Victorian Consolidated Legislation

Sentencing Act 1991 - SECT 18ZR

Appeals

18ZR. Appeals



(1) On the hearing of an appeal under section 83 or 84 of the
Magistrates' Court Act 1989 against a sentencing order made by the
Magistrates' Court (including the Drug Court), the County Court cannot itself
make a drug treatment order, despite anything to the contrary in section 86(1)
of that Act.

(2) Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989,
and Schedule 6 to that Act, apply with respect to appeals to the County Court
against any sentencing order made by the Drug Court with the following
modifications-

   (a)  an appeal does not lie against-

   (i)  a refusal of the Drug Court to make a drug treatment order; or

   (ii) a finding that an offender has failed to comply with a condition
        attached to a drug treatment order; or

   (iii) the variation of the treatment and supervision part of a drug
        treatment order; or

   (iv) the cancellation of the treatment and supervision part, or the
        custodial part, of a drug treatment order;

   (b)  if the appeal is against the custodial part of the drug treatment
        order and not against the treatment and supervision part of the order,
        the appeal does not operate as a stay of the drug treatment order,
        unless the County Court so orders.

(3) For the purposes of Subdivision 1 of Division 4 of Part 4 of the
Magistrates' Court Act 1989, and Schedule 6 to that Act, an order under this
Subdivision activating some or all of the custodial part of a drug treatment
order is taken to be a sentencing order made by the Drug Court.

(4) Despite subsection (1), on the hearing of an appeal under section 83 or 84
of the Magistrates' Court Act 1989 against a drug treatment order made by the
Drug Court, the County Court may-

   (a)  re-instate the drug treatment order set aside by it under section
        86(1)(a) of that Act; or

   (b)  if the appeal is against the custodial part of the drug treatment
        order, re-instate that part set aside by it under section 86(1)(a) of
        that Act or vary the drug treatment order by increasing or reducing
        the length of the sentence of imprisonment.

(5) On the hearing of an appeal under section 83 or 84 of the
Magistrates' Court Act 1989 against a sentencing order made by the
Magistrates' Court (other than the Drug Court) at a particular venue of that
Court, if the County Court considers that the making of a drug treatment order
may be appropriate, it may refer the matter to the Drug Court at that or
another venue for consideration of the making of such an order, with or
without any direction in law.

(6) However, if the offender has a usual place of residence, the County Court
may only refer a matter under subsection (5) to the Drug Court at a venue if
the offender's usual place of residence is within a postcode area specified,
in relation to that venue, by the Minister by notice published in the
Government Gazette.

(7) Despite anything to the contrary in the Magistrates' Court Act 1989, a
venue of the Magistrates' Court to which a matter is referred under subsection
(5) is the proper venue of that Court in relation to that matter for the
purposes of that Act.

(8) If a matter is referred to the Drug Court under subsection (5) but the
Drug Court determines not to make a drug treatment order, the Drug Court must
remit the matter to the County Court for the making of any order under
section 86(1) of the Magistrates' Court Act 1989 which the County Court can
make.

(9) If a matter is referred to the Drug Court under subsection (5) and the
Drug Court makes a drug treatment order, the order has effect for the purposes
of Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989 as
if it were a sentencing order made by the County Court on the hearing of the
appeal but for all other purposes has effect as an order of the Drug Court.