of an offender's drug or
alcohol dependency;
(c) to reduce the level of criminal activity
associated with drug or alcohol
5 dependency;
(d) to reduce the offender's health risks
associated with drug or alcohol
dependency.
(2) Nothing in sub-section (1) affects the
10 operation of section 5(1) but, if considering
making a drug treatment order, the Drug
Court must regard the rehabilitation of the
offender and the protection of the
community from the offender (achieved
15 through the offender's rehabilitation) as
having greater importance than the other
purposes set out in section 5(1).
18Y. Order only available at Drug Court
Only the Drug Court may make a drug
20 treatment order.
18Z. When drug treatment order can be made
(1) The Drug Court may make a drug treatment
order if--
(a) an offender pleads guilty to an offence
25 that is within the jurisdiction of the
Magistrates' Court and punishable on
conviction by imprisonment, other
than--
(i) a sexual offence as defined in
30 section 6B(1); or
(ii) subject to sub-section (5), an
offence involving the infliction of
actual bodily harm; and
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(b) the Drug Court convicts the offender of
the offence; and
(c) the Drug Court is satisfied on the
balance of probabilities that--
5 (i) the offender is dependent on drugs
or alcohol; and
(ii) the offender's dependency
contributed to the commission of
the offence; and
10 (d) the Drug Court considers that--
(i) a sentence of imprisonment would
otherwise be appropriate; and
(ii) it would not have ordered that the
sentence be served by way of
15 intensive correction in the
community nor would it have
suspended the sentence in whole
or part; and
(e) the Drug Court has received a drug
20 treatment order assessment report on
the offender under section 18ZQ.
(2) However, a drug treatment order cannot be
made in respect of an offender who is subject
to--
25 (a) a parole order; or
(b) a combined custody and treatment
order; or
(c) a sentencing order of the County Court
or Supreme Court.
30 (3) The Drug Court must not make a drug
treatment order unless--
(a) it is satisfied in all the circumstances
that it is appropriate to do so; and
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(b) the offender agrees in writing to the
making of the order and to comply with
the treatment and supervision part of
the order.
5 Note: Section 18ZC sets out what the treatment and
supervision part of the order is.
(4) The Drug Court may make a drug treatment
order in respect of an offender regardless of
whether--
10 (a) the offender's drug or alcohol
dependency contributed on one or more
previous occasions to the offender--
(i) committing an offence of which
the offender was convicted or
15 found guilty; or
(ii) failing to comply with the
conditions of bail or of a
sentencing order; or
(b) the offender has been previously
20 sentenced to one or more terms of
imprisonment.
(5) Despite sub-section (1)(a)(ii), the Drug
Court may make a drug treatment order in
respect of an offender where the offence
25 involved the infliction of actual bodily harm
if it is satisfied that the harm was of a minor
nature.
18ZA. Order can cover multiple offences
(1) A drug treatment order may be made in
30 respect of one or more offences committed
by an offender.
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(2) An offender can only be subject to one drug
treatment order at any particular time.
18ZB. Effect of Drug Court declining to make an
order
5 If an offender has pleaded guilty to an
offence or offences in respect of which the
Drug Court could make a drug treatment
order but it does not consider it appropriate
to do so, the Drug Court must--
10 (a) sentence the offender in relation to the
offence or offences if the offender
consents to the Drug Court doing so; or
(b) adjourn the matter for sentencing to the
Magistrates' Court (other than the Drug
15 Court) at that venue.
18ZC. The parts of a drug treatment order
(1) A drug treatment order consists of 2 parts--
(a) the treatment and supervision part; and
(b) the custodial part.
20 (2) The treatment and supervision part of a drug
treatment order--
(a) consists of the core conditions and
program conditions attached to the
order; and
25 (b) operates for 2 years or until that part of
the order is cancelled under section
18ZK, 18ZN or 18ZP.
(3) The custodial part of a drug treatment order
consists of the sentence of imprisonment that
30 the Drug Court must impose on the offender
under section 18ZD.
18ZD. Sentence of imprisonment must be imposed
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(1) When making a drug treatment order, the
Drug Court must impose a sentence of
imprisonment of no more than 2 years on the
offender.
5 (2) The Drug Court must impose the sentence of
imprisonment that it would have imposed if
it had not made the drug treatment order.
(3) Despite anything to the contrary in
section 11, the Drug Court must not fix a
10 non-parole period in accordance with that
section as part of the sentence imposed by it.
Note: A non-parole period may be fixed as part of
certain orders under this Subdivision activating
the custodial part of a drug treatment order
15 (see section 18ZE(3)).
18ZE. Activation of custodial part of an order
(1) Despite anything to the contrary in this Act,
an offender is not to serve the custodial part
of a drug treatment order, and that part of the
20 order does not commence, except in
accordance with an order under this
Subdivision activating that part of the order.
