Sentencing Amendment Regulations 2012

Authorised by the Chief Parliamentary Counsel Authorised Version i Sentencing Amendment Regulations 2012 S.R. No. 74/2012 TABLE OF PROVISIONS Regulation Page 1 Objective 1 2 Authorising provision 2 3 Commencement 2 4 Principal Regulations 2 5 Definitions 2 6 Offender's obligations—unpaid community work order made under a drug treatment order 2 7 Community correction order—prescribed class of persons 2 15 Community correction order—prescribed class of persons 2 8 Matters to be contained in a community correction order 3 9 Offender's obligations under community correction order 3 10 New regulation 18AA inserted 3 18AA Fines—prescribed class of person 3 11 Regulation 19 revoked 4 12 Regulation 20 revoked 4 13 Matters to be contained in a fine conversion order 4 14 Matters to be contained in a fine default unpaid community work order 5 15 Regulation 23 substituted 6 23 Offender's obligations under a fine conversion order or fine default unpaid community work order 6 16 New regulation 23A inserted 8 23A Transitional regulation—fines 8 17 Application for variation etc. of a community correction order 8 18 New Regulation 24A inserted 8 24A Application for variation etc. of fine conversion order or fine default unpaid community work order 8 19 New Regulation 26A inserted 9 26A Variation etc. of fine conversion order or fine default unpaid community work order—prescribed persons 9 20 New regulation 30A inserted 10 30A Transitional regulation—contravention of sentence 10 -- 1 of 15 -- Regulation Page ii Authorised by the Chief Parliamentary Counsel 21 Regulation 31 substituted 10 31 Commencement of a proceeding—prescribed persons 10 31A Contravention of an order—process where offender before higher court, orders of that court—prescribed persons 11 22 Division 3 of Part 7 revoked 11 23 Regulations 36 to 38 substituted 11 36 Proper officer of sentencing court to fix date for transferred proceeding 11 37 Transfer of a proceeding 11 24 New Form 1A inserted 12 Form 1A—Transfer of Proceeding from the Magistrates' Court to the County Court*/Supreme Court* Under Section 83AJ of the Sentencing Act 1991 12 ═══════════════ ENDNOTES 13 -- 2 of 15 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2012 S.R. No. 74/2012 Sentencing Act 1991 Sentencing Amendment Regulations 2012 The Governor in Council makes the following Regulations: Dated: 3 July 2012 Responsible Minister: ROBERT CLARK Attorney-General MATTHEW McBEATH Clerk of the Executive Council 1 Objective The objective of these Regulations is to amend the Sentencing Regulations 2011 as a consequence of the commencement of the Courts and Sentencing Legislation Amendment Act 2012 to— (a) further provide for fine conversion orders and fine default unpaid community work orders made under the Sentencing Act 1991; (b) prescribe certain persons or classes of persons for the purpose of certain provisions of the Sentencing Act 1991; (c) prescribe a form to give effect to orders made under the Sentencing Act 1991; (d) make other minor amendments. -- 3 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 2 Authorised by the Chief Parliamentary Counsel 2 Authorising provision These Regulations are made under section 116 of the Sentencing Act 1991. 3 Commencement These Regulations commence on 16 July 2012. 4 Principal Regulations In these Regulations, the Sentencing Regulations 20111 are called the Principal Regulations. 5 Definitions In regulation 5 of the Principal Regulations— (a) the definition of affidavit of justification is revoked; and (b) the definition of declaration of justification is revoked. 6 Offender's obligations—unpaid community work order made under a drug treatment order In regulation 12(1)(h) of the Principal Regulations for "doctor" substitute "registered medical practitioner". 7 Community correction order—prescribed class of persons For regulation 15 of the Principal Regulations substitute— "15 Community correction order—prescribed class of persons For the purposes of Part 3A of the Act, a prescribed class of person under section 115B(1)(a)(iii) of the Act is a person employed in the Department of Justice under Part 3 of the Public Administration Act 2004 at a level of Grade 6 or higher.". r. 2 -- 4 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 3 Authorised by the Chief Parliamentary Counsel 8 Matters to be contained in a community correction order (1) In regulation 16(1) of the Principal Regulations for "made by a court under section 37 of the Act must include the following particulars" substitute "must specify the following matters". (2) Regulation 16(1)(c) of the Principal Regulations is revoked. (3) After regulation 16(1)(e) of the Principal Regulations insert— "(ea) that regulation 17 prescribes the obligations that the offender must comply with under the order; and". (4) In regulation 16(1)(g) of the Principal Regulations for "duration" substitute "period". (5) In regulation 16(1)(h) of the Principal Regulations for "duration" substitute "period". 9 Offender's obligations under community correction order In regulation 17(2) of the Principal Regulations for "Secretary" substitute "Regional Manager or a community corrections officer". 