Sentencing Amendment Act 2010

Sentencing Amendment Act 2010

No. 77 of 2010

table of provisions

Section Page

Part 1—Preliminary 1

1 Purposes 1

2 Commencement 2

Part 2—Amendment of the Sentencing Act 1991 3

3 Definitions 3

4 Sentencing guidelines 4

5 Sentences 4

6 Repeal of reference to intensive correction order 4

7 Repeal of Subdivision 1B of Division 2 of Part 3 4

8 Repeal of references to certain orders 4

9 Drug Court to hear and determine certain offences 5

10 Repeal of Subdivision 2 of Division 2 of Part 3 5

11 Time for bringing proceeding for contravention of home detention order 5

12 Suspended sentences 6

13 Insertion of new Division 2A of Part 3 6

Division 2A—Intensive correction management orders 6

Subdivision 1—Preliminary 6

35A Definitions 6

Subdivision 2—General 8

35B Intensive correction management order (general) 8

35C Intensive correction management order (drug and alcohol) 8

35D Agreement of offender to comply with order 9

35E Purposes for which order may be made 9

35F Period and commencement of intensive correction management order 10

35G Supervision period 10

35H Order made by Court of Appeal 11

35I Intensive correction management order can cover multiple offences 11

35J Concurrency of conditions for multiple intensive correction management orders 12

35K Intensive correction management order may be made in addition to term of imprisonment 12

35L Intensive correction management order may be made together with community-based order where there are multiple offences 13

Subdivision 3—Core conditions 14

35M Core conditions 14

Subdivision 4—Reporting and monitoring conditions 15

35N Reporting condition 15

35O Judicial monitoring condition 15

35P Power of court on review of condition 17

35Q Period of judicial monitoring condition 18

Subdivision 5—Unpaid community work condition 19

35R Unpaid community work condition, intensive correctionmanagement order (general) 19

35S Unpaid community work condition, intensive correctionmanagement order (drug and alcohol) 19

35T Purpose and operation of unpaid community work condition 19

Subdivision 6—Program conditions 21

35U Attachment of program conditions, intensive correctionmanagement order (general) 21

35V Attachment of program conditions, intensive correctionmanagement order (drug and alcohol) 21

35W Program conditions 21

35X Further requirements as to program conditions 23

Subdivision 7—Special conditions 23

35Y Special prescribed program condition 23

35Z Special residence or association condition 23

Subdivision 8—Suspension and variation etc. of intensive correction management order 25

35ZA Suspension of intensive correction management order 25

35ZB Variation etc. of intensive correction management
order 25

35ZC Application for variation etc. of an intensive correction management order 27

Subdivision 9—Contravention of intensive correction management order 28

35ZD Proceeding for contravention of an intensive correction management order 28

35ZE Bringing a proceeding for contravention of an intensive correction management order—offender before a court 29

35ZF Bringing of a proceeding for contravention of an intensive correction management order—offender not before a court 30

35ZG Issue of a contravention summons or warrant to arrest bya registrar 30

35ZH Power to amend a contravention summons or warrant toarrest 31

35ZI Form of a contravention summons 31

35ZJ Extension of a return date for a contravention summons 32

35ZK Service of a contravention summons 33

35ZL Issue of a warrant to arrest 33

35ZM Unrepresented accused 33

35ZN Powers of court on determination of proceeding 34

35ZO Practice and procedure at hearing 35

Subdivision 10—Miscellaneous provisions 36

35ZP Offender may be fined as well 36

35ZQ Secretary may direct offender to report at another
place 36

14 Community-based order in addition to term of imprisonment 36

15 Insertion of heading to section 39 37

"Unpaid community work condition". 37

16 Unpaid community work condition 37

17 Section 46 substituted 38

46 Variation of community-based order 38

46A Application for variation of a community-based order 40

18 Powers of court on determination of contravention proceeding 41

19 Time for bringing proceeding for contravention of community-based order 41

20 New heading to section 48 42

21 Deferral of sentencing 42

22 Pre-sentence reports 44

23 Drug and alcohol reports 45

24 Drug and alcohol pre-release reports 45

25 Penalty scale 45

26 Regulations 47

27 New section 143 inserted 47

143 Transitional provision—Sentencing Amendment Act 2010 47

Part 3—Amendment of other Acts 50

28 Amendment of the Road Safety Act 1986—Offence to drive while disqualified etc. 50

29 Amendment of the Magistrates' Court Act 1989—deferred sentences 50

Part 4—Repeal of Amending Act 51

30 Repeal of amending Act 51

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Endnotes 52

Section Page

Victoria

Section Page

Sentencing Amendment Act 2010[(]

