Justice Legislation Amendment Act 2010

i Justice Legislation Amendment Act 2010 No. 30 of 2010 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 4 PART 2—AMENDMENT OF SENTENCING ACT 1991 6 3 Definitions 6 4 Sentencing orders 7 5 Aggregate sentence of imprisonment 8 6 New section 14A inserted 8 14A Home detention direction by sentencing court 8 7 Time held in custody before trial etc. to be deducted from sentence 9 8 New section 18SA inserted 9 18SA Home detention condition when order is imposed 9 9 Section 18W substituted 10 18W Proceeding for contravention of combined custody and treatment order 10 18WA Bringing a proceeding for contravention of combined custody treatment order—offender before a court 10 18WB Bringing of a proceeding for contravention of combined custody and treatment order—offender not before a court 11 18WC Issue of a contravention summons or warrant to arrest by a registrar 12 18WD Power to amend a contravention summons or warrant to arrest 13 18WE Form of a contravention summons 13 18WF Extension of a return date for a contravention summons 14 18WG Service of a contravention summons 14 18WH Issue of a warrant to arrest 14 18WI Unrepresented accused 15 18WJ Powers of court hearing a proceeding 15 18WK Practice and procedure at hearing 16 -- 1 of 127 -- Section Page ii 10 New section 18ZGA inserted 17 18ZGA Home detention condition when order is imposed 17 11 Subdivision (1D) of Division 2 of Part 3 repealed 17 12 New section 21A inserted 17 21A Home detention condition when order is imposed 17 13 Section 26 substituted 18 26 Proceeding for contravention of an intensive correction order 18 26A Bringing a proceeding for contravention of an intensive correction order—offender before a court 18 26B Bringing of a proceeding for contravention of an intensive correction order—offender not before a court 19 26C Issue of a contravention summons or warrant to arrest by a registrar 20 26D Power to amend a contravention summons or warrant to arrest 21 26E Form of a contravention summons 21 26F Extension of a return date for a contravention summons 22 26G Service of a contravention summons 22 26H Issue of a warrant to arrest 22 26I Unrepresented accused 23 26J Powers of court on determination of proceeding 23 26K Practice and procedure at hearing 24 14 New Subdivision (2A) of Division 2 of Part 3 inserted 25 Subdivision (2A)—Home detention orders 25 26L Definitions 25 26M Home detention order 25 26N Circumstances where offender is ineligible for home detention 26 26O Circumstances where offender may be ineligible for home detention—certain previous convictions 29 26P Order not to be made if residents object 31 26Q Suitability of the offender for home detention 32 26R Conditions of home detention order not to contravene intervention order 34 26S Undertaking by offender 34 26T Obligations of offender 35 26U Core conditions governing home detention 35 26V Special conditions 39 26W Withdrawal of consent 40 26X Revocation of order on application by offender or Secretary 40 26Y Suspension of home detention order 41 26Z Variation of home detention order 42 -- 2 of 127 -- Section Page iii 26ZA Proceeding for contravention of an undertaking or a home detention order 43 26ZB Bringing a proceeding for contravention of a home detention order—offender before a court 44 26ZC Bringing of a proceeding for contravention of home detention order—offender not before a court 45 26ZD Issue of a contravention summons or warrant to arrest by a registrar 46 26ZE Power to amend a contravention summons or warrant to arrest 46 26ZF Form of a contravention summons 47 26ZG Extension of a return date for a contravention summons 47 26ZH Service of a contravention summons 48 26ZI Issue of a warrant to arrest 48 26ZJ Unrepresented accused 48 26ZK Powers of court on determination of a contravention proceeding 49 26ZL Practice and procedure at hearing 50 26ZM Alternative sanction for minor breach of home detention order 50 26ZN Reconsideration of revocation if approved residence available 51 26ZO Revocation of order by court 52 26ZP Expiry of home detention order 53 26ZQ Service of notices on offender 53 26ZR Annual report 53 15 New section 27A inserted 54 27A Home detention condition when order is imposed 54 16 Breach of suspended sentence 54 17 New section 41A inserted 55 41A Home detention condition when order is imposed 55 18 Substitution of section 47 55 47 Proceeding for contravention of community-based order 55 47A Powers of the court on commencement of a proceeding for contravention of an order 56 47B Bringing of a proceeding for contravention of a community-based order—offender not before a court 57 47C Issue of a contravention summons or warrant to arrest by a registrar 58 47D Power to amend a contravention summons or warrant to arrest 58 47E Form of a contravention summons 59 47F Extension of a return date for a contravention summons 59 -- 3 of 127 -- Section Page iv 47G Service of a contravention summons 60 47H Issue of a warrant to arrest 60 47I Unrepresented accused 60 47J Powers of court on determination of a contravention proceeding 61 47K Practice and procedure at hearing 62 47L Powers of the court where a community-based order is made in default of payment of a fine 62 19 Aggregate fines 63 20 Heading to Subdivision (4) of Division 5 of Part 3 63 21 New section 77A inserted 64 77A Definition 64 22 Substitution of section 79 64 79 Proceeding for contravention of order for release on adjournment 64 79A Bringing of proceeding for contravention of order for release on adjournment—offender before a court 65 79B Bringing of proceeding for contravention of order for release on adjournment—offender not before a court 66 79C Issue of a contravention summons or warrant to arrest by a registrar 66 79D Power to amend a contravention summons or warrant to arrest 67 79E Form of a contravention summons 67 79F Extension of a return date for a contravention summons 68 79G Service of a contravention summons 68 79H Issue of a warrant to arrest 69 79I Unrepresented accused 69 79J Powers of court on determination of a contravention proceeding 70 79K Practice and procedure at hearing 70 23 Insertion of new section at the end of Part 12 71 141 Transitional provision—Justice Legislation Amendment Act 2010 71 24 Sentencing guidelines 73 25 Sentence by another judge or magistrate 73 26 Termination of assessment orders and diagnosis, assessment and treatment orders 74 27 Restricted involuntary treatment orders 74 28 Contents of home detention assessment report 74 29 Regulations 74 -- 4 of 127 -- Section Page v PART 3—AMENDMENT OF CHILDREN, YOUTH AND FAMILIES ACT 2005 75 30 Matters to be taken into account 75 31 Sentence discount for guilty plea 75 32 Determination of appeal by offender 76 33 Determination of DPP appeal against sentence 76 34 New Division 2A inserted in Part 5.4 76 Division 2A—Appeal by DPP—Failure to fulfil undertaking 76 429A DPP's right of appeal—failure to fulfil undertaking 76 429B How appeal is commenced 77 429C Determination of DPP's appeal—failure to fulfil undertaking 78 35 Abandonment of appeal 78 36 Appellant's failure to appear 79 37 Respondent's failure to appear on appeal by DPP 79 38 Application of Division 80 39 Right of appeal against sentence of detention imposed on appeal from Children's Court 80 40 Orders etc. on successful appeal 80 41 Court to have powers of Magistrates' Court 80 42 Rules 80 43 New section 616 inserted 81 616 Transitional provision—Justice Legislation Amendment Act 2010 81 44 Statute law revision 81 PART 4—AMENDMENTS TO CORRECTIONS ACT 1986 83 Division 1—Amendments relating to home detention orders 83 45 Definitions 83 46 Victim may be given certain information about a prisoner 84 47 Substitute section 59 84 58F Definition 84 59 Home detention orders 84 48 Section 60A substituted 87 60A Circumstances where prisoner not eligible for home detention 87 60AB Circumstances where prisoner may be ineligible for home detention—certain previous convictions 90 49 Suitability of prisoner for home detention 92 50 New section 60DA inserted 92 60DA Conditions of home detention order not to contravene intervention order 92 51 Contents of home detention assessment report 93 52 Core conditions governing home detention 93 -- 5 of 127 -- Section Page vi 53 Functions of Board 93 54 New section 119 inserted 93 119 Transitional provision—Justice Legislation Amendment Act 2010 93 Division 2—Statute law revision 94 55 Statute law revision 94 PART 5—AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 95 56 Commencement 95 57 Definition 95 58 When full brief must be served 96 59 Summary case conference 96 60 Transfer of summary offences that are related offences on or after committal 96 61 Court may transfer certain charges to Magistrates' Court 97 62 New Division 4 inserted in Part 5.8 98 Division 4—Procedure on guilty plea or guilty verdict 98 253A Abolition of allocutus 98 253B When finding of guilt occurs 98 63 Abandonment of appeal 98 64 Appellant's failure to appear 99 65 Determination of application for leave during sentencing hearing 99 66 Application of Division—alternative arrangements for giving evidence 100 67 Jury warning concerning alternative arrangements 100 68 When court must direct use of closed-circuit television or other facilities for complainant 100 69 When court must direct use of screens for complainant 100 70 When court must direct presence of support person for complainant 101 71 Personal service 101 72 Regulations 102 73 Repeal of sunset provision concerning sentence indications in Supreme Court and County Court 102 74 Persons who may witness statements in preliminary brief, full brief or hand-up brief 102 75 Transitional provisions—Trial 102 76 New section 440 inserted 104 440 Transitional provisions—Justice Legislation Amendment Act 2010 104 77 Statute law revision 105 -- 6 of 127 -- Section Page vii PART 6—AMENDMENT OF GAMBLING REGULATION ACT 2003 106 78 Publication and use approval 106 79 New section 2.5.19DA inserted 106 2.5.19DA Transitional race field publication and use fee 106 PART 7—AMENDMENT TO MISCELLANEOUS ACTS 109 Division 1—County Court Act 1958 109 80 Circumstances in which order may be made under section 80 109 Division 2—Family Violence Protection Act 2008 109 81 Procedural requirements for person directed to a police station, or person apprehended and detained 109 82 Application for family violence safety notice 110 83 New section 176A inserted 110 176A Relationship with certain orders under the Sentencing Act 1991 and the Corrections Act 1986 110 Division 3—Justice Legislation Miscellaneous Amendments Act 2009 111 84 Statute law revision—Justice Legislation Miscellaneous Amendments Act 2009 111 Division 4—Magistrates' Court Act 1989 112 85 Extent of jurisdiction 112 86 Warrants 112 87 Power to close proceedings to the public 113 Division 5—Marine Act 1988 113 88 Appeal to the County Court 113 89 New Division 6 inserted in Part 11 114 Division 6—Transitional provision—Justice Legislation Amendment Act 2010 114 160 Appeal against disqualification, cancellation, suspension or variation 114 90 Statute law revision 114 Division 6—Road Safety Act 1986 115 91 Appeal to the County Court 115 92 New section 103ZA inserted 115 103ZA Transitional provision—Justice Legislation Amendment Act 2010 115 -- 7 of 127 -- Section Page viii Division 7—Stalking Intervention Orders Act 2008 116 93 New section 51A inserted 116 51A Relationship with certain orders under the Sentencing Act 1991 and the Corrections Act 1986 116 Division 8—Supreme Court Act 1986 117 94 Circumstances in which order may be made under section 18 117 PART 8—REPEAL OF AMENDING ACT 118 95 Repeal of amending Act 118 ═══════════════ ENDNOTES 119 -- 8 of 127 -- 1 Justice Legislation Amendment Act 2010 † No. 30 of 2010 [Assented to 8 June 2010] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Sentencing Act 1991— (i) in relation to aggregate sentences of imprisonment and aggregate fines imposed by the Supreme Court or the County Court for summary offences; Victoria -- 9 of 127 -- Part 1—Preliminary Justice Legislation Amendment Act 2010 No. 30 of 2010 2 (ii) to repeal the offence for the breach of— (A) a combined custody and treatment order; (B) an intensive correction order; (C) a community-based order; and (D) an adjourned undertaking; (iii) to make further provision for the enforcement of an order or sentence listed in paragraph (ii); (iv) to make the necessary consequential and transitional provisions required on the repeal of the offence for breach of an order or sentence listed in paragraph (ii); (v) to make further provision for home detention orders; (b) to amend the Children, Youth and Families Act 2005— (i) in relation to the imposition of less severe sentences if an offender gives an undertaking to assist law enforcement authorities and to empower the Director of Public Prosecutions to appeal against such a sentence in the event of failure to fulfil an undertaking; (ii) to expand the range of sentences that a court may impose on certain appeals against sentence; (iii) to empower the prothonotary of the Supreme Court and the registrar of the County Court to issue warrants to detain in certain circumstances; s. 1 -- 10 of 127 -- Part 1—Preliminary Justice Legislation Amendment Act 2010 No. 30 of 2010 3 (iv) to remove the power of an appellate court to set aside an order striking out an appeal made when an appellant abandons an appeal; (v) to remove references to aggregate sentences of detention; (vi) to remove the requirement for the holding of a summary case conference if a preliminary brief is served on a child within 7 days after the filing of the charge-sheet; (vii) to amend the rule-making power to enable the making of rules in relation to the Children and Young Persons Infringement Notice System; (c) to amend the Corrections Act 1986 in relation to home detention orders; (d) to amend the Criminal Procedure Act 2009— (i) in relation to summary case conferences; (ii) in relation to the transfer of related summary offences on or after committal; (iii) to enable the transfer of a charge for an indictable offence from the Supreme Court or the County Court to the Children's Court; (iv) to abolish the common law procedure of administering the allocutus; (v) to remove the power of the County Court to set aside an order striking out an appeal made when an appellant abandons an appeal; s. 1 -- 11 of 127 -- Part 1—Preliminary Justice Legislation Amendment Act 2010 No. 30 of 2010 4 (vi) to empower the prothonotary of the Supreme Court and the registrar of the County Court to issue a warrant to imprison in certain circumstances; (vii) in relation to evidence sought to be admitted during a sentencing hearing in relation to a sexual offence; (viii) in relation to alternative arrangements for giving evidence; (ix) to provide for personal service on a legal practitioner by delivery to a document exchange; (x) in relation to regulation-making powers; (xi) to repeal sunset provisions for sentence indications in the Supreme Court and the County Court; (xii) to insert additional transitional arrangements; (e) to amend the Gambling Regulation Act 2003 to make further provision in relation to the payment of fees by wagering service providers who publish, use or otherwise make available race fields during the course of business; (f) to make minor amendments to these and other Acts. 2 Commencement (1) This Part comes into operation on the day on which this Act receives the Royal Assent. (2) Sections 44(2) and 77 are deemed to have come into operation on 1 January 2010. (3) Section 84(2) is deemed to have come into operation on 16 December 2009. s. 2 -- 12 of 127 -- Part 1—Preliminary Justice Legislation Amendment Act 2010 No. 30 of 2010 5 (4) Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (5) If a provision referred to in subsection (4) does not come into operation before 1 January 2012, it comes into operation on that day. __________________ s. 2 -- 13 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 6 PART 2—AMENDMENT OF SENTENCING ACT 1991 3 Definitions In section 3 of the Sentencing Act 1991— (a) insert the following definitions— "authorised person means a person who is prescribed or of a class of persons who are prescribed to bring proceedings under Subdivision (1B), (1C), (2), (2A) or (3) of Division 2, or under Division 3 or Division 5 of Part 3; contravention in relation to a provision of an order or a sentence includes a failure to comply with that provision; contravention summons means a summons issued under section 18WC(1)(a), 26C(1)(a), 26ZD(1)(a), 47C(1)(a) or 79C(1)(a); family violence intervention order means— (a) a family violence intervention order within the meaning of section 11 of the Family Violence Protection Act 2008; or (b) one of the following orders made under the Crimes (Family Violence) Act 1987 as in force immediately before its repeal— (i) an intervention order made on grounds referred to in section 4 or 4A of that Act, and subsequently varied or extended under section 16 or 16A of that Act; s. 3 See: Act No. 49/1991. Reprint No. 11 as at 15 January 2009 and amending Act Nos 46/2008, 7/2009, 22/2009, 68/2009, 69/2009, 77/2009, 87/2009, 91/2009 and 93/2009. LawToday: www. legislation. vic.gov.au -- 14 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 7 (ii) an intervention order made on grounds referred to in section 4 or 4A of that Act, and subsequently varied or extended under section 16 or 16A of that Act; (iii) an interim intervention order made on grounds referred to in section 8 of that Act; stalking intervention order means— (a) an intervention order within the meaning of the Stalking Intervention Orders Act 2008; or (b) an order made under section 4 of the Crimes (Family Violence) Act 1987 of a kind referred to in section 21A(5) of the Crimes Act 1958, both as in force immediately before their repeal;"; (b) for the definition of home detention order substitute— "home detention order means an order made under section 26M;". 