Note: The Drug Court may make an order activating
some or all of the custodial part under section
25 18ZL(1)(f) (which involves serving a period in
a secure custody facility), or under section
18ZN or 18ZP.
(2) In making an order under this Subdivision
activating some or all of the custodial part of
30 a drug treatment order, the Drug Court must
first--
(a) calculate the remaining length of the
custodial part of the order by
subtracting from the length of the
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sentence of imprisonment imposed
under the order--
(i) each period of custody declared
under this Act as reckoned to be a
5 period already served under the
sentence; and
(ii) each period of custody served in a
secure custody facility under the
custodial part of the order because
10 of an order under section
18ZL(1)(f); and
(b) if the total of--
(i) the remaining length of the
custodial part of the order; and
15 (ii) the period during which the
treatment and supervision part of
the order has already operated--
is more than 2 years, reduce the
remaining length of the custodial part
20 so that the total is 2 years.
(3) If the Drug Court makes an order under
section 18ZN(1)(b)(i) or 18ZP(2)(a)
activating the custodial part of a drug
treatment order for a period of one year or
25 more, the Drug Court may, as part of the
order under that section, fix in respect of the
custodial part a non-parole period in
accordance with section 11, as if the Drug
Court had just sentenced the offender to that
30 term of imprisonment.
Example
The Drug Court decides to make an order activating
the custodial part of a drug treatment order 18 months
after the drug treatment order was made. When it
35 made the drug treatment order, it imposed a sentence
of imprisonment of 8 months. The Drug Court--
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(a) calculates that the remaining length of the
custodial part of the drug treatment order is
7 months because the length of the sentence of
imprisonment imposed under the order was
5 8 months from which the Drug Court
subtracts--
(i) 14 days that the offender spent in
custody before sentencing; and
(ii) 16 days that the offender served in a
10 secure custody facility because of an
earlier order under section 18ZL(1)(f);
and
(b) calculates that the total of--
(i) the remaining length of the custodial part
15 (7 months); and
(ii) the period during which the treatment
and supervision part of the drug
treatment order has already operated
(18 months)--
20 is 25 months, which is 1 month over 2 years;
and
(c) so that the total is 2 years, reduces the
remaining length of the custodial part by
1 month to 6 months.
25 This means that the Drug Court may make an order
activating the custodial part for no more than 6
months.
18ZF. Core conditions
(1) The core conditions attached to a drug
30 treatment order are that, while the treatment
and supervision part of the order operates,
the offender--
(a) must not commit, whether in or outside
Victoria, another offence punishable on
35 conviction by imprisonment; and
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(b) must attend the Drug Court when
required by the Drug Court to do so;
and
(c) must report to a specified community
5 corrections centre or other specified
place within 2 clear working days after
the order is made; and
(d) must undergo treatment for drug or
alcohol dependency as specified in the
10 order or from time to time by--
(i) the Drug Court; or
(ii) a specified community corrections
officer; or
(iii) a specified Drug Court officer;
15 and
(e) must report to, and accept visits from, a
specified community corrections officer
or specified Drug Court officer; and
(f) must give notice of any change of
20 address within 2 clear working days
before the change, unless there are
special circumstances, to--
(i) the Drug Court; or
(ii) a specified community corrections
25 officer; or
(iii) a specified Drug Court officer;
and
(g) must not leave Victoria except with the
permission, granted either generally or
30 in a particular case, of one of the
following--
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(i) the Drug Court;
(ii) a specified community corrections
officer;
(iii) a specified Drug Court officer;
5 and
(h) must obey all lawful instructions and
directions of the Drug Court,
community corrections officers or
specified Drug Court officers.
10 (2) A drug treatment order must have all the
core conditions attached to it and the
offender must comply with all of those
conditions.
18ZG. Program conditions
15 (1) The program conditions that may be attached
to a drug treatment order are that, while the
treatment and supervision part of the order
operates, the offender--
(a) must submit to drug or alcohol testing
20 as specified in the order; and
(b) must submit to detoxification or other
treatment specified in the order
(whether or not residential in nature);
and
25 (c) must attend vocational, educational,
employment or other programs as
specified in the order; and
(d) must submit to medical, psychiatric or
psychological treatment as specified in
30 the order; and
(e) must not associate with specified
persons; and
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(f) must reside at a specified place for a
specified period; and
(g) must do or not do anything else that the
Drug Court considers necessary or
5 appropriate concerning--
(i) the offender's drug or alcohol
dependency; or
(ii) the personal factors that the Drug
Court considers contributed to the
10 offender's criminal behaviour.
(2) The Drug Court must attach to a drug
treatment order at least one program
condition but must not attach any more
program conditions than it considers
15 necessary to achieve the purposes for which
the order is made.
