Courts and Sentencing Legislation Amendment Act 2012

Courts and Sentencing Legislation Amendment Act 2012

No. 26 of 2012

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments to the Children, Youth and Families Act 2005

3Child in custody to be brought before Court or bail justice

4Breach of bail

5Breach of probation

6Breach of youth supervision order

7Breach of youth attendance order

8Jurisdiction of Koori Court (Criminal Division)

9New section 518A inserted

518ACircumstances in which Koori Court (Criminal
Division) may deal with breach of a sentence
imposed by it or by another Division of the
Children's Court

10Circumstances in which a child may be taken into safe custody

11New sections 620 and 621 inserted

620Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

621Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

12Schedule 3 amended—CAYPINS

Part 3—Amendments to the County Court
Act 1958

13Jurisdiction of Koori Court Division

14Dealing with proceedings for certain offences

15New section 4DA inserted

4DACircumstances in which Koori Court Division may
deal with contravention of a sentence imposed by it
or by another Division of the County Court

16New section 48CA inserted

48CAProtection of assessors

17New section 95 inserted

95Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

Part 4—Amendments to the Judicial College of Victoria Act 2001

18Definitions

Part 5—Amendment to the Juries Act 2000

19Jury pools

20Selection of panels

21Information for panel

Part 6—Amendments to the Magistrates'
Court Act 1989

22Jurisdiction of Koori Court Division

23New section 4EA inserted

4EACircumstances in which Koori Court Division may
deal with contravention of a sentence imposed by another Division of the Magistrates' Court

24Circumstances in which the Koori Court Division may deal
with certain offences

25Schedule 8 amended

48Transitional provisions—Courts and Sentencing Legislation Amendment Act 2012

Part 7—Amendments to the Sentencing Act 1991

26Purposes

27Definitions

28Time held in custody before trial etc. to be deducted from sentence

29New section 18ZT inserted

18ZTOrder made by Court of Appeal

30Suspended sentence of imprisonment

31Unpaid community work where there are several orders

42Concurrent unpaid community work where there are several orders

32Terms of a community correction order

33Court may attach conditions

34Residual condition

35Unpaid community work condition

36Application for variation etc. of a community correction
order

37Order made by Court of Appeal

48QOrder made by Court of Appeal

38Heading to Part 3B amended

39Amount of fine where no amount prescribed

40New Division heading inserted

41Application by person fined

42Section 57 repealed

43Section 58 repealed

44Section 59 repealed

45Section 60 repealed

46New Division heading and new section 61A inserted

Division 3—Fines—unpaid community work, default
and imprisonment

61ATerms of a fine conversion order

47Enforcement of fines against natural persons

48Power to make fine default unpaid community work order

49New section 62B inserted

62BTerms of a fine default unpaid community work
order

50New sections inserted after section 63

63AAPeriod of unpaid community work to be performed

63ABCumulative unpaid community work where there
are several orders

63ACPeriod of a fine conversion order or a fine default
unpaid community work order

63ADVariation etc. of fine conversion order or fine
default unpaid community work order

63AEApplication for variation etc. of a fine conversion
order or fine default unpaid community work order

51Warrant to seize property returned unsatisfied

52New Division inserted

Division 4—Miscellaneous matters

64ASuspension by Secretary

64BSecretary may direct offender to report at another
place or to another person

53New sections 66A to 66E inserted

66ANotice of orders to be given

66BOaths

66CApplication of fines etc.

66DPenalty payable to body corporate

66EOrder made by Court of Appeal

54New Part heading inserted

55Division 2 heading amended

56Release on adjournment following conviction

57Release on adjournment without conviction

58Division 3 heading amended

59Residential treatment order

60Division 4 heading amended

61Division 2 heading amended

62Sections 83AG to 83AQ substituted

83AGCommencement of a proceeding

83AHTime for commencing a proceeding

83AIIssue of summons or warrant to arrest

83AJTransfer of a proceeding

83AKIssue of warrant to arrest on failure to comply with
bail or summons

83ALProcess where offender before higher court, orders
of that court

83AMProcess where offender before higher court, orders
of Magistrates' Court

63Powers of court on finding of guilt for contravention of order
as to suspended sentence

