SENTENCING AMENDMENT (COMMUNITY CORRECTION REFORM) BILL 2011 Explanatory Memoranda
SENTENCING AMENDMENT (COMMUNITY CORRECTION REFORM) BILL 2011
Sentencing Amendment (Community
Correction Reform) Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the main purposes of the Bill are to amend the
Sentencing Act 1991 to repeal combined custody and treatment
orders, intensive correction orders and community-based orders,
to introduce a new community correction order, to amend the
Sentencing Amendment Act 2010 and make minor and
consequential amendments to other Acts.
Clause 2 provides for the commencement of the Bill.
Part 1, Part 4 and clauses 3(13), 53 and 99 of the Bill come into
operation on the day after the day on which the Bill receives the
Royal Assent.
Part 4 and clauses 3(13), 53 and 99 repeal certain provisions
in the Sentencing Amendment Act 2010 (including the
intensive correction management order) and repeal certain
provisions in the Justice Legislation Amendment Act 2010.
Only sections 21 and 29 of the Sentencing Amendment Act
2010 will commence operation by default on 1 January 2012.
Only sections 16, 19, 25, 26 and 27 of the Justice Legislation
Amendment Act 2010 will commence operation by default on
1 January 2012.
Clause 5(4) comes into operation on 1 January 2012. This will
ensure these amendments to deferred sentencing come into
operation on the same day as other amendments to deferred
571031 1 BILL LA INTRODUCTION 14/9/2011
sentencing made by sections 21 and 29 of the Sentencing
Amendment Act 2010.
The remaining provisions of the Bill come into operation on
30 June 2013 if not proclaimed earlier.
PART 2--AMENDMENT OF THE SENTENCING ACT 1991
Clause 3 inserts new definitions and amends existing definitions in
section 3(1) of the Sentencing Act 1991. The clause also repeals
the definitions of combined custody and treatment order,
community-based order, community service condition, intensive
correction order, intensive correction management order,
intensive correction management order (drug and alcohol),
intensive correction management order (general) and personal
development condition.
Clause 3 also amends the definitions of approved drug and
alcohol assessment agency, authorised person, contravention
summons, instalment order, justice plan, licence restoration
report, Regional Manager, residential treatment order,
Secretary and unpaid community work condition in section 3(1)
of the Sentencing Act 1991.
Clause 4 amends the sentencing guidelines in section 5 of the Sentencing
Act 1991 to remove the references to combined custody and
treatment order, intensive correction order, and community-based
order, and insert references to the community correction order.
Clause 5 amends the hierarchy of sentences in section 7 of the Sentencing
Act 1991. The new community correction order will replace the
existing combined custody and treatment order, intensive
correction order, community-based order and the unproclaimed
intensive correction management order (enacted by the
Sentencing Amendment Act 2010). The new sentencing
hierarchy implemented by these reforms will be imprisonment,
drug treatment order, suspended sentence, youth justice centre
orders and youth residential orders, community correction order,
fines, dismissals, discharges and adjournments (including
deferred sentencing).
Clause 6 substitutes "breach" with "contravention" in section 8(3)(b)(ii) of
the Sentencing Act 1991.
2
Clause 7 inserts new Division 1A, 1B and 1C into Part 3 of the Sentencing
Act 1991.
Divisions 1A, 1B and 1C re-enact the existing provisions of the
Sentencing Act 1991 relating to pre-sentence reports, drug and
alcohol reports and victim impact statements respectively, with
some minor amendments. There are no significant substantive
change to the provisions. The purpose of the re-enactment is to
ensure the provisions of the Sentencing Act 1991 reflect the
point in the sentencing process when certain information is
provided to the court.
In relation to the new Division 1A pre-sentence reports, there is
one significant new provision. New section 8A(3) provides a
pre-sentence report is not required for a new community
correction order with up to 300 hours of community work
attached as the sole condition.
Clause 8 substitutes "Secretary to the Department of Justice" with
"Secretary" in section 13(1) and (3) of the Sentencing Act 1991.
The existing definition of "Secretary" in section 3(1) of the
Sentencing Act 1991 has been amended to mean the Secretary to
the Department of Justice.
Clause 9 repeals section 18(2)(ba) of the Sentencing Act 1991, which
refers to the intensive correction order.
Clause 10 updates references in section 18F of the Sentencing Act 1991.
Subclause (1) substitutes "Division 1A of Part 6" with
"Division 1 of Part 3". Subclause (2) substitutes "Division 2 of
Part 6" with "Division 1A of Part 3".
Clause 11 substitutes "Secretary to the Department of Justice" with
"Secretary" in section 18I(1) of the Sentencing Act 1991.
Clause 12 repeals Subdivision (1B) of Division 2 of Part 3 of the
Sentencing Act 1991 that established the combined custody and
treatment order as a sentencing option for courts in Victoria.
Clause 13 removes the restrictions on the Drug Court Division of the
Magistrates' Court making a drug treatment order as it related to
the availability of an intensive correction order or where an
offender is already subject to a combined custody and treatment
order.
3
Clause 14 removes a precondition (the making of an intensive correction
order) on the Drug Court in subsuming or not subsuming a
sentence for a new offence within a drug treatment order.
Clause 15 repeals Subdivision (2) of Part 3 of the Sentencing Act 1991 that
established the intensive correction order as a sentencing option
for courts in Victoria.
Clause 16 substitutes references to the repealed section 31 with references
to new section 83AR in section 27 of the Sentencing Act 1991.
The repealed section 31 provided for breach of a suspended
sentence and outlined the process for instituting a breach
proceeding. These arrangements are preserved by Schedule 3
and will apply to breaches of suspended sentences that occur
before the commencement of this Bill. A new offence for
contravention of a suspended sentence is introduced in new
section 83AB. This offence will apply to contraventions of
suspended sentences that are committed on or after the
commencement of this Bill (the offence will apply to suspended
sentences made before and after the commencement of this Bill).
Clause 17 substitutes the reference to the repealed section 31 with a
reference to new section 83AR in section 29 of the Sentencing
Act 1991. The repealed section 31 provided for breach a
suspended sentence and outlined the process for undertaking a
breach proceeding. These matters are now dealt with in new
section 83AR.
Clause 18 repeals section 31 of the Sentencing Act 1991. The repealed
section 31 provided for breach of a suspended sentence and
outlined the process for instituting a breach proceeding.
These arrangements are preserved by new Schedule 3 and will
apply to breaches of suspended sentences before the
commencement of this Bill.
A new offence of contravention of a suspended sentence is
introduced in new section 83AB in new Division 1 of Part 3C of
the Sentencing Act 1991. New section 83AB provides that it is
an offence to commit an offence punishable by imprisonment
during the period of a suspended sentence. Division 2 of Part 3C
sets out the procedure for initiating contravention proceedings
and the powers of a court on sentencing.
4
Clause 6 of Schedule 3 provides that Part 3C applies to
contraventions of suspended sentences that occur on or after the
commencement of this Bill (the offence will apply to suspended
sentences made before and after the commencement of this Bill).
Clause 19 replaces references to the repealed section 31 with references to
new section 83AR in section 35 of the Sentencing Act 1991.
Clause 20 repeals the heading to Division 3 of Part 3 of the Sentencing Act
1991. The heading related to community-based orders, which
will no longer be available as a sentencing option in Victoria.
Clause 21 substitutes the provisions relating to the community-based order
with a New Part 3A of the Sentencing Act 1991.
New Part 3A establishes a new sentencing option for courts
called a community correction order (CCO).
The CCO is a new sentence for the range of offenders who
previously would have received a community-based order
(CBO), intensive correction order (ICO) or combined custody
and treatment order (CCTO). The CCO is also intended as an
alternative sentencing option for offenders who are at risk of
being sent to jail. The broad range of conditions that may be
attached to a CCO will give courts flexibility to graduate their
response to address the needs of offenders and set appropriate
punishments.
New section 36 sets out the purpose of the CCO. The purpose is
to provide a community based sentence that may be used for a
wide range of offending behaviours while addressing the
circumstances of the offender.
New section 37 sets out the pre-requisites before a court may
make a CCO. These are--
· the offender has been convicted or found guilty of an
offence punishable by more than 5 penalty units; and
· the court has received a pre-sentence (if required) and
has had regard to the report; and
· the offenders consents to the order.
New section 38 provides for the duration and commencement of
a CCO. The CCO has two different maximum periods of
duration according to the jurisdiction of the relevant sentencing
court. In the Magistrates' Court, the maximum period of the
5
CCO is two years. In the County or Supreme Courts, the
maximum period of the CCO is the maximum term of
imprisonment for the offence or two years, whichever is greater.
The longer maximum duration in the higher courts is because a
CCO can be imposed for more serious offences in the higher
courts.
The court must fix a commencement date for the CCO, which
cannot be more than 3 months after the order is made. Where the
court imposes a term of imprisonment of up to 3 months in
addition to the CCO, the commencement date of the CCO is on
release from the term of imprisonment under new section 44.
New section 39 provides that a court may fix an intensive
compliance period that applies to a CCO. The provision enables
a court, in its discretion, to provide for immediate or early
intervention with the offender following sentencing. The purpose
of the intensive compliance period is to reduce the risk of
re-offending. The period involves stricter compliance
requirements as imposed by the court. For example, offenders
may be required to perform a significant proportion of their
obligations within the first six months of the CCO.
New subsection (1) provides that, if the CCO will last longer than
6 months, an intensive compliance period may be fixed.
The intensive compliance period lasts for a period shorter than
the total duration of the CCO, as shown by the example in the
new section. New subsection (2) allows a court to specify which
particular conditions the offender must complete within the
intensive compliance period. New subsection (3) deals with
compliance periods imposed cumulatively under separate CCOs
in cases of multiple offences. The provision requires that each
compliance period operate cumulatively and also that the balance
of each of the orders operate cumulatively. For example, an
offender is found guilty of two offences and the Magistrates'
Court orders two CCOs each lasting 12 months and each with a
six month intensive compliance period. Under new
section 39(3), the intensive compliance period for both orders
would last for a total of 12 months and after that the balance of
each order would last for a total of 12 months.
New section 40 empowers a court to make an aggregate CCO
provided it does not exceed the maximum period for a CCO
under new section 38.