(3) An offender must comply with all of the
program conditions attached to the drug
treatment order.
20 18ZH. Variation on assessing offender's progress
(1) The Drug Court may vary the treatment and
supervision part of a drug treatment order
from time to time if the Drug Court
considers it appropriate to do so based on its
25 assessment of the offender's progress.
Note: The Drug Court may also vary the treatment
and supervision part of a drug treatment order
under section 18ZJ, 18ZL or 18ZN.
(2) The Drug Court may do so on its own
30 initiative or on the application of--
(a) the offender; or
(b) the informant or police prosecutor; or
(c) a prescribed person or a person in a
prescribed class of persons.
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(3) The treatment and supervision part of the
order may be varied by--
(a) adding or removing program
conditions; or
5 (b) varying one or more core conditions,
other than the condition referred to in
section 18ZF(1)(a), or program
conditions, for example to vary--
(i) the frequency of treatment; or
10 (ii) the degree of supervision; or
(iii) the frequency of drug or alcohol
testing; or
(iv) the type or frequency of
vocational, educational,
15 employment or other programs
that the offender must attend.
18ZI. Case conferences
(1) For the purpose of being informed from time
to time about the progress being made by an
20 offender subject to a drug treatment order,
the magistrate constituting the Drug Court
may convene a case conference.
(2) A case conference may be attended by a
legal practitioner, a prosecutor, a health
25 service provider, a community corrections
officer or anyone else whom the magistrate
thinks should attend.
(3) For the purposes of section 91 of the
Corrections Act 1986, an officer referred to
30 in that section who discloses at a case
conference information about an offender
subject to a drug treatment order is taken to
be performing his or her official duties.
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(4) No objection can be taken to a magistrate
subsequently constituting the Drug Court in
a proceeding on the ground that he or she
had previously convened a case conference
5 in relation to the proceeding.
18ZJ. Rewards for complying with conditions
(1) The Drug Court may, on its own initiative,
confer a reward from time to time on an
offender who is or has been fully or
10 substantially complying with the conditions
attached to a drug treatment order by doing
one or more of the following--
(a) varying the treatment and supervision
part of the order under sub-section (2);
15 (b) varying or cancelling an order under
section 18ZL(1)(c), (d) or (e);
(c) making an order that some or all of a
period for which the custodial part of
the drug treatment order is activated
20 under section 18ZL(1)(f), but which the
offender is yet to serve in a secure
custody facility, is no longer activated;
(d) conferring on the offender any other
reward that the Drug Court considers
25 appropriate.
(2) The treatment and supervision part of the
order may be varied by--
(a) adding or removing program
conditions; or
30 (b) varying one or more core conditions,
other than the condition referred to in
section 18ZF(1)(a), or program
conditions, for example to reduce--
(i) the frequency of treatment; or
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(ii) the degree of supervision; or
(iii) the frequency of drug or alcohol
testing.
18ZK. Cancellation as a reward
5 (1) The Drug Court may, on its own initiative, as
a reward cancel the treatment and
supervision part and custodial part of a drug
treatment order if it considers that--
(a) the offender has to date fully or
10 substantially complied with the
conditions attached to the order; and
(b) the continuation of the order is no
longer necessary to meet the purposes
for which it was made.
15 (2) To avoid doubt, if the Drug Court cancels
the treatment and supervision part and
custodial part of a drug treatment order
under this section any earlier orders
activating the custodial part of the order
20 cease to have effect.
18ZL. Failure to comply with conditions
(1) If the Drug Court is satisfied on the balance
of probabilities that an offender has, without
reasonable excuse, failed to comply with a
25 condition attached to a drug treatment order
(other than by committing an offence
punishable on conviction by imprisonment
for more than 12 months) the Drug Court
must take one of the following actions--
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(a) confirm the treatment and supervision
part of the order;
(b) vary that part of the order under
sub-section (3);
5 (c) order that a curfew, requiring the
offender to remain at a specified place
between specified hours, applies to the
offender for a specified period;
(d) order that the offender perform up to
10 20 hours of unpaid community work as
directed by the Regional Manager of
the region in which the community
corrections centre specified in the order
is located;
15 (e) order that the offender remain at a
specified place, other than a secure
custody facility, for a specified period
of up to 14 days;
(f) subject to section 18ZM, order that the
20 custodial part of the drug treatment
order is activated for a specified period
of between one and 7 days to be served
in a secure custody facility.
Note 1: If the offender commits an offence
25 punishable on conviction by imprisonment
for more than 12 months, see section 18ZN.
Note 2: Section 18ZE sets out how much of the
custodial part of a drug treatment order can
be activated.
