Sentencing (Suspended Sentences) Act 2006

i Sentencing (Suspended Sentences) Act 2006 Act No. 82/2006 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Time held in custody before suspended sentence restored to be deducted from sentence 3 4. Suspended sentence of imprisonment 4 5. Breach of order suspending sentence 6 6. Young offenders may be ordered to serve restored sentence in a youth justice facility 11 7. Consequential amendments 12 8. New section 133 inserted 12 133. Transitional provisions—Sentencing (Suspended Sentences) Act 2006 12 ═══════════════ ENDNOTES 14 -- 1 of 15 -- 1 Sentencing (Suspended Sentences) Act 2006 † [Assented to 10 October 2006] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Sentencing Act 1991 so as— (a) to list factors to which a sentencing court must have regard in considering whether to suspend a sentence of imprisonment; and (b) to create a presumption against a wholly suspended sentence of imprisonment being imposed for a serious offence; and Victoria No. 82 of 2006 -- 2 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 2 (c) to provide a new procedure to deal with breaches of suspended sentences; and (d) to empower courts to order young offenders to serve a restored suspended sentence in a youth justice facility; and (e) to enable time held in custody in relation to proceedings for the breach offence as well as the breach proceedings themselves to be deducted from a restored suspended sentence of imprisonment. 2. Commencement (1) This section and sections 1 and 8 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Sections 6(2) and (3) and 7(2) come into operation on the day on which section 601 of the Children, Youth and Families Act 2005 comes into operation. (3) Subject to sub-section (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (4) If a provision referred to in sub-section (3) does not come into operation before 1 November 2006, it comes into operation on that day. s. 2 -- 3 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 3 3. Time held in custody before suspended sentence restored to be deducted from sentence (1) For section 18(1) of the Sentencing Act 1991 substitute— "(1) If an offender is— (a) in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order; or (b) under section 31 ordered to serve the whole or part of a sentence or part sentence of imprisonment held in suspense— any period during which he or she was held in custody in relation to— (c) proceedings for the offence referred to in paragraph (a) or proceedings arising from those proceedings; or (d) proceedings under section 31— including any period pending the determination of an appeal, must be reckoned as a period of imprisonment or detention already served under the sentence or restored sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence or the court making the order under section 31 otherwise orders.". (2) In section 18(2)(d) of the Sentencing Act 1991, for "declared on a previous occasion" substitute "previously declared". s. 3 See: Act No. 49/1991. Reprint No. 9 as at 23 February 2006 and amending Act Nos 53/2003, 57/2005, 69/2005, 97/2005, 2/2006, 23/2006, 24/2006, 32/2006, 48/2006 and 50/2006. LawToday: www.dms. dpc.vic. gov.au -- 4 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 4 (3) For section 35(1) of the Sentencing Act 1991 substitute— "(1) If a young offender is— (a) in respect of an offence sentenced to a term of detention; or (b) under section 31 ordered to serve as detention in a youth training centre or youth residential centre the whole or part of a sentence or part sentence of imprisonment held in suspense— any period during which he or she was held in custody in relation to— (c) proceedings for the offence referred to in paragraph (a) or proceedings arising from those proceedings; or (d) proceedings under section 31— including any period pending the determination of an appeal, must be reckoned as a period of detention already served under the sentence or restored sentence unless the sentencing court or the court making the order under section 31 otherwise orders.". (4) In section 35(2)(c) of the Sentencing Act 1991, for "declared on a previous occasion" substitute "previously declared". 4. Suspended sentence of imprisonment (1) After section 27(1) of the Sentencing Act 1991 insert— "(1A) In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, a court must have regard to— s. 4 -- 5 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 5 (a) the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting directly from the offence, to ensure that the sentence— (i) adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and (ii) adequately deters the offender or other persons from committing offences of the same or a similar character; and (iii) reflects the gravity of the offence; and (b) any previous suspended sentence of imprisonment imposed on the offender and whether the offender breached the order suspending that sentence; and (c) without limiting paragraph (b), whether the offence was committed during the operational period of a suspended sentence of imprisonment; and (d) the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended. (1B) Nothing in sub-section (1A) limits or affects Part 2.". s. 4 -- 6 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 6 (2) After section 27(2A) of the Sentencing Act 1991 insert— "(2B) Despite sub-section (1), a court must not make an order suspending the whole of a sentence of imprisonment imposed on an offender for a serious offence unless it is satisfied, after having had regard to the factors specified in sub-section (1A), that making such an order is— (a) appropriate because of the existence of exceptional circumstances; and (b) in the interests of justice. (2C) If a court makes an order of a kind referred to in sub-section (2B), it must, at the time of imposing the sentence, announce in open court its reasons for so doing and cause those reasons to be noted in the records of the court.". 