6
New section 41 creates a presumption that, where more than one
CCO is made, the conditions of the CCOs will operate
concurrently unless the court directs otherwise. An example of
concurrency is that a CCO is made by the Magistrates' Court
which lasts for 12 months which commences immediately.
One month later, a CCO is made by the County Court which lasts
for 11 months which commences immediately. Under the
presumption of concurrency, both orders expire on the same day.
The court may direct otherwise, that is the orders operate
consecutively. For example, the Magistrates' Court makes a
CCO that lasts for 2 months. One month later, the County Court
makes another CCO that lasts for 3 months which commences in
one month's time. This means the 3 months CCO imposed by the
County Court operates consecutively.
New section 42 provides that unpaid community work under a
fine conversion order or fine default unpaid community work
order must be performed cumulatively with unpaid community
work hours under another of these orders and concurrently with
hours required to be performed under a CCO. The court may
direct otherwise.
For example, an offender is subject to a fine conversion order
with 100 hours of unpaid community work. The offender then
receives a CCO which requires them to perform 300 hours of
unpaid community work. Each hour of unpaid community work
the offender subsequently performs will be counted twice in
relation to each order. So if the offender performs five hours, the
result is that there is 95 hours left on the fine conversion order
and 295 on the CCO.
New section 43 provides that a court may impose a fine in
addition to making a CCO.
New section 44 allows a court to make a CCO in addition to
sentencing an offender to jail for three months or less. The CCO
commences upon release from imprisonment. A term of
imprisonment does not include a suspended sentence.
The maximum of three months jail applies to an aggregate jail
sentence and jail terms that operate cumulatively (in whole or
part), concurrently (in whole or part), and to the total effective
sentence of imprisonment. An example is if an offender is found
guilty of armed robbery and sentenced to 2 months jail, followed
by a CCO of 12 months. Upon release from jail, the offender is
subject to the CCO.
7
New Division 3 of Part 3A deals with the making of a CCO.
New section 45 sets out the terms that are attached to each CCO.
These terms remain in force for the entire duration of the CCO.
New subsection (1) requires an offender subject to a CCO to
comply with the terms. New subsection (2) provides that the
Secretary may give a direction either orally or in writing.
New section 46 provides that each CCO has attached a term that
the offender must comply with a particular written direction
given by the Secretary. It is an offence under section 83AF to
contravene a written direction given by the Secretary.
An authorised person will have new powers under new
section 115D in clause 69 to issue infringement notices
carrying fines to offenders for non-compliance with the order.
New section 46 deals with written directions that are separate
and distinct from the directions given by the Secretary under
Division 3 of Part 3C in clause 60.
New section 47 requires the court to attach at least one condition
to each CCO. The court may attach one or more conditions
under new Division 4 of Part 3A or a condition under new
Division 3 of Part 3B.
Any condition may be combined with another condition.
The requirement to attach at least one optional condition ensures
that courts tailor the order to the offender and the offending.
New section 48 establishes a residual condition. A court may use
this condition to attach any condition the court thinks fit, other
than a condition regarding restitution or payment of
compensation, costs or damages. The residual condition cannot
be used to attach a condition which is about the same subject
matter as another CCO condition under Division 4 of Part 3A or
Division 3 of Part 3B. An example of a residual condition is a
condition that the offender must not use the Internet for a period
specified by the court.
New section 48A requires a court to attach conditions in
accordance with the principles of proportionality and the purpose
contained in new section 36. This requirement does not limit the
purposes of sentencing in section 5 of the Sentencing Act 1991.
8
New Division 4 of Part 3A sets out the conditions that a court
may attach to a CCO. The conditions a court may attach to a
CCO are as follows--
· unpaid community work condition (section 48C);
· treatment and rehabilitation condition (section 48D);
· supervision condition (section 48E);
· non-association condition (section 48F);
· residence restriction or exclusion condition
(section 48G);
· place or area exclusion condition (section 48H);
· curfew condition (section 48I);
· alcohol exclusion condition (section 48J);
· judicial monitoring condition (section 48K).
The court may also attach a bond condition (section 48JA).
This condition is separately contained in clause 58 in Part 3 of
this amending Bill. The bond condition is in Part 3 because it
may commence operation by proclamation separately to the other
CCO conditions listed in clause 21.
The court may also attach as a condition to a CCO a justice plan
condition in accordance with Division 3 of Part 3B in clause 35.
New section 48B defines family violence to have the same
meaning as in the Family Violence Protection Act 2008.
New section 48B also defines safety to mean safety from family
violence and safety from physical or mental harm.
New section 48C establishes the unpaid community work
condition of the CCO. A court may attach an unpaid community
work condition to a CCO. The purpose for attaching the
condition is to adequately punish the offender in the community.
The court must specify the number of hours an offender must
perform. The maximum number of hours of unpaid community
work that may be ordered is 600 hours in all courts. The offender
must perform the numbers of hours of unpaid community work
specified by the court. The offender must also perform any
additional number of hours of unpaid community work if directed
by the Secretary in accordance with new Division 3 of new
9
Part 3C in clause 60 (this requirement in the unpaid community
work condition is separately provided for in clause 56).
The maximum of 20 hours may be worked in 7 days.
Nevertheless, new subsection (6) provides that if the offender so
requests and gives written consent, a maximum of 40 hours may
be worked in 7 days. New subsection (7) provides that a court
may attach an unpaid community work condition as the sole
condition of a CCO for up to a maximum of 300 hours. If the
court does so, the CCO expires on completion of the work hours.
New subsection (8) provides that where an offender is subject to
more than one CCO, a court must not make an order that exceeds
the maximum number of hours of unpaid community work over
the maximum number of years as set out in new section 38.
For example, an offender is required to perform 450 hours under
a CCO. If the court orders another CCO with an unpaid
community work condition, the court may only impose up to
150 hours of work.
New subsection (9) gives the court discretion to specify the
period over which the unpaid community work hours must be
performed.
New section 48D establishes a treatment and rehabilitation
condition. Under subsection (1) a court may attach a condition
requiring an offender to undergo treatment and rehabilitation as
specified by the court and as directed by the Secretary unless the
court orders otherwise. New subsection (2) sets out the matters
the court must have regard to when attaching the condition.
New subsection (3) requires the court to specify the treatment
and rehabilitation.
New subsection (4) provides that for the purposes of new
subsection (1), the Secretary may give the offender directions.
This purpose is to provide flexibility in managing offenders who
require treatment and rehabilitation during the course of the
condition. The Secretary must direct the offender to undergo the
treatment and rehabilitation specified by the court under
subsection (3). The Secretary may also direct the offender to
undergo any other treatment and rehabilitation or any particular
kind or kinds of treatment and rehabilitation it directs in
subsection (4). For example, a court may specify under new
subsection (3) that the offender undergo assessment and
treatment for alcohol abuse or dependency. The Secretary may
10
also direct the offender to undergo assessment and treatment for
drug abuse or dependency. In addition, the Secretary may
require the offender to attend at a specified location for treatment
and rehabilitation (such as a location for drug or alcohol
treatment program) or/and require the offender participate in
particular kinds of treatment and rehabilitation (such as a
program for assessment and treatment for mental illness).
New section 48E establishes a supervision condition.
The supervision condition is separate and distinct from the
reporting, visitation and directions of the Secretary under the
terms of each CCO in new section 45. New subsection (1)
provides that a court making a CCO may attach a condition
requiring the offender to be supervised, monitored and managed
as directed by the Secretary. As stated in new subsection (2) the
purpose of the condition is to ensure the offender's compliance
with the order. New subsection (3) provides that the court must
have regard to the pre-sentence report when attaching the
condition. New subsection (4) provides that the supervision may
last for the duration of the order or a lesser period specified by
the court.
New section 48F establishes a non-association condition.
Subsection (1) provides that a court may attach a condition to a
CCO directing that the offender must not contact or associate
with a specified person or persons or a class of persons.
An example of a specified person or persons is a co-offender.
An example of a class of persons are members of a specified club
or association. New subsection (2) states that a court may have
regard to the impact of the condition on the offender's
employment when attaching the condition. New subsection (3)
provides that the condition may last for the duration of the order
or a lesser period specified by the court.
New section 48G establishes a residence restriction or exclusion
condition. The condition requires the offender to reside at a
specified residence or prohibits the offender from residing at a
specified place. An offender may be required to reside at a
specified place, for example their current residential address.
The purpose of the residence restriction is to require the offender
to have a fixed residential address that only be changed by the
court. The condition does not prevent the offender from leaving
the residence for employment or other purposes. In addition, an
offender may be required not to reside at a specified place, for
11
example they must not reside at the residence of a co-offender.
The purpose of the residence exclusion is to prohibit the offender
living at a specified address which can only be changed by the
court. The residence exclusion, however, does not prevent the
offender from visiting the specified place.
Before imposing the condition, the court may have regard to the
risk of the condition to the safety of any person who is likely to
reside with the offender and the effect on the offender's
employment when attaching the condition.
The condition may last for the duration of the order or a lesser
period specified by the court. Where an offender seeks to reside
at a new address, they must apply to the court for a variation of
the order. New subsection (5) prevents the court from using the
condition if it would be inconsistent with a family violence
intervention order or a personal safety intervention order.
New section 48H establishes a place or area exclusion condition.
The place or area exclusion prohibits the offender from entering
or remaining in a specified place or area. The offender may be
prohibited from entering a place such as a specified sporting
venue or an area such as the CBD. Exclusions from a place or
area that is a licensed premises can only be made under new
section 48J (alcohol exclusion condition).
Before imposing the condition, the court may have regard to the
impact of the condition on the offender's employment when
attaching the condition.
The condition may last for the duration of the order or a lesser
period specified by the court. New subsection (4) prevents the
court from attaching the condition to an offender's CCO if it
would be inconsistent with an existing family violence
intervention order or a personal safety intervention order.
New section 48I establishes a curfew condition. A court may
require the offender to remain at a specified place between
specified hours for the period specified in the order.
For example, a court may direct that an offender remain at home
between 9 p.m. and 6 a.m. every day for a period of 3 months.
Before imposing the condition, a court may have regard to the
impact of the condition on any person who is likely to reside with
the offender and the offender's employment. The curfew is
limited as follows--
12
· the minimum period of a curfew is 2 hours per day;
· the maximum period of a curfew is 12 hours per day;
and
· the maximum period of a curfew is 6 months.