4 Sentencing orders After section 7(1)(b) of the Sentencing Act 1991 insert— "(ba) record a conviction and order that the offender serve a term of imprisonment by way of home detention (a home detention order); or". s. 4 -- 15 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 8 5 Aggregate sentence of imprisonment After section 9(3) of the Sentencing Act 1991 insert— "(4) If the Supreme Court or the County Court hears and determines charges for summary offences under section 242 or 243 of the Criminal Procedure Act 2009 and imposes an aggregate sentence of imprisonment in respect of 2 or more of those offences, the court— (a) is not required to identify separate events giving rise to specific charges; and (b) is not required to announce— (i) the sentences that would have been imposed for each offence had separate sentences been imposed; or (ii) whether those sentences would have been imposed concurrently or cumulatively. (5) Subsection (4) does not affect the requirements of section 6AAA.". 6 New section 14A inserted After section 14 in the Sentencing Act 1991 insert— "14A Home detention direction by sentencing court (1) A court may direct that an offender sentenced to a term of imprisonment is not entitled to make a request under section 59 of the Corrections Act 1986. s. 5 -- 16 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 9 (2) In exercising its discretion whether or not to make a direction under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.". 7 Time held in custody before trial etc. to be deducted from sentence In section 18 of the Sentencing Act 1991— (a) subsections (1A), (4A) and (5A) are repealed; (b) in subsections (2) and (3), omit "or (1A)" (wherever occurring); (c) after subsection (2)(ba) insert— "(bb) to a home detention order; or"; (d) in subsection (7), omit "or (4A)". 8 New section 18SA inserted After section 18S of the Sentencing Act 1991 insert— "18SA Home detention condition when order is imposed (1) A court may when imposing a combined custody treatment order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986. (2) In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.". s. 7 -- 17 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 10 9 Section 18W substituted For section 18W of the Sentencing Act 1991 substitute— "18W Proceeding for contravention of combined custody and treatment order (1) If a person who is the subject of a combined custody and treatment order (the offender) contravenes any condition of the order while the order is in force, a proceeding may be brought against the person, in accordance with this Subdivision, to answer to the contravention. (2) A proceeding for the contravention of an order under subsection (1) must be commenced— (a) if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within whichever is the later of— (i) 6 months of the offence being found proven; or (ii) within 2 years of the order ceasing to be in force; or (b) in any other case, within one year of the order ceasing to be in force. 18WA Bringing a proceeding for contravention of combined custody treatment order— offender before a court (1) If a court finds an offender guilty of an offence punishable by imprisonment committed while a combined custody and treatment order is in force it may— s. 9 -- 18 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 11 (a) on application, in the prescribed form, by an authorised person; and (b) if the offender is then present before the court— do either of the following— (c) if it is the court that imposed the combined custody and treatment order, proceed to exercise any power under section 18WJ; or (d) if it is not the court that imposed the combined custody and treatment order, transfer the proceeding to the court that imposed the order. (2) If a combined custody treatment order was made in the Magistrates' Court; the Supreme Court or County Court may deal with the contravention proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009. (3) For the purpose of transferring a proceeding under subsection (1)(d) the court may, if the offender is not being held in custody in relation to the other offence or for any other reason, grant bail to the offender conditioned for, or remand the offender in custody pending his or her attendance at the court that imposed the combined custody and treatment order. 18WB Bringing of a proceeding for contravention of combined custody and treatment order—offender not before a court (1) If an offender contravenes a combined custody and treatment order an authorised person may, if an application has not been s. 9 -- 19 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 12 made under section 18WA in respect of the contravention, apply to the Magistrates' Court for the issue of— (a) a contravention summons; or (b) a warrant to arrest— in order to compel the attendance of the offender at the court that imposed the combined custody treatment order. (2) An authorised person may make an application under subsection (1) to a registrar of the Magistrates' Court in person or by post at any venue of the court. (3) If any offender is required to attend at the Magistrates' Court under a summons or warrant to arrest issued under section 18WC(1), his or her attendance must be at the proper venue of the court. 18WC Issue of a contravention summons or warrant to arrest by a registrar (1) On an application under section 18WB(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of a combined custody and treatment order issue— (a) a summons to answer to the contravention of the combined custody and treatment order; or (b) a warrant to arrest. (2) A registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that— (a) it is probable that the offender will not answer a contravention summons; or s. 9 -- 20 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 13 (b) the offender has absconded, is likely to abscond or is avoiding service of a contravention summons that has been issued; or (c) a warrant to arrest is required or authorised for other good cause. 18WD Power to amend a contravention summons or warrant to arrest Section 50 of the Magistrates' Court Act 1989 applies to a contravention summons or warrant to arrest issued under this section as if the reference in that section— (a) to a summons or warrant were a reference to a contravention summons or warrant to arrest issued under this section; and (b) to the court were a reference to the court by which the combined custody and treatment order was imposed. 18WE Form of a contravention summons A contravention summons— (a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the combined custody treatment order was imposed by the Supreme Court or the County Court, at that court, on a specified date and at a specified time to answer the proceeding against them; and (b) may be served in any manner in which a summons to answer a charge may be served under sections 16 and 17 of the Criminal Procedure Act 2009. s. 9 -- 21 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 14 18WF Extension of a return date for a contravention summons On the application of the authorised person who applied for the issue of the contravention summons at any time before it is served, the date specified in the contravention summons for the offender to attend court (the return date) may be extended without cause— (a) before the return date; or (b) within 28 days after the return date— by a registrar at the venue of the court at which the contravention summons was issued on one occasion and thereafter may be extended— (c) before the current return date; or (d) within 28 days after the current return date— by such a registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the contravention summons. 18WG Service of a contravention summons Service of a contravention summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 399 of the Criminal Procedure Act 2009. 18WH Issue of a warrant to arrest (1) When an offender does not attend before a court in answer to a contravention summons which has been served in accordance with section 18WG, the court may issue a warrant to arrest the offender. s. 9 -- 22 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 15 (2) A warrant to arrest authorised to be issued under this section is to be in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant to arrest with any necessary modifications. 18WI Unrepresented accused (1) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 18WA, or a contravention summons or warrant to arrest issued, under section 18WC, the court must— (a) ask the offender whether he or she has sought legal advice; and (b) if satisfied that the offender has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the offender. (2) If the court before which an offender appears in answer to bail granted under section 18WA, or a contravention summons or warrant to arrest issued under section 18WC is satisfied that the offender does not have a knowledge of the English language that is sufficient to enable the offender to understand, or participate in, the proceeding, it must not hear and determine the proceeding without a competent interpreter interpreting it. 18WJ Powers of court hearing a proceeding (1) If on the hearing of the proceeding under section 18W(1) the court finds the offender has contravened the order it must, subject to subsection (2), either— (a) confirm the order originally made; or s. 9 -- 23 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 16 (b) whether or not the offender has served any part of the sentence in the community, order the offender to serve in custody the whole part of the sentence that was to be served in the community. (2) The court must make an order under subsection (1)(b) unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the combined custody and treatment order was made. (3) If the court decides not to exercise the power referred to in subsection (1)(b), it must state in writing its reasons for so deciding. (4) The part of a term of imprisonment which a court orders an offender to serve in custody must be served— (a) immediately or if the offender is still serving the original custodial part of the sentence, immediately on the completion of service of that part of the sentence; and (b) unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court. 18WK Practice and procedure at hearing (1) The practice and procedure applicable to the hearing and determination of summary offences in the Magistrates' Court applies, so far as is appropriate, to the hearing and determination of a proceeding under section 18W(1), whether or not the court hearing the proceeding is the Supreme Court, the County Court or the Magistrates' Court. s. 9 -- 24 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 17 (2) Subsection (1) is subject to any rules of court.". 10 New section 18ZGA inserted After section 18ZG of the Sentencing Act 1991 insert— "18ZGA Home detention condition when order is imposed (1) A court may when imposing a drug treatment order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986. (2) In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.". 11 Subdivision (1D) of Division 2 of Part 3 repealed Subdivision (1D) of Division 2 of Part 3 of the Sentencing Act 1991 is repealed. 12 New section 21A inserted After section 21 of the Sentencing Act 1991 insert— "21A Home detention condition when order is imposed (1) A court may when imposing an intensive correction order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986. (2) In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.". s. 10 -- 25 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 18 13 Section 26 substituted For section 26 of the Sentencing Act 1991 substitute— "26 Proceeding for contravention of an intensive correction order (1) If a person who is the subject of an intensive correction order (the offender), without reasonable excuse, contravenes any condition of the order while the order is in force, a proceeding may be brought against the person to answer to the contravention in accordance with this Subdivision. (2) A proceeding for the contravention of an order under subsection (1) must be commenced— (a) if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within whichever is the later of— (i) 6 months of the offence being found proven; or (ii) within 2 years of the order ceasing to be in force; or (b) in any other case, within one year of the order ceasing to be in force. 26A Bringing a proceeding for contravention of an intensive correction order—offender before a court (1) If a court finds an offender guilty of an offence punishable by imprisonment committed while an intensive correction order is in force it may— s. 13 -- 26 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 19 (a) on application, in the prescribed form, by an authorised person; and (b) if the offender is then present before the court— do either of the following— (c) if it is the court that imposed the intensive correction order, proceed to exercise any power conferred on it by section 26J; or (d) if it is not the court that imposed the intensive correction order transfer the proceeding to the court that imposed the order. (2) If an intensive correction order was made in the Magistrates' Court; the Supreme Court or County Court may deal with the contravention proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009. (3) For the purpose of transferring a proceeding under subsection (1)(d), the court may, if the offender is not being held in custody in relation to the other offence or for any other reason, grant bail to the offender conditioned for, or remand the offender in custody pending his or her attendance at the court that imposed the intensive correction order. 26B Bringing of a proceeding for contravention of an intensive correction order—offender not before a court (1) If an offender contravenes an intensive correction order an authorised person may, if an application has not been made under section 26A in respect of the contravention, s. 13 -- 27 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 20 apply to the Magistrates' Court for the issue of— (a) a contravention summons; or (b) a warrant to arrest— in order to compel the attendance of the offender at the court that imposed the intensive correction order. (2) An authorised person may make an application under subsection (1) to a registrar of the Magistrates' Court in person or by post at any venue of the court. (3) If an offender is required to attend at the Magistrates' Court under a summons or warrant issued under section 26C(1)(a), his or her attendance must be at the proper venue of the court. 26C Issue of a contravention summons or warrant to arrest by a registrar (1) On an application under section 26B(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of an intensive correction order issue— (a) a summons to answer to the contravention of the intensive correction order; or (b) a warrant to arrest. (2) A registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that— (a) it is probable that the offender will not answer a contravention summons; or s. 13 -- 28 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 21 (b) the offender has absconded, is likely to abscond or is avoiding service of a contravention summons that has been issued; or (c) a warrant to arrest is required or authorised for other good cause. 26D Power to amend a contravention summons or warrant to arrest Section 50 of the Magistrates' Court Act 1989 applies to a contravention summons or warrant to arrest issued under this section as if the reference in that section— (a) to a summons or warrant were a reference to a contravention summons or warrant to arrest issued under this section; and (b) to the court were a reference to the court by which the intensive correction order was imposed. 26E Form of a contravention summons A contravention summons— (a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the intensive correction order was imposed by the Supreme Court or the County Court, at that court, on a specified date and at a specified time to answer the proceeding against them; and (b) may be served in any manner in which a summons to answer a charge may be served under sections 16 and 17 of the Criminal Procedure Act 2009. s. 13 -- 29 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 22 26F Extension of a return date for a contravention summons On the application of the authorised person who applied for the issue of the contravention summons at any time before it is served, the date specified in the contravention summons for the offender to attend court (the return date) may be extended without cause— (a) before the return date; or (b) within 28 days after the return date— by a registrar at the venue of the court at which the contravention summons was issued on one occasion and thereafter may be extended— (c) before the current return date; or (d) within 28 days after the current return date— by such a registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the contravention summons. 26G Service of a contravention summons Service of a contravention summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 399 of the Criminal Procedure Act 2009. 26H Issue of a warrant to arrest (1) When an offender does not attend before a court in answer to a contravention summons which has been served in accordance with section 26G, the court may issue a warrant to arrest the offender. s. 13 -- 30 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 23 (2) A warrant to arrest authorised to be issued under this section is to be in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant to arrest with any necessary modifications. 