64Provisions applying to a superannuation order

65Delegation

66Regulations

67Contravention—Old combined custody and treatment orders

68Contravention—pre-existing home detention orders

69Contravention—Old intensive correction orders

70Contravention—Old community-based orders

Part 8—Amendments to the Sentencing
Amendment (Community Correction Reform)
Act 2011

71Bond condition

Part 9—Amendments to the Supreme Court
Act 1986

72New section 24G inserted

24GProtection of assessors

Part 10—Consequential and Other Amendments

Division 1—Criminal Procedure Act 2009

73Definitions

74Limitations on sentencing in absence of accused

Division 2—Infringements Act 2006

75Powers of the Court

Division 3—Justice Legislation Amendment (Infringement
Offences) Act 2011

76Amendment of commencement provision

77Amendment of repeal provision

Division 4—Sex Offenders Registration Act 2004

78Definitions

Division 5—Summary Offences Act 1966

79Compensation

Part 11—Repeal of Amending Act

80Repeal of amending Act

═══════════════

Endnotes

SectionPage

Victoria

SectionPage

Courts and Sentencing Legislation Amendment Act 2012[†]

No. 26 of 2012

[Assented to 29 May 2012]

Courts and Sentencing Legislation Amendment Act 2012
No. 26 of 2012

The Parliament of Victoriaenacts:

Part 11—Repeal of Amending Act

Courts and Sentencing Legislation Amendment Act 2012
No. 26 of 2012

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to make miscellaneous amendments to the following Acts to improve their operation and for other purposes—

(i) theChildren, Youth and Families Act 2005;

(ii)theCounty Court Act 1958;

(iii)theJudicial College of Victoria Act 2001;

(iv)theJuries Act 2000;

(v)theMagistrates' Court Act 1989;

(vi) theSupreme Court Act 1986; and

(b)to amend the Justice Legislation Amendment (Infringement Offences) Act 2011 to provide for the continuation of certain offences as infringement offences for a further 2 years; and

(i) to make further provision for fine conversion orders and fine default unpaid community work orders; and

(ii)to further provide for procedures for bringing a proceeding for contravention of a sentence; and

(iii)to provide for other matters in that Act; and

(d) to amend the Sentencing Amendment (Community Correction Reform) Act 2011 to further provide for the bond condition of a community correction order; and

(e) to make minor and consequential amendments to other Acts.

2Commencement

s. 2

(1)This Part, Part 4 and Division 3 of Part 10 come into operation on the day after the day on which the Act receives the Royal Assent.

(2)Subject to subsection (3), the remaining provisions of this Actcome into operation on a day or days to be proclaimed.

(3) If a provision of this Act referred to in subsection (2) does not come into operation before 1November 2012, it comes into operation on that day.

s. 2

______

Part 2—Amendments to the Children, Youth and Families Act 2005

3Child in custody to be brought before Court or bail justice

See:
Act No. 96/2005. Reprint No. 3 as at 1January 2011
and amending
Act Nos 51/2006, 53/2010, 27/2011, 29/2011, 54/2011 and 80/2011. LawToday:
www.
legislation.
vic.gov.au

s. 3

(1)In section 346(3)(b) of the Children, Youth and Families Act 2005after "21" insert"clear".

(2)In section 346(5) of the Children, Youth and Families Act 2005after "21" insert"clear".

4Breach of bail

In section 348 of the Children, Youth and Families Act 2005, after "21" insert"clear".

5Breach of probation

(1)In section 384(3)(b)(i) of the Children, Youth and Families Act 2005, after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".

(2)Section 384(4) of the Children, Youth and Families Act 2005 is repealed.

6Breach of youth supervision order

(1)In section 392(3)(b)(i) of the Children, Youth and Families Act 2005 after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".

(2)Section 392(4) of the Children, Youth and Families Act 2005 is repealed.