30 Note 3: For "secure custody facility" see section 3(1).
(2) In deciding which action to take under
sub-section (1), the Drug Court must
consider each of the actions in the order in
which they appear and must only take the
35 first action that the Court considers to be
appropriate in the circumstances.
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(3) The treatment and supervision part of the
order may be varied by--
(a) adding or removing program
conditions; or
5 (b) varying one or more core conditions,
other than the condition referred to in
section 18ZF(1)(a), or program
conditions, for example to increase--
(i) the frequency of treatment; or
10 (ii) the degree of supervision; or
(iii) the frequency of drug or alcohol
testing.
(4) If the Drug Court is satisfied on the balance
of probabilities that an offender who is
15 subject to an order under sub-section (1)(c),
(d) or (e) has failed to comply with the order,
the Drug Court must take one of the
following actions--
(a) confirm or vary that order;
20 (b) cancel that order and take any action
under sub-section (1), including making
another order of the same kind, as
though the offender had failed to
comply with a condition attached to the
25 drug treatment order.
Note: In addition, the Drug Court may cancel the
treatment and supervision part of the drug
treatment order and may also cancel the
custodial part of that order (see section 18ZP).
30 (5) The Drug Court may take an action under
sub-section (1) or (4) on its own initiative or
on an application by--
(a) the informant or police prosecutor; or
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(b) a prescribed person or a person in a
prescribed class of persons.
18ZM. Service in a secure custody facility
(1) The Drug Court may only make an order
5 under section 18ZL(1)(f) if it is satisfied
beyond reasonable doubt that the offender
has failed to comply with the condition
attached to the drug treatment order.
(2) If the Drug Court makes an order under that
10 section, it--
(a) must specify in the order the kind of
secure custody facility in which the
period is to be served; and
(b) must only specify a youth training
15 centre if the offender is a young
offender and the Drug Court considers
it appropriate to do so.
(3) An offender can only be required to serve a
period in a secure custody facility in
20 accordance with an order under section
18ZL(1)(f) when--
(a) the period under the order under section
18ZL(1)(f); or
(b) the total of the periods for which the
25 custodial part is activated under 2 or
more such orders and which the
offender has not yet served--
is at least 7 days, not including so much of
the period or periods as is no longer
30 activated because of an order under section
18ZJ(1)(c).
Note: An order may be made under section
18ZJ(1)(c) as a reward for complying with the
conditions attached to a drug treatment order.
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(4) Before the Drug Court makes an order under
section 18ZL(1)(f), notice of the hearing
concerning the making of the order must be
given to--
5 (a) the offender; and
(b) the informant or police prosecutor; and
(c) the prescribed person or the person in
the prescribed class of persons--
and the Drug Court may order that a warrant
10 to arrest be issued against the offender if he
or she does not attend for the hearing.
(5) If the Drug Court makes an order under
section 18ZL(1)(f) the Drug Court may, for
the purposes of giving effect to that order,
15 issue a warrant to imprison the offender
under section 68 of the Magistrates' Court
Act 1989.
18ZN. Commission of certain offences
(1) If the Drug Court is satisfied beyond
20 reasonable doubt that an offender has failed
to comply with a condition attached to a drug
treatment order, by committing an offence
punishable on conviction by imprisonment
for more than 12 months, the Drug Court
25 must--
(a) take any of the actions under section
18ZL(1) as though the offender had
failed to comply with any other
condition attached to the order;
30 (b) cancel the treatment and supervision
part of the order and, after taking into
account the extent to which the
offender complied with that part of the
order--
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(i) make an order activating some or
all of the custodial part of the drug
treatment order; or
(ii) cancel the custodial part of the
5 drug treatment order and deal with
the offender for each offence in
respect of which the drug
treatment order was made in any
way in which the Drug Court
10 could deal with the offender if it
had just convicted him or her of
each offence, other than by
making an order under section
7(1)(a).
15 Note 1: Section 18ZE sets out how much of the
custodial part of a drug treatment order can be
activated.
Note 2: The Drug Court may be required to take an
action under paragraph (b) because of section
20 18ZO(3).
(2) The Drug Court may take an action under
sub-section (1) on its own initiative or on an
application by--
(a) the informant or police prosecutor; or
25 (b) a prescribed person or a person in a
prescribed class of persons.
(3) Before the Drug Court cancels the treatment
and supervision part of a drug treatment
order under sub-section (1) (whether or not it
30 also cancels the custodial part), notice of the
hearing concerning the cancellation must be
given to--
(a) the offender; and
(b) the informant or police prosecutor; and
22
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(c) the prescribed person or the person in
the prescribed class of persons--
and the Drug Court may order that a warrant
to arrest be issued against the offender if he
5 or she does not attend for the hearing.
(4) To avoid doubt, if the Drug Court cancels
the treatment and supervision part or
custodial part of a drug treatment order
under this section, any earlier orders
10 activating the custodial part of the order
cease to have effect.