The court must specify the period of the curfew per day and
specify the duration of the curfew. The offender is required to
serve that curfew period. The offender must serve any additional
curfew period if directed by the Secretary in accordance with
new Division 3 of new Part 3C in clause 60 (this requirement in
the curfew condition is separately provided for in clause 57).
New subsection (4) prevents the court from imposing the
condition if it would be inconsistent with an existing family
violence intervention order or a personal safety intervention
order.
New section 48J establishes an alcohol exclusion condition.
A court may require an offender to comply with the restrictions
set out in new subsection (2). This subsection provides that
offenders are--
· completely prohibited from entering or remaining in a
licensed premises that is a nightclub, bar, restaurant,
cafe, or reception or function centre (whether a
particular licensed premises is, for example, a nightclub,
is to be determined according to the ordinary meaning
of the word "nightclub");
· completely prohibited from entering or remaining in the
location of a major event as defined in the Liquor
Control Reform Act 1998;
· allowed to enter other types of licensed premises on the
conditions that the offender does not enter the bar area
and does not consume liquor on the premises (bar area
is defined to mean the area set aside for the service of
alcohol for consumption on the premises).
For example, an offenders may be banned from entering the bar
section of sporting or gaming clubs that hold a liquor licence,
whilst being permitted to enter and remain in the other parts of
the premises. If a licensed premises does not fall within the
meaning of new subsection (2)(a), and does not have an
identifiable bar area as defined in new subsection (8).
13
An offender may enter the premises but is prohibited from
consuming liquor on the premises. Offenders will not be
excluded from licensed premises selling packaged liquor for
consumption off the premises.
If it considers appropriate, a court may specify that an offender
may enter or remain in a licensed premises or bar area that
the offender would otherwise be banned from under new
subsection (2). However, the offender may not consume liquor
on the premises. For example, the offender may enter and remain
in a licensed premises or bar area for the purposes of
employment.
The court may attach an alcohol exclusion condition to address
the role of alcohol in the offending behaviour.
The court may have regard to any effect the attaching of the
condition may have on any employment of the offender.
The exclusion may apply at all times or for specified hours each
day. The condition may last for the duration of the order or a
lesser period specified by the court.
The terms licensed premises and liquor are defined for the
purpose of the new condition to have the same meaning as in the
Liquor Control Reform Act 1998.
New section 48K establishes a judicial monitoring condition in
conjunction with new section 48L. A court may attach a
condition to a CCO that directs the offender to be monitored by
the court, if the court is satisfied it is necessary for the court to
review the offender's compliance with the order. The court may
specify the times the offender must re-appear for review under
section 48L and any information that is required during the
review hearing. However, the judicial monitoring condition does
not empower a court to order medical testing of the offender
without their consent. The condition lasts for the period specified
by the court or otherwise the duration of the order. The review
may be conducted by the judge or magistrate who made the CCO
or another judge or magistrate.
New section 48L sets out the powers of the court on review of an
offender's compliance under a judicial monitoring condition.
The court may seek information from the offender, medical
practitioners, the Secretary, prosecuting agencies and any other
person the court considers appropriate. During a review, the
court may cancel, vary or take no further action in relation to the
14
condition, or may give further directions about further reviews
and any information required for those reviews.
New Division 5 of Part 3A of the Sentencing Act 1991 deals
with variation, suspension or cancellation of a CCO.
New section 48M sets out when and how a CCO may be varied.
The variation takes place following an application under new
section 48N. The court has a range of options to re-tailor the
order based on the extent of the offender's compliance with the
order. The court may vary the order, conditions of the order or
the programs that the offender must undertake. The court must
consider the extent of the offender's compliance with the order
when deciding to vary the order. In assessing the extent of the
offender's compliance with the CCO the court must take into
account any failure to comply with the order that was the subject
of a direction of the Secretary under Division 3 of Part 3C in
clause 60. New section 83AW in clause 60 is relevant in this
determination. It provides the Secretary's decision under that
Division is of no effect if--
· an application for variation of the CCO has been made
and the application deals (in whole or in part) with the
same failure to comply with the CCO; or
· the court has varied the order under new section 48M
and the order dealt with (in whole or in part) the same
failure to comply with the CCO.
New section 48N provides that certain persons may apply for a
variation of a CCO and requires certain persons be notified of the
application. If the offender fails to attend the hearing of the
application, a court may order a warrant for their arrest.
A warrant issued under this section is to be issued in accordance
with Part 4 of the Magistrates' Court Act 1989, and will be
governed by that Part.
New section 48O allows the Secretary to the Department of
Justice to suspend a CCO if the offender is ill or in other
exceptional circumstances.
New Division 6 of Part 3A of the Sentencing Act 1991 contains
miscellaneous provisions.
New section 48P empowers the Secretary to direct that an
offender report to a different community correction centre, if the
offender has changed his or her place of residence.
15
New section 48Q provides that a CCO made by the Court of
Appeal should be taken to have been made by the court that made
the original decision.
A new heading is inserted which established new Part 3B of the
Sentencing Act 1991.
Clause 22 substitutes the heading to Division 4 of Part 3 with fines. This is
to reflect the structural changes to the Sentencing Act 1991.
Clause 23 substitutes "community-based order" with "an order" in sections
55(1)(d) and (3) of the Sentencing Act 1991. These provisions
allow a court to make an order converting a fine into hours of
unpaid community work - a fine conversion order. This is a not a
substantive change but a change in nomenclature. The new fine
conversion order replaces the CBO where the offender converts
the fine into unpaid community work.
Clause 24 amends section 62 of the Sentencing Act 1991.
The amendments deal with offenders who default in payment of a
fine and as a result are ordered to perform unpaid community
work. A new fine default unpaid community work order
replaces reference to community based orders. The amendments
retain the existing procedures regarding fine defaults and merely
make a change in technical structure and nomenclature.
Subclause (1) amends section 62(1) of the Sentencing Act 1991
by substituting two new subsections (1) and (1A). These new
subsections provide that if a person defaults on a fine for a period
of more than one month, the sentencing court or a proper officer
may issue a warrant for their arrest. The warrant must not be
issued if an order has been made under new section 62A (which
provides for the imposition of a fine default unpaid community
work order).
Subclause (2) substitutes section 62(7) of the Sentencing Act
1991. New subsection (7) provides that the warrant must not be
executed if the person in default performs certain actions within
7 days.
Subclause (3) repeals section 62(9) of the Sentencing Act 1991.
16
Subclause (4) substitutes section 62(10)(a) of the Sentencing Act
1991. New subsection 62(10)(a) provides that a court may make
an order requiring the offender to perform unpaid community
work, as directed by the Regional Manager, for a number of
hours fixed in accordance with section 63(2). This order is
named a fine default unpaid community work order.
Subclause (5) substitutes section 62(13) of the Sentencing Act
1991. New subsection 62(13) does not refer to a CBO with
unpaid community work. Rather, it provides that subsections
(1A) and (7)(c) do not apply where the Magistrates' Court has
imposed a fine as a result of the revocation of an enforcement
order under the Infringements Act 2006.
Clause 25 inserts new section 62A into the Sentencing Act 1991.
New section 62A provides the court with a power to make a fine
default unpaid community work order, for the purposes of
section 62(1) and 62(7). There is no change to the existing law
regarding performing unpaid community work in default of
payment of a fine. If the person has defaulted and the remaining
amount is not more than 100 penalty units, the court may make
an order requiring the offender to perform unpaid community
work, as directed by the Regional Manager, for a number of
hours fixed in accordance with section 63(2). An order under
this section may be made on application of the person in default.
Clause 26 inserts a reference to section 62A(1) into section 63(3) of the
Sentencing Act 1991.
Clause 27 inserts new sections 63A and 63B into the Sentencing Act 1991.
New section 63A deals with contravention of a fine conversion
order or fine default unpaid community work order. This retains
the existing law under Sentencing Act 1991for contravention of
a CBO which involves unpaid community work to address
unpaid fines or fines converted into unpaid community work.
Contraventions of these orders are dealt with in the same way as
a contravention of a CCO under Part 3C of the Sentencing Act
1991, with two exceptions. The penalty for this contravention is
a level 10 fine. In addition, when sentencing a person for a
contravention of either order, the court may impose one day of
imprisonment for each penalty unit remaining unpaid, up to a
maximum of 24 months.
17
New section 63B allows the number of hours that must be
performed under a fine conversion order or fine default unpaid
community work order to be reduced if the offender pays part of
the outstanding fine amount.
Clause 28 substitutes the heading to Division 5 of Part 3 to "Division 2--
Dismissals, discharges and adjournments".
Clause 29 makes consequential amendments to section 72 of the
Sentencing Act 1991.
Clause 30 makes consequential amendments to section 75 of the
Sentencing Act 1991.
Clause 31 removes the words "and breach" from the heading to Subdivision
(4) of Division 5 of Part 3 of the Sentencing Act 1991.
Clause 32 substitutes section 78(2) of the Sentencing Act 1991 to provide
that a court must take into account the offender's compliance with
the order when varying an adjourned undertaking.
Clause 33 repeals section 79 of the Sentencing Act 1991, which deals with
breaches of an adjourned undertaking. The provisions for
contraventions of adjourned undertakings are now contained in
new Part 3C of the Sentencing Act 1991, with the new
contravention offence in new section 83AC and the sentencing
powers on contravention contained in new section 83AT.
Clause 34 substitutes the heading to Division 6 of Part 3 with a new heading
"Division 3--Intellectually disabled offenders". This reflects
changes to the structure of the Sentencing Act 1991.
Clause 35 substitutes section 80 of the Sentencing Act 1991, which had
contained the provisions relating to both justice plans and
residential treatment orders. Section 80 is restructured and
re-enacts the previous provisions regarding justice plans.
Residential treatment orders are now contained in a new
section 82AA inserted by clause 39. New section 80 also
contains updated references to the CCO.
18
New subsection (1) provides that a court considering making a
CCO or an adjourned undertaking may attach a plan prepared
under subsection (3)(c) (a justice plan). Subsection (2) sets out
the matters to which a court must have regard when attaching the
condition. New subsection (3) provides that a court that is
considering attaching a justice plan condition it may request--
· a pre-sentence report under Division 1A of Part 3;
· a statement from the Secretary of the Department of
Human Services that the person has an intellectual
disability within the meaning of the Disability Services
Act 2006;
· a plan of available services from the Secretary of the
Department of Human Services, which is designed to
reduce the likelihood of the offender committing further
offences and is in accordance with Part 2 of the
Disability Services Act 2006.
