Criminal Procedure Legislation Amendment Act 2008

Criminal Procedure Legislation Amendment Act 2008

No. 8 of 2008

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Sentence Discounts and Sentence Indications

3New section 6AAA inserted in Sentencing Act 1991

6AAASentence discount for guilty plea

4New section 362A inserted in Children, Youth and Families Act 2005

362ASentence discount for guilty plea

5New section 50A inserted in Magistrates' Court Act1989

50ASentence indication

6Supreme Court—limitation of jurisdiction

7New section 23A inserted in Crimes (Criminal Trials)
Act 1999

23ASentence indication

8New section 32A inserted in Crimes (Criminal Trials)
Act 1999

32ASupreme Court—limitation of jurisdiction

9Rule-making power of Supreme Court judges

10Rule-making power of County Court judges

11Rule-making power of Magistrates

12Repeal of provisions concerning sentence indications in
Supreme Court and County Court

Part 3—Miscellaneous Amendments

13Common law offence of wilful exposure

14Summons issued by prescribed persons

15Contest mention hearings

3AContest mention hearing

16Committal proceedings

17Wilful damage

18New section 135 inserted in Sentencing Act 1991

135Transitional provision—Criminal Procedure Legislation Amendment Act 2008

19New section 607 inserted in Children, Youth and Families Act2005

607Transitional provision—Criminal Procedure Legislation Amendment Act 2008

20Amendment of Schedule 8 to the Magistrates' Court
Act 1989

21New section 34 inserted in Crimes (Criminal Trials)
Act 1999

34Transitional provision—Criminal Procedure Legislation Amendment Act 2008

22Statute law revision

23Repeal of amending Act

═══════════════

Endnotes

SectionPage

Victoria

SectionPage

Criminal Procedure Legislation Amendment Act 2008[†]

No. 8 of 2008

[Assented to 18 March 2008]

Criminal Procedure Legislation Amendment Act 2008
No. 8 of 2008

The Parliament of Victoriaenacts:

Part 3—Miscellaneous Amendments

Criminal Procedure Legislation Amendment Act 2008
No. 8 of 2008

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to enable courts to give sentencing indications and to identify sentence discounts;

(b)to abolish reserved pleas;

(c)to amend the obligation to strike out a charge for a summary offence when the charge-sheet and summons have not been filed within time;

(d) to amend the penalty for the common law offence of exposure;

(e)to amend the summary offence of wilful damage;

(f) to make other minor amendments.

2Commencement

s. 2

(1)This Part and section 22(2) come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Section 22(1)is deemed to have come into operation on 23April 2007.

(3)Section 12 comes into operation on 1July 2010.

(4) Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(5) If a provision referred to in subsection (4) does not come into operation before 1 July 2008, it comes into operation on that day.

______

Part 2—Sentence Discounts and Sentence Indications

See:
Act No.
49/1991.
Reprint No. 10
as at
23 April 2007
and amending
Act Nos
97/2005, 23/2006, 24/2006 and 56/2007.
LawToday:
www.
legislation.
vic.gov.au

3New section 6AAA inserted in Sentencing Act 1991

s. 3

In Part 2 of the Sentencing Act 1991, after section 6 insert—

"6AAA Sentence discount for guilty plea

(1)If—

(a)in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and

(b)the sentence imposed on the offender is or includes—

(i)an order under Division 2 of Part3; or

(ii) a fine exceeding 10 penalty units; or

(iii)an aggregate fine exceeding 20penalty units—

the court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.

(2)If an offender is sentenced for more than one offence in the same proceeding and subsection (1)(a) and (b) apply, the court must state,in respect of any total effective period of imprisonment—

(a)the sentence; and

(b)the non-parole period, if any—

that it would have imposed but for the plea of guilty and need not state those matters in respect of each offence.

(3)In the case of a sentence other than a sentence referred to in subsection (1)(b), the court may state the sentence that it would have imposed but for the plea of guilty.

(4)If the court makes a statement under this section, it must cause to be noted in the records of the court, in respect of each offence and the total effective period of imprisonment, if any, the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.

