Sentencing Regulations 2011

Authorised by the Chief Parliamentary Counsel Authorised Version i Sentencing Regulations 2011 S.R. No. 159/2011 TABLE OF PROVISIONS Regulation Page PART 1—PRELIMINARY 1 1 Objectives 1 2 Authorising provision 1 3 Commencement 2 4 Revocation 2 5 Definitions 2 PART 2—GENERAL MATTERS 4 6 Copies of community correction orders, drug treatment orders or orders in relation to fines 4 7 Nature of unpaid community work 4 8 Regional Manager to keep records 5 9 Declaration about time held in custody 5 10 Transitional regulation 6 PART 3—DRUG TREATMENT ORDERS 7 11 Drug treatment order—prescribed person or class of person 7 12 Offender's obligations—unpaid community work order made under a drug treatment order 7 13 Offender's obligations—drug treatment order under section 18ZF or 18ZG 9 14 Transitional regulation—drug treatment order 9 PART 4—COMMUNITY CORRECTION ORDERS 10 15 Community correction order—prescribed class of persons 10 16 Matters to be contained in a community correction order 10 17 Offender's obligations under community correction order 11 PART 5—FINES 13 18 Part payment of fine to reduce unpaid community work 13 19 Particular direction in relation to fine conversion order and fine default unpaid community work order 14 -- 1 of 49 -- Regulation Page ii Authorised by the Chief Parliamentary Counsel 20 Regional Manager direction—reporting under fine conversion order or fine default unpaid community work order 14 21 Matters to be contained in a fine conversion order 15 22 Matters to be contained in a fine default unpaid community work order 16 23 Offender's obligations under a fine conversion order or fine default unpaid community work order 17 PART 6—VARIATION OF A SENTENCE 21 24 Application for variation or cancellation of community correction order 21 25 Variation of community corrections order—prescribed persons 21 26 Variation of an instalment order or a time to pay order— prescribed persons 22 27 Variation of an order for release on adjournment—prescribed persons 22 28 Review of justice plan—prescribed persons 22 29 Review of justice plan condition—prescribed persons 23 PART 7—CONTRAVENTION OF A SENTENCE 24 Division 1—General 24 30 Contravention of an order—section 63A or Schedule 3 of the Act 24 Division 2—Prescribed person or class of person 24 31 Contravention of an order—prescribed persons 24 Division 3—Proceedings for contravention of an order 25 32 Charge-sheet filed under section 83AG 25 33 Issuing a summons or warrant to arrest—certain proceedings for contraventions of orders 25 34 Summons issued under regulation 33 26 35 Warrant to arrest issued under regulation 33 26 Division 4—Transfer of proceedings for contravention of a sentence 27 36 Transfer of a proceeding for contravention of a sentence 27 37 Proper officer of sentencing court to fix date for transferred proceeding 27 38 Service of charge-sheet and copy of court order 27 -- 2 of 49 -- Regulation Page iii Authorised by the Chief Parliamentary Counsel PART 8—ORDERS IN RELATION TO INTELLECTUALLY DISABLED OFFENDERS AND MENTALLY ILL OFFENDERS 29 39 Review of a justice plan condition 29 40 Assessment orders 29 41 Diagnosis, assessment and treatment orders 29 42 Restricted involuntary treatment orders 29 43 Hospital security orders 30 __________________ SCHEDULE 1—Forms 31 Form 1—Declaration about Time Held in Custody 31 Form 2—Application for Review of Justice Plan Condition 32 Form 3—Assessment Order for Detention in an Approved Mental Health Service 34 Form 4—Diagnosis, Assessment and Treatment Order 36 Form 5—Certificate of Psychiatrist for Diagnosis, Assessment and Treatment Order 37 Form 6—Report of Authorised Psychiatrist for Diagnosis, Assessment and Treatment Order 38 Form 7—Restricted Involuntary Treatment Order 39 Form 8—Certificate of Psychiatrist for Restricted Involuntary Treatment Order 40 Form 9—Report of Authorised Psychiatrist for Restricted Involuntary Treatment Order 41 Form 10—Hospital Security Order 42 Form 11—Certificate of Psychiatrist for Hospital Security Order 43 Form 12—Report of Authorised Psychiatrist for Hospital Security Order 44 SCHEDULE 2—Revoked Regulations 45 ═══════════════ ENDNOTES 46 -- 3 of 49 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2011 S.R. No. 159/2011 Sentencing Act 1991 Sentencing Regulations 2011 The Governor in Council makes the following Regulations: Dated: 21 December 2011 Responsible Minister: ROBERT CLARK Attorney-General MATTHEW McBEATH Clerk of the Executive Council PART 1—PRELIMINARY 1 Objectives The objectives of these Regulations are to— (a) provide for orders made under the Sentencing Act 1991; (b) provide for the obligations of offenders in relation to orders under that Act; (c) prescribe any matter, form, procedure, person or class of person necessary for the administration of or to give effect to orders made under that Act. 2 Authorising provision These Regulations are made under section 116 of the Sentencing Act 1991. -- 4 of 49 -- Part 1—Preliminary Sentencing Regulations 2011 S.R. No. 159/2011 2 Authorised by the Chief Parliamentary Counsel 3 Commencement These Regulations come into operation on 16 January 2012. 4 Revocation The Regulations set out in Schedule 2 are revoked. 5 Definitions In these Regulations— affidavit of justification has the same meaning as it has under the Bail Act 1977; declaration of justification has the same meaning as it has under the Bail Act 1977; holiday means, in relation to a community corrections centre, a day appointed as a public holiday or declared as a bank holiday under the Public Holidays Act 1993 in the place in which the community corrections centre is located; location means, in relation to a community correction order, drug treatment order, fine conversion order or fine default unpaid community work order, any of the following places— (a) a community corrections centre; or (b) a place which an offender is directed to attend for unpaid community work, treatment and rehabilitation or for any other purpose in accordance with the direction by the Secretary, Regional Manager, community corrections officer or other person authorised under the Act, these Regulations or the Corrections Act 1986 or the r. 3 -- 5 of 49 -- Part 1—Preliminary Sentencing Regulations 2011 S.R. No. 159/2011 3 Authorised by the Chief Parliamentary Counsel regulations made under that Act (as the case requires); prohibited poison means any Schedule 8 Poison or Schedule 9 Poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981; the Act means the Sentencing Act 1991; unauthorised area means an area designated by the Regional Manager or a community corrections officer to be an unauthorised area. __________________ r. 5 -- 6 of 49 -- Part 2—General Matters Sentencing Regulations 2011 S.R. No. 159/2011 4 Authorised by the Chief Parliamentary Counsel PART 2—GENERAL MATTERS 6 Copies of community correction orders, drug treatment orders or orders in relation to fines (1) If a court makes a community correction order, drug treatment order, fine conversion order or fine default unpaid community work order, it must as soon as practicable serve a copy of the order on— (a) the offender; and (b) the Regional Manager. (2) A copy of the order under this regulation may be served by— (a) personal service in accordance with section 391 of the Criminal Procedure Act 2009; or (b) ordinary service in accordance with section 394 of the Criminal Procedure Act 2009. (3) Service of a document under this regulation must be proved in accordance with section 399 of the Criminal Procedure Act 2009. 7 Nature of unpaid community work (1) The unpaid community work that an offender may be required to perform under a drug treatment order, community correction order, fine conversion order or fine default unpaid community work order is any of the following— (a) work at a hospital, educational or charitable institution or for any other non-profit body; or (b) work at the home of any socially disadvantaged or disabled person or any institution for such persons; or r. 6 -- 7 of 49 -- Part 2—General Matters Sentencing Regulations 2011 S.R. No. 159/2011 5 Authorised by the Chief Parliamentary Counsel (c) work on any Crown land or land occupied by the Crown; or (d) work on any land owned, leased or occupied for a public purpose by any person or body under any Act. (2) Offenders must not be required to perform work of a nature that would normally be performed by paid labour. 8 Regional Manager to keep records The Regional Manager for the region in which a community corrections centre is located must keep accurate records of— (a) the dates and hours on which each offender— (i) has satisfactorily performed unpaid community work; or (ii) has not satisfactorily performed unpaid community work; and (b) the times at which the offender attends at the community corrections centre or at other places that he or she is required by the Secretary, Regional Manager or community corrections officer (as the case applies) to attend. 9 Declaration about time held in custody A declaration made by a court under section 18(4) or 35(4) of the Act may be in Form 1 in Schedule 1. r. 8 -- 8 of 49 -- Part 2—General Matters Sentencing Regulations 2011 S.R. No. 159/2011 6 Authorised by the Chief Parliamentary Counsel 10 Transitional regulation Despite the commencement of these Regulations, the Sentencing Regulations 20021 as in force before that commencement, continue to apply to any— (a) old combined custody and treatment order; (b) old community-based order; (c) old intensive correction order; (d) pre-existing home detention order; (e) pre-existing suspended sentence order; that was in force immediately before that commencement and continues to be in force on and from the commencement of these Regulations. __________________ r. 10 -- 9 of 49 -- Part 3—Drug Treatment Orders Sentencing Regulations 2011 S.R. No. 159/2011 7 Authorised by the Chief Parliamentary Counsel PART 3—DRUG TREATMENT ORDERS 11 Drug treatment order—prescribed person or class of person For the purposes of sections 18ZH(2)(c), 18ZL(5)(b), 18ZN(2)(b) and 18ZP(3)(c) of the Act, community corrections officers is a prescribed class of persons. 12 Offender's obligations—unpaid community work order made under a drug treatment order (1) An offender who is required to attend at a community corrections centre or a location under an order made under section 18ZL(1)(d) of the Act— (a) must obey all lawful instructions and directions of the Regional Manager or a community corrections officer; and (b) must not consume any alcohol— (i) at least 8 hours before attending at the centre or a location; or (ii) when attending at the centre or a location; or (iii) during the performance of unpaid community work; and (c) must not use 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 (d) must not be under the influence of alcohol, a drug of addiction or a prohibited poison when attending at or while being at the r. 11 -- 10 of 49 -- Part 3—Drug Treatment Orders Sentencing Regulations 2011 S.R. No. 159/2011 8 Authorised by the Chief Parliamentary Counsel centre or a location, or during the performance of unpaid community work; and (e) must not be in possession of any alcohol, a drug of addiction or a prohibited poison at the centre or a location or during the performance of unpaid community work; and (f) must not leave a location where he or she is performing unpaid community work without the permission of the Regional Manager or the community corrections officer to whom he or she is required to report; and (g) must as soon as practicable notify the Regional Manager or a community corrections officer at the relevant community corrections centre or location if he or she is unable to attend on any occasion as directed or required under the order; and (h) 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 doctor to the Regional Manager or a community corrections officer at the centre or at a location; and (i) must as soon as practicable notify the Regional Manager or a community corrections officer at the relevant community corrections centre of any delay in his or her attendance on any occasion as directed or required under the order; and (j) must not enter an unauthorised area of a community corrections centre without first obtaining permission from the Regional Manager or a community corrections officer. r. 12 -- 11 of 49 -- Part 3—Drug Treatment Orders Sentencing Regulations 2011 S.R. No. 159/2011 9 Authorised by the Chief Parliamentary Counsel (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 to be included in the records of the community corrections centre. 