New subsection (4) provides that a justice plan condition may be
attached for a maximum of two years. Under new subsection (5),
a copy of an order must be provided to the Secretary of the
Department of Human Services.
Clause 36 amends section 81 of the Sentencing Act 1991 to clarify which
Secretary is being referred to, remove references to justice plans
as "special conditions", substitute the reference to a community-
based order with a community correction order, and makes other
consequential amendments.
Clause 37 amends the heading to section 82 of the Sentencing Act 1991 to
clarify that the provision relates to review of a justice plan
condition by the sentencing court.
Clause 38 makes similar amendments to section 82 of the Sentencing Act
1991 as made by clause 36 to section 81.
Clause 39 inserts a new section 82AA dealing with residential treatment
orders. New section 82AA re-enacts the provisions relating to
residential treatment orders that had been contained in section 80
of the Sentencing Act 1991 with some minor changes.
19
New subsection (1) enables a court to direct that the offender be
detained for a maximum of 5 years in a residential treatment
facility, if the offender has been found guilty of a serious offence
(within the meaning of the Sentencing Act 1991) or found guilty
of an offence against section 39 of the Crimes Act 1958
(indecent assault).
New subsection (2) provides that a court that is making a
residential treatment order it may request--
· a pre-sentence report under Division 1A of Part 3; and
· a statement from the Secretary of the Department of
Human Services that the person has an intellectual
disability within the meaning of the Disability Services
Act 2006; and
· a plan of available services from the Secretary of the
Department of Human Services.
Under new subsection (3), the court may make a residential
treatment order if the Secretary of the Department of Human
Services has specified that the person is suitable for admission to,
and services are available in, a residential treatment facility.
New subsection (4) provides that a copy of the order must be
provided to the Secretary of the Department of Human Services.
Clause 40 amends section 82A of the Sentencing Act 1991 to clarify which
Secretary is being referred to and makes other consequential
amendments.
Clause 41 substitutes the heading to Division 7 of Part 3 to refer to deferred
sentencing by the Magistrates Court and by the County Court.
Clause 42 substitutes a reference to "section 99" with a reference to
"section 8D" in section 83A(3)(b) of the Sentencing Act 1991.
Clause 43 inserts new Part 3C which deals with contraventions of
sentencing orders.
The new Part 3C supersedes previous amendments to various
contravention and breach provisions of the Sentencing Act 1991.
This Bill introduces a new approach to contraventions of
sentences. The new Part 3C creates a new contravention offence
for all the principal sentencing orders--suspended sentences,
CCO and adjourned undertakings. The new contravention
20
offence applies prospectively including to any abolished order --
CCTOs, ICOs, HDOs, and CBOs--still in force before their
repeal. The application of Part 3C to the abolished orders is dealt
with in clause 54, which inserts transitional provisions into the
Sentencing Act 1991 in a new Schedule 3.
The new Part 3C also creates offences for failing to comply with
directions given by the Secretary. Infringement offences apply
and address conduct that warrants a response above a warning
but does not yet warrant returning the offender to court.
The new Part 3C also provides for directions for additional
unpaid community work or an increase in a curfew period which
are given by the Secretary if an offender has failed to comply
with the CCO without reasonable excuse.
Division 1--Offences
New Division 1 of new Part 3C deals with contravention of a
sentence which constitutes a discrete offence.
New section 83AB provides that a person subject to a suspended
sentence who is found guilty of an offence punishable by
imprisonment committed during the period of the suspended
sentence, is liable to a maximum of three months imprisonment.
This re-enacts the existing offence in section 31 of the
Sentencing Act 1991 with an increased penalty.
New section 83AC provides that it is an offence to contravene an
adjourned undertaking without a reasonable excuse.
The maximum penalty is a level 10 fine. New section 83AC is a
re-enactment of the same offence contained within existing
section 79 of the Sentencing Act 1991 which is repealed by
clause 33.
New section 83AD provides that it is an offence to contravene a
CCO without a reasonable excuse. The maximum penalty is
three months imprisonment. Subsection (2) provides that a
person cannot be charged with this offence if they have been
acquitted, convicted or found guilty of an offence under
section 83AE or 83AF, which prevents offenders being punished
twice for the same conduct.
21
New section 83AE sets out offences for particular contraventions
of directions by the Secretary. New subsections (1) to (5)
provide that an offender subject to a CCO must not, without
reasonable excuse, contravene a direction given by the Secretary
under section 46(1)(f) by doing any of the following--
· leaving the location which the offender has been
directed to attend without first obtaining permission of
the Secretary;
· failing to the Secretary of the offender's inability to
attend at the location they have been directed to attend,
at the required time--
· at least 24 hours before the offender is due to
attend the location, if the offender has at least
24 hours notice of that inability; or
· immediately on becoming unable to attend if the
offender did not have at least 24 hours notice of
the offender's inability to attend at the location;
· failing to attend at the location to which the offender has
been directed to attend at the required date and time by
the Secretary unless the offender has obtained the
permission of the Secretary;
· failing to produce a medical certificate, as soon as is
practicable, in respect of non-attendance at a location
due to illness;
· entering an unauthorised area of a community
corrections centre without first obtaining permission
from the Secretary (an unauthorised area means an area
designated in writing designated by the Secretary to be
an unauthorised area).
The maximum penalty for each offence is a level 11 fine.
New subsection (6) defines the term unauthorised area.
New subsection (7) provides that a person cannot be charged
with this offence if they have been acquitted, convicted or found
guilty of an offence under section 83AD or 83AF.
This requirement stops offenders being punished twice for the
same conduct.
22
New section 83AF provides that it is an offence to fail to obey a
written direction of the Secretary given under section 46.
The maximum penalty is a level 11 fine. A person cannot be
charged with this offence if they have been acquitted, convicted
or found guilty of an offence under section 83AD or 83AE,
which prevents offenders being punished twice for the same
conduct.
Division 2--Bringing a proceeding
New sections 83AG to 83AP deal with the procedure for
contravention proceedings.
New section 83AG provides that an offender may be proceeded
against on a charge-sheet for an offence under sections 83AB,
83AC or 83AD. The charge-sheet must be filed in the sentencing
court by the Director of Public Prosecutions, informant or police
prosecutor, a prescribed person or class of person, or the
Secretary. Chapters 2 and 3 of the Criminal Procedure Act
2009 address a proceeding for an offence under sections 83AE
and 83AF.
New section 83AH sets out the time period within which a
contravention proceeding under new sections 83AB, 83AC
or 83AD must be commenced. For contraventions by an offence
punishable by imprisonment, proceedings must be commenced
within six months of the offender being found guilty of the
offence and within two years of the order ceasing to be in force.
For all other contraventions, proceedings must be commenced
with one year of the order ceasing to be in force.
New section 83AI provides a procedure to allow courts to take
appropriate action to hear a contravention of a sentence.
This section applies if an offender is before the courts and
has been found guilty or convicted of an offence under
sections 83AB, 83AC or 83AD which is constituted by the
commission of another offence (such as contravention of a
suspended sentence by committing another offence punishable by
imprisonment). If the court is the sentencing court in relation to
the order, it may proceed to deal with the contravention offence.
If it is not the sentencing court, it may transfer the proceedings to
the appropriate court and bail or remand the offender to appear
before that court.
23
If an offender is not before the court, new sections 83AJ
and 83AK continue the existing mechanism available to the
prosecutor to apply for a summons (called a "contravention
summons") or a warrant to arrest to require the person to attend at
the court that imposed the CCO to answer the contravention.
New section 83AL preserves the power in section 50 of the
Magistrates' Court Act 1989 to amend a contravention
summons or warrant to arrest and ensures that it will apply to a
contravention summons or warrant to arrest issued in relation to a
CCO.
New section 83AM sets out the form of a contravention
summons and ensures that the relevant provisions of the
Criminal Procedure Act 2009 relating to service of a summons
will apply.
New section 83AN allows the return date for a contravention
summons to be extended.
New section 83AO ensures that the service of a contravention
summons can be proved in the same way as the service of a
summons to answer a charge under the Criminal Procedure Act
2009.
New section 83AP allows a warrant to arrest to be issued if a
persons fails to attend court in answer to a bail undertaking
granted under section 83AI(2) or a contravention summons.
A warrant issued under this section is to be issued in accordance
with Part 4 of the Magistrates' Court Act 1989, and will be
governed by that Part.
New section 83AQ mirrors section 33 of the Criminal
Procedure Act 2009 and requires the court to ask whether an
unrepresented offender has sought legal advice and, if necessary
grant an adjournment. It also requires a court to consider the
need for an interpreter.
New section 83AR sets out the powers of a court where it finds
that an offender is guilty of contravening a suspended sentence
under section 83AB. This is a re-enactment of existing
section 31 of the Sentencing Act 1991 powers of a court upon
breach of a suspended sentence. Under subsection (1), in
addition to sentencing the offender for the contravention offence
under section 83AB, the court must either--
24
· restore (in whole or in part) the sentence of
imprisonment which was suspended and order the
offender to serve that period in jail;
· if the offender had a wholly suspended sentence, extend
the suspension for 12 months; or
· make no order.
New subsection (2) creates a presumption that the court will send
the offender to jail unless it would be unjust to do so because
exceptional circumstances that have arisen since the time the
original order was made. Subsection (3) provides that a jail
sentence must be served immediately and cumulatively on any
other jail sentence.
New subsections (4) and (5) deal with the powers of a court in
relation to offenders under the age of 21. If a court restores the
sentence of imprisonment, the court may order the offender to
serve it as detention in a youth justice centre or youth residential
centre. Section 32 of the Sentencing Act 1991 applies to such an
order.
New subsection (6) if the court makes no order with respect to
the suspended sentence, the proper officer must record that fact in
the records of the court. New subsection (7) provides if the court
cannot deal with the offender immediately, the court may grant
bail in accordance with the Bail Act 1977.
New section 83AS sets out the powers of a court where it finds
that an offender is guilty of the offence of contravening a CCO
under section 83AD. Under subsection (1), in addition to
sentencing the offender for the contravention offence under
section 83AD, the court must deal with the CCO. The Court
may--
· vary the CCO;
· confirm the CCO; or
· cancel the CCO (if it is still in force) and either--
· re-sentence the offender for the original offence;
or
· make no further order.