26I Unrepresented accused (1) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 26A, or a contravention summons or warrant issued under section 26C, the court must— (a) ask the offender whether he or she has sought legal advice; and (b) if satisfied that the offender has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the offender. (2) If the court before which an offender appears in answer to bail granted under section 26A, or a contravention summons or warrant to arrest issued under section 26C is satisfied that the offender does not have a knowledge of the English language that is sufficient to enable the offender to understand, or participate in, the proceeding, it must not hear and determine the proceeding without a competent interpreter interpreting it. 26J Powers of court on determination of proceeding (1) If on the hearing of the proceeding under section 26(1) the court finds the offender has contravened the order it must, subject to subsection (2), either— (a) vary the intensive correction order; or (b) confirm the order originally made; or s. 13 -- 31 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 24 (c) cancel the order (if it is still in force) and, whether or not it is still in force, commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date of the contravention of the order. (2) The court must make an order under subsection (1)(c) unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the intensive correction order was made. (3) If the court decides not to exercise the power referred to in subsection (1)(c), it must state in writing its reasons for so deciding. (4) If a court orders an offender to serve in prison the unexpired portion of the term of imprisonment, the term must be served— (a) immediately; and (b) unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court. 26K Practice and procedure at hearing (1) The practice and procedure applicable to the hearing and determination of summary offences in the Magistrates' Court applies, so far as is appropriate, to the hearing and determination of a proceeding under section 26(1), whether or not the court hearing the proceeding is the Supreme Court, the County Court or the Magistrates' Court. (2) Subsection (1) is subject to any rules of court.". s. 13 -- 32 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 25 14 New Subdivision (2A) of Division 2 of Part 3 inserted After Subdivision (2) of Division 2 of Part 3 of the Sentencing Act 1991 insert— "Subdivision (2A)—Home detention orders 26L Definitions (1) In this Subdivision, a reference to victim does not include a body. (2) In this Subdivision, contravention of a home detention order includes a contravention of— (a) a condition of a home detention order; or (b) any requirement of any condition of a home detention order; or (c) an obligation set out in an undertaking given under a home detention order. 26M Home detention order (1) If a person is convicted by a court of an offence and— (a) the court is considering sentencing him or her to a term of imprisonment; and (b) the offender is eligible for a home detention order under this Subdivision; and (c) the court has received a home detention assessment report— the court, if satisfied that it is desirable to do so in the circumstances, may impose a sentence of imprisonment of not more than one year and order that it be served by way of home detention. s. 14 -- 33 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 26 (2) A court must not make a home detention order if the sentence of imprisonment by itself would not be appropriate in the circumstances having regard to the provisions of this Act. (3) If an offender is convicted of more than one offence in the same proceeding, the court may only make a home detention order if the aggregate period of imprisonment imposed in respect of all the offences does not exceed one year. (4) A home detention order must be taken to be a sentence of imprisonment for the purposes of all enactments except any enactment providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits. (5) The period of a home detention order is the period of the term of imprisonment imposed. (6) For the purpose of any proceedings under section 26Z or 26ZA, a home detention order made on appeal by the Court of Appeal must be taken to have been made by the court from whose decision the appeal was brought. 26N Circumstances where offender is ineligible for home detention (1) An offender is not eligible for a home detention order if the sentence will be imposed for a conviction for any of the following offences— (a) an offence to which clause 1, 2, 3 or 4 of Schedule 1 applies; or (b) an offence which, in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or s. 14 -- 34 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 27 (c) an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or (d) subject to subsection (4), a contravention of a family violence intervention order, or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or (e) subject to subsection (5), a contravention of a stalking intervention order, or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; or (f) an offence under section 21A of the Crimes Act 1958 (stalking). (2) An offender is not eligible for a home detention order if the offender has previously been convicted of an offence to which clause 1, 2 or 3 of Schedule 1 applies. (3) An offender is not eligible for a home detention order if— (a) in the previous 10 years the offender has been convicted for a contravention of— (i) a family violence intervention order or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or (ii) a stalking intervention order or a corresponding interstate order within the meaning of the s. 14 -- 35 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 28 Stalking Intervention Orders Act 2008; and (b) if a home detention order were to be made— (i) in the case of a family violence intervention order, the offender would reside, or would be likely to reside, with a person who is a protected person or affected family member under the family violence intervention order; or (ii) in the case of a stalking intervention order, the offender would reside, or would be likely to reside, in close proximity to a person who is an affected person under the stalking intervention order. (4) Subsection (1)(d) only applies if the result of making a home detention order would be that the offender— (a) would reside with, or be likely to reside with, a protected person or affected family member (as the case requires) under the family violence intervention order contravened by the offender; or (b) would continue, or be likely to continue, a close personal association with a protected person or affected family member (as the case requires) under the family violence intervention order contravened by the offender. (5) Subsection (1)(e) applies unless the court is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following— s. 14 -- 36 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 29 (a) the period of time since the offence was committed; (b) the offender's age at the time the offence was committed; (c) the nature and gravity of the offence; (d) the offender's behaviour and history since he or she committed the offence; (e) the likely proximity of the offender to any victim of the offence if the court were to make a home detention order; (f) any other matter the court considers relevant. (6) For the purposes of subsection (4)(b), a close personal association means communication or social interaction but does not include performance of obligations, such as payment of child support. 26O Circumstances where offender may be ineligible for home detention—certain previous convictions (1) Subject to subsection (2), this section applies to the following offences— (a) an offence which, in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or (b) an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or (c) a contravention of a family violence intervention order, or a corresponding interstate order within the meaning of s. 14 -- 37 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 30 the Family Violence Protection Act 2008; or (d) a contravention of a stalking intervention order, or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; or (e) an offence under section 21A of the Crimes Act 1958 (stalking). (2) This section does not apply to an offence referred to in section 26N(2) or 26N(3), or to which section 26N(4) or 26N(5) applies. (3) If an offender has been previously convicted of an offence to which this section applies, the offender is not eligible for a home detention order unless the court is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following— (a) the period of time since the offence was committed; (b) the sentence imposed for the offence; (c) the offender's age at the time the offence was committed; (d) the nature and gravity of the offence; (e) the offender's behaviour and history since he or she committed the offence; (f) the likely proximity of the offender to any victim of the offence if the court were to make a home detention order; (g) any other matter the court considers relevant. s. 14 -- 38 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 31 26P Order not to be made if residents object (1) A court must not make a home detention order unless the court is satisfied that all persons aged 18 years or over who will be residing with the offender— (a) have been consulted by the Secretary to the Department of Justice or a person authorised by that Secretary, without the offender being present, about the making of the home detention order; and (b) have acknowledged in writing that they understand the requirements of the home detention order and are prepared to live in conformity with them; and (c) subject to subsection (3), have consented in writing to the offender residing with them under a home detention order. (2) The court must not make a home detention order unless the court is satisfied that— (a) so far as practicable the wishes and feelings of any person under the age of 18 years who will be residing with the offender under a home detention order have been ascertained; and (b) due consideration has been given to them, having regard to the age and understanding of the person. (3) The court may dispense with the consent of a person under subsection (1) if the court is satisfied that the person lacks the capacity to give that consent. s. 14 -- 39 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 32 (4) If the court dispenses with the consent of a person, the court must not make the order unless the court is satisfied that— (a) so far as practicable the wishes and feelings of the person have been ascertained; and (b) due consideration has been given to them, having regard to the understanding of the person. 26Q Suitability of the offender for home detention (1) A court may only make a home detention order if the court is satisfied— (a) that the offender is a suitable person to serve a home detention order; and (b) that it is appropriate in all of the circumstances that the sentence be served by way of home detention; and (c) on written advice received from the Secretary to the Department of Justice, that— (i) a place will be available for the offender in a home detention program approved by the Secretary to the Department of Justice from the day on which the offender commences serving his or her sentence of imprisonment by way of home detention; and (ii) the home detention program is located close enough to the place where the offender will reside during the period of the order to ensure adequate support and supervision; and s. 14 -- 40 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 33 (d) that the offender has consented in writing to the making of the order and has made the written undertakings required by section 26S; and (e) that a home detention assessment report has been prepared on the offender in accordance with section 99F. (2) In deciding whether or not to make a home detention order, the court must have regard to the contents of a home detention assessment report on the offender. (3) A court may, for any reason it considers sufficient, decline to make a home detention order despite the contents of a home detention assessment report. (4) A court may make a home detention order only if a home detention assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve a sentence of imprisonment by way of home detention. (5) The court must not make a home detention order if the court is satisfied that the order may pose a risk to the safety of any person under the age of 18 who will be— (a) residing with the offender under a home detention order; or (b) regularly attending the residence where the offender will be residing under a home detention order. (6) In subsection (5), safety has the meaning given in section 4 of the Family Violence Protection Act 2008. s. 14 -- 41 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 34 26R Conditions of home detention order not to contravene intervention order (1) This section applies if the court is considering making a home detention order in respect of an offender who is a respondent to— (a) a current family violence intervention order; or (b) a current stalking intervention order. (2) The court must not make a home detention order unless satisfied that the terms of the home detention order will not conflict with the conditions of the family violence intervention order or the stalking intervention order to the extent that the offender could not legally comply with both orders at once. Example A home detention order could not require the offender to reside at a particular place if, by residing at that place, the offender would contravene a family violence intervention order. 26S Undertaking by offender (1) Before a home detention order may be made in respect of an offender, the offender must give the following undertakings— (a) that the offender will comply with the offender's obligations under this Subdivision; (b) that the offender will agree and submit to any monitoring or testing required or directed under the home detention order to ensure compliance with those obligations; s. 14 -- 42 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 35 (c) that the offender will pay the incidental costs (if any) incurred by the offender as a result of the home detention order that are determined by the Secretary to the Department of Justice to be payable by the offender. (2) An undertaking under this section must— (a) be in writing; and (b) set out the obligations of the offender under a home detention order. 26T Obligations of offender The obligations of an offender while serving a sentence of imprisonment by way of home detention are— (a) to comply with any requirements of this Subdivision that relate to the offender; and (b) to comply with the requirements of any conditions to which the offender's home detention order is subject. 26U Core conditions governing home detention The core conditions of a home detention order are— (a) that the offender must be of good behaviour and must not commit any offence during the period of the order; (b) that the offender must advise the Secretary to the Department of Justice as soon as possible if arrested or detained by a member of the police force; (c) that the offender must reside only at premises approved by the Secretary to the Department of Justice; s. 14 -- 43 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 36 (d) that the offender must remain at the approved residence at all times other than— (i) when the absence is authorised by the Secretary to the Department of Justice; or (ii) when it is unsafe to remain there due to immediate danger (such as fire, family violence or medical emergency); or (iii) when a person residing at the approved residence has withdrawn his or her consent under section 26W; (e) that during authorised absences from the approved residence the offender must adhere to a specified activity plan that— (i) sets out the activities that the offender must carry out in accordance with the other core conditions; and (ii) is approved or arranged by the Secretary to the Department of Justice; (f) that the offender must advise the Secretary to the Department of Justice as soon as practicable after departure from the approved residence because— (i) it was unsafe to remain there due to immediate danger; or (ii) a person residing at the approved residence has withdrawn his or her consent under section 26W; s. 14 -- 44 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 37 (g) that the offender must accept any visit to the approved residence by the Secretary to the Department of Justice at any time; (h) that the offender must submit to searches of places or things under the immediate control of the offender, as required by the Secretary to the Department of Justice; (i) that the offender must 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 monitoring systems; (j) that the offender must not tamper with, damage or disable monitoring equipment; (k) that the offender must comply with any reasonable direction of the Secretary to the Department of Justice in relation to association with specified persons; (l) that the offender must not consume alcohol; (m) that the offender must not use prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind; (n) that the offender must 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; s. 14 -- 45 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 38 (o) that the offender must accept any reasonable direction of the Secretary to the Department of Justice in relation to the maintenance of or obtaining of employment; (p) that the offender must 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; (q) that the offender must authorise and make reasonable attempts to facilitate contact between any employer of the offender and the Secretary to the Department of Justice; (r) that the offender must engage in personal development activities or in counselling or treatment programs, as directed by the Secretary to the Department of Justice; (s) that the offender must undertake unpaid community work (not exceeding 20 hours per week) as directed by the Secretary to the Department of Justice when not otherwise employed; (t) that the offender must not possess or have in his or her control— (i) any firearm; or (ii) any prohibited weapon within the meaning of the Control of Weapons Act 1990; or (iii) any controlled weapon or dangerous article within the meaning of the Control of Weapons Act 1990 in contravention of that Act; s. 14 -- 46 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 39 (u) that the offender must comply with any order made under section 84 or 86(1) (whether before or after the making of the home detention order) in relation to the offence for which the home detention order is made; (v) that the offender must comply with all reasonable directions made by the Secretary to the Department of Justice. 