10 New regulation 18AA inserted After the heading to Part 5 of the Principal Regulations insert— "18AA Fines—prescribed class of person For the purposes of Part 3B of the Act, a prescribed class of person under section 115B(1)(a)(iii) of the Act is a person employed in the Department of Justice under Part 3 of the Public Administration Act 2004 at a level of Grade 6 or higher.". r. 8 -- 5 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 4 Authorised by the Chief Parliamentary Counsel 11 Regulation 19 revoked Regulation 19 of the Principal Regulations is revoked. 12 Regulation 20 revoked Regulation 20 of the Principal Regulations is revoked. 13 Matters to be contained in a fine conversion order (1) In regulation 21(1) of the Principal Regulations for "made by a court under section 55(1)(d) of the Act must include the following particulars" substitute "must specify the following matters". (2) For regulation 21(1)(d) of the Principal Regulations substitute— "(d) the number of hours of unpaid community work that the offender must perform as fixed under the Act; and". (3) For regulation 21(1)(e) of the Principal Regulations substitute— "(e) the terms attached to the order under section 61A of the Act; and". (4) Regulation 21(1)(g) of the Principal Regulations is revoked. (5) For regulation 21(1)(h) of the Principal Regulations substitute— "(h) that regulation 23 prescribes the obligations that the offender must comply with under the order; and". (6) After regulation 21(1)(j) of the Principal Regulations insert— "(ja) the period of the order; and". r. 11 -- 6 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 5 Authorised by the Chief Parliamentary Counsel 14 Matters to be contained in a fine default unpaid community work order (1) In regulation 22(1) of the Principal Regulations for "made by a court under section 62(10)(a) or 62A of the Act must include the following particulars" substitute "must specify the following matters". (2) For regulation 22(1)(c) of the Principal Regulations substitute— "(c) the total amount of the fine, and costs (if any); and". (3) For regulation 22(1)(d) of the Principal Regulations substitute— "(d) the number of hours of unpaid community work that the offender must perform as fixed under the Act; and". (4) For regulation 22(1)(e) of the Principal Regulations substitute— "(e) the terms attached to the order under section 62B of the Act; and". (5) Regulation 22(1)(g) of the Principal Regulations is revoked. (6) For regulation 22(1)(h) of the Principal Regulations substitute— "(h) that regulation 23 prescribes the obligations that the offender must comply with under the order; and". (7) After regulation 22(1)(j) of the Principal Regulations insert— "(ja) the period of the order; and". r. 14 -- 7 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 6 Authorised by the Chief Parliamentary Counsel 15 Regulation 23 substituted For regulation 23 of the Principal Regulations substitute— "23 Offender's obligations under a fine conversion order or fine default unpaid community work order (1) If an offender is required to perform unpaid community work under a fine conversion order or a fine default unpaid community work order, for the purpose of ensuring the offender's attendance and satisfactory performance of unpaid community work, the offender— (a) must not consume or be under the influence of alcohol— (i) when attending at the centre or a location; or (ii) during the performance of unpaid community work; and (b) must not use or be under the influence of a drug of addiction or a prohibited poison— (i) when attending at the centre or a location; or (ii) during the performance of unpaid community work; and (c) must not be in possession of alcohol, a drug of addiction or a prohibited poison at the centre or a location or during the performance of unpaid community work; and r. 15 -- 8 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 7 Authorised by the Chief Parliamentary Counsel (d) must not leave a location where he or she is performing unpaid community work without the permission of the Regional Manager or a community corrections officer; and (e) must as soon as practicable notify the Regional Manager or a community corrections officer if he or she is unable to attend at the centre or location on any occasion required under the order; and (f) must as soon as practicable notify the Regional Manager or a community corrections officer of any delay in his or her attendance on any occasion as directed or required; and (g) must if he or she has not attended on any occasion as directed or required at the relevant community corrections centre or at a location as a result of an illness, give as soon as practicable a medical certificate signed by a registered medical practitioner to the Regional Manager or a community corrections officer; and (h) must not enter an authorised area of a community corrections centre without first obtaining permission from the Regional Manager or a community corrections officer. (2) An offender must attend at a community corrections centre or at a location as directed by the Regional Manager or a community corrections officer, and do all things necessary, to have his or her photograph taken and for it to be included in the records of the community corrections centre.". r. 15 -- 9 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 8 Authorised by the Chief Parliamentary Counsel 16 New regulation 23A inserted After regulation 23 of the Principal Regulations, insert— "23A Transitional regulation—fines Despite the commencement of the Sentencing Amendment Regulations 2012, Part 5 of the Sentencing Regulations 2011 as in force before that commencement continues to apply to any— (a) fine conversion order; (b) fine default unpaid community work order— that was in force immediately before that commencement.". 