7Breach of youth attendance order

s. 7

(1)In section 408(7)(b)(i) of the Children, Youth and Families Act 2005 after "office of magistrate" insert "or it is otherwise impracticable for the first-mentioned magistrate to constitute the Court".

(2)Section 408(8) of the Children, Youth and Families Act 2005is repealed.

8Jurisdiction of Koori Court (Criminal Division)

(1)In section 518(b) of the Children, Youth and Families Act 2005, after "such a sentence" insert", in the circumstances set out in section 518A".

(2)After section 518(b) of the Children, Youth and Families Act 2005insert—

"(ba) jurisdiction to deal with a breach of a sentence imposed by the Children's Court (including any offence constituted by such a breach), or a variation of such a sentence, in the circumstances set out in section 518A; and".

9New section 518A inserted

After section 518 of the Children, Youth and Families Act 2005 insert—

"518A Circumstances in which Koori Court (Criminal Division) may deal with breachof a sentence imposed by it or by another Division of the Children's Court

For the purposes of section 518(b) and (ba), the circumstances are—

(a)the child is Aboriginal; and

(b)the offence to which the sentence relates is within the jurisdiction of the Criminal Division, other than a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; and

(c)in the case of an offence constituted by a breach of a sentence referred to in section 518(b) or (ba), the child—

(i) intends to plead guilty to the offence; or

(ii) pleads guilty to the offence; or

(iii)has been found guilty of the offence bythe Criminal Division; and

(d) the child consents to the proceeding being dealt with by the Koori Court (Criminal Division).".

10Circumstances in which a child may be taken into safe custody

s. 10

In section 598(3) of the Children, Youth and Families Act 2005,after"the member of the police force who executed the warrant" insert "oranother member of the police force".

11New sections 620and 621inserted

After section 619 of the Children, Youth and Families Act 2005 insert—

"620 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

Despite the commencement of sections 3 and4 of the Courts and Sentencing Legislation Amendment Act 2012, an order made and in force under section 346 or 348 immediately before that commencement continues in force on and from that commencement as if sections 346 and 348 had not been amended by sections 3 and 4 of that Act.

621 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

This Act as amended by sections 8and 9of the Courts and Sentencing Legislation Amendment Act 2012 applies to a proceeding for an offence or a breach of sentence (including any offence constituted by such a breach) irrespective of whether the offence or breachis alleged to have been committed, or the sentence was imposed, before or on or after the commencement of those sections.".

12Schedule 3 amended—CAYPINS

s. 12

In clause 2 of Schedule 3 to the Children, Youth and Families Act 2005forthe definition of registrarsubstitute—

"registrar means principal registrar or registrar.".

______

Part 3—Amendments to the County Court Act 1958

13Jurisdiction of Koori Court Division

See:
Act No. 6230.
Reprint No. 14 as at
1 August 2010 and amending
Act Nos 34/2010, 47/2010, 64/2010, 50/2011 and 65/2011.
LawToday:
www.
legislation.
vic.gov.au

s. 13

(1)In section 4B(b) of the County Court Act 1958—

(a)for "breach" (wherever occurring) substitute "contravention";

(b)after "such a sentence" insert ", in the circumstances set out in section 4DA".

(2) Aftersection 4B(b) of the County Court Act 1958insert—

"(ba) jurisdiction to deal with a contravention of a sentence imposed bythe County Court (including any offence constituted by such a contravention), or a variation of such a sentence, in the circumstances set out in section 4DA; and".

14Dealing with proceedings for certain offences

In section 4C of the County Court Act 1958, for "breach" substitute "contravention".

15New section 4DA inserted

After section 4D of the County Court Act 1958 insert—

"4DA Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by it or by another Division of the County Court

For the purposes of sections4B(b) and (ba), the circumstances are—

(a)the accused is Aboriginal; and

(b)the offence to which the sentence relates is within the jurisdiction of the County Court, other than—

(i) a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; or

(ii)a contravention of a family violence intervention order or a family violence safety notice under the Family Violence Protection Act 2008 or an offence arising out of the same conduct as that from which the contravention arose; and

(c)in the case of an offence constituted by a contravention of a sentence referred to in section 4B(b) or (ba), the accused pleads guilty to the offence; and

(d) the accused consents to the proceeding being dealt with by the Koori Court Division; and

(e) the Koori Court Division considers that it is appropriate in all the circumstances that the proceeding be dealt with by it.".