(5)For the purposes of this section, an aggregate sentence imposed in respect of two or more offences is to be treated as a sentence imposed in respect of one offence.".

s. 4

See:
Act No.
96/2005.
Reprint No. 1
as at
23 April 2007
and amending
Act Nos
97/2005, 23/2006, 24/2006, 51/2006, 81/2006, 24/2007, 28/2007 and 56/2007.
LawToday:
www.
legislation.
vic.gov.au

4New section 362A inserted in Children, Youth and Families Act 2005

After section 362 of the Children, Youth and Families Act 2005 insert—

"362A Sentence discount for guilty plea

(1)If—

(a)in sentencing a child, the Court imposes a less severe sentence than it would otherwise have imposed because the child pleaded guilty to the offence; and

(b)the sentence imposed on the child is or includes—

(i) a youth attendance order; or

(ii) a youth residential centre order; or

(iii)a youth justice centre order—

the Court must statein respect of—

(c)each offence; or

(d)if an aggregate sentence is imposed in respect of two or more offences, those offences—

the sentence that it would have imposed but for the plea of guilty.

(2) In the case of a sentence other than a sentence referred to in subsection (1)(b), the Court may state the sentence that it would have imposed but for the plea of guilty.

s. 4

(3)If the Court makes a statement under this section, it must cause to be noted in the records of the Court, in respect of—

(a)each offence;or

(b)if an aggregate sentence is imposed in respect of two or more offences, those offences—

the sentence that it would have imposed but for the plea of guilty.

(4)The failure of the Court to comply with this section does not invalidate any sentence imposed by it.

(5)Nothing in subsection (4) prevents a court on an appeal against sentence from reviewing a sentence imposed by the Court in circumstances where there has been a failure to comply with this section.".

See:
Act No.
51/1989.
Reprint No. 13
as at
15 August 2007
and amending
Act Nos
77/2004, 62/2005, 51/2006, 50/2007, 52/2007 and 53/2007.
LawToday:
www.
legislation.
vic.gov.au

5New section 50A inserted in Magistrates' Court Act1989

s. 5

In Subdivision 1 of Division 2 of Part 4 of the Magistrates' Court Act 1989, after section 50 insert—

"50A Sentence indication

(1)At any time during a proceeding for a summary offence or an indictable offence that may be heard and determined summarily, the Court may indicate that, if the defendant pleads guilty to the charge for the offence at that time, the Court would be likely to impose on the defendant—

(a)a sentence of imprisonment that commences immediately; or

(b)a sentence of a specified type.

(2)If—

(a)the Court gives a sentence indication under subsection (1); and

(b)the defendant pleads guilty to the charge for the offence at the first available opportunity—

the Court, when sentencing the defendant for the offence, must not impose a more severe type of sentence than the type of sentence indicated.

(3)If—

(a)the Court gives a sentence indication under subsection (1); and

(b)the defendant does not plead guilty to the chargefor the offence at the first available opportunity—

the Court that hears and determines the charge must be constituted by a different magistrate, unless all the parties otherwise agree.

Note

Section 126 enables the Court to close a proceeding to the public.

(4)A sentence indication does not bind the Court on any hearing before the Court constituted by a different magistrate.

(5)A decision to give or not to give a sentence indication is final and conclusive.

(6)An application for a sentence indication and the determination of the application are not admissible in evidence against the defendant in any proceeding.

(7)This section does not affect any right to appeal against sentence.".

6Supreme Court—limitation of jurisdiction

s. 6

After section 139A(3) of the Magistrates' Court Act 1989 insert—

"(4)It is the intention of section 50A(5) to alter or vary section 85 of the Constitution Act 1975.".

See:
Act No.
35/1999
and amending
Act Nos
53/2000, 18/2005, 2/2006 (as amended by No. 76/2006) and 50/2006.
LawToday:
www.
legislation.
vic.gov.au

7New section 23A inserted in Crimes (Criminal Trials) Act 1999

s. 7

After section 23 of the Crimes (Criminal Trials) Act 1999 insert—

"23A Sentence indication

(1)At any time after the filing of the presentment, the court may indicate that, if the accused pleads guilty to the charge on the presentment at that time or another charge, the court would or would not (as the case may be) be likely to impose on the accused a sentence of imprisonment that commences immediately.

(2) A sentence indication under subsection (1)—

(a)may be given only on the application of the accused; and

(b)may be given only once during the proceeding, unless the prosecutor otherwise consents.

(3)An application under subsection (2)(a) may be made only with the consent of the prosecutor.

(4)If an application under subsection (2)(a) is made in respect of a charge that is not on the presentment, the accused must specify the charge in the application.

(5)The court may refuse to give a sentence indication under subsection (1).

(6)If—

(a)the court indicates that it would not be likely to impose on the accused a sentence of imprisonment that commences immediately; and

(b)the accusedpleads guilty to the charge for the offence at the first available opportunity—

the court, when sentencing the accused for the offence, must not impose a sentence of imprisonment that commences immediately.

