Sentencing Amendment Regulations 2011

Authorised by the Chief Parliamentary Counsel Authorised Version i Sentencing Amendment Regulations 2011 S.R. No. 2/2011 TABLE OF PROVISIONS Regulation Page 1 Objective 1 2 Authorising provision 1 3 Principal Regulations 2 4 Prescribed persons and classes of persons 2 5 New regulation 6A inserted 2 6A Authorised persons 2 6 Application for variation or cancellation of intensive correction order 3 7 New Regulation 19A inserted 3 19A Form of home detention order 3 8 Application for variation or cancellation of community-based order 3 9 Part 5 substituted 4 PART 5—CONTRAVENTION OF HOME DETENTION ORDER OR BREACH OF SUSPENDED SENTENCE 4 31 Definitions 4 32 Form of Application—home detention 4 33 Form of Application—suspended sentence 4 34 Transfer of proceedings 5 35 Registrar to set date 5 36 Registrar's duties 5 10 New Form 10A inserted 7 Form 10A—Home Detention Order 7 11 Schedule—Forms 10 12 New Form 12A inserted 10 Form 12A—Application for a Proceeding for Contravention of a Home Detention Order—Offender Before a Court 10 ═══════════════ ENDNOTES 12 -- 1 of 13 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2011 S.R. No. 2/2011 Sentencing Act 1991 Sentencing Amendment Regulations 2011 The Governor in Council makes the following Regulations: Dated: 25 January 2011 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 2002 to— (a) prescribe certain persons and classes of persons for the purposes of certain provisions of the Sentencing Act 1991; and (b) prescribe forms for the purposes of Subdivision (2A) of Division 2 of Part 3 of the Sentencing Act 1991; and (c) prescribe procedures for the purposes of Subdivision (2A) of Division 2 of Part 3 of the Sentencing Act 1991. 2 Authorising provision These Regulations are made under section 116 of the Sentencing Act 1991. -- 2 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 2 Authorised by the Chief Parliamentary Counsel 3 Principal Regulations In these Regulations, the Sentencing Regulations 20021 are called the Principal Regulations. 4 Prescribed persons and classes of persons In the table at the foot of regulation 6(1) of the Principal Regulations after the entry relating to section 26(1) insert— "26Z The Secretary to the Department of Justice. Members of staff employed in the Office of Public Prosecutions as legal practitioners or as legal executives. Members of the police force. Community corrections officers.". 5 New regulation 6A inserted After Regulation 6 of the Principal Regulations insert— "6A Authorised persons For the purposes of the definition of authorised person in section 3(1) of the Act, a prescribed person or class of persons who are prescribed for the purposes of bringing proceedings under a Division or a Subdivision of the Act specified in Column 1 of the following Table, is a person specified in Column 2 of the Table and a person of the class of persons specified in Column 3 of the Table opposite the relevant Division or Subdivision. r. 3 -- 3 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 3 Authorised by the Chief Parliamentary Counsel TABLE Column 1 Division or subdivision Column 2 Prescribed person Column 3 Prescribed class of persons Subdivision (2A) of Division 2 of Part 3 The Secretary to the Department of Justice. Members of staff employed in the Office of Public Prosecutions as legal practitioners or as legal executives. Community corrections officers. ". 6 Application for variation or cancellation of intensive correction order In Regulation 19(2) of the Principal Regulations for "Director of Community Correctional Services" substitute "Secretary". 7 New Regulation 19A inserted After Regulation 19 of the Principal Regulations insert— "19A Form of home detention order The form of home detention order under section 26M of the Act is Form 10A in the Schedule.". 8 Application for variation or cancellation of community-based order In Regulation 22(2) of the Principal Regulations for "Director of Community Correctional Services" substitute "Secretary". r. 6 -- 4 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 4 Authorised by the Chief Parliamentary Counsel 9 Part 5 substituted For Part 5 of the Principal Regulations substitute— "PART 5—CONTRAVENTION OF HOME DETENTION ORDER OR BREACH OF SUSPENDED SENTENCE 31 Definitions In this Part— applicant means a person who makes an application under section 26ZB(1)(a) or section 31(1)(a) of the Act; application means an application made under section 26ZB(1)(a) or section 31(1)(a) of the Act; sentencing court means the court to which an application made under— (a) section 26ZB(1)(a) is transferred under section 26ZB(1)(d) of the Act; or (b) section 31(1)(a) of the Act is transferred under section 31(1)(d) of the Act. 32 Form of Application—home detention For the purposes of section 26ZB(1)(a) of the Act the prescribed form of application is Form 12A in the Schedule. 