17 Application for variation etc. of a community correction order (1) In the heading to regulation 24 of the Principal Regulations for "or cancellation" substitute "etc.". (2) In regulation 24 of the Principal Regulations omit "to vary or cancel a community correction order (the order)". (3) In regulation 24(b) of the Principal Regulations for "particulars:" substitute "particulars—". 18 New Regulation 24A inserted After regulation 24 of the Principal Regulations insert— "24A Application for variation etc. of fine conversion order or fine default unpaid community work order An application under section 63AE(1) of the Act must be— r. 16 -- 10 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 9 Authorised by the Chief Parliamentary Counsel (a) made in writing; and (b) include the following particulars— (i) the name and signature of the applicant; and (ii) the name of the respondent; and (iii) the date of the application; and (iv) the grounds for the application; and (v) the court which made the order and the date of the order; and (vi) the date the order commenced and ceases; and (vii) the date, location and venue of the court for the hearing of the application recorded by the proper officer of the court; and (viii) any other relevant information about the order.". 19 New Regulation 26A inserted After regulation 26 of the Principal Regulations insert— "26A Variation etc. of fine conversion order or fine default unpaid community work order—prescribed persons For the purposes of section 63AE(1)(a) of the Act, a prescribed person or a prescribed class of person is— (a) the Chief Commissioner of Police; or (b) a member of the police force; or (c) a Regional Manager; or (d) a community corrections officer; or r. 19 -- 11 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 10 Authorised by the Chief Parliamentary Counsel (e) a member of staff of the Office of Public Prosecutions who is a lawyer.". 20 New regulation 30A inserted After regulation 30 of the Principal Regulations, insert— "30A Transitional regulation—contravention of sentence Despite the commencement of the Sentencing Amendment Regulations 2012, Part 7 of the Sentencing Regulations 2011 as in force before that commencement continues to apply to a proceeding commenced under Division 2 of Part 3C of the Act and extant immediately before that commencement.". 21 Regulation 31 substituted For regulation 31 of the Principal Regulations substitute— "31 Commencement of a proceeding— prescribed persons (1) For the purposes of section 83AG(2)(e) of the Act, the Chief Commissioner of Police is a prescribed person. (2) For the purposes of section 83AG(2)(f) of the Act a prescribed class of persons is— (a) a Regional Manager; or (b) a community corrections officer; or (c) a member of staff of the Office of Public Prosecutions who is a lawyer. r. 20 -- 12 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 11 Authorised by the Chief Parliamentary Counsel 31A Contravention of an order—process where offender before higher court, orders of that court—prescribed persons (1) For the purposes of section 83AL(2)(e) of the Act, the Chief Commissioner of Police is a prescribed person. (2) For the purposes of section 83AL(2)(f) of the Act a prescribed class of persons is— (a) a Regional Manager; or (b) a community corrections officer; or (c) a member of staff of the Office of Public Prosecutions who is a lawyer.". 22 Division 3 of Part 7 revoked Division 3 of Part 7 of the Principal Regulations is revoked. 23 Regulations 36 to 38 substituted For regulations 36 to 38 of the Principal Regulations substitute— "36 Proper officer of sentencing court to fix date for transferred proceeding If a proceeding is transferred under section 83AJ(1) of the Act, the proper officer of the sentencing court must fix a date for the proceeding to be heard. 37 Transfer of a proceeding For the purposes of section 83AJ(1), the form of an order made by the Magistrates' Court that a proceeding be transferred is Form 1A in Schedule 1.". r. 22 -- 13 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 12 Authorised by the Chief Parliamentary Counsel 24 New Form 1A inserted After Form 1 to Schedule 1 to the Principal Regulations insert— "FORM 1A Regulation 37 TRANSFER OF PROCEEDING FROM THE MAGISTRATES' COURT TO THE COUNTY COURT*/SUPREME COURT* UNDER SECTION 83AJ OF THE SENTENCING ACT 1991 The Magistrates' Court of Victoria at Informant: Accused: D.O.B: Proceeding commenced by: Charge and Summons*/Charge and Warrant* Nature of Charge: That the Accused did contravene a sentencing order under section of Part 3C*/clause of Schedule 3* of the Sentencing Act 1991. I, [name], registrar of the Magistrates' Court of Victoria at [venue] order that the proceeding under the Sentencing Act 1991 be transferred to the COUNTY COURT at */SUPREME COURT at * This order is made under section 83AJ(1) of the Sentencing Act 1991 and takes effect; on the filing of the evidence of service of the summons in the above mentioned court*/on the execution of the warrant against the offender*. Dated at: On: Registrar of the Magistrates' Court of Victoria * Strike out whichever is inapplicable. __________________". ═══════════════ r. 24 -- 14 of 15 -- S.R. No. 74/2012 Sentencing Amendment Regulations 2012 13 Authorised by the Chief Parliamentary Counsel ENDNOTES 1 Reg. 4: S.R. No. 159/2011. Endnotes -- 15 of 15 --