No. 77 of 2010

[Assented to 19 October 2010]

Sentencing Amendment Act 2010
No. 77 of 2010

The Parliament of Victoria enacts:

Part 4—Repeal of Amending Act

Sentencing Amendment Act 2010
No. 77 of 2010

Part 1—Preliminary

1 Purposes

The main purposes of this Act are—

(a) to amend the Sentencing Act 1991, to repeal suspended sentences for serious offences, to provide for new intensive correction management orders and to make related and other provisions in that Act; and

(b) to amend the Road Safety Act 1986 to remove the mandatory term of imprisonment for a subsequent offence of driving whilst disqualified or suspended; and

2 Commencement

s. 2

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 January 2012, it comes into operation on that day.

______

Part 2—Amendment of the Sentencing Act 1991

See:
Act No. 49/1991.
Reprint No. 11
as at
15 January 2009
and amending
Act Nos
46/2008, 7/2009, 22/2009, 68/2009, 69/2009, 77/2009, 91/2009, 93/2009, 7/2010, 13/2010, 18/2010, 29/2010, 30/2010, 43/2010, 53/2010 and 63/2010.
LawToday:
www.
legislation.
vic.gov.au

3 Definitions

s. 3

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

(a) insert the following definitions—

"Chief Commissioner of Police means the Chief Commissioner of Police appointed under the Police Regulation Act 1958;

Director of Public Prosecutions means the Director of Public Prosecutions appointed under the Constitution Act 1975;

intensive correction management order means an order made under section 35B or section 35C;

intensive correction management order (drug and alcohol) means an intensive correction management order made under section 35C;

intensive correction management order (general) means an intensive correction management order made under section35B;

unpaid community work condition in relation to a community-based order, means the condition referred to in section 39;";

(b) the definition of community service condition is repealed;

(d) the definition of combined custody and treatment order is repealed;

(e) in the definition of Regional Manager, for "an intensive correction order" substitute "an intensive correction management order".

4 Sentencing guidelines

s. 4

(1) Section 5(4A) of the Sentencing Act 1991 is repealed.

(2) In section 5(4B) of the Sentencing Act 1991, for "intensive correction order" substitute "intensive correction management order".

(3) In section 5(5) of the Sentencing Act 1991, for "intensive correction order" substitute "intensive correction management order".

5 Sentences

In section 7(1) of the Sentencing Act 1991—

(a) paragraph (ab) is repealed;

(b) paragraph (b) is repealed;

"(db) with or without recording a conviction, make an intensive correction management order in respect of the offender; or".

6 Repeal of reference to intensive correction order

Section 18(2)(ba) of the Sentencing Act 1991 is repealed.

7 Repeal of Subdivision 1B of Division 2 of Part 3

Subdivision 1B of Division 2 of Part 3 of the Sentencing Act 1991 is repealed.

8 Repeal of references to certain orders

(1) For section 18Z(1)(d)(ii) of the Sentencing Act 1991 substitute—

"(ii) it would not have suspended the sentence in whole or in part; and".

(2) Section 18Z(2)(b) of the Sentencing Act 1991 is repealed.

9 Drug Court to hear and determine certain offences

s. 9

(1) For section 18ZO(2)(b) of the Sentencing Act 1991 substitute—

"(b) the Drug Court does not suspend the sentence in whole or in part; and".

(2) For section 18ZO(3)(b) of the Sentencing Act 1991 substitute—

"(b) the Drug Court does not suspend the sentence in whole or in part; and".

10 Repeal of Subdivision 2 of Division 2 of Part 3

Subdivision 2 of Division 2 of Part 3 of the Sentencing Act 1991 is repealed.