25
In determining the appropriate sentence, the court must take into
account the extent to which the offender has complied with the
order.
In assessing the extent of the offender's compliance the Secretary
must disclose any direction he or she has given under Division 3
of Part 3C in clause 60. This ensures all non-compliance is
addressed under section 83AS including any failure to comply
that was the subject of a direction under that clause. The purpose
of this provision is to ensure the court remains empowered to
confirm, vary or cancel the CCO despite the Secretary's decision
under sections 83AU or 83AV, respectively, and that the
Secretary's decision is therefore of no effect.
New section 83AT sets out the powers of a court where it finds
an offender guilty of contravening an adjourned undertaking.
Under subsection (1), in addition to sentencing the offender for
the contravention offences, the court may--
· deal with the order under section 78;
· confirm the adjourned undertaking;
· cancel the adjourned undertaking (if it is still in force);
or
· cancel the adjourned undertaking (if it is still in force)
and either--
· re-sentence the offender for the original offence;
or
· make no further order.
New subsection (2) requires the court to take into account the
extent of the offender's compliance with the order when making
its decision.
Clause 44 substitutes "3D" for "3A" in the heading to Part 3A of the
Sentencing Act 1991.
Clause 45 repeals Division 1A of Part 6 of the Sentencing Act 1991, which
deals with pre-sentence reports. The Division has been replicated
in the Sentencing Act 1991, and now constitutes Division 1A of
Part 3 in clause 7. The restructure is to ensure the Sentencing
Act 1991 provisions reflect the sentencing process.
26
Clause 46 repeals Division 2 of Part 6 of the Sentencing Act 1991, which
deals with drug and alcohol assessment reports. The Division has
been replicated in the Sentencing Act 1991, and now constitutes
Division 1B of Part 3 in clause 7. The restructure is to ensure the
Sentencing Act 1991 provisions reflect the sentencing process.
Clause 47 repeals Division 2A of Part 6 of the Sentencing Act 1991, which
deals with victim impact statements. The Division has been
replicated in the Sentencing Act 1991, and now constitutes
Division 1C of Part 3 in clause 7. The restructure is to ensure the
Sentencing Act 1991 provisions reflect the sentencing process.
Clause 48 makes consequential amendments to the penalty scale provisions
in section 109 of the Sentencing Act 1991 by removing Tables 3
and 4.
Tables 3 and 4 are no longer required to calculate community
work hours under the CCO. Under new section 48(4), a court
may order up to 600 hours of unpaid community work. Under
new section 48C(9) a court may specify the period of the unpaid
community work condition, which means the period in which the
unpaid community work is to be performed. This period may be
for the period of the CCO or a lesser period. The period must be
determined in accordance with section 38, namely--
· a maximum of two years in the Magistrates' Court;
· in the case of the County and Supreme Courts, the
maximum according to the maximum term of
imprisonment for the offence or two years, whichever is
greater.
Clause 49 re-enacts existing section 88 of the Sentencing Act 1991 as new
section 115A. No substantive change has been made.
The re-enactment places the provision in a more appropriate part
of the Sentencing Act 1991.
Clause 50 substitutes the heading to Part 11 of the Sentencing Act 1991
with a new heading dealing with regulations and general matters.
Clause 51 amends section 116(1) of the Sentencing Act 1991, which
provides regulations. The amendments update references to
remove repealed orders and include new the orders.
The amendments also introduce new powers to make regulations
regarding applications for variation or contravention of a
sentence, contravention proceedings and matters relating to a
27
court review of a decision by the Secretary to give a direction
under Division 3 of Part 3C.
Clause 52 inserts a new section 116A which provides that Schedule 3 has
effect in relation to transitional arrangements.
Clause 53 amends section 143 of the Sentencing Act 1991. The definitions
of old combined custody treatment order and intensive
correction order are repealed. Sections 143(2) to (4) are
repealed.
Clause 54 inserts new Schedule 3, which deals with transitional provisions,
into the Sentencing Act 1991. New Schedule 3 sets out how
existing CCTOs, ICOs and CBOs will operate following the
commencement of this amending Bill. There are new offences
for contravention of a CCTO, ICO, CBO, suspended sentences
and home detention orders where the offence is committed on or
after the date on which this Bill commences. The new
contravention offence also applies to adjourned undertakings
however this is a re-enactment of the existing offence in
section 79. If the offender is found guilty of the contravention
offence, the Schedule sets out the sentencing powers of the court
in relation to the respective orders for the original offences.
The Schedule re-enacts the existing powers of the court in
sentencing the offender for the original offences for which the
sentence was imposed. For example, the powers of re-sentencing
an offender for breach of a suspended sentence are re-enacted.
The new contravention offence applies to contraventions of the
CCO where the sentence is imposed on or after the
commencement of this Bill.
The law in operation in the Sentencing Act 1991 before
commencement of this amending Bill regarding breach or
contravention of a CCTO, ICO, CBO, suspended sentence, home
detention order and adjourned undertaking continue to operate.
That is, breaches of a CCTO, ICO, CBO and adjourned
undertaking committed before commencement of this amending
Bill remain subject, upon a finding of guilt for breach, to a
maximum level 10 fine and activate the sentencing powers of the
court in relation to the original offences. In respect of a breach of
a suspended sentence and a contravention of a home detention
order committed before commencement of this amending Bill,
these breaches continue to not constitute an offence and instead
continue to activate the process of returning the person to court
28
where the court exercises the sentencing powers in relation to the
original offences.
New clause 1 introduces definitions of old combined custody and
treatment order, old community-based order, and old intensive
correction order. These "old" orders are orders that existed
before the commencement of this Bill. The "old" orders operate
as if those orders had not been repealed according to the
provisions of the Sentencing Act 1991 as in force before the
commencement of this Bill.
New clause 2 provides that existing CCTOs continue to operate
according to the provisions of the Sentencing Act 1991 as in
force before the repeal of CCTOs.
New clause 3 provides that ICOs continue to operate according to
the provisions of the Sentencing Act 1991 as in force before the
repeal of ICOs.
New clause 4 provides that CBOs continue to operate according
to the provisions of the Sentencing Act 1991 as in force before
the repeal of CBOs.
New clause 5 provides that new section 37 enables a court to
impose a CCO on commencement of this Bill regardless of when
the offence was committed or finding of guilt was made.
New clause 6 deals with contraventions of suspended sentences.
Unlike the CCTOs, ICOs and CBOs, following commencement
of this Act, courts remain empowered to order a suspended
sentence. This excludes serious and significant offences as
defined in the Sentencing Act 1991 for which suspended
sentences were abolished on 1 May 2011 by the Sentencing
Amendment Act 2010 and the Sentencing Further
Amendment Act 2011.
New subclause (1) of new clause 6 provides that Part 3C applies
to a suspended sentence order made after the commencement of
this Bill. New subclause (2) provides that Part 3C applies to
contraventions of a pre-existing suspended sentence order as
defined in subclause (3), if those contraventions occur on or after
the commencement of clause 18 of this Bill.
29
New subclause (3) of clause 6 introduces different definitions for
suspended sentences made before and after the commencement
of this Bill. A suspended sentence made before the
commencement of the Bill is defined as a pre-existing suspended
sentence order. A suspended sentence made after the
commencement of this Bill is defined as a suspended sentence
order made under section 27 of the Sentencing Act 1991.
New clause 7 deals with contraventions of CCTOs.
Subclause (1) provides that it is an offence to contravene an
old CCTO, without reasonable excuse. The penalty is 3 months
imprisonment. New subclause (2) ensures the offence does not
apply retrospectively. The offence does not apply to
contraventions of old CCTOs that occur before the
commencement of new section 12 of this Bill. New subclause
(3) provides that the contravention offence should be dealt with
under Part 3C as if it were a contravention of a CCO under
section 83AD, with the exception of the powers of the court on
sentencing. New subclause (4) provides that in addition to
sentencing the offender for the contravention offence, the court
must either confirm the order, or cancel the order and require the
offender to serve the remainder of the sentence in jail. The court
does not have the power to vary the old CCTO.
New subclause (5) contains a presumption that if the offender is
guilty of the contravention offence, the court must sentence them
to serve the remainder of the sentence in jail unless it is of the
opinion that it would be unjust to do so in view of any
exceptional circumstances that have arisen since the CCTO was
made. Under new subclause (6), if the court does not sentence
the offender to serve the remainder of the sentence in custody, it
must state its reasons in writing. New subclause (7) provides that
the jail term imposed under new subclause (4) must be served
immediately and cumulatively on any other jail term.
New clause 8 deals with contraventions of pre-existing home
detention orders (HDO). These orders will be repealed following
the enactment of the Sentencing Legislation Amendment
(Abolition of Home Detention) Bill 2011, which will commence
by proclamation or by default on 1 June 2012. New subclause
(1) provides that an offender who is subject to a pre-existing
HDO must not commit a serious contravention of that order,
without reasonable excuse. The terms pre-existing home
detention order and serious contravention are defined in new
30
subclause (8). New subclause (2) ensures that the offence does
not apply retrospectively and that the offence does not apply to
contraventions which are not serious contraventions.
New subclause (3) provides that the contravention offence should
be dealt with under Part 3C as if it were a contravention of a
CCO under section 83AD, with the exception of the powers of
the court on sentencing. New subclause (4) provides that in
addition to sentencing the offender for the contravention offence,
the court must confirm the order or cancel the order and require
the offender to serve the remainder of the sentence in jail.
New subclause (5) contains a presumption that if the offender is
guilty of the contravention offence, the court must sentence them
to serve the remainder of the sentence in jail unless it is of the
opinion that it would be unjust to do so in view of any
exceptional circumstances which have arisen since the HDO
was made. Under new subclause (6), if the court does not
impose the jail sentence, it must state its reasons in writing.
New subclause (7) provides that the jail sentence must be served
immediately and cumulatively on any other jail term. The court
does not have the power to vary the HDO.
New clause 9 deals with contraventions of old ICOs.
Contraventions of ICOs are dealt with in the same way as
contraventions of CCTOs under new clause 7 above.
New clause 10 deals with contraventions of old CBOs.