26V Special conditions (1) The court may attach to a home detention order any special conditions that it considers appropriate. (2) The court may attach special conditions under subsection (1) on its own motion or on application of— (a) the offender; or (b) the Secretary to the Department of Justice; or (c) the Director of Public Prosecutions, the informant or the police prosecutor. (3) The court may at any time vary or revoke any special conditions attached to a home detention order on the application of— (a) the offender; or (b) the Secretary to the Department of Justice; or (c) the Director of Public Prosecutions, the informant or the police prosecutor. s. 14 -- 47 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 40 26W Withdrawal of consent (1) A person who resides with an offender and who has given a consent under section 26P may at any time, by notice in writing, withdraw that consent. (2) A notice of withdrawal of consent must be served on the Secretary to the Department of Justice. (3) The Secretary to the Department of Justice must notify the offender if a notice of withdrawal of consent has been served under this section. (4) On being notified that a notice of consent has been withdrawn, the offender must cease residing in the residence to which the notice relates. 26X Revocation of order on application by offender or Secretary (1) If there is no longer any approved residence at which an offender can reside under a home detention order, the Secretary to the Department of Justice may apply to the court for the revocation of the home detention order. (2) Subject to subsection (3), the Secretary to the Department of Justice must notify the offender of an application under subsection (1). (3) The Secretary to the Department of Justice is not required to give notice under subsection (2) if the court is satisfied that the matter is urgent. s. 14 -- 48 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 41 (4) An offender who is serving a sentence of imprisonment by way of home detention may apply to the court for the revocation of the home detention order. (5) The offender must notify the Secretary to the Department of Justice of an application under subsection (4). (6) The Secretary to the Department of Justice may make written submissions to the court in respect of an application under this section. (7) The offender concerned may make written submissions to the court in respect of— (a) an application under subsection (1) of which the offender is given notice under this section; or (b) an application under subsection (4). (8) The court may, in its discretion, give an offender an opportunity to appear before the court to be heard in relation to an application. (9) On an application under this section, the court after considering any submissions may revoke the home detention order. (10) If the court revokes a home detention order under this section, the court may issue a warrant authorising any member of the police force to arrest the offender and take the offender to prison. 26Y Suspension of home detention order The Secretary to the Department of Justice may— (a) if the offender is ill; or s. 14 -- 49 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 42 (b) in other exceptional circumstances— suspend for a period the operation of a home detention order or of any condition of the order and, if so, that period does not count in calculating the period for which the order is to remain in force or a condition is to be complied with. 26Z Variation of home detention order (1) If on application under this subsection the court that made a home detention order is satisfied— (a) that the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or (b) that the circumstances of the offender were wrongly stated or were not accurately presented to the court or the author of a home detention assessment report before the order was made; or (c) that the offender is no longer willing to comply with the order— it may vary the order or cancel it and, subject to subsection (2), deal with the offender for the offence or offences with respect to which it was made in any manner in which the court could deal with the offender if it had just convicted him or her of that offence or those offences. (2) In determining how to deal with an offender following the cancellation by it of a home detention order, a court must take into account the extent to which the offender had complied with the order before its cancellation. s. 14 -- 50 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 43 (3) An application under subsection (1) may be made at any time while the order is in force by— (a) the offender; or (b) a prescribed person or a member of a prescribed class of persons; or (c) the Director of Public Prosecutions. (4) Notice of an application under subsection (1) must be given— (a) to the offender; and (b) to the Director of Public Prosecutions (if the sentencing court was the Supreme Court or the County Court) or to the informant or police prosecutor (if the sentencing court was the Magistrates' Court). (5) The court may order that a warrant to arrest be issued against the offender if he or she does not attend before the court on the hearing of the application. 26ZA Proceeding for contravention of an undertaking or a home detention order (1) If a person who is the subject of a home detention order (the offender) contravenes, without reasonable excuse, a home detention order while the order is in force, a proceeding may be brought against the person, in accordance with this Subdivision, to answer to the contravention. (2) A proceeding for the contravention of an order under subsection (1) must be commenced— s. 14 -- 51 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 44 (a) if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within whichever is the later of— (i) 6 months of the offence being found proven; or (ii) within 2 years of the order ceasing to be in force; or (b) in any other case, within one year of the order ceasing to be in force. 26ZB Bringing a proceeding for contravention of a home detention order—offender before a court (1) If a court finds an offender guilty of an offence punishable by imprisonment committed while a home detention order is in force it may— (a) on application, in the prescribed form, by an authorised person; and (b) if the offender is then present before the court— do either of the following— (c) if it is the court that imposed the home detention order, proceed to exercise any power conferred on it by section 26ZK; or (d) if it is not the court that imposed the home detention order transfer the proceeding to the court that imposed the order. (2) If a home detention order was made in the Magistrates' Court; the Supreme Court or County Court may deal with the s. 14 -- 52 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 45 contravention proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009. (3) For the purpose of transferring a proceeding under subsection (1)(d) the court may, if the offender is not being held in custody in relation to the other offence or for any other reason, grant bail to the offender conditioned for, or remand the offender in custody pending his or her attendance at the court that imposed the home detention order. 26ZC Bringing of a proceeding for contravention of home detention order— offender not before a court (1) If an offender contravenes a home detention order an authorised person may, if an application has not been made under section 26ZB in respect of the contravention apply to the Magistrates' Court for the issue of— (a) a contravention summons; or (b) a warrant to arrest— in order to compel the attendance of the offender at the court that imposed the home detention order. (2) An authorised person may make an application under subsection (1) to a registrar of the Magistrates' Court in person or by post at any venue of the court. (3) If an offender is required to attend at the Magistrates' Court under a summons or warrant issued under section 26ZD(1), his or her attendance must be at the proper venue of the court. s. 14 -- 53 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 46 26ZD Issue of a contravention summons or warrant to arrest by a registrar (1) On an application under section 26ZC(2), the registrar must, if satisfied that there are reasonable grounds to believe the offender has contravened a home detention order issue— (a) a summons to answer to the contravention of the home detention order; or (b) a warrant to arrest. (2) A registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that — (a) it is probable that the offender will not answer a contravention summons; or (b) the offender has absconded, is likely to abscond or is avoiding service of a contravention summons that has been issued; or (c) a warrant to arrest is required or authorised for other good cause. 26ZE Power to amend a contravention summons or warrant to arrest Section 50 of the Magistrates' Court Act 1989 applies to a contravention summons or warrant to arrest issued under this section as if the reference in that section— (a) to a summons or warrant were a reference to a contravention summons or warrant to arrest issued under this section; and s. 14 -- 54 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 47 (b) to the court were a reference to the court by which the home detention order was imposed. 26ZF Form of a contravention summons A contravention summons— (a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the home detention order was imposed by the Supreme Court or the County Court, at that court, on a specified date and at a specified time to answer the proceeding against them; and (b) may be served in any manner in which a summons to answer a charge may be served under sections 16 and 17 of the Criminal Procedure Act 2009. 26ZG Extension of a return date for a contravention summons On the application of the person who applied for the issue of the contravention summons at any time before it is served, the date specified in the contravention summons for the offender to attend court (the return date) may be extended without cause— (a) before the return date; or (b) within 28 days after the return date— by a registrar at the venue of the court at which the contravention summons was issued on one occasion and thereafter may be extended— (c) before the current return date; or s. 14 -- 55 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 48 (d) within 28 days after the current return date— by such a registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the contravention summons. 26ZH Service of a contravention summons Service of a contravention summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 399 of the Criminal Procedure Act 2009. 26ZI Issue of a warrant to arrest (1) When an offender does not attend before a court in answer to a contravention summons which has been served in accordance with section 26ZH, the court may issue a warrant to arrest the offender. (2) A warrant to arrest authorised to be issued under this section is to be in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant to arrest with any necessary modifications. 26ZJ Unrepresented accused (1) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 26ZB, or a contravention summons or warrant to arrest issued under section 26ZD, the court must— (a) ask the offender whether he or she has sought legal advice; and (b) if satisfied that the offender has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the offender. s. 14 -- 56 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 49 (2) If the court before which an offender appears in answer to bail granted under section 26ZB, or a contravention summons or warrant to arrest issued, under section 26ZD is satisfied that the offender does not have a knowledge of the English language that is sufficient to enable the offender to understand, or participate in, the proceeding, it must not hear and determine the proceeding without a competent interpreter interpreting it. 26ZK Powers of court on determination of a contravention proceeding (1) If on the hearing of a proceeding under section 26ZA(1) the court finds the offender has contravened a home detention order, it must, subject to subsection (2), either— (a) vary the home detention order; or (b) confirm the order originally made; or (c) cancel the order (if it is still in force) and, whether or not it is still in force, commit the offender to prison for the portion of the term of imprisonment to which he or she was sentenced that was unexpired at the date on which the contravention occurred. (2) The court must make an order under subsection (1)(c) unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the home detention order was made. (3) If on the hearing of a proceeding under section 26ZA(1) the court finds that the offender has contravened a condition of the home detention order, but that contravention s. 14 -- 57 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 50 is not a serious contravention within the meaning of section 26ZM, the court may impose a sanction by way of a formal warning. (4) If the court decides not to exercise the power referred to in subsection (1)(c), it must state in writing its reasons for so deciding. (5) If a court orders an offender to serve in prison the unexpired portion of the term of imprisonment, the term must be served— (a) immediately; and (b) unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court. 26ZL Practice and procedure at hearing (1) The practice and procedure applicable to the hearing and determination of summary offences in the Magistrates' Court applies, so far as is appropriate, to the hearing and determination of a proceeding under section 26ZA(1), whether or not the court hearing the proceeding is the Supreme Court, the County Court or the Magistrates' Court. (2) Subsection (1) is subject to any rules of court. 26ZM Alternative sanction for minor breach of home detention order (1) This section does not apply in case of a serious contravention of a home detention order. (2) If, after completing the relevant inquiries, the Secretary to the Department of Justice is satisfied that the offender has failed to comply with a home detention order, the s. 14 -- 58 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 51 Secretary may impose a sanction for the contravention by way of a formal warning. (3) The Secretary to the Department of Justice must notify an offender of any sanction imposed on the offender under subsection (2). (4) In this section, serious contravention in relation to a home detention order means— (a) a contravention that compromises the safety and security of the community, any person residing with the offender or the offender's family; or (b) a contravention that involves the commission of an offence; or (c) a contravention that involves non compliance with an order made under section 84 or 86(1); or (d) a contravention that occurs after repeated failure to comply with the conditions of the order; or (e) a contravention of a core condition of the home detention order set out in section 26U(d) or section 26U(e). 26ZN Reconsideration of revocation if approved residence available (1) If the court revokes a home detention order under section 26X, the offender may apply to the court to rescind the revocation of the home detention order on the ground that an approved residence at which the offender can reside has become available. (2) On an application under subsection (1), the court may rescind the revocation of a home detention order if it is satisfied— s. 14 -- 59 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 52 (a) that a residence at which the offender can reside is available; and (b) that the premises have been approved by the Secretary to the Department of Justice; and (c) on the advice of the Secretary, that the rescission is not prohibited under subsection (3); and (d) that it is appropriate in all the circumstances to do so. (3) Section 26P applies to a rescission order under this section as if a reference in that section (except in subsections (1)(b) and (c) and (2)(a) to the making of a home detention order) were a reference to the making of the rescission order. (4) If the revocation of the home detention order is rescinded, the home detention order must be taken for the purposes of this Subdivision not to have been revoked. 26ZO Revocation of order by court (1) Subject to subsection (2), if a court imposes a sentence for another offence on an offender to whom a home detention order relates, the court may revoke the home detention order. (2) If a court imposes a sentence of imprisonment that is to be served in custody in a prison for another offence on an offender to whom a home detention order relates, the court must revoke the home detention order. (3) If a court revokes a home detention order under subsection (2), the court must commit the offender to prison for the portion of the term of imprisonment to which he or she was s. 14 -- 60 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 53 sentenced that was unexpired at the date of the revocation of the order. 26ZP Expiry of home detention order Unless a home detention order is revoked under this Subdivision, the order expires at the end of the minimum term of imprisonment to which the offender was sentenced. 26ZQ Service of notices on offender (1) Any notice required to be served under this Subdivision on an offender in respect of a home detention order may be served on him or her personally or by posting it to the offender's approved residence. (2) Any notice required under this Subdivision to be served on an offender in custody in a prison must be served on the Secretary to the Department of Justice. (3) The Secretary to the Department of Justice must notify the offender of any notice served on him or her under subsection (2). 26ZR Annual report The Secretary to the Department of Justice must include in each report of operations prepared in respect of the Department under the Financial Management Act 1994— (a) details of the number of persons placed on home detention orders during the period of the report; and (b) details of the number of persons in respect of whom a home detention order has been revoked and who were taken to prison during that period; and s. 14 -- 61 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 54 (c) details of the impact of home detention orders on persons residing with offenders; and (d) any other matters in relation to home detention that the Minister directs to be included.". 