11 Time for bringing proceeding for contravention of home detention order

(1) For section 26ZA(2)(a) of the Sentencing Act 1991 substitute—

"(a) if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within 6 months after the offence is found proven, subject to subsection (3); or".

(2) After section 26ZA(2) of the Sentencing Act 1991 insert—

"(3) A proceeding for the contravention of an order to which subsection (2)(a) applies must not be commenced more than 2 years after the order ceases to be in force.".

12 Suspended sentences

s. 12

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

"(2B) Despite subsection (1), a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence.

Note

A suspended sentence may be available for a serious offence committed before the commencement of section 12 of the Sentencing Amendment Act 2010.".

13 Insertion of new Division 2A of Part 3

After Division 2 of Part 3 of the Sentencing Act 1991 insert—

"Division 2A—Intensive correction management orders

Subdivision 1—Preliminary

35A Definitions

In this Division—

core condition, in relation to an intensive correction management order, means a condition attached to the order under section 35M(1);

judicial monitoring condition, in relation to an intensive correction management order (drug and alcohol), means a condition attached to the order under section 35O;

program condition, in relation to an intensive correction management order, means a condition attached to the order under section 35W;

reporting condition, in relation to an intensive correction management order, means a condition attached to the order under section 35N;

special prescribed program condition, in relation to an intensive correction management order, means a condition attached to the order under section 35Y;

special residence or association condition, in relation to an intensive correction management order, means a condition attached to the order under section 35Z;

supervision period, in relation to an intensive correction management order, means the period fixed by the court under section 35G;

s. 13

unpaid community work condition, in relation to—

(a) an intensive correction management order (general), means a condition attached to the order under section 35R;

(b) an intensive correction management order (drug and alcohol), means a condition attached to the order under section35S.

Subdivision 2—General

35B Intensive correction management order (general)

(1) If a person is convicted or found guilty by a court of an offence that is punishable by imprisonment, the court, may make an order for intensive supervision of the offender in the community.

(2) The court must not make an order under subsection (1) unless the court is satisfied that, if the order were not available, the court would consider sentencing the offender to a term of imprisonment.

(3) The court must not make an order under subsection (1) unless the court has received a pre-sentence report.

s. 13

35C Intensive correction management order (drug and alcohol)

(1) If a person is convicted or found guilty of an offence that is punishable by imprisonment, the court, may make an order for the intensive supervision and treatment of the offender in the community.

(2) The court must not make an order under subsection (1) unless the court is satisfied that—

(a) the offender is dependent on or abuses drugs or alcohol; and

(b) the offender's dependency on or abuse of drugs or alcohol contributed to the commission of the offence; and

(d) if the order were not available, the court would consider sentencing the offender to a term of imprisonment.

(3) The court must not make an order under subsection (1) unless the court has received—

(a) a pre-sentence report; and

(b) a drug and alcohol assessment report under Division 2A of Part 6.

35D Agreement of offender to comply with order

The court may only make an intensive correction management order if the offender agrees in writing to comply with the order.

s. 13

35E Purposes for which order may be made

(1) The purposes for which an intensive correction management order may be made are as follows—

(a) particularly to facilitate the rehabilitation of the offender by promoting the re-integration of the offender into the community through intensive supervision and treatment (if necessary) of the offender in the community; and

(b) the other purposes set out in section 5(1), as appropriate to the case.

(2) An intensive correction management order (drug and alcohol), may be made for the following purposes to the extent that they are consistent with subsection (1)—

(a) to facilitate the rehabilitation of the offender into the community through the offender undergoing a drug or alcohol treatment regime that is supervised and monitored by the court or the Regional Manager;

(b) to take account of the offender's drug or alcohol dependency or abuse;

35F Period and commencement of intensive correction management order

(1) The period of an intensive correction management order is the period determined by the court which must not exceed—

(a) in the case of an order made by the Magistrates' Court, 2 years; or

s. 13

(b) in the case of an order made by the County Court or the Supreme Court, 3years.

(2) The court must fix the date on which an intensive correction management order commences, which must not be more than 3months after the order is made.

35G Supervision period

(1) If the court is making an intensive correction management order for a period of 6months or longer, the court may fix a period (being part of the period for which the order is in force) as the supervision period.