13 Offender's obligations—drug treatment order under section 18ZF or 18ZG An offender undergoing any assessment or treatment specified or required under a drug treatment order must— (a) answer all reasonable questions put to him or her; and (b) undergo all reasonable tests required; and (c) undergo all reasonable treatment required— by the person who is authorised to carry out that assessment or treatment. 14 Transitional regulation—drug treatment order This Part applies to any drug treatment order made by a court which is in force before the commencement of these Regulations and continues to be in force on and from the commencement of these Regulations. __________________ r. 13 -- 12 of 49 -- Part 4—Community Correction Orders Sentencing Regulations 2011 S.R. No. 159/2011 10 Authorised by the Chief Parliamentary Counsel PART 4—COMMUNITY CORRECTION ORDERS 15 Community correction order—prescribed class of persons For the purposes of section 115B(1)(a)(iii) of the Act, persons who are employed in the Department of Justice under Part 3 of the Public Administration Act 2004 at a level of Grade 6 or higher is a prescribed class of person. 16 Matters to be contained in a community correction order (1) A community correction order made by a court under section 37 of the Act must include the following particulars— (a) the name, address, and date of birth (if known or as stated) of the offender and any other information personally identifying the offender; and (b) the offence and the date of the offence for which the offender was found guilty or convicted; and (c) that the offender must report at a community corrections centre specified in the order within 2 clear working days of the date the order commenced; and (d) the address and telephone number of the community corrections centre that the offender must report at; and (e) the terms under section 45 of the Act attached to the order; and (f) the condition or conditions attached to the order in accordance with section 47 of the Act; and (g) the duration of the order; and r. 15 -- 13 of 49 -- Part 4—Community Correction Orders Sentencing Regulations 2011 S.R. No. 159/2011 11 Authorised by the Chief Parliamentary Counsel (h) the duration of any conditions (if specified by the court); and (i) in relation to an intensive compliance period (if fixed by the court under section 39 of the Act), the period that is fixed and the condition or conditions that must be completed by the offender within that period; and (j) the date the order was made by the court; and (k) the date the order commences; and (l) the signature of the judicial officer constituting the court who made the order; and (m) the name and signature of the offender (or if the offender is unable to sign the order, the signature of the offender's legal practitioner) confirming his or her consent to the order; and (n) any other information the court thinks appropriate to include in the order. (2) A community correction order must be in writing and be expressed in language likely to be readily understood by the offender. 17 Offender's obligations under community correction order (1) An offender who is required to attend at a community corrections centre or a location, or to perform unpaid community work, under a community correction order— (a) must not consume alcohol— (i) at least 8 hours before attending at the centre or a location; or (ii) when attending at the centre or a location; or r. 17 -- 14 of 49 -- Part 4—Community Correction Orders Sentencing Regulations 2011 S.R. No. 159/2011 12 Authorised by the Chief Parliamentary Counsel (iii) during the performance of unpaid community work; and (b) must not use 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 under the influence of alcohol, a drug of addiction or a prohibited poison when attending at or while being at the centre or a location or during the performance of unpaid community work; and (d) 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. (2) An offender must attend at a community corrections centre or at a location as directed by the Secretary, 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. 17 -- 15 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 13 Authorised by the Chief Parliamentary Counsel PART 5—FINES 18 Part payment of fine to reduce unpaid community work (1) For the purposes of section 63B(2) of the Act, payment of a fine may be made— (a) in person at a community corrections centre between 10.00 a.m. and 4.00 p.m. on any Monday to Friday that is not a holiday; or (b) by post to a community corrections centre; or (c) by electronic funds transfer, or by a credit card, to an ADI; or (d) in cash, or by bank cheque (marked "not negotiable") or money order made payable to the Department of Justice. (2) A payment by bank cheque is not made until the cheque is honoured on presentation to the relevant bank. (3) Part payment of a fine made on any occasion must be for a minimum sum of $100.00. (4) In this regulation— electronic funds transfer does not include— (a) a transfer of money over the Internet; or (b) a withdrawal or transfer of money carried out by telephone banking. r. 18 -- 16 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 14 Authorised by the Chief Parliamentary Counsel 19 Particular direction in relation to fine conversion order and fine default unpaid community work order (1) For the purposes of sections 55, 62 and 62A of the Act, the Regional Manager may direct an offender who is under a fine conversion order or a fine default unpaid community work order not to attend for a specified period, at the relevant community corrections centre or at a location for the purpose of performing unpaid community work if the offender is ill or in other exceptional circumstances as determined by the Regional Manager. (2) The period specified in the direction under subregulation (1) does not count in calculating the period for which the order is to remain in force. 