15 New section 27A inserted After section 27 of the Sentencing Act 1991 insert— "27A Home detention condition when order is imposed (1) A court may when imposing a partly suspended sentence of imprisonment attach a condition to the order that the offender is not entitled to make a request under section 59 of the Corrections Act 1986. (2) In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.". 16 Breach of suspended sentence After section 31(1) of the Sentencing Act 1991 insert— "(1AA) If a suspended sentence of imprisonment was imposed in the Magistrates' Court; the Supreme Court or County Court may deal with the breach proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009.". s. 15 -- 62 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 55 17 New section 41A inserted After section 41 of the Sentencing Act 1991 insert— "41A Home detention condition when order is imposed (1) A court may when imposing a sentence of imprisonment made in addition to a community-based order attach a condition that the offender is not entitled to make a request under section 59 of the Corrections Act 1986. (2) In exercising its discretion whether or not to attach a condition under subsection (1), a court must have regard to all the circumstances of the case including the nature and gravity of the offence.". 18 Substitution of section 47 For section 47 of the Sentencing Act 1991 substitute— "47 Proceeding for contravention of community-based order (1) If a person who is the subject of a community-based order (the offender), without reasonable excuse, contravenes any condition of the order while the order is in force, a proceeding may be brought against the person, in accordance with this Subdivision, to answer to the contravention. (2) A proceeding for the contravention of an order under subsection (1) must be commenced— (a) if the contravention is constituted by the offender committing another offence punishable by imprisonment s. 17 -- 63 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 56 during the period of the order, within whichever is the later of— (i) 6 months of the offence being found proven; or (ii) within 2 years of the order ceasing to be in force; or (b) in any other case, within one year of the order ceasing to be in force. 47A Powers of the court on commencement of a proceeding for contravention of an order (1) If a court finds an offender guilty of an offence punishable by imprisonment committed while a community-based order is in force it may— (a) on the application, in the prescribed form, of an authorised person; and (b) if the offender is then present before the court— do either of the following— (c) if it is the court that imposed the community-based order, proceed to exercise any power conferred on it by section 47J; or (d) if it is not the court that imposed the community-based order transfer the proceeding to the court that imposed the order. (2) If a community-based order was made in the Magistrates' Court; the Supreme Court or County Court may deal with the contravention proceeding as if it were an unrelated summary offence under s. 18 -- 64 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 57 section 243 of the Criminal Procedure Act 2009. (3) For the purpose of transferring a proceeding under subsection (1)(d) the court may, if the offender is not being held in custody in relation to the other offence or for any other reason, grant bail to the offender conditioned for, or remand the offender in custody pending his or her attendance at the court that imposed the community-based order. 47B Bringing of a proceeding for contravention of a community-based order—offender not before a court (1) If an offender contravenes a community- based order an authorised person may, if an application has not been made under section 47A in respect of the contravention apply to the Magistrates' Court for the issue of— (a) a contravention summons; or (b) a warrant to arrest— in order to compel the attendance of the offender at the court that imposed the community-based order. (2) An authorised person may make an application under subsection (1) to a registrar of the Magistrates' Court in person or by post at any venue of the court. (3) If an offender is required to attend at the Magistrates' Court under a summons or warrant issued under section 47C(1)(a), attendance must be at the proper venue of the court. s. 18 -- 65 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 58 47C Issue of a contravention summons or warrant to arrest by a registrar (1) On an application under section 47B(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of a community-based order issue— (a) a summons to answer to the contravention of the community-based order; or (b) a warrant to arrest. (2) A registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that— (a) it is probable that the offender will not answer a contravention summons; or (b) the offender has absconded, is likely to abscond or is avoiding service of a contravention summons that has been issued; or (c) a warrant to arrest is required or authorised for other good cause. 47D Power to amend a contravention summons or warrant to arrest Section 50 of the Magistrates' Court Act 1989 applies to a contravention summons or warrant to arrest issued under this section as if the reference in that section— (a) to a summons or warrant were a reference to a breach summons or warrant to arrest issued under this section; and s. 18 -- 66 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 59 (b) to the court were a reference to the court by which the community-based order was imposed. 47E Form of a contravention summons A contravention summons— (a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the community-based order was imposed by the Supreme Court or the County Court, at that court, on a specified date on a specified time to answer the proceeding against them; and (b) may be served in any manner in which a summons to answer a charge may be served under sections 16 and 17 of the Criminal Procedure Act 2009. 47F Extension of a return date for a contravention summons On the application of the person who applied for the issue of the contravention summons at any time before it is served, the date specified in the contravention summons for the offender to attend court (the return date) may be extended without cause— (a) before the return date; or (b) within 28 days after the return date— by a registrar at the venue of the Court at which the contravention summons was issued on one occasion and thereafter may be extended— (c) before the current return date; or s. 18 -- 67 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 60 (d) within 28 days after the current return date— by such a registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the contravention summons. 47G Service of a contravention summons Service of a contravention summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 399 of the Criminal Procedure Act 2009. 47H Issue of a warrant to arrest (1) When an offender does not attend before a court in answer to a contravention summons which has been served in accordance with section 47G, the court may issue a warrant to arrest the offender. (2) A warrant to arrest authorised to be issued under this section is to be in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant to arrest with any necessary modifications. 47I Unrepresented accused (1) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 47A, or a contravention summons or warrant issued under section 47C, the court must— (a) ask the offender whether he or she has sought legal advice; and (b) if satisfied that the offender has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the offender. s. 18 -- 68 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 61 (2) If the court before which an offender appears in answer to bail granted under section 47A, or a contravention summons or warrant issued under section 47C is satisfied that the offender does not have a knowledge of the English language that is sufficient to enable the offender to understand, or participate in, the proceeding, it must not hear and determine the proceeding without a competent interpreter interpreting it. 47J Powers of court on determination of a contravention proceeding (1) If on the hearing of the proceeding under section 47(1) the court finds the offender has contravened the community-based order it must— (a) vary the community-based order; or (b) confirm the order originally made; or (c) cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence or offences with respect to which the order was made in any manner in which the court could deal with the offender if it had just found him or her guilty of that offence or those offences. (2) In determining how to deal with an offender following the cancellation by it of a community-based order, a court must take into account the extent to which the offender had complied with the order before its cancellation. s. 18 -- 69 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 62 47K Practice and procedure at hearing (1) The practice and procedure applicable to the hearing and determination of summary offences in the Magistrates' Court applies, so far as is appropriate, to the hearing and determination of a proceeding under section 47(1), whether or not the court hearing the proceeding is the Supreme Court, the County Court or the Magistrates' Court. (2) Subsection (1) is subject to any rules of court. 47L Powers of the court where a community- based order is made in default of payment of a fine This section applies also to a community- based order made under Division 4 in default of payment of a fine or an instalment under an instalment order but if the court considers that the orders that it may make under this section in respect of such a community- based order are not adequate in the light of— (a) the nature of the offence that led to the community-based order; and (b) the characteristics of the offender; and (c) the offender's wilful refusal to pay the fine or instalment and to perform unpaid community work— the court may impose a sentence of imprisonment of 1 day for each penalty unit or part of a penalty unit then remaining unpaid up to a maximum of 24 months.". s. 18 -- 70 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 63 19 Aggregate fines At the end of section 51 of the Sentencing Act 1991 insert— "(2) If the Supreme Court or the County Court hears and determines charges for summary offences under section 242 or 243 of the Criminal Procedure Act 2009 and proposes to impose an aggregate fine in respect of 2 or more of those offences, the court— (a) is not required to identify separate events giving rise to specific charges; and (b) is not required to announce— (i) the sentences that would have been imposed for each offence had separate sentences been imposed; or (ii) whether those sentences would have been imposed concurrently or cumulatively. (3) Subsection (2) does not affect the requirements of section 6AAA.". 20 Heading to Subdivision (4) of Division 5 of Part 3 For the heading to Subdivision (4) of Part 3 of the Sentencing Act 1991 substitute— "Variation and contravention of orders for release on adjournment". s. 19 -- 71 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 64 21 New section 77A inserted After the heading to Subdivision (4) of Division 5 of Part 3 of the Sentencing Act 1991 insert— "77A Definition In this Subdivision contravention of an undertaking means a contravention of any condition or requirement of an undertaking given under— (a) Subdivision (2) of Division 5 of Part 3; or (b) Subdivision (3) of Division 5 of Part 3." 22 Substitution of section 79 For section 79 of the Sentencing Act 1991 substitute— "79 Proceeding for contravention of order for release on adjournment (1) If a person who has given an undertaking (the offender) contravenes, without reasonable excuse, any condition of the undertaking while the undertaking is in force, a proceeding may be brought against the person, in accordance with this Subdivision, to answer to the contravention. (2) A proceeding for a contravention of an undertaking under subsection (1) must be commenced— (a) if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within whichever is the later of— (i) 6 months of the offence being found proven; or s. 21 -- 72 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 65 (ii) within 2 years of the order ceasing to be in force; or (b) in any other case, within one year of the order ceasing to be in force. 79A Bringing of proceeding for contravention of order for release on adjournment— offender before a court (1) If a court finds an offender who has previously given an undertaking has committed a contravention of the undertaking while it is in force it may— (a) on the application, in the prescribed form, of an authorised person; and (b) if the offender is then present before the court— do either of the following— (c) if it is the court to whom the undertaking was given, proceed to exercise any power under section 79J; or (d) if it is not the court to whom the undertaking was given, transfer the proceeding to the court to whom the undertaking was given. (2) If an adjourned undertaking was made in the Magistrates' Court; the Supreme Court or County Court may deal with the contravention proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009. (3) For the purpose of transferring a proceeding under subsection (1)(d) the court may, if the offender is not being held in custody in relation to the other offence or for any other s. 22 -- 73 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 66 reason, grant bail to the offender conditioned for, or remand the offender in custody pending his or her attendance at the court to whom the undertaking was given. 79B Bringing of proceeding for contravention of order for release on adjournment— offender not before a court (1) If an offender contravenes an undertaking an authorised person may, if an application has not been made under section 79A(1) in respect of the contravention apply to the Magistrates' Court for the issue of— (a) a contravention summons; or (b) a warrant to arrest— in order to compel the attendance of the offender at the court to whom the undertaking was given. (2) An authorised person may make an application under subsection (1) to a registrar of the Magistrates' Court in person or by post at any venue of the court. (3) If an offender is required to attend at the Magistrates' Court under a summons or warrant issued under section 79C(1), attendance must be at the proper venue of the court. 79C Issue of a contravention summons or warrant to arrest by a registrar (1) On an application under section 79B(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of an undertaking issue— s. 22 -- 74 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 67 (a) a summons to answer to the contravention of the undertaking; or (b) a warrant to arrest. (2) A registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that— (a) it is probable that the offender will not answer a contravention summons; or (b) the offender has absconded, is likely to abscond or is avoiding service of a contravention summons that has been issued; or (c) a warrant to arrest is required or authorised for other good cause. 79D Power to amend a contravention summons or warrant to arrest Section 50 of the Magistrates' Court Act 1989 applies to a contravention summons or warrant to arrest issued under section 79C as if the reference in that section— (a) to a summons or warrant were a reference to a contravention summons or warrant to arrest issued under section 79C; and (b) to the court were a reference to the court by which the undertaking was imposed. 79E Form of a contravention summons A contravention summons— (a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the undertaking was imposed by the Supreme Court or the County Court, at that court, on a specified date s. 22 -- 75 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 68 and at a specified time to answer the proceeding against them; and (b) may be served in any manner in which a summons to answer a charge may be served under sections 16 and 17 of the Criminal Procedure Act 2009. 79F Extension of a return date for a contravention summons On the application of the person who applied for the issue of the contravention summons at any time before it is served, the date specified in the contravention summons for the offender to attend court (the return date) may be extended without cause— (a) before the return date; or (b) within 28 days after the return date— by a registrar at the venue of the court at which the contravention summons was issued on one occasion and thereafter may be extended— (c) before the current return date; or (d) within 28 days after the current return date— by such a registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the contravention summons. 79G Service of a contravention summons Service of a contravention summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 399 of the Criminal Procedure Act 2009. s. 22 -- 76 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 69 79H Issue of a warrant to arrest (1) When an offender does not attend before a court in answer to a contravention summons which has been served in accordance with section 79G, the court may issue a warrant to arrest the offender. (2) A warrant to arrest authorised to be issued under this section is to be in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant to arrest with any necessary modifications. 