18ZO. Drug Court may hear and determine
certain offences
(1) If an offender who is subject to a drug
15 treatment order is charged with an offence,
whether committed before or after the order
was made, that is within the jurisdiction of
the Magistrates' Court--
(a) the Drug Court may hear and determine
20 the offence; and
(b) for the purposes of the Magistrates'
Court Act 1989, the Drug Court is
taken to be the proper venue in relation
to the proceeding for that offence.
25 (2) If--
(a) the Drug Court convicts the offender of
the offence and imposes a sentence of
imprisonment on the offender in respect
of the offence; and
30 (b) the Drug Court does neither of the
following--
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(i) orders that the sentence be served
by way of intensive correction in
the community;
(ii) suspends the sentence in whole or
5 part; and
(c) the length of the sentence imposed is
not more than the remaining length of
the custodial part of the drug treatment
order (as calculated in accordance with
10 section 18ZE(2)(a)); and
(d) the offence is a kind of offence in
respect of which the Drug Court could
make a drug treatment order if the
offender were not already subject to
15 one--
in imposing the sentence, the Drug Court
may order that the sentence is subsumed
within the custodial part of the drug
treatment order.
20 (3) If--
(a) the Drug Court convicts the offender of
the offence and imposes a sentence of
imprisonment on the offender in respect
of the offence; and
25 (b) the Drug Court does neither of the
following--
(i) orders that the sentence be served
by way of intensive correction in
the community;
30 (ii) suspends the sentence in whole or
part; and
(c) the Drug Court does not order under
sub-section (2) that the sentence is
24
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s. 5
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subsumed within the custodial part of
the drug treatment order--
the Drug Court must cancel the treatment
and supervision part of the drug treatment
5 order under section 18ZN(1)(b) and take an
action under sub-paragraph (i) or (ii) of that
section.
18ZP. Cancellation
(1) The Drug Court may cancel the treatment
10 and supervision part of a drug treatment
order if it is satisfied on the balance of
probabilities that--
(a) before the order was made, the
offender's circumstances were not
15 accurately presented to either the Drug
Court or the author of the drug
treatment order assessment report on
the offender; or
(b) the offender will not be able to comply
20 with a condition attached to the order
because the circumstances of the
offender have materially changed since
the order was made; or
(c) the offender is no longer willing to
25 comply with one or more conditions
attached to the order; or
(d) the continuation of the treatment and
supervision part of the order is not
likely to achieve one or more of the
30 purposes for which the order was made;
or
(e) the offender has breached an order
under sub-section 18ZL(1)(c), (d) or
(e).
25
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s. 5
Act No.
Note: The Drug Court may also cancel the treatment
and supervision part of the order under section
18ZK or 18ZN.
(2) When cancelling the treatment and
5 supervision part of the order under
sub-section (1), the Drug Court must, after
taking into account the extent to which the
offender complied with that part of the order,
take one of the following actions--
10 (a) make an order activating some or all of
the custodial part of the drug treatment
order;
(b) cancel the custodial part of the drug
treatment order and deal with the
15 offender for each offence in respect of
which the drug treatment order was
made in any way in which the Drug
Court could deal with the offender if it
had just convicted him or her of each
20 offence, other than by making an order
under section 7(1)(a).
Note: Section 18ZE sets out how much of the
custodial part of a drug treatment order can be
activated.
25 (3) The Drug Court may take an action under
sub-section (1) or (2) on its own initiative or
on the application of--
(a) the offender; or
(b) the informant or police prosecutor; or
30 (c) a prescribed person or a person in a
prescribed class of persons.
(4) Before the Drug Court cancels the treatment
and supervision part of a drug treatment
order (whether or not it also cancels the
35 custodial part), notice of the hearing
26
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s. 5
Act No.
concerning the cancellation must be given
to--
(a) the offender; and
(b) the informant or police prosecutor; and
5 (c) the prescribed person or the person in
the prescribed class of persons--
and the Drug Court may order that a warrant
to arrest be issued against the offender if he
or she does not attend for the hearing.
10 (5) To avoid doubt, if the Drug Court cancels
the treatment and supervision part or
custodial part of a drug treatment order
under this section, any earlier orders
activating the custodial part of the order
15 cease to have effect.
18ZQ. Drug treatment order assessment reports
(1) If the Drug Court is considering making a
drug treatment order at any stage after a
defendant has indicated an intention to plead
20 guilty to an offence, or has pleaded guilty to
an offence, it must--
(a) order a drug treatment order assessment
report on the defendant; and
(b) adjourn the proceeding to enable the
25 report to be prepared by a specified
Drug Court officer.
