Sentencing Amendment (Community Correction Reform) Bill 2011

Sentencing Amendment (Community Correction Reform) Bill 2011

Introduction Print

EXPLANATORY MEMORANDUM

571031

BILL LA INTRODUCTION 14/9/2011

Clause Notes

PART 1—PRELIMINARY

Clause 1provides 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 2provides for the commencement of the Bill.

Part 1, Part 4 and clauses 3(13), 53 and 99 of the Bill come into operation on theday after the day on which the Bill receives theRoyal Assent.

Part 4 and clauses 3(13), 53 and 99 repeal certain provisions inthe 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 1January 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 sentencing made by sections 21 and 29 of the Sentencing Amendment Act 2010.

The remaining provisions of the Bill come into operation on 30June 2013 if not proclaimed earlier.

PART 2—AMENDMENT OF THE SENTENCING ACT 1991

Clause 3inserts new definitions and amends existing definitions in section3(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) andpersonal 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 4amends the sentencing guidelines in section 5 of the Sentencing Act 1991to 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 5amends the hierarchy of sentences in section 7of 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 6substitutes "breach" with "contravention" in section 8(3)(b)(ii) of the Sentencing Act 1991.

Clause 7inserts 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 8substitutes "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 1991has been amended to mean the Secretary to the Department of Justice.

Clause 9repeals section 18(2)(ba) of the Sentencing Act 1991, which refers to the intensive correction order.

Clause 10updates references in section 18F of the Sentencing Act 1991. Subclause (1) substitutes "Division 1A of Part 6" with "Division1 of Part 3". Subclause (2) substitutes "Division 2 of Part 6" with "Division 1A of Part 3".

Clause 11substitutes "Secretary to the Department of Justice" with "Secretary" in section 18I(1) of the Sentencing Act 1991.

Clause 12repeals Subdivision (1B) of Division 2 of Part 3 of the Sentencing Act 1991that establishedthe combined custody and treatment order as a sentencing option for courts in Victoria.

Clause 13removes 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.

Clause 14removes 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 15repeals 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 16substitutes references to the repealed section 31 with references to new section 83AR in section 27 of the Sentencing Act 1991. The repealedsection 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 sentencesthat 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 17substitutes the reference to the repealed section 31 with a reference to new section 83AR in section 29 of the Sentencing Act 1991. The repealedsection 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 18repeals section 31 of the Sentencing Act 1991. The repealedsection 31 provided for breach of a suspended sentence and outlined the process for instituting a breach proceeding. Thesearrangements are preserved by new Schedule 3 and will apply to breaches of suspended sentences beforethe 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.

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 19replaces references to the repealed section 31 with references to new section 83AR in section 35 of the Sentencing Act 1991.

Clause 20repeals 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 21substitutes 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 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 reoffending. 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. Theintensive 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 section39(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.

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. Onemonth 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. Themaximum 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.

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. Anauthorised person will have new powers under new section115D in clause 69 to issue infringement notices carryingfines to offenders for non-compliance with the order. New section 46 deals with written directions that are separate anddistinct 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. Therequirement 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.

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 (section48G);

• 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 (section48JA). Thiscondition 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. Newsection 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 Part3C 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. Forexample, 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 150hours of work.