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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Sentencing (Suspended Sentences) Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Time held in custody before suspended sentence restored to be
deducted from sentence 3
4. Suspended sentence of imprisonment 4
5. Breach of order suspending sentence 6
6. Young offenders may be ordered to serve restored sentence in a
youth justice facility 11
7. Consequential amendments 12
8. New section 133 inserted 12
133. Transitional provisions--Sentencing (Suspended
Sentences) Act 2006 12
ENDNOTES 14
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551443B.I1-22/8/2006 BILL LA INTRODUCTION 22/8/2006
PARLIAMENT OF VICTORIA
A BILL
to amend the Sentencing Act 1991 with respect to suspended
sentences of imprisonment and for other purposes.
Sentencing (Suspended Sentences) Act
2006
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the
Sentencing Act 1991 so as--
(a) to list factors to which a sentencing court
must have regard in considering whether to
5
suspend a sentence of imprisonment; and
(b) to create a presumption against a wholly
suspended sentence of imprisonment being
imposed for a serious offence; and
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s. 2
Act No.
(c) to provide a new procedure to deal with
breaches of suspended sentences; and
(d) to empower courts to order young offenders
to serve a restored suspended sentence in a
youth justice facility; and
5
(e) to enable time held in custody in relation to
proceedings for the breach offence as well as
the breach proceedings themselves to be
deducted from a restored suspended sentence
of imprisonment.
10
2. Commencement
(1) This section and sections 1 and 8 come into
operation on the day after the day on which this
Act receives the Royal Assent.
(2) Sections 6(2) and (3) and 7(2) come into operation
15
on the day on which section 601 of the Children,
Youth and Families Act 2005 comes into
operation.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
20
day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) does
not come into operation before 1 November 2006,
it comes into operation on that day.
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Act No.
3. Time held in custody before suspended sentence
restored to be deducted from sentence
See:
(1) For section 18(1) of the Sentencing Act 1991 Act No.
substitute-- 49/1991.
Reprint No. 9
"(1) If an offender is--
5 as at
23 February
(a) in respect of an offence sentenced to a 2006 and
amending
term of imprisonment or to a period of Act Nos
detention in an approved mental health 53/2003,
57/2005,
service under a hospital security order; 69/2005,
or
10 97/2005,
2/2006,
(b) under section 31 ordered to serve the 23/2006,
24/2006,
whole or part of a sentence or part 32/2006,
sentence of imprisonment held in 48/2006 and
50/2006.
suspense-- LawToday:
www.dms.
any period during which he or she was held
15 dpc.vic.
gov.au
in custody in relation to--
(c) proceedings for the offence referred to
in paragraph (a) or proceedings arising
from those proceedings; or
(d) proceedings under section 31--
20
including any period pending the
determination of an appeal, must be
reckoned as a period of imprisonment or
detention already served under the sentence
or restored sentence unless the sentencing
25
court or the court fixing a non-parole period
in respect of the sentence or the court
making the order under section 31 otherwise
orders.".
(2) In section 18(2)(d) of the Sentencing Act 1991,
30
for "declared on a previous occasion" substitute
"previously declared".
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Act No.
(3) For section 35(1) of the Sentencing Act 1991
substitute--
"(1) If a young offender is--
(a) in respect of an offence sentenced to a
term of detention; or
5
(b) under section 31 ordered to serve as
detention in a youth training centre or
youth residential centre the whole or
part of a sentence or part sentence of
imprisonment held in suspense--
10
any period during which he or she was held
in custody in relation to--
(c) proceedings for the offence referred to
in paragraph (a) or proceedings arising
from those proceedings; or
15
(d) proceedings under section 31--
including any period pending the
determination of an appeal, must be
reckoned as a period of detention already
served under the sentence or restored
20
sentence unless the sentencing court or the
court making the order under section 31
otherwise orders.".
(4) In section 35(2)(c) of the Sentencing Act 1991,
for "declared on a previous occasion" substitute
25
"previously declared".
4. Suspended sentence of imprisonment
(1) After section 27(1) of the Sentencing Act 1991
insert--
"(1A) In considering whether it is desirable in the
30
circumstances to make an order suspending a
sentence of imprisonment, a court must have
regard to--
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Act No.
(a) the need, considering the nature of the
offence, its impact on any victim of the
offence and any injury, loss or damage
resulting directly from the offence, to
ensure that the sentence--
5
(i) adequately manifests the
denunciation by the court of the
type of conduct in which the
offender engaged; and
(ii) adequately deters the offender or
10
other persons from committing
offences of the same or a similar
character; and
(iii) reflects the gravity of the offence;
and
15
(b) any previous suspended sentence of
imprisonment imposed on the offender
and whether the offender breached the
order suspending that sentence; and
(c) without limiting paragraph (b), whether
20
the offence was committed during the
operational period of a suspended
sentence of imprisonment; and
(d) the degree of risk of the offender
committing another offence punishable
25
by imprisonment during the operational
period of the sentence, if it were to be
suspended.