(2) The purpose of a drug treatment order
assessment report is--
(a) to establish whether the defendant is a
30 suitable person to be subject to a drug
treatment order; and
(b) if so--
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s. 5
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(i) to prepare a case management
plan for the defendant; and
(ii) to establish whether the facilities
necessary to implement that plan
5 exist and, if so, to identify those
facilities; and
(iii) to make recommendations to the
Drug Court on the program
conditions that should be attached
10 to a drug treatment order in
respect of the defendant.
(3) If the Drug Court grants a defendant bail on
an adjournment under sub-section (1) it
must, for the purpose of facilitating the
15 preparation of the report, impose a condition
of bail requiring the defendant to--
(a) report to the specified Drug Court
officer, or other specified person or
body, within a specified period; and
20 (b) comply with any further reporting
requirements imposed by that officer,
person or body.
(4) A drug treatment order assessment report
may set out all or any of the following
25 matters which, on investigation, appear to
the specified Drug Court officer to be
relevant to the assessment of the defendant
and are readily ascertainable by the officer--
(a) the defendant's age;
30 (b) the defendant's social history and
background;
(c) the defendant's medical and psychiatric
history, including details of any
treatment the defendant has undergone
35 for drug or alcohol dependency;
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Act No.
(d) the defendant's educational
background;
(e) the defendant's employment history;
(f) the circumstances of any other offences
5 of which the defendant has been found
guilty;
(g) the extent to which the defendant--
(i) has complied with any sentence
that is no longer in force in respect
10 of him or her; and
(ii) is complying with any sentence
currently in force in respect of
him or her;
(h) the defendant's financial circumstances;
15 (i) the defendant's housing history and
needs;
(j) any special needs of the defendant;
(k) any course, program, treatment, therapy
or other assistance that could be
20 available to the offender and from
which he or she may benefit.
(5) The specified Drug Court officer must
include in the report any other matter
relevant to the defendant which the Drug
25 Court has directed to be set out in the report.
(6) The report must be filed with the Drug Court
no later than the time directed by the Court.
(7) Within a reasonable time after the report is
filed and before a drug treatment order is
29
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s. 5
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made, the specified Drug Court officer must
provide a copy of the report to--
(a) the prosecutor; and
(b) the defendant's legal practitioner; and
5 (c) if the Drug Court directs the officer to
do so, the defendant.
(8) The prosecution or defence may file with the
Drug Court a notice of intention to dispute
all or any part of a drug treatment order
10 assessment report.
(9) If a notice is filed before a drug treatment
order is made, the Drug Court must not take
the disputed report or disputed part of the
report into consideration when making the
15 order unless the party that filed the notice
has been given the opportunity--
(a) to lead evidence on the disputed
matters; and
(b) to cross-examine the specified Drug
20 Court officer on its contents.
(10) For the purposes of section 91 of the
Corrections Act 1986, an officer referred to
in that section who discloses to the specified
Drug Court officer information about the
25 defendant for the purposes of the preparation
of a drug treatment order assessment report
is taken to be performing his or her official
duties.
18ZR. Appeals
30 (1) On the hearing of an appeal under section 83
or 84 of the Magistrates' Court Act 1989
against a sentencing order made by the
Magistrates' Court (including the Drug
Court), the County Court cannot itself make
30
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s. 5
Act No.
a drug treatment order, despite anything to
the contrary in section 86(1) of that Act.
(2) Subdivision 1 of Division 4 of Part 4 of the
Magistrates' Court Act 1989, and
5 Schedule 6 to that Act, apply with respect to
appeals to the County Court against any
sentencing order made by the Drug Court
with the following modifications--
(a) an appeal does not lie against--
10 (i) a refusal of the Drug Court to
make a drug treatment order; or
(ii) a finding that an offender has
failed to comply with a condition
attached to a drug treatment order;
15 or
(iii) the variation of the treatment and
supervision part of a drug
treatment order; or
(iv) the cancellation of the treatment
20 and supervision part, or the
custodial part, of a drug treatment
order;
(b) if the appeal is against the custodial
part of the drug treatment order and not
25 against the treatment and supervision
part of the order, the appeal does not
operate as a stay of the drug treatment
order, unless the County Court so
orders.
30 (3) For the purposes of Subdivision 1 of
Division 4 of Part 4 of the Magistrates'
Court Act 1989, and Schedule 6 to that Act,
an order under this Subdivision activating
some or all of the custodial part of a drug
31
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treatment order is taken to be a sentencing
order made by the Drug Court.
(4) Despite sub-section (1), on the hearing of an
appeal under section 83 or 84 of the
5 Magistrates' Court Act 1989 against a drug
treatment order made by the Drug Court, the
County Court may--
(a) re-instate the drug treatment order set
aside by it under section 86(1)(a) of
10 that Act; or
(b) if the appeal is against the custodial
part of the drug treatment order, re-
instate that part set aside by it under
section 86(1)(a) of that Act or vary the
15 drug treatment order by increasing or
reducing the length of the sentence of
imprisonment.