16New section 48CA inserted

s. 16

After section 48C of the County Court Act 1958 insert—

"48CA Protection of assessors

An assessor called in for assistance in a proceeding under section 48A has, in the performance of his or her duties as an assessor in the proceeding, the same protection and immunity as a judge of the Court has in the performance of his or her duties as a judge.".

17New section 95 inserted

s. 17

After section 94 of the County Court Act 1958 insert—

"95 Transitional provision—Courts and Sentencing Legislation Amendment Act 2012

This Act, as amended by sections 13 and 15of the Courts and Sentencing Legislation Amendment Act 2012,applies to a proceeding for an offence or a contravention of sentence irrespective of whether the offence or contravention is alleged to have been committed, or the sentence was imposed, before or on or after the commencement of those sections.".

______

Part 4—Amendments to the Judicial College of Victoria Act 2001

18Definitions

See:
Act No.
20/2001.
Reprint No. 1 as at
10 May 2007 and amending
Act No. 24/2008.
LawToday: www.
legislation.
vic.gov.au

s. 18

In section 3 of the Judicial College of Victoria Act 2001, in the definition of judicial officer—

(a) in paragraph (a) for "or an Associate Judge" substitute ", an Associate Judge or a judicial registrar";

(b)in paragraph (b) for "or an associate judge" substitute ", an associate judge or a judicial registrar";

(c)in paragraph (c) after "or a magistrate" insert"or a judicial registrar";

(d)for paragraph (d) substitute—

"(d) a coroner within the meaning of the Coroners Act 2008 or a judicial registrar of the Coroners Court; or".

______

Part 5—Amendment to the Juries Act 2000

19Jury pools

See:
Act No. 53/2000.
Reprint No. 2 as at
16 July 2007 and amending
Act Nos 38/2008, 68/2009, 69/2009, 9/2010, 13/2010, 29/2010, 65/2011, 66/2011 and 70/2011.
LawToday: www.
legislation.
vic.gov.au

s. 19

After section 29(3) of the Juries Act 2000insert—

"(3A) Without limiting subsection (3), the Juries Commissioner may also cause to be prepared a document bearing a number that identifies the person and the occupation of the person.".

20Selection of panels

In section 30(4) of the Juries Act 2000 omit",andthe names of the persons constituting the panel must be delivered to that person".

21Information for panel

In section 32(4) of the Juries Act 2000, after "thejury pool" insert "at the completion of the swearing in of the jury,".

______

Part 6—Amendments to the Magistrates' Court Act 1989

22Jurisdiction of Koori Court Division

See:
Act No. 51/1989.
Reprint No. 16 as at
1 January 2012
and amending
Act Nos 51/2006, 52/2008, 12/2010 and 65/2011.
LawToday: www.
legislation.
vic.gov.au

s. 22

(1)In section 4E(b) of the Magistrates' Court Act 1989—

(a)for "breach" (wherever occurring) substitute "contravention"; and

(b)after "such a sentence" insert ", in the circumstances set out in section 4EA".

(2)After section 4E(b) of the Magistrates' Court Act 1989insert—

"(ba) jurisdiction to deal with a contravention of a sentence imposed by the Magistrates' Court (including any offence constituted by such a contravention), or variation of such a sentence, in the circumstances set out in section 4EA; and".