20 Regional Manager direction—reporting under fine conversion order or fine default unpaid community work order (1) If an offender under a fine conversion order or a fine default unpaid community work order has changed his or her place of residence or for any other reason it is not convenient for the offender to report at a community corrections centre or a location specified in the order, the Regional Manager may direct the offender to report at another centre or location. (2) An offender must report as directed under subregulation (1) as if that community corrections centre or location had been specified in the order. r. 19 -- 17 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 15 Authorised by the Chief Parliamentary Counsel 21 Matters to be contained in a fine conversion order (1) A fine conversion order made by a court under section 55(1)(d) of the Act must include the following particulars— (a) the name, address, and date of birth (if known or as stated) of the offender and any other information personally identifying the offender; and (b) the offence and the date of the offence for which the offender was found guilty or convicted; and (c) the total amount of the fine, and costs (if any); and (d) the total number of hours of unpaid community work to be performed by the offender; and (e) that the offender must report at a community corrections centre specified in the order within 2 clear working days of the date the order commenced; and (f) the address and telephone number of the community corrections centre that the offender must report at; and (g) that the offender perform unpaid community work as directed by the Regional Manager for the hours specified by the court in the order; and (h) any other obligation of the offender under the Act or these regulations the court thinks appropriate to specify in the order; and (i) the date the order was made by the court; and (j) the date the order commences; and r. 21 -- 18 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 16 Authorised by the Chief Parliamentary Counsel (k) the signature of the proper officer constituting the court who made the order; and (l) the name and signature of the offender (or if the offender is unable to sign the order, the signature of his or her legal practitioner) confirming the offender's consent to the order; and (m) any other information the court thinks appropriate to include in the order. (2) A fine conversion order must be in writing and be expressed in language likely to be readily understood by the offender. 22 Matters to be contained in a fine default unpaid community work order (1) A fine default unpaid community work order made by a court under section 62(10)(a) or 62A of the Act must include the following particulars— (a) the name, address, and date of birth (if known or as stated) of the offender and any other information personally identifying the offender; and (b) the offence and the date of the offence for which the offender was found guilty or convicted; and (c) the total number of hours of the unpaid fine, and costs (if any); and (d) the total amount of unpaid community work to be performed by the offender; and (e) that the offender must report at a community corrections centre specified in the order within 2 clear working days of the date the order commenced; and r. 22 -- 19 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 17 Authorised by the Chief Parliamentary Counsel (f) the address and telephone number of the centre of the community corrections centre that the offender must report at; and (g) that the offender perform unpaid community work as directed by the Regional Manager for the hours specified by the court in the order; and (h) any other obligation of the offender under the Act or these regulations that the court thinks appropriate to specify in the order; and (i) the date the order was made by the court; and (j) the date the order commences; and (k) the signature of the proper officer constituting the court who made the order; and (l) the name and signature of the offender (or if the offender is unable to sign the order, the signature of the offender's legal practitioner) confirming his or her consent to the order; and (m) any other information the court thinks appropriate to include in the order. (2) A fine default unpaid community work order must be in writing and be expressed in language likely to be readily understood by the offender. 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 as directed by the Regional Manager, the offender— r. 23 -- 20 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 18 Authorised by the Chief Parliamentary Counsel (a) must report to and receive visits from the Regional Manager or a community corrections officer during the period of the order; and (b) must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force; and (c) must notify the Regional Manager or a community corrections officer of any change of address or employment within 2 clear working days after the change; and (d) must obtain the permission of the Regional Manager or a community corrections officer to leave Victoria, either generally or in relation to a particular case; and (e) must comply with any direction given by the Regional Manager or a community corrections officer that is necessary for the Regional Manager to give to ensure that the offender complies with the order; and (f) 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 (g) 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 r. 23 -- 21 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 19 Authorised by the Chief Parliamentary Counsel (h) 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 (i) 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 to whom he or she is required to report; and (j) must as soon as practicable notify the Regional Manager or a community corrections officer at the relevant community corrections centre if he or she is unable to attend at the centre or location on any occasion required under the order; and (k) must as soon as practicable notify the Regional Manager or a community corrections officer at the relevant community corrections centre of any delay in his or her attendance on any occasion as directed or required; and (l) 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 doctor to the Regional Manager or a community corrections officer at the centre or at a location; and (m) must not enter an authorised area of a community corrections centre without first obtaining permission from the Regional Manager or a community corrections officer. r. 23 -- 22 of 49 -- Part 5—Fines Sentencing Regulations 2011 S.R. No. 159/2011 20 Authorised by the Chief Parliamentary Counsel (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. 