33 Form of Application—suspended sentence For the purposes of section 31(1)(a) of the Act the prescribed form of application is Form 13 in the Schedule. r. 9 -- 5 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 5 Authorised by the Chief Parliamentary Counsel 34 Transfer of proceedings If a proceeding is transferred under section 26ZB(1)(d) or section 31(1)(d) of the Act, a registrar of the court in which the application was made must send the following documents to the sentencing court— (a) the application; and (b) a record of the offence that contravenes the home detention order or record of the offence that breaches the suspended sentence (as the case requires). 35 Registrar to set date A registrar of the sentencing court must set a date for the hearing of the application being— (a) a date not less than 28 days from the date that the application was made; or (b) with the consent of the offender, a date earlier than 28 days from the date that the application was made. 36 Registrar's duties (1) A registrar of the sentencing court must ensure that the following documents are served on the offender— (a) a copy of the application; (b) a copy of the record of the offence that contravenes the home detention order or breaches the suspended sentence to which the application referred to in paragraph (a) relates. r. 9 -- 6 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 6 Authorised by the Chief Parliamentary Counsel (2) The documents referred to in subregulation (1) must be served on the offender— (a) by personal service in accordance with section 391 of the Criminal Procedure Act 2009; or (b) if the court is satisfied that service as provided in paragraph (a) cannot reasonably be effected, in any other manner directed by the court. (3) A registrar of the sentencing court must ensure that the applicant and the offender's legal practitioner (if any)— (a) are notified of the date that has been set for the hearing of the application; and (b) are sent the documents referred to in subregulation (1). (4) If a legal practitioner has filed an appearance on behalf of the offender, or has given notice in writing to a registrar of the sentencing court that he or she is representing the offender, a registrar of the sentencing court may give notice as required by subregulation (3) to that legal practitioner by— (a) leaving the documents at the business address of that legal practitioner with a person who apparently works there and who apparently is not less than 16 years of age; or (b) sending the documents by post to that legal practitioner at the legal practitioner's business address. __________________". r. 9 -- 7 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 7 Authorised by the Chief Parliamentary Counsel 10 New Form 10A inserted After Form 10 in the Schedule to the Principal Regulations insert— "FORM 10A Regulation 19A HOME DETENTION ORDER Ref. No. To: Date of Birth Of: The Court at on convicted you of: The order commences on and ends on . Your sentence is to be served by way of home detention. The core conditions that apply to all home detention orders are that YOU MUST: • be of good behaviour and must not commit any offence during the period of the order; • advise the Secretary to the Department of Justice as soon as possible if arrested or detained by a member of the police force; • reside only at premises approved by the Secretary to the Department of Justice; • remain at the approved residence at all times other than–– • when the absence is authorised by the Secretary to the Department of Justice; or • when it is unsafe to remain there due to immediate danger (such as fire, family violence or medical emergency); or • when a person residing at the approved residence has withdrawn his or her consent under section 26W of the Sentencing Act 1991; r. 10 -- 8 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 8 Authorised by the Chief Parliamentary Counsel • adhere to a specified activity plan during authorised absences from the approved residence that–– • sets out the activities that you must carry out in accordance with the other core conditions; • is approved or arranged by the Secretary to the Department of Justice; • advise the Secretary to the Department of Justice as soon as practicable after departure from the approved residence because–– • it was unsafe to remain there due to immediate danger; or • a person residing at the approved residence has withdrawn his or her consent under section 26W of the Sentencing Act 1991; • accept any visit to the approved residence by the Secretary to the Department of Justice at any time; • submit to searches of places or things under your immediate control as required by the Secretary to the