79I Unrepresented accused (1) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 79A, or a contravention summons or warrant issued under section 79C, the court must— (a) ask the offender whether he or she has sought legal advice; and (b) if satisfied that the offender has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the offender. (2) If the court before which an offender appears in answer to bail granted under section 79A, or a contravention summons or warrant to arrest issued, under section 79C is satisfied that the offender does not have a knowledge of the English language that is sufficient to enable the offender to understand, or participate in, the proceeding, it must not hear and determine the proceeding without a competent interpreter interpreting it. s. 22 -- 77 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 70 79J Powers of court on determination of a contravention proceeding (1) If on the hearing of a proceeding under section 79(1) the court finds the offender has contravened an undertaking, it may— (a) vary the undertaking; or (b) confirm the undertaking originally made; or (c) cancel the undertaking (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence or offences with respect to which the undertaking was given in any manner in which the court could deal with the offender if it had just found the offender guilty of that offence or those offences. (2) In determining how to deal with an offender following the cancellation by it of an undertaking made under Subdivision (2) or (3), a court must take into account the extent to which the offender had complied with the undertaking before its cancellation. 79K Practice and procedure at hearing (1) The practice and procedure applicable to the hearing and determination of summary offences in the Magistrates' Court applies, so far as is appropriate, to the hearing and determination of a proceeding under section 79(1), whether or not the court hearing the proceeding is the Supreme Court, the County Court or the Magistrates' Court. (2) Subsection (1) is subject to any rules of court.". s. 22 -- 78 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 71 23 Insertion of new section at the end of Part 12 At the end of Part 12 of the Sentencing Act 1991 insert— "141 Transitional provision—Justice Legislation Amendment Act 2010 (1) Section 9 as amended by section 5 of the Justice Legislation Amendment Act 2010 applies to the sentencing of a person for an offence on or after the commencement of section 5 of that Act, irrespective of when the offences were committed or the findings of guilt were made. (2) Section 14A applies to the sentencing of a person on or after the commencement of section 6 of the Justice Legislation Amendment Act 2010, irrespective of when the offence was committed or the finding of guilt was made. (3) Section 18SA applies to the sentencing of a person on or after the commencement of section 8 of the Justice Legislation Amendment Act 2010, irrespective of when the offence was committed or the finding of guilt was made. (4) An order may be made under section 18WJ of this Act on or after the commencement of section 9 of the Justice Legislation Amendment Act 2010 consequent on a finding of a contravention made on or after that commencement, irrespective of when that contravention was committed. (5) Section 18ZGA applies to the sentencing of a person on or after the commencement of section 10 of the Justice Legislation Amendment Act 2010, irrespective of when s. 23 -- 79 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 72 the offence was committed or the finding of guilt was made. (6) Section 21A applies to the sentencing of a person on or after the commencement of section 12 of the Justice Legislation Amendment Act 2010, irrespective of when the offence was committed or the finding of guilt was made. (7) An order may be made under section 26J on or after the commencement of section 13 of the Justice Legislation Amendment Act 2010 consequent on a finding of a contravention made on or after that commencement, irrespective of when that contravention was committed. (8) An order may be made under section 26ZK on or after the commencement of section 14 of the Justice Legislation Amendment Act 2010 consequent on a finding of a contravention made on or after that commencement, irrespective of when that contravention was committed. (9) Section 27A applies to the sentencing of a person on or after the commencement of section 15 of the Justice Legislation Amendment Act 2010, irrespective of when the offence was committed or the finding of guilt was made. (10) Section 41A applies to the sentencing of a person on or after the commencement of section 17 of the Justice Legislation Amendment Act 2010, irrespective of when the offence was committed or the finding of guilt was made. s. 23 -- 80 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 73 (11) An order may be made under section 47J on or after the commencement of section 18 of the Justice Legislation Amendment Act 2010 consequent on a finding of a contravention made on or after that commencement, irrespective of when that contravention was committed. (12) Section 51 as amended by section 19 of the Justice Legislation Amendment Act 2010 applies to the sentencing of a person for an offence on or after the commencement of section 19 of that Act, irrespective of when the offences were committed or the findings of guilt were made. (13) An order may be made under section 79J on or after the commencement of section 22 of the Justice Legislation Amendment Act 2010 consequent on a finding of a contravention made on or after that commencement, irrespective of when that contravention was committed.". 24 Sentencing guidelines In section 5(2D) of the Sentencing Act 1991, for "the Part 5.5" substitute "Part 5.5". 25 Sentence by another judge or magistrate In section 102 of the Sentencing Act 1991— (a) for "passed" (wherever occurring) substitute "imposed"; (b) for "pass" (wherever occurring) substitute "impose"; (c) for "passing" (wherever occurring) substitute "imposing". s. 24 -- 81 of 127 -- Part 2—Amendment of Sentencing Act 1991 Justice Legislation Amendment Act 2010 No. 30 of 2010 74 26 Termination of assessment orders and diagnosis, assessment and treatment orders In section 92(b) of the Sentencing Act 1991, for "pass" substitute "impose". 27 Restricted involuntary treatment orders In section 93(1) of the Sentencing Act 1991, for "passing" substitute "imposing". 28 Contents of home detention assessment report In section 99G(1)(l) of the Sentencing Act 1991, before "commit" insert "engage in behaviour or". 29 Regulations In section 116(1)(f) of the Sentencing Act 1991, for "or breach" substitute ", breach or contravention". __________________ s. 26 -- 82 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 75 PART 3—AMENDMENT OF CHILDREN, YOUTH AND FAMILIES ACT 2005 30 Matters to be taken into account After section 362(4) of the Children, Youth and Families Act 2005 insert— "(5) If, in sentencing a child, the Court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the child to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the Court must— (a) announce that it is doing so; and (b) cause to be noted in the records of the Court the fact that the undertaking was given and its details. (6) Nothing in subsection (5) requires the Court to state the sentence that it would have imposed but for the undertaking that was given.". 31 Sentence discount for guilty plea (1) In section 362A(1) of the Children, Youth and Families Act 2005, for the words and expressions commencing "the Court must state" and ending at the end of the subsection substitute "the Court must state in respect of each offence the sentence that it would have imposed but for the plea of guilty.". (2) For section 362A(3) of the Children, Youth and Families Act 2005 substitute— "(3) If the Court makes a statement under this section, it must record or cause to be recorded (whether in writing or in another s. 30 See: Act No. 96/2005. Reprint No. 2 as at 19 August 2009 and amending Act Nos 51/2006, 77/2008, 4/2009, 7/2009, 22/2009, 26/2009, 50/2009, 68/2009 and 69/2009. LawToday: www. legislation. vic.gov.au -- 83 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 76 form) in respect of each offence the sentence that it would have imposed but for the plea of guilty.". 32 Determination of appeal by offender Section 426(7) and (8) of the Children, Youth and Families Act 2005 are repealed. 33 Determination of DPP appeal against sentence (1) Section 429(3), (4) and (5) of the Children, Youth and Families Act 2005 are repealed. (2) In section 429(6), (7) and (8) of the Children, Youth and Families Act 2005, for "subsection (2), (3) or (4)" substitute "subsection (2)". 34 New Division 2A inserted in Part 5.4 After Division 2 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 insert— "Division 2A—Appeal by DPP—Failure to fulfil undertaking 429A DPP's right of appeal—failure to fulfil undertaking (1) Without limiting any right of appeal under section 427, the DPP may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against a sentence imposed on a child in respect of an indictable offence that was heard and determined summarily by the Children's Court if— (a) the sentence was less severe because of an undertaking given by the child to assist, after sentencing, law enforcement authorities in the s. 32 -- 84 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 77 investigation or prosecution of an offence, whether or not proceedings for that offence had commenced at the time of sentencing; and (b) the DPP considers that the child has failed, wholly or partly, to fulfil the undertaking. (2) The DPP may bring an appeal under this section at any time, whether or not the sentence has been served. 429B How appeal is commenced (1) An appeal under section 429A is commenced by filing a notice of appeal, signed by the DPP personally, with a registrar of the Children's Court at any venue of the Children's Court. (2) A copy of the notice of appeal must be served personally on the respondent within 14 days after the day on which the notice is filed. (3) A notice of appeal must be in the form prescribed by the rules of the appellate court. (4) The DPP must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the criminal proceeding to which the appeal relates, if that legal practitioner can reasonably be identified. (5) A notice of appeal filed under this section must be transmitted to the appellate court. s. 34 -- 85 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 78 429C Determination of DPP's appeal—failure to fulfil undertaking (1) An appeal under section 429A must not be conducted as a rehearing. (2) On an appeal under section 429A, if the appellate court considers that the respondent has failed, wholly or partly, to fulfil the undertaking referred to in section 429A(1)(a), the appellate court may— (a) set aside the sentence imposed by the Children's Court; and (b) impose the sentence that it considers appropriate, having regard to the failure of the respondent to fulfil the undertaking. (3) In imposing a sentence under subsection (2), the appellate court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.". 35 Abandonment of appeal After section 430C(6) of the Children, Youth and Families Act 2005 insert— "(6A) The appellate court may not set aside an order under subsection (6).". s. 35 -- 86 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 79 36 Appellant's failure to appear (1) After section 430D(1) of the Children, Youth and Families Act 2005 insert— "(1A) If— (a) the appellate court strikes out an appeal under subsection (1)(a); and (b) the appellant had been sentenced to a period of detention in a youth residential centre or a youth justice centre by the Children's Court— the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) may issue, in accordance with the Magistrates' Court Act 1989, a warrant to detain the person in a youth residential centre or a youth justice centre (as the case requires) and may recall and cancel that warrant.". (2) After section 430D(6) of the Children, Youth and Families Act 2005 insert— "(6A) An application under section 430B for bail pending the reinstated appeal may be made to the County Court or the Trial Division of the Supreme Court (as the case requires).". 37 Respondent's failure to appear on appeal by DPP (1) In section 430E(1) of the Children, Youth and Families Act 2005— (a) after "section 427" insert "or 429A"; and (b) in paragraph (b), after "section 428" insert "or 429B (as the case requires)". (2) In section 430E(2) of the Children, Youth and Families Act 2005, after "section 428" insert "or 429B (as the case requires)". s. 36 -- 87 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 80 38 Application of Division In section 430H of the Children, Youth and Families Act 2005, for "Division 1 or 2" substitute "Division 1, 2 or 2A". 39 Right of appeal against sentence of detention imposed on appeal from Children's Court In section 430R(2) of the Children, Youth and Families Act 2005, for "section 426 or 429" substitute "section 426, 429 or 429C". 40 Orders etc. on successful appeal Section 430U(3) and (4) of the Children, Youth and Families Act 2005 are repealed. 41 Court to have powers of Magistrates' Court (1) In section 528(2)(b) of the Children, Youth and Families Act 2005, for "notice to appear and appeals" substitute "section 54(2), Division 2 of Part 2.3 and Chapter 6". (2) After section 528(2) of the Children, Youth and Families Act 2005 insert— "(2A) Despite section 39(1A) of the Criminal Procedure Act 2009 (as applied by subsection (2) of this section), a request under section 39(1) of that Act may be made at any time after the criminal proceeding has commenced.". 42 Rules After section 588(1A) of the Children, Youth and Families Act 2005 insert— "(1B) The President together with 2 or more magistrates for the Court may jointly make Rules for or with respect to— (a) prescribing forms for the purposes of the procedure set out in Schedule 3; s. 38 -- 88 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 81 (b) generally any matter relating to the procedure set out in Schedule 3.". 43 New section 616 inserted At the end of Part 8.6 of Chapter 8 of the Children, Youth and Families Act 2005 insert— "616 Transitional provision—Justice Legislation Amendment Act 2010 (1) Section 429 as amended by section 33 of the Justice Legislation Amendment Act 2010 applies to the determination of an appeal in relation to a sentence imposed by the Children's Court on or after the commencement of section 33 of that Act. (2) Division 2A of Part 5.4, as inserted by section 34 of the Justice Legislation Amendment Act 2010, applies to a sentence imposed by the Children's Court on or after the commencement of section 34 of that Act. (3) Section 430U as amended by section 40 of the Justice Legislation Amendment Act 2010 applies to an appeal in relation to a sentence imposed by the Children's Court on or after the commencement of section 40 of that Act.". 44 Statute law revision (1) In section 184(1) of the Children, Youth and Families Act 2005, for "162(c) or 162(d)" substitute "162(1)(c) or 162(1)(d)". (2) In section 426(3) of the Children, Youth and Families Act 2005, for "424" substitute "section 424". s. 43 -- 89 of 127 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment Act 2010 No. 30 of 2010 82 (3) In section 430Z(3) of the Children, Youth and Families Act 2005, for "Court of appeal" substitute "Court of Appeal". __________________ s. 44 -- 90 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 83 PART 4—AMENDMENTS TO CORRECTIONS ACT 1986 Division 1—Amendments relating to home detention orders 45 Definitions In section 3(1) of the Corrections Act 1986— (a) in paragraph (i) of the definition of correctional order, for "section 18ZT of the Sentencing Act 1991" substitute "section 26M of the Sentencing Act 1991"; (b) insert the following definitions— "family violence intervention order means— (a) a family violence intervention order within the meaning of section 11 of the Family Violence Protection Act 2008; or (b) one of the following orders made under the Crimes (Family Violence) Act 1987 as in force immediately before its repeal— (i) an intervention order made on grounds referred to in section 4 or 4A of that Act; (ii) an intervention order made on grounds referred to in section 4 or 4A of that Act, and subsequently varied or extended under section 16 or 16A of that Act; (iii) an interim intervention order made on grounds referred to in section 8 of that Act; s. 45 See: Act No. 117/1986. Reprint No. 8 as at 2 April 2009 and amending Act Nos 55/2009, 68/2009, 69/2009 and 91/2009. LawToday: www. legislation. vic.gov.au -- 91 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 84 stalking intervention order means— (a) an intervention order within the meaning of the Stalking Intervention Orders Act 2008; or (b) an order made under section 4 of the Crimes (Family Violence) Act 1987 of a kind referred to in section 21A(5) of the Crimes Act 1958, both as in force immediately before their repeal;". 46 Victim may be given certain information about a prisoner In section 30A(1) of the Corrections Act 1986, in paragraph (d)(ii) of the definition of victim for "final order" substitute "family violence intervention order". 47 Substitute section 59 For section 59 of the Corrections Act 1986 substitute— "58F Definition In this Division— victim, in relation to an offence, means a person who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender. 