23 -- 23 of 49 -- Part 6—Variation of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 21 Authorised by the Chief Parliamentary Counsel PART 6—VARIATION OF A SENTENCE 24 Application for variation or cancellation of community correction order An application under section 48N(1) of the Act to vary or cancel a community correction order (the order) must be— (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. 25 Variation of community corrections order— prescribed persons For the purposes of section 48N(1)(a) of the Act, a prescribed person or a prescribed class of person is— (a) the Chief Commissioner of Police; (b) a member of the police force; r. 24 -- 24 of 49 -- Part 6—Variation of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 22 Authorised by the Chief Parliamentary Counsel (c) a Regional Manager; (d) a community corrections officer; (e) a person employed in the Office of Public Prosecutions who is a lawyer. 26 Variation of an instalment order or a time to pay order—prescribed persons For the purposes of section 61(3)(b) of the Act, a prescribed person or a member of a prescribed class of person is— (a) an informant; (b) a member of the police force; (c) a person employed in the Office of Public Prosecutions who is a lawyer. 27 Variation of an order for release on adjournment— prescribed persons For the purposes of section 78(3)(b) of the Act, a prescribed person or a member of a prescribed class of person is— (a) an informant; (b) a member of the police force; (c) a person employed in the Office of Public Prosecutions who is a lawyer. 28 Review of justice plan—prescribed persons For the purposes of section 81(2)(c) of the Act, a prescribed person or a member of a prescribed class of person is— (a) an informant; (b) a member of the police force; (c) a person employed in the Office of Public Prosecutions who is a lawyer. r. 26 -- 25 of 49 -- Part 6—Variation of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 23 Authorised by the Chief Parliamentary Counsel 29 Review of justice plan condition—prescribed persons For the purposes of section 82(2)(c) of the Act, a prescribed person or a member of a prescribed class of person is— (a) an informant; (b) a member of the police force; (c) a person employed in the Office of Public Prosecutions who is a lawyer. __________________ r. 29 -- 26 of 49 -- Part 7—Contravention of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 24 Authorised by the Chief Parliamentary Counsel PART 7—CONTRAVENTION OF A SENTENCE Division 1—General 30 Contravention of an order—section 63A or Schedule 3 of the Act (1) For the avoidance of doubt, this Part applies to a fine conversion order or fine default unpaid community work order in the same manner as it applies to a community correction order. (2) For the avoidance of doubt, this Part applies to a suspended sentence order and a pre-existing suspended sentence order within the meaning of clause 6 of Schedule 3 to the Act. (3) For the avoidance of doubt, a reference to an offence under section 83AD in this Part includes a reference to an offence under clauses 7, 8, 9 and 10 of Schedule 3 to the Act. Division 2—Prescribed person or class of person 31 Contravention of an order—prescribed persons For the purposes of section 83AG(2)(b) and (d) of the Act— (a) the Chief Commissioner of Police is a prescribed person; (b) a prescribed class of person is— (i) a member of the police force; (ii) a person employed in the Office of Public Prosecutions who is a lawyer; (iii) a Regional Manager; (iv) a community corrections officer. r. 30 -- 27 of 49 -- Part 7—Contravention of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 25 Authorised by the Chief Parliamentary Counsel Division 3—Proceedings for contravention of an order 32 Charge-sheet filed under section 83AG Any requirements or provisions of any Act, regulation, rules or the general law that apply in a court in which a charge-sheet is filed under section 83AG of the Act as to— (a) the form and content of charge-sheets; and (b) the practice and procedure in relation to charge-sheets— apply to the charge-sheet. 33 Issuing a summons or warrant to arrest—certain proceedings for contraventions of orders (1) If a charge-sheet is filed under section 83AG of the Act, the person who filed the charge-sheet may apply to the registrar or the prothonotary (as the case requires) at any venue of the sentencing court— (a) for the issue of a summons, directed to the offender, to answer the charge at the sentencing court; or (b) for the issue of a warrant to arrest to compel the attendance of the offender at the sentencing court. (2) Subregulation (1) does not apply if— (a) the offender is bailed or remanded in custody under section 83AI(2); or (b) section 83AJ applies. (3) Before issuing a summons or a warrant to arrest under this regulation, the registrar or prothonotary (as the case requires) must be satisfied that the charge-sheet complies with the requirements of the Criminal Procedure Act 2009 and any regulations or rules made under that Act. r. 32 -- 28 of 49 -- Part 7—Contravention of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 26 Authorised by the Chief Parliamentary Counsel 34 Summons issued under regulation 33 If a court issues a summons to answer a charge under regulation 33(1)(a), any requirements or provisions of any Act, regulation, rules or the general law that apply in the court for— (a) the form of and the particulars to be included in a summons to answer to a charge; and (b) service of and the practice and procedure in relation to a summons to answer a charge— apply to that summons. 