New subclause (1) provides that it is an offence to contravene an
old CBO, without reasonable excuse. The penalty is 3 months
imprisonment. New subclause (2) ensures the offence does not
apply retrospectively. The offence does not apply to
contraventions of old CBOs that occur before the commencement
of new section 21 of this Bill. New subclause (3) provides that
the contravention offence should be dealt with under Part 3C as if
it were a contravention of a CCO under new section 83AD, with
the exception of the powers of the court on sentencing.
New subclause (4) provides that, in addition to sentencing the
offender for the contravention offence, the court must either
confirm the order, or cancel the order and re-sentence the
offender for the original offence. The court does not have the
power to vary the CBO. New subclause (5) requires the court to
take account of certain matters if the court has cancelled the old
CBO.
31
New clause 11 contains a presumption that the conditions of a
CCO will operate concurrently with the conditions of an existing
CCTO, ICO or CBO made in respect of an offender, unless the
court orders otherwise.
New clause 12 ensures the new offences do not apply
retrospectively. It also clarifies that where an offence is alleged
to have been committed between two dates, one before and one
after the repeal of the relevant order, the offence is taken to have
been committed before the repeal of the order. This applies to
old CCTOs, old CBOs and old ICOs.
New clause 13 sets out the time in which a contravention
proceeding must be commenced for contraventions of an old
CCTO, pre-existing HDOs, old ICOs and old CBOs. There are
two time periods in which contravention proceedings must be
commenced. For contraventions constituted by commission of an
offence or offences punishable by imprisonment, proceedings
must be commenced within 6 months after the offender is found
guilty of that offence or offences and not more than 2 years after
the order ceases to be in force. For other contraventions,
proceedings must be commenced with one year of the order
ceasing to be in force.
PART 3--FURTHER AMENDMENT OF THE SENTENCING
ACT 1991
Part 3 of this amending Bill contains further amendments to the
Sentencing Act 1991 that relate to the amendments contained in
Part 2 of this amendment Bill. The amendments in Part 3 have
been separately contained because they may commence
separately by proclamation.
Clause 55 inserts in to section 3(1) of the Sentencing Act 1991 a definition
of bond condition.
Clause 56 inserts a new subsection (3A) into the unpaid community work
condition in new section 48C to provide that an offender subject
to the condition must comply with any additional hours of unpaid
community work as directed by the Secretary under new
section 83AU. The provision ensure compliance with the
direction is a requirement within the unpaid community work
condition in section 48C. It is also a term of every CCO that an
offender comply with any direction given by the Secretary in
accordance with section 45(1)(f).
32
Clause 57 inserts a subsection (3A) into the curfew condition in section 48I.
It provides that an offender subject to the condition must comply
with any increase hours or period of the curfew as directed by the
Secretary under new section 83AV. This ensures compliance
with the direction is a requirement of an offender within the
curfew condition in section 48I. It is also a term of every CCO
that an offender comply with any direction given by the Secretary
in accordance with section 45(1)(f).
Clause 58 new section 48JA establishes a bond condition. A court may
require an offender to pay an amount of money as a bond, which
may or must be forfeited in whole or part, if the offender fails to
comply with the order which is set out in clause 59. The court
may attach a bond condition for the purpose of ensuring the
offender's compliance with the order. Before attaching the
condition, the court must have regard to the adequacy of the
financial circumstances of the offender contained in the pre-
sentence report and must fix a time period for payment of the
bond. New subsection (4) requires the bond to be held by the
court making the order until the bond is required to be repaid or
is forfeited. New subsection (5) provides that on expiry or
cancellation of the order, the offender is entitled to be repaid any
of the money that has not been forfeited under section 83AS(3).
Clause 59 inserts a new subsection (4) into new section 83AS which sets
out the consequences for contravention of a CCO if the offender
paid a bond as part of a bond condition. If the court varies or
confirms the CCO, the court may order the bond be forfeited
(wholly or partly). If the court cancels the CCO and re-sentences
the offender, the court must order the bond be forfeited (wholly
or partly).
Clause 60 inserts a new Division 3 of Part 3C of the Sentencing Act 1991.
The new Division vests further powers to give directions in the
Secretary to the Department of Justice.
It is a term of every CCO that an offender comply with
any direction given by the Secretary in accordance with
section 45(1)(f). The directions in new Division 3 of Part 3C
are a particular instance of such directions. If an offender does
not comply with the direction contained in section 83AU
or 83AV, this constitutes a contravention of--
33
· the unpaid community work condition or curfew
condition in sections 48C(3A) or 48I(3A), respectively;
and
· the term of the CCO in section 45(1)(f).
Accordingly, the offender may be charged for the offence of
contravention of the CCO under new section 83AD.
The direction powers under new Division 3 of Part 3C may only
be exercised in certain circumstances and within certain limits.
The Secretary may make a direction where an offender fails,
without reasonable excuse, to comply with a CCO.
The Secretary may direct the offender to--
· perform unpaid community work in addition to the
unpaid community work imposed by the court on the
order;
· serve an additional curfew period in addition to the
curfew imposed by the court on the order.
These directions may only be exercised when the relevant
condition is attached to the CCO. The direction is subject to the
statutory limits fixed for those conditions under sections 48C
and 48I, respectively. An offender may apply to the sentencing
court for a review of the decision of the Secretary.
New section 83AU empowers the Secretary to direct an offender
to perform unpaid community in addition to that imposed by a
court under an unpaid community work condition attached to the
CCO. An offender must comply with this direction, which is a
requirement within the unpaid community work condition in new
section 48C(3A).
Subsection (1) provides that the Secretary may direct the offender
to perform up to a maximum of 16 work hours in a twelve month
period in addition to the hours imposed by the sentencing court.
Subsection (2) sets out preconditions for giving the direction
which are explained below.
New section 83AV empowers the Secretary to direct an offender
to perform additional curfew period in addition to that imposed
by a court under an unpaid community work condition attached
to the CCO. An offender must comply with this direction, which
is a requirement within the unpaid community work condition in
new section 48I(3A).
34
Subsection (1) provides that the Secretary may direct the offender
to remain at the specified place for an additional 2 hours each day
or increase the period of the condition by up to 14 days.
Subsection (2) sets out preconditions for giving the direction.
Before giving the direction under section 83AU or 83AV, the
Secretary must be satisfied of all of the following--
· there was a failure to comply with the CCO by the
offender;
· the unpaid community work condition or curfew
condition (as the case applies) is attached to the CCO;
· the person has no reasonable excuse for the failure to
comply;
· the failure to comply with the CCO is sufficiently
serious to give the direction; and
· the failure to comply with the CCO is not sufficiently
serious to file a charge for the contravention offence in
section 83AD.
In respect of a failure to comply with a CCO which has an unpaid
community work condition attached, section 83AU(2) also
requires the Secretary to be satisfied that--
· the offender has not completed the unpaid community
work condition (this ensures the Secretary cannot
re-activate the condition); and
· the additional hours of unpaid community work to be
directed would not exceed the maximum of 600 hours in
section 48C(4).
In respect of a failure to comply with a CCO which has curfew
condition attached, section 83AV(2) also requires the Secretary
to be satisfied that--
· the condition has not expired (this ensures the Secretary
cannot re-activate the condition);
· the additional curfew period of up to an additional
2 hours per day to be directed would not exceed the
maximum curfew of 12 hours per day fixed by
section 48I(3); and
35
· the additional curfew period of up to 14 days to be
directed would not exceed the maximum duration of
6 months fixed by section 48I(3).
The Secretary's direction does not take effect until the notice is
served under new section 83AW.
New section 83AW provides that it is a reasonable excuse for
failing to comply with the CCO where court varied the CCO, or,
application to vary is on foot, in relation to or as a result of the
failure to comply. The purpose of this provision is to ensure the
court remains empowered to vary the order despite the
Secretary's decision under sections 83AU or 83AV, respectively,
and the Secretary's decision is therefore of no effect.
New section 83AX requires the Secretary to provide notice
in writing to the offender of the direction in section 83AU
and 83AV. The notice must include the reasons for the
decision and must inform the offender of their right to apply to
the sentencing court for review of the Secretary's decision.
The direction does not take effect until the notice is served and
on any later date specified in the notice (if so specified).
New section 83AY deals with de novo review by the sentencing
court. New subsection (1) provides for the sentencing court to
review the Secretary's decision. New subsection (2) gives the
offender the right to apply to the sentencing court for review on
the merits of the Secretary's decision under section 83AU
or 83AV. New subsection (3) provides the application must be
made within 28 days of the Secretary's decision unless the time to
apply is extended by the court which is set out in subsection (4).
New subsection (5) makes clear the review is a hearing de novo.
New section 83AZ sets out the powers of the sentencing court on
review. New subsection (1) states the court has the same powers
and duties as the Secretary under the Division. New subsection
(2) requires the Secretary disclose to the sentencing court the
notice served on the offender under section 83AX. Under new
subsection (3), the court may confirm, vary or revoke the
decision under review. New subsection (4) provides the decision
of the court on a review takes effect from the time the court
makes the decision, unless the court orders otherwise.
36
The de novo review under section 83AY is a complete rehearing
by the sentencing court. The court is not bound by the decision
of the Secretary. It constitutes an independent decision by the
court on whether or not there was a failure to comply with the
CCO by an offender without reasonable excuse. The court
independently decides whether or not the failure to comply with
the CCO is sufficiently serious to warrant the additional unpaid
community work condition or increase curfew period,
respectively. The court independently decides whether or not the
failure to comply with the CCO is not sufficiently serious to file a
charge under new section 83AD.
The court may confirm, vary or revoke the Secretary's decision.
The court must be satisfied of the same matters that the Secretary
is required to be satisfied of under section 83AU(2) or 83AV(2).
The Secretary, and the court on review, must be satisfied--
· whether or not there was a failure to comply with the
CCO by the offender;
· whether or not the offender has a reasonable excuse for
the failure to comply;
· whether the failure to comply with the CCO by the
offender is sufficiently serious to warrant the direction
to perform additional unpaid community work condition
or serve an increased curfew; and
· whether the failure to comply with the order is not
sufficiently serious to file a charge for the contravention
offence under new section 83AD.