59 Home detention orders (1) At the request of a prisoner, the Board may make a home detention order in respect of the prisoner if the Board is satisfied that— s. 46 -- 92 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 85 (a) on the date the order takes effect the prisoner will have served at least two- thirds of the minimum term of imprisonment; and (b) the prisoner is due for release or will be eligible for parole within 6 months of the date the order takes effect; and (c) the prisoner is being held under minimum security conditions. (2) The Board must not make a home detention order in respect of a prisoner if— (a) the prisoner is serving an indefinite sentence; or (b) the prisoner is eligible for parole but has not been granted parole; or (c) the prisoner is on parole; or (d) the prisoner is serving a sentence or part sentence of imprisonment that was held in suspense and has been restored under section 31 of the Sentencing Act 1991; or (e) the prisoner was committed to prison to serve the unexpired portion of an intensive corrections order under section 26J of the Sentencing Act 1991; or (f) the prisoner was sentenced to a combined custody and treatment order and is serving in custody the whole part of the sentence that was to be served in the community under section 18WJ of the Sentencing Act 1991; or (g) the prisoner is subject to a home detention direction or a home detention condition; or s. 47 -- 93 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 86 (h) the prisoner is ineligible under section 60A or 60AB for a home detention order. (3) A prisoner who is subject to a home detention order must be taken for all purposes to be serving a sentence of imprisonment for the whole term stated in the order except for the purpose of any enactment providing for disqualification for, or the forfeiture or suspension of, pensions or other benefits. (4) In this section— home detention condition means a condition attached to— (a) a combined custody treatment order under section 18SA of the Sentencing Act 1991; or (b) a drug treatment order under section 18ZGA of the Sentencing Act 1991; or (c) an intensive corrections order under section 21A of the Sentencing Act 1991; or (d) an order sentencing a person to a partly suspended sentence of imprisonment under section 27A of the Sentencing Act 1991; or (e) a community based order under section 41A of the Sentencing Act 1991; home detention direction means a direction given by the court under section 14A of the Sentencing Act 1991; s. 47 -- 94 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 87 minimum term of imprisonment means— (a) if a non-parole period was fixed in respect of a sentence, the non- parole period; or (b) in the case of a person who is serving a partly suspended sentence, the part of that sentence that is not suspended; or (c) in the case of a person who is serving a Recognizance Release Order under the Crimes Act 1914 of the Commonwealth, the pre-release period within the meaning of that Act; or (d) in any other case, the term of imprisonment imposed by the sentence.". 48 Section 60A substituted For section 60A of the Corrections Act 1986 substitute— "60A Circumstances where prisoner not eligible for home detention (1) The prisoner is not eligible for a home detention order if the sentence of imprisonment that the prisoner is serving was imposed for a conviction for any of the following offences— (a) an offence to which clause 1, 2, 3 or 4 of Schedule 1 to the Sentencing Act 1991 applies; or (b) an offence which, in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or s. 48 -- 95 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 88 (c) an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or (d) subject to subsection (4), a contravention of a family violence intervention order, or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or (e) subject to subsection (5), a contravention of a stalking intervention order, or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; or (f) an offence under section 21A of the Crimes Act 1958 (stalking). (2) The prisoner is not eligible for a home detention order if the prisoner has previously been convicted of an offence to which clause 1, 2 or 3 of Schedule 1 to the Sentencing Act 1991 applies. (3) The prisoner is not eligible for a home detention order if— (a) in the previous 10 years the prisoner has been convicted for a contravention of— (i) a family violence intervention order or a corresponding interstate order within the meaning of the Family Violence Protection Act 2008; or (ii) a stalking intervention order or a corresponding interstate order within the meaning of the s. 48 -- 96 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 89 Stalking Intervention Orders Act 2008; and (b) if a home detention order were to be made— (i) in the case of a family violence intervention order, the prisoner would reside, or would be likely to reside, with a person who is a protected person or affected family member under the family violence intervention order; or (ii) in the case of a stalking intervention order, the prisoner would reside, or would be likely to reside, in close proximity to a person who is an affected person under the stalking intervention order. (4) Subsection (1)(d) only applies if the result of making a home detention order would be that the prisoner— (a) would reside with, or be likely to reside with, a protected person or affected family member (as the case requires) under the family violence intervention order contravened by the offender; or (b) would continue, or be likely to continue, a close personal association with a protected person or affected family member (as the case requires) under the family violence intervention order contravened by the offender. (5) Subsection (1)(e) applies unless the Board is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following— s. 48 -- 97 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 90 (a) the period of time since the offence was committed; (b) the prisoner's age at the time the offence was committed; (c) the nature and gravity of the offence; (d) the prisoner's behaviour and history since he or she committed the offence; (e) the likely proximity of the offender to any victim of the offence if the Board were to make a home detention order; (f) any other matter the Board considers relevant. (6) For the purposes of subsection (4)(b), a close personal association means communication or social interaction but does not include performance of obligations, such as payment of child support. 60AB Circumstances where prisoner may be ineligible for home detention—certain previous convictions (1) Subject to subsection (2), this section applies to the following offences— (a) an offence which, in the opinion of the court, was committed in circumstances which involved behaviour of a sexual nature; or (b) an offence that involves the use of a firearm or a prohibited weapon (within the meaning of the Control of Weapons Act 1990); or (c) a contravention of a family violence intervention order, or a corresponding interstate order within the meaning of s. 48 -- 98 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 91 the Family Violence Protection Act 2008; or (d) a contravention of a stalking intervention order, or a corresponding interstate order within the meaning of the Stalking Intervention Orders Act 2008; or (e) an offence under section 21A of the Crimes Act 1958 (stalking). (2) This section does not apply to an offence referred to in section 60A(2) or 60A(3), or to which section 60A(4) or 60A(5) applies. (3) If, before the conviction for which the prisoner is serving a sentence of imprisonment, the prisoner was convicted of an offence to which this section applies, the prisoner is not eligible for a home detention order unless the Board is satisfied that making the order would not pose an unjustifiable risk to the community, having regard to the following— (a) the period of time since the offence was committed; (b) the sentence imposed for the offence; (c) the prisoner's age at the time the offence was committed; (d) the nature and gravity of the offence; (e) the prisoner's behaviour and history since he or she committed the offence; (f) the likely proximity of the prisoner to any victim of the offence if the court were to make a home detention order; (g) any other matter the Board considers relevant.". s. 48 -- 99 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 92 49 Suitability of prisoner for home detention (1) After section 60B(4) of the Corrections Act 1986 insert— "(5) The Board must not make a home detention order if the Board is satisfied that the order may pose a risk to the safety of any person under the age of 18 who will be— (a) residing with the prisoner under a home detention order; or (b) regularly attending the residence where the prisoner will be residing under a home detention order. (6) In subsection (5), safety has the meaning given in section 4 of the Family Violence Protection Act 2008.". 50 New section 60DA inserted After section 60D of the Corrections Act 1986 insert— "60DA Conditions of home detention order not to contravene intervention order (1) This section applies if the Board is considering making a home detention order in respect of a prisoner who is a respondent to— (a) a current family violence intervention order; or (b) a current stalking intervention order. (2) The Board must not make a home detention order unless satisfied that the terms of the home detention order will not conflict with the conditions of the family violence intervention order or the stalking intervention order to the extent that the s. 49 -- 100 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 93 prisoner could not legally comply with both orders at once. Example A home detention order could not require the prisoner to reside at a particular place if, by residing at that place, the prisoner would contravene a family violence intervention order.". 51 Contents of home detention assessment report In section 60E(1)(l) of the Corrections Act 1986, before "commit" insert "engage in behaviour or". 52 Core conditions governing home detention In section 60J of the Corrections Act 1986 in paragraph (d)(ii), for "fire" substitute "fire, family violence". 53 Functions of Board (1) In section 69(1)(c) of the Corrections Act 1986, for "Subdivision; and" substitute "Subdivision.". (2) Section 69(1)(d) of the Corrections Act 1986 is repealed. (3) In section 69(5)(c) of the Corrections Act 1986, omit "or (1D)". 54 New section 119 inserted After section 118 of the Corrections Act 1986 insert— "119 Transitional provision—Justice Legislation Amendment Act 2010 (1) This Act, as in force immediately before the commencement of Division 1 of Part 4 of the Justice Legislation Amendment Act 2010, continues to apply in respect of an application under Division 4 of Part 8 for a home detention order that was made but not determined by the Adult Parole Board before that commencement. s. 51 -- 101 of 127 -- Part 4—Amendments to Corrections Act 1986 Justice Legislation Amendment Act 2010 No. 30 of 2010 94 (2) Despite the commencement of Division 1 of Part 4 of the Justice Legislation Amendment Act 2010, this Act, as in force immediately before the commencement of Division 1 of Part 4 of that Act, continues to apply in respect of a prisoner who was the subject of a home detention order immediately before that commencement. (3) Despite the commencement of Division 1 of Part 4 of the Justice Legislation Amendment Act 2010, this Act, as in force immediately before the commencement of Division 1 of Part 4 of that Act, continues to apply in respect of an offender who was serving a sentence of imprisonment by way of home detention under the Sentencing Act 1991 immediately before that commencement.". Division 2—Statute law revision 55 Statute law revision In section 104ZP(c) of the Corrections Act 1986, for "section 128A of the Magistrates' Court Act 1989" substitute "section 59 of the Criminal Procedure Act 2009". __________________ s. 55 -- 102 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 95 PART 5—AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 56 Commencement Section 2(2) of the Criminal Procedure Act 2009 is repealed. 57 Definition In section 3 of the Criminal Procedure Act 2009 for the definition of direct indictment substitute— "direct indictment means an indictment filed against an accused— (a) who has not been committed for trial in respect of the offence charged in the indictment or a related offence; or (b) whose prosecution for the offence charged in the indictment or a related offence— (i) was discontinued under section 177; or (ii) was the subject of a nolle prosequi;". s. 56 See: Act No. 7/2009. Reprint No. 1 as at 1 January 2010 and amending Act Nos 7/2009 and 13/2009. LawToday: www. legislation. vic.gov.au -- 103 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 96 58 When full brief must be served For section 39(1) of the Criminal Procedure Act 2009 substitute— "(1) The accused, by written notice to the informant, may request that a full brief be served. (1A) A request under subsection (1) may be made— (a) if a preliminary brief is served within 7 days after the day on which the charge-sheet is filed, at any time after a summary case conference is held; or (b) in any other case, at any time after the criminal proceeding has commenced.". 59 Summary case conference (1) In section 54(2) of the Criminal Procedure Act 2009, for "in accordance with section 24" substitute "within 7 days after the day on which the charge-sheet is filed". (2) For section 54(5) and (6) of the Criminal Procedure Act 2009 substitute— "(5) If an accused is not legally represented, the Magistrates' Court may dispense with the requirement under subsection (2) to conduct a summary case conference. (6) A summary case conference must be conducted in accordance with the rules of court.". 60 Transfer of summary offences that are related offences on or after committal In section 145(3) of the Criminal Procedure Act 2009, after "related offence" insert "or, if the DPP is prosecuting the charge, the DPP". s. 58 -- 104 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 97 61 Court may transfer certain charges to Magistrates' Court (1) In the heading to section 168 of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or Children's Court". (2) In section 168(1) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court (as the case requires)". (3) For section 168(1)(b) of the Criminal Procedure Act 2009 substitute— "(b) the court considers that the charge is appropriate to be determined summarily, having regard to— (i) in the case of the Magistrates' Court, the matters in section 29(2); or (ii) in the case of the Children's Court, whether the Children's Court is required to hear and determine the charge summarily by section 356(3) of the Children, Youth and Families Act 2005.". (4) In section 168(2) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court". (5) In section 168(4)(a) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court (as the case requires)". (6) In section 168(4)(b) of the Criminal Procedure Act 2009, after "Magistrates' Court" insert "or the Children's Court (as the case requires)". s. 61 -- 105 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 98 62 New Division 4 inserted in Part 5.8 After Division 3 of Part 5.8 of Chapter 5 of the Criminal Procedure Act 2009 insert— "Division 4—Procedure on guilty plea or guilty verdict 253A Abolition of allocutus The common law procedure of administering the allocutus is abolished. Note Administering the allocutus is the step in a criminal proceeding which occurs when, after a plea of guilty or a finding of guilt by the jury, the court asks the accused whether there is any reason why the court should not proceed to pass judgment according to law. 253B When finding of guilt occurs If— (a) on arraignment, an accused enters a plea of guilty to a charge for an offence; or (b) a jury delivers a verdict finding an accused guilty of an offence— then at that moment the accused is found guilty of the offence unless the trial judge sets aside the plea or verdict.". 63 Abandonment of appeal After section 266(5) of the Criminal Procedure Act 2009 insert— "(6) The County Court may not set aside an order under subsection (4) striking out an appeal.". s. 62 -- 106 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 99 64 Appellant's failure to appear (1) After section 267(1) of the Criminal Procedure Act 2009 insert— "(1A) If— (a) the County Court strikes out an appeal under subsection (1)(a); and (b) the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court— the registrar of the County Court may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the appellant and may recall and cancel that warrant.". (2) After section 267(6) of the Criminal Procedure Act 2009 insert— "(6A) An application under section 265 for bail pending the reinstated appeal may be made to the County Court.". 65 Determination of application for leave during sentencing hearing At the end of section 350 of the Criminal Procedure Act 2009 and before the note to that provision insert— "(2) In determining, under subsection (1), whether the evidence has substantial relevance to the issue of appropriate sentence, the court must have regard to— (a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of s. 64 -- 107 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 100 the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and (b) the need to respect the complainant's personal dignity and privacy.". 66 Application of Division—alternative arrangements for giving evidence (1) In section 359(1)(b) of the Criminal Procedure Act 2009, for "2008." substitute "2008; or". (2) After section 359(1)(b) of the Criminal Procedure Act 2009 insert— "(c) an offence against section 17(1) or 19 of the Summary Offences Act 1966.". 67 Jury warning concerning alternative arrangements In section 361 of the Criminal Procedure Act 2009, after "made" insert "in a trial". 68 When court must direct use of closed-circuit television or other facilities for complainant In section 363 of the Criminal Procedure Act 2009, after "complainant" (where first occurring) insert "in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence". 69 When court must direct use of screens for complainant In section 364 of the Criminal Procedure Act 2009, after "complainant" (where first occurring) insert "in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence". s. 66 -- 108 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 101 70 When court must direct presence of support person for complainant In section 365(1) of the Criminal Procedure Act 2009, after "complainant" (where first occurring) insert "in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence". 71 Personal service (1) In section 391(4)(c) of the Criminal Procedure Act 2009, for "legal practitioner." substitute "legal practitioner; or". (2) After section 391(4)(c) of the Criminal Procedure Act 2009 insert— "(d) if the legal practitioner— (i) has facilities for the reception of documents in a document exchange; and (ii) consents to accepting personal service of documents by delivery to those facilities in the document exchange— by delivering a copy of the document addressed to the legal practitioner into those facilities.". (3) After section 391(4) of the Criminal Procedure Act 2009 insert— "(5) If a document is delivered into the facilities of a document exchange in accordance with subsection (4)(d), the day of service of the document is taken to be— (a) the day following the day on which it is so delivered; or s. 70 -- 109 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 102 (b) if the document is delivered on a Friday, the following Monday— or on any other day that may be proved.". 