(5) On the hearing of an appeal under section 83
or 84 of the Magistrates' Court Act 1989
20 against a sentencing order made by the
Magistrates' Court (other than the Drug
Court) at a particular venue of that Court, if
the County Court considers that the making
of a drug treatment order may be
25 appropriate, it may refer the matter to the
Drug Court at that or another venue for
consideration of the making of such an order,
with or without any direction in law.
(6) However, if the offender has a usual place of
30 residence, the County Court may only refer a
matter under sub-section (5) to the Drug
Court at a venue if the offender's usual place
of residence is within a postcode area
specified, in relation to that venue, by the
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s. 5
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Minister by notice published in the
Government Gazette.
(7) Despite anything to the contrary in the
Magistrates' Court Act 1989, a venue of
5 the Magistrates' Court to which a matter is
referred under sub-section (5) is the proper
venue of that Court in relation to that matter
for the purposes of that Act.
(8) If a matter is referred to the Drug Court
10 under sub-section (5) but the Drug Court
determines not to make a drug treatment
order, the Drug Court must remit the matter
to the County Court for the making of any
order under section 86(1) of the
15 Magistrates' Court Act 1989 which the
County Court can make.
(9) If a matter is referred to the Drug Court
under sub-section (5) and the Drug Court
makes a drug treatment order, the order has
20 effect for the purposes of Subdivision 1 of
Division 4 of Part 4 of the Magistrates'
Court Act 1989 as if it were a sentencing
order made by the County Court on the
hearing of the appeal but for all other
25 purposes has effect as an order of the Drug
Court.
18ZS. Immunity from prosecution for certain
offences
(1) A person is not liable to prosecution for any
30 offence comprising the unlawful possession
or use of drugs of addiction--
(a) as a result of any admission made in
connection with any assessment of the
33
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Sentencing (Amendment) Act 2001
s. 6
Act No.
eligibility of the person for the making
of a drug treatment order; or
(b) as a result of any admission made in
connection with the assessment by the
5 Drug Court, or at a case conference
convened under section 18ZI(1) by the
magistrate constituting the Drug Court,
of the person's progress under a drug
treatment order.
10 (2) Sub-section (1) does not prevent a
prosecution for any offence comprising the
unlawful possession or use of drugs of
addiction if there is evidence, other than the
admission or evidence obtained as a result of
15 the admission, to support a charge.
(3) The admission, and any evidence obtained as
a result of the admission, is not admissible
against the person in a prosecution referred
to in sub-section (2).'.
20 6. Statute law revision
In section 123 (second occurring) of the Principal
Act, for "123." substitute "124.".
7. New section 126 inserted
After section 125 of the Principal Act insert--
25 "126. Transitional provisions--Sentencing
(Amendment) Act 2001
Subdivision (1C) of Division 2 of Part 3
applies to the sentencing of a person for an
offence, irrespective of when the offence was
30 committed.".
8. Repeal of drug treatment order provisions
34
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Sentencing (Amendment) Act 2001
s. 9
Act No.
(1) In section 3(1) of the Principal Act--
(a) the definition of "Drug Court" is repealed;
(b) the definition of "Drug Court officer" is
repealed;
5 (c) the definition of "drug treatment order" is
repealed;
(d) the definition of "secure custody facility" is
repealed;
(e) in the definition of "Regional Manager",
10 omit "a drug treatment order,".
(2) In section 3 of the Principal Act, sub-sections (2)
and (3) are repealed.
(3) In section 5(4A) of the Principal Act, for "a drug
treatment order" substitute "an intensive
15 correction order".
(4) In section 5 of the Principal Act, sub-section (4B)
is repealed.
(5) In section 7(1) of the Principal Act, paragraph (ac)
is repealed.
20 (6) In Division 2 of Part 3 of the Principal Act,
Subdivision (1C) is repealed.
9. New section 126A inserted
After section 126 of the Principal Act insert--
"126A. Transitional provision--repeal of
25 amendments made by Sentencing
(Amendment) Act 2001
Despite the amendments to this Act made by
section 8 of the Sentencing (Amendment)
Act 2001, this Act as amended by sections 4
30 and 5 of that Act continues to apply to a drug
treatment order in force immediately before
the commencement of section 8 of that Act.".
35
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Sentencing (Amendment) Act 2001
Act No.
_______________
36
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Sentencing (Amendment) Act 2001
s. 10
Act No.
PART 3--MAGISTRATES' COURT ACT 1989
10. New sections 4A and 4B inserted
See:
After section 4 of the Magistrates' Court Act Act No.
1989 insert-- 51/1989.