If the sentencing court is so satisfied of the above, the court may
confirm or vary the Secretary's decision. If the sentencing court
is not satisfied of the above, the court revokes the decision of the
Secretary. A variation by the court is subject to the same
limitations that are set on the Secretary in section 83AU or 83AV
(as the case applies). For example, the sentencing court on
review may vary the Secretary's decision by increasing or
decreasing the amount of unpaid community work directed by the
Secretary.
37
On review, the sentencing court is not empowered to vary the
condition or vary the CCO in any other respect or re-sentence the
offender. Rather, the court may do so under the separate
proceedings in sections 48M and 48N (variation of the CCO) and
sections 83AD and 83AS (powers of a court upon finding of guilt
for contravention of CCO).
Part 8.4 of the Criminal Procedure Act 2009 governs costs in
new Division 3 of Part 3C.
Clause 61 substitutes the heading to Division 3 of Part 4 to refer to orders
about driver licences and learner permits.
Clause 62 substitutes the definition of alcohol interlock condition to refer
to alcohol interlock conditions imposed under section 89A for a
serious motor vehicle offence committed under the influence of
alcohol and imposed under section 89B for any other offence
committed under the influence of alcohol.
Clause 63 substitutes section 88 of the Sentencing Act 1991.
New section 88 seeks to avoid any doubt that a proceeding
under Division 3 of Part 4 of that Act is a proceeding that relates
to sentencing for the purposes of section 4(2) of the Evidence
Act 2008.
Clause 64 subclause (1) inserts a heading to section 89 of the Sentencing
Act 1991.
Subclause (2) amends sections 89(1) and 89(1A) of the
Sentencing Act 1991. It is a technical restructure of the existing
provisions. The restructure mostly re-enacts the existing
section 89(1) of the Sentencing Act 1991. Where a person has
been found guilty or convicted of a serious motor vehicle offence
the sentencing court must cancel the person's driver licence or
learner permit and, whether or not the person holds a driver
licence or learner permit, disqualify the person from obtaining a
Victorian driver licence or learner permit or from driving in
Victoria. New subsection (1) in section 89 makes clear that an
offender who is a resident in another Australian state or territory
or another country and are found guilty or convicted of a serious
motor vehicle offence must be disqualified from driving a motor
vehicle on a road in Victoria. Minimum periods of
disqualification are set out in new section 89(1A).
38
New subsections (1B) and (1C) empower the sentencing court to
make a finding that the serious motor vehicle offence was
committed under the influence of alcohol or drugs and requires a
record of this finding to be immediately sent to the Roads
Corporation. This finding activates section 89A of the
Sentencing Act 1991 whereby the Magistrates Court may or
must (as the case applies), on re-licensing a person who has
previously been disqualified due to that offence or offences,
impose an alcohol interlock condition on the driver licence.
Subclauses (3) to (5) update references to driver licences to
include learner permits. Subclause (6) repeals the evidentiary
provision in section 89(3F) because it is replaced by new
section 88 in clause 63.
Subclause (7) substitutes section 89(4). This section applies to
stealing or attempted stealing of a motor vehicle. The sentencing
court may (in the case of a finding of guilt) or must (in the case
of a conviction) suspend or cancel the person's driver licence or
learner permit and, whether or not the person holds a driver
licence or learner permit, disqualify the person from obtaining
one. The restructure mostly re-enacts the existing section 89(4)
but makes clear that an offender who is a resident in another
Australian state or territory or in another country may or must be
disqualified from driving a motor vehicle on road in Victoria in
accordance with the section.
Subclause (8) inserts a new definition of serious motor vehicle
offence. The new definition mirrors the offences currently listed
in section 89(1) of the Sentencing Act 1991.
Clause 65 inserts a new section 89AB that gives courts new powers to
impose driver licence penalties for any offence.
The powers are suspension or cancellation of driver licences or
learner permits and disqualification of the offender from
obtaining one or from driving a motor vehicle on a road in
Victoria.
New subsection (1) empowers courts to suspend or cancel driver
licences and disqualify offenders from obtaining a Victorian
driver licence or learner permit. In relation to an offender who is
a resident in another Australian state or territory or in another
country, they may be disqualified from driving on a road in
Victoria. These powers apply where the person is found guilty or
convicted of any offence. For example, this power may
39
exercised in relation to offences against the person under the
Crimes Act 1958.
New subsection (2) excludes the operation of the new powers to
certain offences. The purpose is to preserve existing laws that
deal with driver licences suspension, cancellations and
disqualifications. The new subsection preserves existing driver
licence laws under Division 3 of Part 4 of the Sentencing Act
1991, and under the Road Safety Act 1986.
The suspension or cancellation of driver licences and
disqualification of persons from obtaining a driver licence under
section 89 of the Sentencing Act 1991 and under the Road
Safety Act 1986 or regulations or rules made under that Act are
preserved.
For example, the laws providing for mandatory cancellation of a
driver licence or learner permit and disqualification of a person
for culpable driving under the section 89 of Sentencing Act 1991
are preserved (including as amended by clause 64).
The laws relating to suspension or cancellation of a driver licence
and disqualification of a person for an offence in connection with
driving or being in charge of a motor vehicle under the Road
Safety Act 1986 are preserved. This includes preserving
penalties for driving offences involving alcohol or drugs and
driving offences under Part 5 and 6 of that Act respectively.
It also includes preserving the discretionary power of a court to
suspend or cancel a driver licence and disqualify a person in
accordance with section 28 of that Act.
Where a the driver licence of a person is suspended or cancelled
or disqualified the person is disqualified under section 89AB the
person becomes subject to the Road Safety Act 1986. If an
offender fails to comply with the order not to drive they may be
charged for the offences of unlicensed driving or drive while
disqualified or suspended under the Road Safety Act 1986.
If that offence is committed during the period of a sentence, this
may have other consequences. For example, if a CCO or
suspended sentence is in force this offence will contravene
sections 83AB (contravention of suspended sentence), 83AD
(contravention of CCO) and activates the sentencing powers of
the court in sections 83AR (re-sentencing for contravention of
suspended sentence) and 83AS (re-sentencing for contravention
of CCO).
40
New section 89AC empowers a court to make a finding about
alcohol or drugs in relation to the offence in section 89AB and
requires that finding be immediately sent to the Roads
Corporation. This finding enlivens a discretion in the
Magistrates' Court, on re-licensing a person who has previously
been disqualified from driving due to that offence or offences, to
impose an alcohol interlock condition on the driver licence under
new section 89B.
New section 89AD provides for a default 3 month
disqualification period where the disqualification is not specified
by the court in new section 89AB and provides for the
commencement of that disqualification.
New section 89AE provides that an offender in section 89AB
may only be re-licensed by order of the Magistrates' Court and
sets out the application process.
New section 89AF provides the Magistrates' Court may grant or
refuse to grant a driver licence or learner permit to the applicant
under section 89AE after hearing certain evidence.
New section 89AG sets out a presumption in favour of
concurrency where there are overlapping suspensions or
disqualifications under the Sentencing Act 1991 and the Road
Safety Act 1986. The presumption does not apply where the
Road Safety Act 1986 or regulations or rules (under section 95D
of that Act) require the suspension or disqualification to be
consecutive. For example, section 25 of the Road Safety Act
1986 requires suspensions imposed by demerit points to be
consecutive on any other suspension.
Under new section 89AH a driver licence or learner permit is
taken to be cancelled where a court fails to do so upon
disqualifying the offender from obtaining a driver licence or
learner permit under Division 3 of Part 4 of the Sentencing Act
1991.
New section 89AI requires that a court order made under
section 89 or new 89AB of the Sentencing Act 1991 to be sent
be immediately to the Roads Corporation.
41
Clause 66 amends section 89A of the Sentencing Act 1991. Subclause (1)
substitutes the heading to section 89A. Subclause (2) updates
section 89A(1)(a) to reflect the broader application of
disqualification under section 89, that is to a person who held a
Victorian learner permit, and disqualification from driving a
motor vehicle on a road in Victoria if the offender is a resident
in another Australian state or territory or in another country.
Clause 67 substitutes sections 89B to 89D of the Sentencing Act 1991 with
new provisions dealing with alcohol interlock conditions.
The new provisions confirm existing arrangements under existing
section 89A and 89B of the Sentencing Act 1991 regarding
alcohol interlock conditions imposed for a serious motor vehicle
offence committed under the influence of alcohol.
The new provisions extend the operation of alcohol interlock
conditions to any offence committed under the influence of
alcohol under new section 89AB of the Sentencing Act 1991.
New section 89B provides for imposition of an alcohol interlock
condition on an offender for an offence under section 89AB who
are subsequently granted a driver licence by the Magistrates'
Court. New section 89AB section applies to any offence other
than an offence under section 89 of the Sentencing Act 1991 and
other than an offence under the Road Safety Act 1986 or
regulations or rules made under that Act. The period of the
alcohol interlock condition under section 89B is the period
specified by the court. The alcohol interlock condition is
automatically accompanied by a zero alcohol concentration
condition on the driver licence as a result of amendments made
by clause 105 to the Road Safety Act 1986.
New section 89C replicates the existing provisions on alcohol
interlock conditions imposed on offenders under section 89A of
the Sentencing Act 1991 who are subsequently granted a driver
licence by the Magistrates' Court. New section 89C replicates
existing section 89B of the Sentencing Act 1991.
New section 89D sets out the procedure for removal of an alcohol
interlock condition by order of the Magistrates' Court.
New section 89DA provides for appeals to the County Court of
Victoria against the imposition of, or period of, an alcohol
interlock condition.
42
New section 89DB provides for an offence and immobilisation
orders in respect of contravention of an alcohol interlock
condition imposed under Division 3 of Part 4 of the Sentencing
Act 1991.
Clause 68 inserts a provision on delegation of the Secretary powers in
respect of the CCO under Part 3A and contravention of a
sentence under Part 3C of the Sentencing Act 1991. In respect
of the delegations regarding Division 3 of Part 3C, the persons to
whom powers and duties may be delegated are limited to senior
officers, namely employees of the Department of Justice of level
Grade 6 or higher.
Clause 69 inserts new sections 115C-115E, which provide that the offences
under sections 83AE and 83AF are infringeable.
New section 115C provides that the infringement penalty for an
offence against section 83AE or 83AF of the Sentencing Act
1991 is one penalty unit.
New section 115D provides authorised persons with the power to
issue infringement notices within the meaning of the
Infringements Act 2006 in respect of offences against new
section 83AE or new section 83AF.