(7)If—

(a)the court gives a sentence indication under subsection (1); and

(b)the accused does not plead guilty to the charge for the offence at the first available opportunity—

s. 7

at trial the court must be constituted by a different judge, unless all the parties otherwise agree.

Note

Section 18 of the Supreme Court Act 1986 and section 80 of the County Court Act 1958 enable the court to close a proceeding to the public.

(8)A sentence indication does not bind the court on any hearing before the court constituted by a different judge.

(9)A decision to give or not to give a sentence indication is final and conclusive.

(10)An application for a sentence indication and the determination of the application are not admissible in evidence against the accused in any proceeding.

(11) This section does not affect any right to appeal against sentence.".

8New section 32A inserted in Crimes (Criminal Trials) Act 1999

s. 8

After section 32 of the Crimes (Criminal Trials) Act 1999 insert—

"32A Supreme Court—limitation of jurisdiction

It is the intention of section 23A(9) to alter or vary section 85 of the Constitution Act 1975.".

9Rule-making power of Supreme Court judges

See:
Act No.
110/1986.
Reprint No. 6
as at
28 April 2006
and amending
Act Nos
48/2006 and 24/2007.
LawToday:
www.
legislation.
vic.gov.au

After section 25(1)(ec) of the Supreme Court Act 1986 insert—

"(ed)any matter relating to sentence indications in criminal proceedings;".

10Rule-making power of County Court judges

See:
Act No.
6230.
Reprint No. 12
as at
28 April 2006
and amending
Act Nos
22/2006, 50/2006, 24/2007, 26/2007 and 28/2007.
LawToday:
www.
legislation.
vic.gov.au

After section 78(1)(hg) of the County Court Act 1958 insert—

"(hh)any matter relating to sentence indications in criminal proceedings;".

11Rule-making power of Magistrates

s. 11

After section 16(1A)(c) of the Magistrates' Court Act 1989 insert—

"(ca)any matter relating to sentence indications under section 50A;".

12Repeal of provisions concerning sentence indications in Supreme Court and County Court

(1)Sections 23A and 32A of the Crimes (Criminal Trials) Act 1999 are repealed.

(2)Section 25(1)(ed) of the Supreme Court Act 1986 is repealed.

(3)Section 78(1)(hh) of the County Court Act 1958 is repealed.

______

Part 3—Miscellaneous Amendments

13Common law offence of wilful exposure

s. 13

See:
Act No.
6231.
Reprint No. 19
as at
1 December 2006
and amending
Act Nos
16/2004, 97/2005, 23/2006, 48/2006, 50/2006, 32/2007 and 50/2007.
LawToday:
www.
legislation.
vic.gov.au

In the Table in section 320 of the Crimes Act 1958, after the offence of Unlawful assemblyinsert—

"Wilful exposure / Level 6 imprisonment(5years maximum).".

14Summons issued by prescribed persons

For section 30(3) of the Magistrates' Court Act1989 substitute—

"(3)Subject to subsection (4), if it appears to the Court that subsection (2)(a) has not been complied with in relation to a proceeding, the Court may strike out the charge.

Note

Section 131 permits the Court to award costs if a proceeding is struck out.".

15Contest mention hearings

After clause 3 of Schedule 2 to the Magistrates' Court Act 1989 insert—

"3A Contest mention hearing

(1)This clause applies to a proceeding for a summary offence or an indictable offence that may be heard and determined summarily.

(2)The Court may, between the mention date and the day on which the charge is due to be heard, from time to time on the application of a party or on its own motion, conduct a contest mention hearing.

(3)At a contest mention hearing, the Court may—

(a)require the parties to provide an estimate of the time expected to be needed for the hearing of the charge;

(b)require the parties to advise as to the estimated number and the availability of witnesses for the hearing of the charge, not including the defendant as a witness, and whether any witnesses are from interstate or overseas;

s. 15

(c)requesteach party to indicate the evidence it is proposed to adduce and to identify the issues in dispute;

(d) require the defendant to advise whether the defendant is legally represented and has funding for continued legal representation up to and including the hearing of the charge;

(e)require the parties to advise whether there are any particular requirements of, or facilities needed for, witnesses and interpreters;

(f)order a party to make, file in Court or serve (as the case requires) any written or oral material required by the Court for the purposes of the proceeding;

(g)allow a party to amend a document that has been prepared by or on behalf of that party for the purposes of the proceeding;

(h) if the Court considers that it is in the interests of justice to do so, dispense with or vary any requirement imposed on a party by or under section 37 or37A or clause 1A or 1B of this Schedule;

(i)require or request a party to do anything else for the case management of the proceeding.