23New section 4EA inserted

After section 4E of the Magistrates' Court Act 1989 insert—

"4EA Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by another Division of the Magistrates' Court

For the purposes of sections4E(b) and (ba), the circumstances are—

(a)the accused is Aboriginal; and

(b)the offence to which the sentence relates is within the jurisdiction of the Magistrates' Court, other than—

(i) a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; or

(iii)a contravention of a personal safety intervention order under the Personal Safety Intervention Orders Act 2010 or an offence arising out of the same conduct as that out of which the contravention arose; and

(c)in the case of an offence constituted by a contravention of a sentence referred to in section 4E(b) or (ba), the accused—

(i) intends to plead guilty to the offence; or

(ii) pleads guilty to the offence; or

(iii)intends to consent to the adjournment, under section 59 of the Criminal Procedure Act 2009, of the proceeding to enable the accused to participate in a diversion program; and

(d) the accused consents to the proceeding being dealt with by the Koori Court Division.".

24Circumstances in which the Koori Court Division may deal with certain offences

s. 24

In section 4F(1) of the Magistrates' Court Act 1989, for "breach" substitute "contravention".

25Schedule 8 amended

s. 25

In Schedule 8 to the Magistrates' Court Act 1989, after clause 46 insert—

"48 Transitional provisions—Courts and Sentencing Legislation Amendment Act 2012

This Act as amended by sections 22and 23 of the Courts and Sentencing Legislation Amendment Act 2012applies to a proceeding for an offence or a contravention of sentence (including any offence constituted by such a contravention) irrespective of whether the offence or contravention is alleged to have been committed, or the sentence was imposed, before or on or after the commencement of those sections.".

______

Part 7—Amendments to the Sentencing Act 1991

26Purposes

See:
Act No. 49/1991. Reprint No. 13 as at
17 February 2012
and
amending
Act No. 68/2010.LawToday: www. legislation. vic.gov.au

s. 26

In section 1(c)(ii) of the Sentencing Act 1991, after "breach" insert "or contravene".

27Definitions

(1)In section 3(1) of the Sentencing Act 1991insert the following definition—

"community correction order means an order made under Part 3A;".

(2)In section 3(1) of the Sentencing Act 1991, the definition of contravention summons is repealed.

(3) In section 3(1) of the Sentencing Act 1991, in the definition of fine conversion order after "section 55(1)(d)" insert "or (3)".

(4) In section 3(1) of the Sentencing Act 1991, in the definition of fine default unpaid community work order for "or section 62A" substitute ",62A or 64(4)".

(5)In section 3(1) of the Sentencing Act 1991, in the definition of instalment order—

(a)omit "Division 1 of";

(b)for "that Division" substitute "that Part".

(6) In section 3(1) of the Sentencing Act 1991, in the definition of Regional Manager after paragraph(b) insert—

"(ba) a fine conversion order; or".

28Time held in custody before trial etc. to be deducted from sentence

s. 28

In section 18(1) of the Sentencing Act 1991, for "section 31" (wherever occurring) substitute "section 83AR".

29New section 18ZT inserted

After section 18ZS of the Sentencing Act 1991insert—

"18ZT Order made by Court of Appeal

For the purposes of any proceeding under this Subdivision—

(a)a drug treatment order made by the Court of Appeal on an appeal must be taken to have been made by the court from whose decision the appeal was brought; and

(b)the provisions about proceedings under this Subdivision apply as if the court from which the appeal was made were the sentencing court.".

30Suspended sentence of imprisonment

(1)In section 27(1A)(b) of the Sentencing Act 1991, for "breached" substitute "contravened".

(2)For section 27(9) of the Sentencing Act 1991substitute—

"(9) For the purposes of any proceeding under this Subdivision or Division 2 of Part 3C—

(a)a suspended sentence of imprisonment made by the Court of Appeal on an appeal must be taken to have been made by the court from whose decision the appeal was brought; and

(b)the provisions about proceedings under this Subdivision or Division 2 of Part3Capply as if the court from which the appeal was made were the sentencing court.".

31Unpaid community work where there are several orders

s. 31

For section 42 of the Sentencing Act 1991substitute—

"42 Concurrent unpaid community work where there are several orders

(1)The number of hours of unpaid community work required to be performed under a fines order must, unless otherwise directed by the court, be performed concurrently with any hours of unpaid community work required to be performed under any community correction order that is in force in respect of the offender whether the community correction order is made before or at the same time as the fines order.