35 Warrant to arrest issued under regulation 33 (1) A warrant to arrest issued under regulation 33(1)(b) must be issued in accordance with the Magistrates' Court Act 1989, with any necessary modifications. (2) Before issuing a warrant to arrest under regulation 33(1)(b) the registrar or prothonotary (as the case applies) must be satisfied by sworn evidence, whether oral or by affidavit by the person making the application, that— (a) it is probable that the offender will not answer a summons; or (b) that offender has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or (c) a warrant is required or authorised for other good cause. r. 34 -- 29 of 49 -- Part 7—Contravention of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 27 Authorised by the Chief Parliamentary Counsel Division 4—Transfer of proceedings for contravention of a sentence 36 Transfer of a proceeding for contravention of a sentence If a proceeding for an offence under section 83AB, 83AC or 83AD is transferred under section 83AI(1)(b) of the Act, the proper officer of the court (which is not the sentencing court in relation to the order) must forward the following to the sentencing court— (a) the case file number; (b) the original charge-sheet; (c) the address and telephone number of the court where the proceeding was commenced; (d) where an offender has been admitted to bail under section 83AI(2) of the Act, the undertaking and (if applicable) an affidavit of justification or declaration of justification by the surety for bail. 37 Proper officer of sentencing court to fix date for transferred proceeding If a proceeding for an offence under section 83AB, 83AC or 83AD of the Act is transferred under section 83AI(1)(b) of the Act, the proper officer of the sentencing court must fix a date for the proceeding to be heard. 38 Service of charge-sheet and copy of court order For the purposes of section 83AI(1)(b) of the Act, any requirements or provisions of any Act, regulation, rules or the general law that apply to the sentencing court for serving on an offender— (a) a copy of the charge-sheet; and r. 36 -- 30 of 49 -- Part 7—Contravention of a Sentence Sentencing Regulations 2011 S.R. No. 159/2011 28 Authorised by the Chief Parliamentary Counsel (b) a copy of the court order convicting or finding the offender guilty of an offence— apply to the service of those documents. __________________ r. 38 -- 31 of 49 -- Part 8—Orders in Relation to Intellectually Disabled Offenders and Mentally Ill Offenders Sentencing Regulations 2011 S.R. No. 159/2011 29 Authorised by the Chief Parliamentary Counsel PART 8—ORDERS IN RELATION TO INTELLECTUALLY DISABLED OFFENDERS AND MENTALLY ILL OFFENDERS 39 Review of a justice plan condition For the purposes of section 82 of the Act, the form of the application is Form 2 in Schedule 1. 40 Assessment orders For the purposes of section 90 of the Act, the form of the application is Form 3 in Schedule 1. 41 Diagnosis, assessment and treatment orders (1) For the purposes of section 91 of the Act, the form of a diagnosis, assessment and treatment order is Form 4 in Schedule 1. (2) For the purposes of section 91(1)(b) of the Act, the prescribed form of a certificate of a psychiatrist is Form 5 in Schedule 1. (3) For the purposes of section 91(1)(c) of the Act, the prescribed form of a report is Form 6 in Schedule 1. 42 Restricted involuntary treatment orders (1) For the purposes of section 93 of the Act, the form of a restricted involuntary treatment order is Form 7 in Schedule 1. (2) For the purposes of section 93(1)(a) of the Act, the form of a certificate of a psychiatrist is Form 8 in Schedule 1. (3) For the purposes of section 93(1)(b) of the Act, the form of a report of an authorised psychiatrist is Form 9 in Schedule 1. r. 39 -- 32 of 49 -- Part 8—Orders in Relation to Intellectually Disabled Offenders and Mentally Ill Offenders Sentencing Regulations 2011 S.R. No. 159/2011 30 Authorised by the Chief Parliamentary Counsel 43 Hospital security orders (1) For the purposes of section 93A of the Act, the form for a hospital security order is Form 10 in Schedule 1. (2) For the purposes of section 93A(1)(a) of the Act, the prescribed form of a certificate of a psychiatrist is Form 11 in Schedule 1. (3) For the purposes of section 93A(1)(b) of the Act, the prescribed form of a report is Form 12 in Schedule 1. __________________ r. 43 -- 33 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 31 Authorised by the Chief Parliamentary Counsel SCHEDULE 1 FORMS FORM 1 Regulation 9 DECLARATION ABOUT TIME HELD IN CUSTODY Ref. No. On / / the Court at sentenced of Date of Birth / / to weeks months years detention imprisonment ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Declaration ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– The offender has been held in custody in relation to proceedings connected with the offence to which this sentence applies and for no other reason for— Days Weeks Months This period is to be reckoned as already served under the sentence. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– This declaration was made by ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Signature Judge/Magistrate Day Month Year ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– __________________ Sch. 1 -- 34 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 32 Authorised by the Chief Parliamentary Counsel FORM 2 Regulation 39 APPLICATION FOR REVIEW OF JUSTICE PLAN CONDITION Ref. No. This application is being made by of TO: of ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– SENTENCE On / / ‰ the court made a community correction order in respect of ‰ you were/I was released on an adjournment following conviction/without conviction for the following offence: The Court made an order attaching a justice plan condition that you/I participate in the services specified in a justice plan for a period of ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– APPLICATION I intend to apply to the Court under section 82(1) of the Sentencing Act 1991 to review the justice plan condition. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– GROUNDS OF THIS APPLICATION ‰ that the offender is no longer willing to comply with the justice plan condition. ‰ that the needs of the offender are not being met by the justice plan condition. ‰ that the offender has failed without reasonable excuse to comply with the justice plan condition. ‰ that the justice plan condition is no longer appropriate. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Sch. 1 -- 35 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 33 Authorised by the Chief Parliamentary Counsel NOTICE OF APPLICATION The above application is being made to the Court at . The application will be heard on Day Month Year at a.m./p.m. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Signature of applicant WARNING TO THE OFFENDER: If you do not attend Court at the above time and place, a warrant to arrest may be issued against you. ‰ Tick whichever applies __________________ Sch. 1 -- 36 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 34 Authorised by the Chief Parliamentary Counsel FORM 3 Regulation 40 ASSESSMENT ORDER FOR DETENTION IN AN APPROVED MENTAL HEALTH SERVICE Ref. No. Informant of Offender of TO: The Authorised Psychiatrist of an approved mental health service. 1. The offender has been found guilty of the following offence: 2. The Court is of the opinion that— (a) the offender appears to be mentally ill; and (b) the offender's mental illness may require treatment and that treatment may be obtained by the offender being detained in an approved mental health service; and (c) because of the offender's mental illness, involuntary treatment of the offender is necessary for his or her health or safety (whether to prevent a deterioration in the offender's physical or mental condition or otherwise) or for the protection of members of the public. 3. The Court has received advice in writing from you that the approved mental health service named above has the facilities or services available to undertake an assessment of the offender's suitability for a restricted involuntary treatment order or a hospital security order. THE COURT ORDERS that the offender be detained in the approved mental health service named above as an involuntary patient for a period of hours [not exceeding 72 hours] to enable an assessment to be made of his or her suitability for a restricted involuntary treatment order under section 93 of the Sentencing Act 1991 or a hospital security order under section 93A of the Sentencing Act 1991, and thereafter to be brought before this Court on at a.m./p.m. Sch. 1 -- 37 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 35 Authorised by the Chief Parliamentary Counsel CUSTODY OF OFFENDER [To be completed as necessary] [Full name in block letters] employed by [insert employer's name] as [insert designation] shall be responsible for taking the offender— (a) to the approved mental health service named above; and (b) from the approved mental health service named above to the Court. Dated Day Month Year Signature of Judge/Magistrate __________________ Sch. 1 -- 38 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 36 Authorised by the Chief Parliamentary Counsel FORM 4 Regulation 41(1) DIAGNOSIS, ASSESSMENT AND TREATMENT ORDER Ref. No. Informant of Offender of TO: The Authorised Psychiatrist of an approved mental health service. THE COURT ORDERS that the offender be detained in the above approved mental health service as an involuntary patient to enable diagnosis, assessment and treatment for a period of (not exceeding 3 months) under section 91 of the Sentencing Act 1991. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– CUSTODY OF OFFENDER [To be completed as necessary] [Full name in block letters] employed by [insert employer's name] as [insert designation] shall be responsible for taking the offender— ‰ to the approved mental health service named above; and ‰ from the approved mental health service named above to the court. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Dated Day Month Year Signature of Judge/Magistrate ‰ Tick whichever applies __________________ Sch. 1 -- 39 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 37 Authorised by the Chief Parliamentary Counsel FORM 5 Regulation 41(2) CERTIFICATE OF PSYCHIATRIST FOR DIAGNOSIS, ASSESSMENT AND TREATMENT ORDER Ref. No. Date of hearing To the Court [Full name of offender] [Offender's address] I [Full name] am a registered medical practitioner and psychiatrist. I personally examined the offender on at a.m./p.m. It is my opinion that— (a) the offender appears to be mentally ill; and (b) the offender's mental illness requires treatment and that treatment can be obtained by the offender being subject to a diagnosis, assessment and treatment order under section 91 of the Sentencing Act 1991; and (c) because of the offender's mental illness, involuntary treatment of the offender is necessary for his or her health or safety (whether to prevent a deterioration in the offender's physical or mental condition or otherwise) or for the protection of members of the public. I base my opinion on the following facts: [Signature of certifying psychiatrist] [Full name in block letters] [Full address] Telephone No. [Qualifications] Date: __________________ Sch. 1 -- 40 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 38 Authorised by the Chief Parliamentary Counsel FORM 6 Regulation 41(3) REPORT OF AUTHORISED PSYCHIATRIST FOR DIAGNOSIS, ASSESSMENT AND TREATMENT ORDER Ref. No. Date of hearing To the Court [Full name of offender] [Offender's address] 1. I [Full name] am the authorised psychiatrist of [name of approved mental health service] an approved mental health service. 2. I have read the certificate of Dr. [Full name] dated concerning the offender. 3. I recommend the making of a diagnosis, assessment and treatment order under section 91 of the Sentencing Act 1991. 