72 Regulations In section 420(1)(ea) of the Criminal Procedure Act 2009— (a) after "use" insert "(including for training purposes)"; and (b) after "possession," insert "copying,". 73 Repeal of sunset provision concerning sentence indications in Supreme Court and County Court Section 437 of the Criminal Procedure Act 2009 is repealed. 74 Persons who may witness statements in preliminary brief, full brief or hand-up brief For item 22 of Schedule 3 to the Criminal Procedure Act 2009 substitute— "22 An authorised officer within the meaning of the Conservation, Forests and Lands Act 1987. 22A An enforcement officer within the meaning of the Electricity Safety Act 1998. 22B An inspector within the meaning of the Gas Safety Act 1997.". 75 Transitional provisions—Trial After clause 8(3) of Schedule 4 to the Criminal Procedure Act 2009 insert— "(3A) An indictment may be filed in accordance with Part 5.2 charging an accused with an offence in respect of which that accused, before the commencement day— (a) was committed for trial; or s. 72 -- 110 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 103 (b) was given a notice of trial or a notice of intention to prefer a presentment— if the indictment charges the same or a related offence against at least one other accused who was not committed for trial for that offence before the commencement day. (3B) An indictment may be filed in accordance with Part 5.2 charging an accused with an offence in respect of which that accused, before the commencement day— (a) was committed for trial; or (b) was given a notice of trial or a notice of intention to prefer a presentment— if the indictment charges a related offence in respect of which the accused was not committed for trial before the commencement day. (3C) If an indictment is filed under subclause (3A) or (3B)— (a) Chapter 5 applies to each charge in the indictment; and (b) the criminal proceeding against each accused is taken to be a criminal proceeding commenced under Chapter 2; and (c) where presentment of an accused has already been made, a charge in the indictment for the same offence as an offence charged in the presentment or a related offence is taken to be a fresh indictment filed under section 164.". s. 75 -- 111 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 104 76 New section 440 inserted In Chapter 10 of the Criminal Procedure Act 2009, after section 439 insert— "440 Transitional provisions—Justice Legislation Amendment Act 2010 (1) An application for leave to appeal against sentence under section 567(d) of the Crimes Act 1958 as in force immediately before its repeal that has been commenced but not determined on the commencement of section 76 of the Justice Legislation Amendment Act 2010 is to be determined in accordance with section 280 of this Act as if— (a) a reference to section 278 were a reference to section 567(d) of the Crimes Act 1958; and (b) a reference to section 315(1) were a reference to section 582 of the Crimes Act 1958 as in force immediately before its repeal. (2) Section 350 as amended by section 65 of the Justice Legislation Amendment Act 2010 applies to a sentencing hearing that commences on or after the commencement of section 65 of that Act. (3) Section 359 as amended by section 66 of the Justice Legislation Amendment Act 2010 applies to a hearing in a criminal proceeding if the hearing commences on or after the commencement of section 66 of that Act.". s. 76 -- 112 of 127 -- Part 5—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment Act 2010 No. 30 of 2010 105 77 Statute law revision (1) In section 3 of the Criminal Procedure Act 2009, in paragraph (c) of the definition of public official— (a) for "section 24(1)" substitute "section 24ZW(1)"; and (b) for "section 24(1)(b)" substitute "section 24ZW(1)(b)". (2) In section 328(d)(ii) of the Criminal Procedure Act 2009, for "section 158" substitute "section 156". __________________ s. 77 -- 113 of 127 -- Part 6—Amendment of Gambling Regulation Act 2003 Justice Legislation Amendment Act 2010 No. 30 of 2010 106 PART 6—AMENDMENT OF GAMBLING REGULATION ACT 2003 78 Publication and use approval In section 2.5.19D(4) of the Gambling Regulation Act 2003, for "a fee or a series of fees of an amount or amounts and in the manner specified in the approval" substitute ", in the manner specified in the approval, a fee or a series of fees of an amount or amounts— (a) specified in the approval; or (b) calculated in accordance with a formula or formulae specified in the approval". 79 New section 2.5.19DA inserted After section 2.5.19D of the Gambling Regulation Act 2003 insert— "2.5.19DA Transitional race field publication and use fee (1) An appropriate controlling body may determine, for the specified period, a fee to be paid by a wagering service provider that has, in the specified period, published, used or otherwise made available in the course of business a race field (the wagering service provider's period of use). s. 78 See: Act No. 114/2003. Reprint No. 3 as at 6 August 2009 and amending Act Nos 72/2007, 71/2008, 25/2009, 29/2009, 43/2009, 52/2009, 58/2009, 59/2009, 63/2009, 68/2009 and 69/2009. LawToday: www. legislation. vic.gov.au -- 114 of 127 -- Part 6—Amendment of Gambling Regulation Act 2003 Justice Legislation Amendment Act 2010 No. 30 of 2010 107 (2) On determining a fee under subsection (1), the appropriate controlling body must give written notice of that determination to the wagering service provider. (3) A notice under subsection (2) must specify the amount of the fee to be paid by the wagering service provider. (4) The amount of the fee specified in a notice under subsection (2) must be— (a) if the appropriate controlling body specifies an amount or amounts in a publication and use approval on or after the commencement of section 78 of the Justice Legislation Amendment Act 2010—an amount that is equivalent to the amount or amounts specified in the first publication and use approval on or after that commencement that equates to the wagering service provider's period of use; (b) if the appropriate controlling body specifies a formula or formulae in a publication and use approval on or after the commencement of section 78 of the Justice Legislation Amendment Act 2010—an amount calculated in accordance with the formula or formulae specified in the first publication and use approval on or after that commencement that equates to the wagering service provider's period of use. (5) Subsection (4) applies despite anything to the contrary in a publication and use approval or a condition to which the approval is subject. s. 79 -- 115 of 127 -- Part 6—Amendment of Gambling Regulation Act 2003 Justice Legislation Amendment Act 2010 No. 30 of 2010 108 (6) A wagering service provider must pay to the appropriate controlling body that gave the provider a notice under subsection (2) the fee specified in that notice within 3 months after being given that notice. (7) A fee specified in a notice under subsection (2) is a debt due to the appropriate controlling body that gave the notice and may be recovered in a court of competent jurisdiction by that body. (8) In this section— specified period means the period— (a) beginning on 4 September 2008; and (b) ending on the day section 78 of the Justice Legislation Amendment Act 2010 comes into operation.". __________________ s. 79 -- 116 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 109 PART 7—AMENDMENT TO MISCELLANEOUS ACTS Division 1—County Court Act 1958 80 Circumstances in which order may be made under section 80 (1) In section 80AA(e) of County Court Act 1958, for "relates" substitute "relates, wholly or partly,". (2) For section 80AA(f) of the County Court Act 1958 substitute— "(f) cause undue distress or embarrassment to a witness under examination in a proceeding that relates, wholly or partly, to a charge for a sexual offence.". Division 2—Family Violence Protection Act 2008 81 Procedural requirements for person directed to a police station, or person apprehended and detained After section 17(7) of the Family Violence Protection Act 2008 insert— "(8) If the person is subject to a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986, a police officer must notify the Secretary as soon as practicable that the person has been directed or apprehended and detained under this Act.". s. 80 See: Act No. 6230. Reprint No. 13 as at 15 January 2009 and amending Act Nos 8/2008, 78/2008, 83/2008, 9/2009, 38/2009, 50/2009, 68/2009 and 69/2009. LawToday: www. legislation. vic.gov.au -- 117 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 110 82 Application for family violence safety notice After section 24(d) of the Family Violence Protection Act 2008 insert— "(da) the police officer has no reasonable grounds for suspecting there is a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986 in force that may be inconsistent with the proposed terms of the family violence safety notice; and". 83 New section 176A inserted After the note to section 176 of the Family Violence Protection Act 2008 insert— "176A Relationship with certain orders under the Sentencing Act 1991 and the Corrections Act 1986 (1) This section applies if the respondent is currently subject to either of the following orders— (a) a home detention order under the Sentencing Act 1991; (b) a home detention order under the Corrections Act 1986. (2) If the court makes a family violence intervention order that is inconsistent with an order referred to in subsection (1)(a) or (b), the family violence intervention order prevails to the extent of any inconsistency. (3) If the court makes a family violence intervention order that is or may be inconsistent with an order referred to in subsection (1)(a) or (b), the appropriate registrar must give to the Secretary as soon as practicable— s. 82 -- 118 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 111 (a) a copy of the family violence intervention order; and (b) written notification that the order may be inconsistent with a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986 (as the case requires).". Division 3—Justice Legislation Miscellaneous Amendments Act 2009 84 Statute law revision—Justice Legislation Miscellaneous Amendments Act 2009 (1) In section 5 of the Justice Legislation Miscellaneous Amendments Act 2009, for "At the end of Part 7" substitute "After section 613". (2) In section 56(2) of the Justice Legislation Miscellaneous Amendments Act 2009, for "sections 161(2)" substitute "section 161A(2)". See: Act No. 87/2009. Statute Book: www. legislation. vic.gov.au s. 84 -- 119 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 112 Division 4—Magistrates' Court Act 1989 85 Extent of jurisdiction In section 25(3)(b)(ii) of the Magistrates' Court Act 1989, after "manslaughter," insert "child homicide, defensive homicide,". 86 Warrants (1) In section 57(7A) of the Magistrates' Court Act 1989, for "section 266(3A)" substitute "sections 266(3A) and 267(1A)". (2) In section 57(7B) of the Magistrates' Court Act 1989, for "section 430C(5)" substitute "sections 430C(5) and 430D(1A)". s. 85 See: Act No. 51/1989. Reprint No. 14 as at 21 August 2008 and amending Act Nos 51/2006, 12/2008, 34/2008, 38/2008, 52/2008, 68/2008, 72/2008, 74/2008, 76/2008, 78/2008, 83/2008, 4/2009, 7/2009, 9/2009, 25/2009, 30/2009, 50/2009, 68/2009, 69/2009 and 87/2009. LawToday: www. legislation. vic.gov.au -- 120 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 113 87 Power to close proceedings to the public (1) In section 126(1)(d) of the Magistrates' Court Act 1989, for "relates" substitute "relates, wholly or partly,". (2) For section 126(1)(e) of the Magistrates' Court Act 1989 substitute— "(e) cause undue distress or embarrassment to a witness under examination in a proceeding that relates, wholly or partly, to a charge for a sexual offence.". Division 5—Marine Act 1988 88 Appeal to the County Court (1) Insert the following heading to section 126 of the Marine Act 1988— "Appeal against disqualification, cancellation, suspension or variation by order of Magistrate's Court or Children's Court". (2) After section 126(1) of the Marine Act 1988 insert— "(1A) A child— (a) who is disqualified from obtaining an operator licence by order of the Children's Court; or (b) whose operator licence is cancelled or suspended or varied by order of the Children's Court— may, under Division 1 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005, appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court, against the order in the same manner as a child may s. 87 See: Act No. 52/1988. Reprint No. 7 as at 12 December 2007 and amending Act Nos 17/2009, 68/2009, 69/2009 and 93/2009. LawToday: www. legislation. vic.gov.au -- 121 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 114 appeal from summary conviction by the Children's Court.". (3) In section 126(2) of the Marine Act 1988, after "County Court" insert "or the Trial Division of the Supreme Court (as the case requires)". 89 New Division 6 inserted in Part 11 After Division 5 of Part 11 of the Marine Act 1988 insert— "Division 6—Transitional provision—Justice Legislation Amendment Act 2010 160 Appeal against disqualification, cancellation, suspension or variation The amendments to section 126 of this Act made by section 88 of the Justice Legislation Amendment Act 2010 apply to orders of disqualification, cancellation, suspension or variation made on or after the commencement of section 88 of that Act.". 90 Statute law revision In section 3(3A) of the Marine Act 1988, for "Minster" substitute "Minister". s. 89 -- 122 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 115 Division 6—Road Safety Act 1986 91 Appeal to the County Court (1) Insert the following heading to section 29 of the Road Safety Act 1986— "Appeal against disqualification, cancellation, suspension or variation by order of Magistrate's Court or Children's Court". (2) After section 29(1) of the Road Safety Act 1986 insert— "(1A) A child who is disqualified from obtaining a licence or permit by order of the Children's Court or whose licence is cancelled or suspended or varied by order of the Children's Court may, under Division 1 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005, appeal to the County Court or, if the Children's Court was constituted by the President, the Trial Division of the Supreme Court, against the order in the same manner as a child may appeal from summary conviction by the Children's Court." (3) In section 29(2) of the Road Safety Act 1986, after "County Court" insert "or the Trial Division of the Supreme Court (as the case requires)". 92 New section 103ZA inserted After section 103Z of the Road Safety Act 1986 insert— "103ZA Transitional provision—Justice Legislation Amendment Act 2010 The amendments to section 29 of this Act made by section 91 of the Justice Legislation Amendment Act 2010 apply to orders of disqualification, cancellation, s. 91 See: Act No. 127/1986. Reprint No. 11 as at 29 September 2008 and amending Act Nos 19/1991, 30/2007, 2/2008, 12/2008, 46/2008, 77/2008, 13/2009, 17/2009, 28/2009, 55/2009, 68/2009, 69/2009 and 93/2009. LawToday: www. legislation. vic.gov.au -- 123 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 116 suspension or variation made on or after the commencement of section 91 of that Act.". Division 7—Stalking Intervention Orders Act 2008 93 New section 51A inserted After section 51 of the Stalking Intervention Orders Act 2008 insert— "51A Relationship with certain orders under the Sentencing Act 1991 and the Corrections Act 1986 (1) This section applies if the respondent is currently subject to either of the following orders— (a) a home detention order under the Sentencing Act 1991; (b) a home detention order under the Corrections Act 1986. (2) If the court makes an intervention order that is or may be inconsistent with an order referred to in subsection (1)(a) or (b), the appropriate registrar must give to the Secretary to the Department of Justice as soon as practicable— (a) a copy of the intervention order; and (b) written notification that the intervention order may be inconsistent with a home detention order under the Sentencing Act 1991 or a home detention order under the Corrections Act 1986 (as the case requires).". s. 93 -- 124 of 127 -- Part 7—Amendment to Miscellaneous Acts Justice Legislation Amendment Act 2010 No. 30 of 2010 117 Division 8—Supreme Court Act 1986 94 Circumstances in which order may be made under section 18 (1) In section 19(e) of the Supreme Court Act 1986, for "relates" substitute "relates, wholly or partly,". (2) For section 19(f) of the Supreme Court Act 1986 substitute— "(f) cause undue distress or embarrassment to a witness under examination in a proceeding that relates, wholly or partly, to a charge for a sexual offence.". __________________ s. 94 See: Act No. 110/1986. Reprint No. 6 as at 28 April 2006 and amending Act Nos 48/2006, 24/2007, 8/2008, 9/2008, 23/2008, 24/2008, 78/2008, 4/2009, 9/2009, 50/2009, 68/2009 and 69/2009. LawToday: www. legislation. vic.gov.au -- 125 of 127 -- Part 8—Repeal of Amending Act Justice Legislation Amendment Act 2010 No. 30 of 2010 118 PART 8—REPEAL OF AMENDING ACT 95 Repeal of amending Act This Act is repealed on 1 July 2012. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 95 -- 126 of 127 -- Justice Legislation Amendment Act 2010 No. 30 of 2010 119 ENDNOTES † Minister's second reading speech— Legislative Assembly: 11 March 2010 Legislative Council: 25 March 2010 The long title for the Bill for this Act was "A Bill for an Act to amend the Sentencing Act 1991, the Children, Youth and Families Act 2005, the Corrections Act 1986, the County Court Act 1958, the Criminal Procedure Act 2009, the Magistrates' Court Act 1989, the Marine Act 1988, the Road Safety Act 1986, the Supreme Court Act 1986, the Gambling Regulation Act 2003 and other Acts and for other purposes." Endnotes -- 127 of 127 --