Reprint No. 7
5 "4A. Establishment of Drug Court Division as at
1 June 2001
(1) The Court has a Drug Court Division. and
amending
Act Nos
(2) The Drug Court Division has such of the
53/2000,
powers of the Court as are necessary to 92/2000,
enable it to exercise its jurisdiction. 98/2000,
99/2000 (as
10 amended by
(3) Despite section 4(3), the Drug Court
No. 12/2001),
Division shall only be constituted by a 2/2001,
14/2001,
magistrate who has been assigned to that
32/2001,
Division by the Chief Magistrate by notice 44/2001,
45/2001,
published in the Government Gazette.
61/2001 and
69/2001.
15 (4) Despite anything to the contrary in this Act, LawToday:
the Drug Court Division may only sit and act www.dms.
dpc.vic.
at a venue of the Court specified by the gov.au
Chief Magistrate by notice published in the
Government Gazette.
20 (5) The Drug Court Division must exercise its
jurisdiction with as little formality and
technicality, and with as much expedition, as
the requirements of this Act and the
Sentencing Act 1991 and the proper
25 consideration of the matters before the Court
permit.
4B. Intra-venue referrals
(1) If--
(a) a criminal proceeding is commenced at
30 a venue of the Court at which the Drug
Court Division may sit and act; and
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Sentencing (Amendment) Act 2001
s. 11
Act No.
(b) the Court is constituted by a
magistrate who has not been assigned
to the Drug Court Division under
section 4A(3); and
5 (c) it appears to the Court at any time
before taking a formal plea from the
defendant that the defendant might be
eligible for a drug treatment order if
convicted of the offence by the Drug
10 Court Division--
the Court may adjourn the proceeding to the
Drug Court Division at that venue if the
defendant consents to the Court doing so.
(2) However, if the defendant has a usual place
15 of residence, the Court may only adjourn the
proceeding to the Drug Court Division at
that venue if the defendant's usual place of
residence is within a postcode area specified,
in relation to that venue, by the Minister by
20 notice published in the Government
Gazette.".
11. New section 4C inserted
Before section 5 of the Magistrates' Court Act
1989 insert--
25 "4C. Inter-venue referrals
(1) If--
(a) a criminal proceeding is commenced at
a venue of the Court at which the Drug
Court Division may not sit and act; and
30 (b) it appears to the Court at any time
before taking a formal plea from the
defendant that the defendant might be
eligible for a drug treatment order if
convicted of the offence by the Drug
35 Court Division--
38
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Sentencing (Amendment) Act 2001
s. 11
Act No.
the Court may adjourn the proceeding to the
Drug Court Division at a venue at which that
Division may sit and act if the defendant
consents to the Court doing so.
5 (2) However, if the defendant has a usual place
of residence, the Court may only adjourn the
proceeding to the Drug Court Division at a
venue if the defendant's usual place of
residence is within a postcode area specified,
10 in relation to that venue, by the Minister by
notice published in the Government Gazette.
(3) Despite anything to the contrary in this Act,
a venue of the Court to which a proceeding
is adjourned under sub-section (1) is the
15 proper venue of the Court for the purposes of
this Act.".
_______________
39
541228B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001
Sentencing (Amendment) Act 2001
s. 12
Act No.
PART 4--CORRECTIONS ACT 1986
12. Definition of "correctional order"
See: In section 3 of the Corrections Act 1986, after
Act No.
paragraph (g) of the definition of "correctional
117/1986.
5 Reprint No. 4 order", insert--
as at
26 August
"(h) a drug treatment order (as defined in section
1999
3(1) of the Sentencing Act 1991);".
and
amending
Act Nos
38/1988,
11/1993 (as
amended by
Nos 23/1994,
45/1996),
86/2000,
45/2001 and
72/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
13. Persons not regarded to be in the Secretary's legal
custody
10 (1) In section 6C(1) of the Corrections Act 1986,
after paragraph (b) insert--
"(ba) a person who is subject to a drug treatment
order and who is in the community under
that order;".
15 (2) In section 6C of the Corrections Act 1986, after
sub-section (2) insert--
"(3) A person is in the community under a drug
treatment order even if he or she is--
(a) submitting to residential detoxification
20 or other treatment in accordance with a
program condition attached to the
order; or
40
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Sentencing (Amendment) Act 2001
s. 14
Act No.
(b) at a place in accordance with an order
under section 18ZL(1)(c) or (e) of the
Sentencing Act 1991.".
14. Repeals
5 In the Corrections Act 1986--
(a) in section 3, in the definition of "correctional
order", paragraph (h) is repealed; and
(b) in section 6C(1), paragraph (ba) is repealed;
and
10 (c) in section 6C, sub-section (3) is repealed.
41
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Sentencing (Amendment) Act 2001
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
42
541228B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001
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