Department of Justice; • submit to electronic monitoring (including voice recording) of compliance with the home detention order and comply with all instructions given by the Secretary to the Department of Justice in relation to the operation of the monitoring systems; • not tamper with, damage or disable monitoring equipment; • comply with any reasonable direction of the Secretary to the Department of Justice in relation to association with specified persons; • not consume alcohol; • not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind; • submit, as required by the Secretary to the Department of Justice, to breath testing, urinalysis or other test procedures approved by the Secretary for detecting alcohol or drug use; r. 10 -- 9 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 9 Authorised by the Chief Parliamentary Counsel • accept any reasonable direction of the Secretary to the Department of Justice in relation to the maintenance of or obtaining of employment; • inform any employer of the home detention order and, if directed by the Secretary to the Department of Justice, of the nature of the offence that occasioned it; • authorise and make reasonable attempts to facilitate contact between any of your employers and the Secretary to the Department of Justice; • engage in personal development activities or in counselling or treatment programs, as directed by the Secretary to the Department of Justice; • undertake unpaid community work (not exceeding 20 hours per week) as directed by the Secretary to the Department of Justice when not otherwise employed; • not possess or have in your control–– • any firearm; or • any prohibited weapon within the meaning of the Control of Weapons Act 1990; or • any controlled weapon or dangerous article within the meaning of the Control of Weapons Act 1990 in contravention of that Act; • comply with any restitution order or compensation order made under section 84 or 86(1) of the Sentencing Act 1991 (whether before or after making of the home detention order) in relation to the offence for which the home detention order is made; • comply with all reasonable directions made by the Secretary to the Department of Justice. The special conditions that apply in addition to these core conditions are that YOU MUST: [insert special condition(s)] You must go directly to the approved residence located at: Your supervising Community Corrections Centre is situated at: r. 10 -- 10 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 10 Authorised by the Chief Parliamentary Counsel I understand the effect and conditions of this order and consent to it being made. I understand the obligations of this order and have given an undertaking to comply with the order. Signature of Offender This order was made on Signature of Judge/Magistrate __________________". 11 Schedule—Forms In Form 13 of the Schedule to the Principal Regulations for "Regulation 32" substitute "Regulation 33". 12 New Form 12A inserted After Form 12 in the Schedule to the Principal Regulations insert— "FORM 12A Regulation 32 APPLICATION FOR A PROCEEDING FOR CONTRAVENTION OF A HOME DETENTION ORDER—OFFENDER BEFORE A COURT This application is made to the Court under section 26ZB of the Sentencing Act 1991 requesting the Court exercise its powers under section 26ZK of that Act. This application is made by on behalf of . In respect of: [the respondent] [date of birth] Of: HOME DETENTION ORDER On the Magistrates' *County *Supreme Court imposed a Home Detention Order on [name] for the following offence(s): r. 11 -- 11 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 11 Authorised by the Chief Parliamentary Counsel The Home Detention Order was for months commencing on and ending on . DETAILS OF OFFENDER FAILURE TO COMPLY WITH CONDITIONS AND FURTHER OFFENDING [name] has been found guilty of an offence(s) punishable by imprisonment committed during the period of the order in the following manner: Case Number: Date Court Offence Commission dates(s) Outcome This constitutes a contravention of the home detention order. NOTICE OF APPLICATION [To be completed by registrar of sentencing court if application is to be transferred under section 26ZB(1)(d) of the Sentencing Act 1991] This application will be heard on day month year at *a.m.*p.m. *Delete if not applicable WARNING TO THE OFFENDER: If you do not attend Court to answer this application a contravention summons or warrant to arrest may be issued against you. __________________". ═══════════════ r. 12 -- 12 of 13 -- S.R. No. 2/2011 Sentencing Amendment Regulations 2011 12 Authorised by the Chief Parliamentary Counsel ENDNOTES 1 Reg. 3: S.R. No. 21/2002. Reprint No. 1 as at 18 September 2007. Reprinted to S.R. No. 144/2006. Subsequently amended by S.R. Nos 66/2009 and 160/2009. Endnotes -- 13 of 13 --