(4)The defendant in person must be present at the first contest mention hearing and, except with the leave of the Court, at any subsequent contest mention hearing.".

16Committal proceedings

s. 16

In clause 24(1) of Schedule 5 to the Magistrates' Court Act 1989, before paragraph (a) insert—

"(aa) in the manner prescribed by the rules of court—

(i)ask the defendant whether the defendant pleads guilty or not guilty to the charge; and

(ii)inform the defendant that the sentencing court may take into account a plea of guilty and the stage in the proceeding at which the plea or an intention to plead guilty is indicated; and".

17Wilful damage

s. 17

See:
Act No.
7405.
Reprint No. 9
as at
14 September 2005
and amending
Act Nos
16/2004, 97/2005, 23/2006, 24/2006, 32/2006, 63/2006 and 49/2007.
LawToday:
www.
legislation.
vic.gov.au

In section 9(1)(c) of the Summary Offences Act1966, for "$500" substitute "$5000".

18New section 135 inserted in Sentencing Act 1991

After section 134 of the Sentencing Act 1991 insert—

"135 Transitional provision—Criminal Procedure Legislation Amendment Act 2008

Section 6AAA as inserted by section 3 of the Criminal Procedure Legislation Amendment Act 2008applies to a sentence imposed on or after the commencement of section 3 of that Act if the plea hearing commences on or after that commencement.".

19New section 607 inserted in Children, Youth and Families Act2005

s. 19

After section 606 of the Children, Youth and Families Act 2005 insert—

"607 Transitional provision—Criminal Procedure Legislation Amendment Act 2008

Section 362A as inserted by section 4 of the Criminal Procedure Legislation Amendment Act 2008applies to a sentence imposed on or after the commencement of section 4 of that Act if the plea hearing commences on or after that commencement.".

20Amendment of Schedule 8 to the Magistrates' Court Act 1989

After clause 38 in Schedule 8 to the Magistrates' Court Act 1989 insert—

"39Section 50A as inserted by section 5 of the Criminal Procedure Legislation Amendment Act 2008 applies with respect to a proceeding for an offence, irrespective of when the offence was committed or the proceeding commenced.

40Clause 3A of Schedule 2 as inserted by section 15 of the Criminal Procedure Legislation Amendment Act 2008 applies to a contest mention hearing conducted on or after the commencement of section 15 of that Act.

41The amendment of this Act by section 16 of the Criminal Procedure Legislation Amendment Act 2008 applies with respect to a defendant committed for trial on or after the commencement of section 16 of that Act.".

21New section 34 inserted in Crimes (Criminal Trials) Act 1999

s. 21

After section 33A of the Crimes (Criminal Trials) Act 1999 insert—

"34 Transitional provision—Criminal Procedure Legislation Amendment Act 2008

(1)Section 23A as inserted by section 7 of the Criminal Procedure Legislation Amendment Act 2008 applies with respect to a proceeding for an offence, irrespective of when the offence was committed or the proceeding commenced.

(2)If on the commencement of section 12 of the Criminal Procedure Legislation Amendment Act 2008 a presentment has been filed but the proceeding has not concluded, section 23A and any rules made relating to sentence indications continue to apply to the proceeding as if section 23A had not been repealed.".

22Statute law revision

(1)In sections 48(4)(k), 49(4)(k) and 58(6)(k) of the Crimes Act 1958, for "youth training centre" substitute "youth justice centre".

(2)In the Children, Youth and Families Act 2005—

(a)in section 357(1), after "charge" insert
"for an offence";

(b)in the heading to section 425, for "Full Court" substitute "Court of Appeal";

(c)in the heading to section 426, for "Full Court" substitute "Court of Appeal";

(d)in section 529(1)(b)(ii), for "3;" substitute "3—".

23Repeal of amending Act

s. 23

This Act is repealed on 1 July 2011.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Criminal Procedure Legislation Amendment Act 2008
No. 8 of 2008

Endnotes

[†] Minister's second reading speech—

Legislative Assembly: 22 November 2007

Legislative Council: 6 December 2007

The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005, the County Court Act 1958, the Crimes Act 1958, the Crimes (Criminal Trials) Act 1999, the Magistrates' Court Act 1989, the Sentencing Act 1991, the Summary Offences Act 1966 and the Supreme Court Act 1986 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 22 November 2007

Legislative Council: 6 December 2007

Absolute majorities:

Legislative Assembly: 6 December 2007, 13 March 2007

Legislative Council: 13 March 2007