4. There are facilities or services available at the approved mental health service named above for the diagnosis, assessment and treatment of the offender. [Signature of authorised psychiatrist] [Qualifications] Telephone No. Date: __________________ Sch. 1 -- 41 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 39 Authorised by the Chief Parliamentary Counsel FORM 7 Regulation 42(1) RESTRICTED INVOLUNTARY TREATMENT ORDER Ref. No. Informant of Offender of TO: The Authorised Psychiatrist of an approved mental health service. THE COURT ORDERS that the offender be treated at the approved mental health service named above as an involuntary patient subject to a restricted involuntary treatment order under section 93 of the Sentencing Act 1991 for a period of [not exceeding 2 years]. CUSTODY OF OFFENDER [To be completed as necessary] [Full name in block letters] employed by [insert employer's name] as [insert designation] shall be responsible for taking the offender to the approved mental health service named above. Dated Day Month Year Signature of Judge/Magistrate __________________ Sch. 1 -- 42 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 40 Authorised by the Chief Parliamentary Counsel FORM 8 Regulation 42(2) CERTIFICATE OF PSYCHIATRIST FOR RESTRICTED INVOLUNTARY TREATMENT ORDER Ref. No. Date of hearing To the Court [Full name of offender] [Offender's address] I [Full name] am a registered medical practitioner and psychiatrist. I personally examined the offender on at a.m./p.m. It is my opinion that— (a) the offender appears to be mentally ill; and (b) the offender's mental illness requires treatment and that treatment can be obtained by the offender being subject to a restricted involuntary treatment order under section 93 of the Sentencing Act 1991; and (c) because of the offender's mental illness, involuntary treatment of the offender is necessary for his or her health or safety (whether to prevent a deterioration in the offender's physical or mental condition or otherwise) or for the protection of members of the public. I base my opinion on the following facts: [Signature of certifying psychiatrist] [Full name in block letters] [Full address] Telephone No. [Qualifications] Date: __________________ Sch. 1 -- 43 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 41 Authorised by the Chief Parliamentary Counsel FORM 9 Regulation 42(3) REPORT OF AUTHORISED PSYCHIATRIST FOR RESTRICTED INVOLUNTARY TREATMENT ORDER Ref. No. Date of hearing To the Court [Full name of offender] [Offender's address] 1. I [Full name] am the authorised psychiatrist of [name of approved mental health service] an approved mental health service. 2. I have read the certificate of Dr. [Full name] dated concerning the offender. 3. I recommend the making of a restricted involuntary treatment order under section 93 of the Sentencing Act 1991. 4. There are facilities or services available at the approved mental health service named above for the treatment of the offender. [Signature of authorised psychiatrist] [Qualifications] Telephone No. Date: __________________ Sch. 1 -- 44 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 42 Authorised by the Chief Parliamentary Counsel FORM 10 Regulation 43(1) HOSPITAL SECURITY ORDER Ref. No. Informant of Offender of TO: The Authorised Psychiatrist of an approved mental health service. THE COURT ORDERS that the offender be detained in the approved mental health service named above as a security patient subject to a hospital security order under section 93A of the Sentencing Act 1991 for a period of (which does not exceed the term of imprisonment to which the offender would have been sentenced had this order not been made). A non-parole period of is fixed. CUSTODY OF OFFENDER [To be completed as necessary] [Full name in block letters] employed by [insert employer's name] as [insert designation] shall be responsible for taking the offender to the approved mental health service named above. Dated Day Month Year Signature of Judge/Magistrate __________________ Sch. 1 -- 45 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 43 Authorised by the Chief Parliamentary Counsel FORM 11 Regulation 43(2) CERTIFICATE OF PSYCHIATRIST FOR HOSPITAL SECURITY ORDER Ref. No. Date of hearing To the Court [Full name of offender] [Offender's address] I [Full name] am a registered medical practitioner and psychiatrist. I personally examined the offender on at a.m./p.m. It is my opinion that— (a) the offender appears to be mentally ill; and (b) the offender's mental illness requires treatment and that treatment can be obtained by the offender being subject to a hospital security order under section 93A of the Sentencing Act 1991; and (c) because of the offender's mental illness, the detention and treatment of the offender in an approved mental health service is necessary for his or her health or safety (whether to prevent a deterioration in the offender's physical or mental condition or otherwise) or for the protection of members of the public. I base my opinion on the following facts: [Signature of certifying psychiatrist] [Full name in block letters] [Full address] Telephone No. [Qualifications] Date: __________________ Sch. 1 -- 46 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 44 Authorised by the Chief Parliamentary Counsel FORM 12 Regulation 43(3) REPORT OF AUTHORISED PSYCHIATRIST FOR HOSPITAL SECURITY ORDER Ref. No. Date of hearing To the Court [Full name of offender] [Offender's address] 1. I [Full name] am the authorised psychiatrist of [name of approved mental health service] an approved mental health service. 2. I have read the certificate of Dr. [Full name] dated concerning the offender. 3. I recommend the making of a hospital security order under section 93A of the Sentencing Act 1991. 4. There are facilities or services available at the approved mental health service named above for the treatment of the offender. [Signature of authorised psychiatrist] [Qualifications] Telephone No. Date: __________________ Sch. 1 -- 47 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 45 Authorised by the Chief Parliamentary Counsel SCHEDULE 2 Regulation 4 REVOKED REGULATIONS S.R. No. Title 21/2002 Sentencing Regulations 2002 125/2006 Sentencing (Mental Health) (Amendment) Regulations 2006 144/2006 Sentencing (Amendment) Regulations 2006 66/2009 Sentencing Amendment Regulations 2009 160/2009 Sentencing Amendment Regulations 2009 2/2011 Sentencing Amendment Regulations 2011 ═══════════════ Sch. 2 -- 48 of 49 -- Sentencing Regulations 2011 S.R. No. 159/2011 46 Authorised by the Chief Parliamentary Counsel ENDNOTES 1 Reg. 10: S.R. No. 21/2002. Reprint No. 1 as at 18 September 2007. Reprinted to S.R. No. 144/2006 and subsequently amended by S.R. Nos 66/2009, 160/2006 and 2/2011. Endnotes -- 49 of 49 --