New section 115E allows the Secretary to appoint an authorised
person who may issue infringement notices.
Clause 70 amends the Sentencing Act 1991 to insert further transitional
arrangements into Schedule 3 of that Act. Schedule 3 is inserted
by clause 54. Clause 70 inserts further clauses relating to the
amendments contained in Part 3 of this amending Bill.
New clause 14 of new Schedule 3 provides the bond condition in
new section 48JA applies to a sentence imposed from the
commencement of clause 58. The bond condition may be
imposed as part of a CCO irrespective of when the offence was
committed or when the finding of guilt was made.
New clause 15 of new Schedule 3 provides that a direction given
by the Secretary under new Division 3 of new Part 3C applies
prospectively. That is, the direction power may only be
exercised by the Secretary in relation to a failure to comply with
the CCO alleged to have been committed on or after the
commencement of clause 60. New clause 15 also makes clear an
alleged to failure to comply with the CCO that overlaps with the
43
commencement date is deemed to have committed before that
date and hence the Secretary's power does not apply.
New clause 16 of new Schedule 3 deals with transitional
arrangements for the amendments made to section 89 of the
Sentencing Act 1991 by clause 64 in respect of an offence under
that section. Subclause (1) provides the amendments apply
prospectively to such offences. Subclause (2) provides an where
those offences are alleged to have been committed and they
overlap with the commencement date of clause 64, the offence is
deemed to alleged to have been committed before that date.
New clause 17 of new Schedule 3 deals with transitional
arrangements for the new section 89AB and new associated
sections inserted by clause 65. Subclause (1) provides the
amendments apply prospectively to such offences. Subclause (2)
provides an where those offences are alleged to have been
committed and they overlap with the commencement date of
clause 65, the offence is deemed to alleged to have been
committed before that date.
PART 4--AMENDMENT OF THE SENTENCING
AMENDMENT ACT 2010
Clause 71 repeals section 3(1)(b) to (e) of the Sentencing Amendment Act
2010. Sections 3(1)(b) to (d) sought to repeal the definitions of
community service condition, intensive correction order, and
combined custody and treatment order. These changes have
now been made in this Bill. Section 3(1)(e) sought to substitute
"an intensive correction order" with "an intensive correction
management order" in the definition of Regional Manager.
Clauses 72 to 92 repeal sections 4 to 11, 13 to 20, and 22 to 26 of the
Sentencing Amendment Act 2010.
Sections 1, 2, 3(a), 12, 27 and 28 of the Sentencing Amendment
Act 2010 commenced by proclamation on 1 May 2011.
The remaining sections 3, 21, 29 and 30 will commence by
default on 1 January 2012.
44
PART 5--AMENDMENTS TO OTHER ACTS
Clause 93 insert new subsections into section 17 of the Family Violence
Protection Act 2008. New subsections 17(7A) and (7B) require
a police officer notify the Secretary to the Department of Justice
that an offender who is subject to a CCO (with a residence
restriction or exclusion condition or curfew condition attached)
that they have been directed or apprehended or detained under
that Act. This ensures the Secretary is notified of any family
violence matter that may be relevant to (including inconsistent
with or contravene) a CCO which contains conditions relating to
the home of the offender or the home of other persons specified
in that order.
Clause 94 inserts a new paragraph into section 24 of the Family Violence
Protection Act 2008. This provides a police officer may issue a
family violence safety notice if (among other matters contained
in section 24) the officer has no reasonable grounds for
suspecting there is a CCO under the Sentencing Act 1991 in
force that may be inconsistent with the proposed terms of the
notice.
Clause 95 inserts new section 175A into the Family Violence Protection
Act 2008. It provides that a family violence order prevails over
an existing CCO to the extent of any inconsistency. The rule of
inconsistency only applies where the CCO has a residence
restriction or exclusion condition, place or area exclusion
condition or curfew condition attached to it.
Clause 96 substitutes section 118(2) of the Infringements Act 2006.
It provides that periods of suspension of a driver licence or
registration of a motor vehicle or trailer under that Act are
concurrent with periods of suspension or non-renewal under the
Road Safety Act 1986 or periods of suspension under Division 3
of Part 4 of the Sentencing Act 1991.
Clause 97 to 98 substitute references to CBOs with references to the fine
conversion order or fine default unpaid community work order in
sections 151 and 160(3)(e) of the Infringements Act 2006.
Definitions for these orders are also inserted.
45
Clause 99 repeals unproclaimed amendments made by the Justice
Legislation Amendment Act 2010. Specifically, sections 9, 13,
18, 20, 21 and 22 of that Act will be repealed.
Clause 100 inserts new section 130A into the Personal Safety Intervention
Orders Act 2010. It provides that a personal safety intervention
order prevails over an existing CCO to the extent of any
inconsistency. The rule of inconsistency only applies where the
CCO has a residence restriction or exclusion condition, place or
area exclusion condition or curfew condition attached to it.
Clause 101 amends section 19 of the Road Safety Act 1986 to extend the
offence of failing to carry a driver licence while driving or being
in charge of a motor vehicle to a person who holds a driver
licence with an alcohol interlock condition imposed under
section 89B of the Sentencing Act 1991.
Clause 102 amends section 28B of the Road Safety Act 1986 to extend the
offence that a person who is disqualified from obtaining a driver
licence or permit under that Act or the Infringements Act 2006
to include a person who is disqualified under the Sentencing Act
1991.
Clause 103 amends section 50AAH(5) of the Road Safety Act 1986 to
extend the cancellation of approval of types of alcohol interlocks
to alcohol interlocks under section 89B of the Sentencing Act
1991.
Clause 104 amends section 50AAI(4) of the Road Safety Act 1986 to extend
the cancellation of approval of suppliers of alcohol interlocks to
alcohol interlocks under section 89B of the Sentencing Act
1991.
Clause 105 amends section 52 of the Road Safety Act 1986 to extend the
application of zero alcohol concentration conditions to a driver
licence subject to an alcohol interlock condition imposed under
section 89B of the Sentencing Act 1991. The period of the zero
alcohol concentration condition is the period of the alcohol
interlock condition specified by the court under section 89B and
until the condition is removed by the Roads Corporation pursuant
to the order of the Magistrates' Court under section 89D of the
Sentencing Act 1991.
46
Clause 106 amends section 59 of the Road Safety Act 1986 to extend the
requirement to produce a driver licence upon request to persons
who obtained a driver licence by order of the Magistrates' Court
after being previously disqualified under the Sentencing Act
1991.
PART 6--CONSEQUENTIAL AND OTHER AMENDMENTS
Clause 107 provides that the consequential amendments to other Acts come
into effect on the commencement of the relevant item in the
Schedule to the Bill.
PART 7--REPEAL OF AMENDING ACT
Clause 108 provides for repeal of the Bill on the 30 June 2014. This repeal
does not affect the continuing operation of the amendments made
by the Bill.
SCHEDULE
Clause 1 substitutes a reference to the CBO with a reference to the CCO in
section 97(1)(b) of the Conservation, Forests and Lands Act
1987.
Clause 2 amends sections 3(1) and 94(4) of the Corrections Act 1986 to
include a reference to the CCO and revise references to CBOs,
ICOs and CCTOs.
Clause 3 amends section 78(1)(f) of the County Court Act 1958 to
include a reference to the CCO and remove references to CCTOs
and ICOs.
Clause 4 amends sections 87(2), 268(1) and 322 of the Criminal
Procedure Act 2009 to substitute references to the CBO with
references to the CCO and update the reference to the relevant
Division of the Sentencing Act 1991.
Clause 5 amends section 32G(1)(b) of the Evidence (Miscellaneous
Provisions) Act 1958 to substitute a reference with the new
Division 1A of Part 3 of the Sentencing Act 1991, which deals
with pre-sentence reports.
47
Clause 6 amends the definition of prohibited person and term of
imprisonment definition 3(1) of the Firearms Act 1996.
The amendments insert a reference to the CCO, revise the
reference to the CBO, and clarify that a term of imprisonment
includes a CCTO as in force before the order was abolished.
Clause 7 amends clauses 3 and 4 of Schedule 1 of the Juries Act 2000 to
include a reference to the CCO and revise references to CBOs.
Clause 8 amends section 16I(b) of the Magistrates' Court Act 1989.
The amendments remove the reference to an ICO and insert a
reference to the CCO.
Clause 9 amends section 85AW of the Marine Act 1988 to substitute
references to "breach" with "contravention" and update
references to provisions dealing with adjourned undertakings.
Clause 10 amends section 138 of the Occupational Health and Safety Act
2004 to substitute references to "breach" with "contravention"
and update references to provisions dealing with adjourned
undertakings.
Clause 11 amends the definition of community-based disposition and
custodial sentence in section 3 of the Serious Sex Offenders
(Detention and Supervision) Act 2009. The amendments are to
include references to the CCO and revise references to CBOs,
ICOs and CCTOs. A reference to a decision made under section
83AR(1)(a) or (b) of the Sentencing Act 1991 is also inserted
into the definition of custodial sentence. Those sections provide
that on finding an offender guilty of contravening a suspended
sentence, the court may order the offender to serve the remaining
time in jail or extend the suspension for 12 months if the offender
had a wholly suspended sentence.
Clause 12 amends the definitions of community service order and
employment in section 3 of the Sex Offenders Registration Act
2004. The amendments include inserting references to the CCO,
revise references to CBOs, ICOs and CCTOs and capture work
performed under a fine conversion order or fine default unpaid
community work order within the definition of employment.
Clause 13 amends sections 34, 39(3)(c) and 40(3)(c) of the Sheriff Act
2009 to revise references to CBOs and insert references to fine
conversion orders and fine default unpaid community work
orders.
48
Clause 14 amends section 230F of the Transport (Compliance and
Miscellaneous) Act 1983 to substitute references to "breach"
with "contravention" and update references to provisions dealing
with adjourned undertakings.
Clause 15 amends the note at the foot of section 13(1) of the Victims'
Charter Act 2006 to substitute reference to new Division 1A of
Part 3 of the Sentencing Act 1991, which deals with
pre-sentence reports.
Clause 16 amends section 9(1)(c) of the Working with Children Act 2005
to insert a reference to the CCO, revise references to CBOs, ICOs
and CCTOs and capture work performed under a fine conversion
order or fine default unpaid community work order within the
definition of child-related work.
49