(1B) Nothing in sub-section (1A) limits or affects
Part 2.".
30
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(2) After section 27(2A) of the Sentencing Act 1991
insert--
"(2B) Despite sub-section (1), a court must not
make an order suspending the whole of a
sentence of imprisonment imposed on an
5
offender for a serious offence unless it is
satisfied, after having had regard to the
factors specified in sub-section (1A), that
making such an order is--
(a) appropriate because of the existence of
10
exceptional circumstances; and
(b) in the interests of justice.
(2C) If a court makes an order of a kind referred
to in sub-section (2B), it must, at the time of
imposing the sentence, announce in open
15
court its reasons for so doing and cause those
reasons to be noted in the records of the
court.".
5. Breach of order suspending sentence
(1) In section 31 of the Sentencing Act 1991, for sub-
20
sections (1) to (4) substitute--
"(1) If a court finds an offender on whom a
suspended sentence of imprisonment has
previously been imposed guilty of another
offence punishable by imprisonment
25
committed within the preceding 3 years and
during the operational period of that
sentence, it may--
(a) on the application, in the prescribed
form, of a prescribed person or a
30
member of a prescribed class of
persons; and
(b) if the offender is then present before the
court--
do either of the following--
35
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(c) if it is the court that imposed the
suspended sentence, proceed to
exercise any power conferred on it by
sub-section (5) regardless of whether
the operational period of that sentence
5
is current or has expired; or
(d) if it is not the court that imposed the
suspended sentence, transfer (in
accordance with the regulations) the
proceeding under this sub-section to
10
that court and, for this purpose, if the
offender is not being held in custody in
relation to the other offence or for any
other reason, grant bail to the offender
conditioned for, or remand the offender
15
in custody pending, his or her
appearance at the court that imposed
the suspended sentence.
(1A) On an offender breaching an order
suspending a sentence of imprisonment by
20
committing another offence punishable by
imprisonment (a breach offence) during the
operational period of that sentence, a
prescribed person or a member of a
prescribed class of persons may, if an
25
application has not been made under sub-
section (1) in respect of the breach or such an
application has been withdrawn, at any time
up until 3 years after the date on which the
breach offence was committed, apply to a
30
registrar of the Magistrates' Court at any
venue of that Court for the issue of--
(a) a summons to answer to the breach of
the suspended sentence (a breach
summons); or
35
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(b) a warrant to arrest--
in order to compel the attendance of the
offender at the court (and, in the case of the
Magistrates' Court, the proper venue of that
Court) that imposed the suspended sentence.
5
(1B) An application under sub-section (1A) may
be made by the applicant in person or by
post.
(2) On an application under sub-section (1A),
the registrar must, if satisfied that the
10
offender has been found guilty of the breach
offence, issue--
(a) a breach summons; or
(b) subject to sub-section (2A), a warrant
to arrest.
15
(2A) A registrar must not issue in the first instance
a warrant to arrest unless satisfied by
evidence on oath or by affidavit that--
(a) it is probable that the offender will not
answer a summons; or
20
(b) the offender has absconded, is likely to
abscond or is avoiding service of a
summons that has been issued; or
(c) a warrant is required or authorised for
other good cause.
25
(3) On the application of the person who applied
for the issue of the breach summons at any
time before it is served, the date specified in
the breach summons for the offender to
attend court (the return date) may be
30
extended without cause--
(a) before the return date; or
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Act No.
(b) within one month after the return
date--
by a registrar at the venue of the Magistrates'
Court at which the summons was issued on
one occasion and thereafter may be
5
extended--
(c) before the current return date; or
(d) within one month after the current
return date--
by such a registrar if he or she is satisfied by
10
evidence on oath or by affidavit that
reasonable efforts have been made to serve
the summons.
(4) A breach summons--
(a) must direct the offender to attend at the
15
proper venue of the Magistrates' Court
or, if the suspended sentence was
imposed by the Supreme Court or the
County Court, at that court, on a
specified date and at a specified time to
20
answer the breach; and
(b) may be served in any manner in which
a summons to answer to a charge may
be served under section 34 of the
Magistrates' Court Act 1989.
25
(4A) Service of a breach summons may be proved
in any manner in which service of a
summons to answer to a charge may be
proved under section 35 of the Magistrates'
Court Act 1989.
30
(4B) If an offender does not attend before a court
in accordance with his or her undertaking of
bail granted under sub-section (1) or in
answer to a breach summons which has been
served in accordance with this section, the
35
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court may issue a warrant to arrest the
offender.
(4C) A warrant to arrest authorised to be issued
under this section is to be issued in
accordance with Part 4 of the Magistrates'
5
Court Act 1989 and that Part applies to such
a warrant with any necessary modifications.
(4D) Section 50 of the Magistrates' Court Act
1989 applies to a breach summons or warrant
to arrest issued under this section as if the
10
reference in that section--
(a) to a summons or warrant were a
reference to a summons or warrant
issued under this section; and
(b) to the Court were a reference to the
15
court by which the suspended sentence
was imposed.
(4E) The person constituting the court that finds
the offender guilty of the breach offence
may, if the offender is not then present
20
before the court, exercise any of the powers
of a registrar under this section on the
application, in the prescribed form, of a
prescribed person or a member of a
prescribed class of persons.
25
(4F) If the offender is unrepresented on his or her
first appearance before the court in answer to
bail granted, or a summons or warrant
issued, under this section, the court must--
(a) ask the defendant whether he or she has
30
sought legal advice; and
(b) if satisfied that the offender has not had
a reasonable opportunity to obtain legal
advice, grant an adjournment if so
requested by the offender.
35
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(4G) If the court before which an offender appears
in answer to bail granted, or a summons or
warrant issued, under this section is satisfied
that the offender does not have a knowledge
of the English language that is sufficient to
5
enable the offender to understand, or
participate in, the proceeding, it must not
hear and determine the proceeding without a
competent interpreter interpreting it.".
(2) In section 31(5) of the Sentencing Act 1991, for
10
"on the hearing of a charge under sub-section (1)
the court finds the offender guilty of the offence,
it may impose a level 10 fine and in addition"
substitute "the court that imposed a suspended
sentence of imprisonment is satisfied that the
15
offender has been found guilty of an offence
punishable by imprisonment committed during the
operational period of the suspended sentence it".
(3) In section 31(5A) of the Sentencing Act 1991, for
"on the hearing of a charge the court finds the
20
offender guilty of the offence it must, in addition
to any fine it may impose under sub-section (5),"
substitute "the court is satisfied as mentioned in
that sub-section it must".
(4) Section 31(9) of the Sentencing Act 1991 is
25
repealed.
6. Young offenders may be ordered to serve restored
sentence in a youth justice facility
(1) After section 31(6) of the Sentencing Act 1991
insert--
30
"(7) Despite anything to the contrary in this
section, if the court restores, in the case of an
offender who is at that time under the age of
21 years, the whole or part of the sentence or
part sentence held in suspense, it may order
35
the offender to serve it as detention in a
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Act No.
youth training centre or youth residential
centre.
(7A) Section 32 applies to an order under sub-
section (7) as if it were a youth training
centre order or a youth residential centre
5
order and as if the reference in sub-
section (1) of that section to a pre-sentence
report were a reference to a pre-sentence
report that deals with the matter of the
breach of the suspended sentence.".
10
(2) In section 31(7) of the Sentencing Act 1991 for
"youth training centre" substitute "youth justice
centre".
(3) In section 31(7A) of the Sentencing Act 1991 for
"youth training centre order" substitute "youth
15
justice centre order".
7. Consequential amendments
(1) In the definition of "serious offence" in section
3(1) of the Sentencing Act 1991, after "(indefinite
sentences)" insert "and Subdivision (3) of that
20
Division (suspended sentences of imprisonment)".
(2) In section 35(1) of the Sentencing Act 1991, for
"youth training centre" substitute "youth justice
centre".
8. New section 133 inserted
25
After section 132 of the Sentencing Act 1991
insert--
"133. Transitional provisions--Sentencing
(Suspended Sentences) Act 2006
(1) The amendments of this Act made by
30
section 3, 5 or 6(1) of the Sentencing
(Suspended Sentences) Act 2006 apply to
an order made under section 31 of this Act
on or after the commencement of that section
of that Act consequent on a finding of guilt
35
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Act No.
of an offence made on or after that
commencement, irrespective of when that
offence was committed.
(2) The amendments of this Act made by
section 4(1) or 4(2) of the Sentencing
5
(Suspended Sentences) Act 2006 apply to a
sentence imposed on or after the
commencement of that section of that Act in
respect of an offence alleged to have been
committed on or after that commencement.
10
(3) For the purposes of sub-sections (1) and (2),
if an offence is alleged to have been
committed between two dates, one before
and one after the commencement of a
provision of the Sentencing (Suspended
15
Sentences) Act 2006, the offence is alleged
to have been committed before that
commencement.".
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Sentencing (Suspended Sentences) Act 2006
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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