5. Breach of order suspending sentence (1) In section 31 of the Sentencing Act 1991, for sub- sections (1) to (4) substitute— "(1) If a court finds an offender on whom a suspended sentence of imprisonment has previously been imposed guilty of another offence punishable by imprisonment committed within the preceding 3 years and during the operational period of that sentence, it may— (a) on the application, in the prescribed form, of a prescribed person or a member of a prescribed class of persons; and (b) if the offender is then present before the court— do either of the following— s. 5 -- 7 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 7 (c) if it is the court that imposed the suspended sentence, proceed to exercise any power conferred on it by sub-section (5) regardless of whether the operational period of that sentence is current or has expired; or (d) if it is not the court that imposed the suspended sentence, transfer (in accordance with the regulations) the proceeding under this sub-section to that court and, for this purpose, 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 appearance at the court that imposed the suspended sentence. (1A) On an offender breaching an order suspending a sentence of imprisonment by committing another offence punishable by imprisonment (a breach offence) during the operational period of that sentence, a prescribed person or a member of a prescribed class of persons may, if an application has not been made under sub- section (1) in respect of the breach or such an application has been withdrawn, at any time up until 3 years after the date on which the breach offence was committed, apply to a registrar of the Magistrates' Court at any venue of that Court for the issue of— (a) a summons to answer to the breach of the suspended sentence (a breach summons); or s. 5 -- 8 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 8 (b) a warrant to arrest— in order to compel the attendance of the offender at the court (and, in the case of the Magistrates' Court, the proper venue of that Court) that imposed the suspended sentence. (1B) An application under sub-section (1A) may be made by the applicant in person or by post. (2) On an application under sub-section (1A), the registrar must, if satisfied that the offender has been found guilty of the breach offence, issue— (a) a breach summons; or (b) subject to sub-section (2A), a warrant to arrest. (2A) 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 summons; or (b) the offender has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or (c) a warrant is required or authorised for other good cause. (3) On the application of the person who applied for the issue of the breach summons at any time before it is served, the date specified in the breach summons for the offender to attend court (the return date) may be extended without cause— (a) before the return date; or s. 5 -- 9 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 9 (b) within one month after the return date— by a registrar at the venue of the Magistrates' Court at which the summons was issued on one occasion and thereafter may be extended— (c) before the current return date; or (d) within one month 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 summons. (4) A breach summons— (a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the suspended sentence 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 breach; and (b) may be served in any manner in which a summons to answer to a charge may be served under section 34 of the Magistrates' Court Act 1989. (4A) Service of a breach summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 35 of the Magistrates' Court Act 1989. (4B) If an offender does not attend before a court in accordance with his or her undertaking of bail granted under sub-section (1) or in answer to a breach summons which has been served in accordance with this section, the s. 5 -- 10 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 10 court may issue a warrant to arrest the offender. (4C) A warrant to arrest authorised to be issued under this section is to be issued in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant with any necessary modifications. (4D) Section 50 of the Magistrates' Court Act 1989 applies to a breach 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 summons or warrant issued under this section; and (b) to the Court were a reference to the court by which the suspended sentence was imposed. (4E) The person constituting the court that finds the offender guilty of the breach offence may, if the offender is not then present before the court, exercise any of the powers of a registrar under this section on the application, in the prescribed form, of a prescribed person or a member of a prescribed class of persons. (4F) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted, or a summons or warrant issued, under this section, the court must— (a) ask the defendant 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. 5 -- 11 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 11 (4G) If the court before which an offender appears in answer to bail granted, or a summons or warrant issued, under this section 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.". (2) In section 31(5) of the Sentencing Act 1991, for "on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition" substitute "the court that imposed a suspended sentence of imprisonment is satisfied that the offender has been found guilty of an offence punishable by imprisonment committed during the operational period of the suspended sentence it". (3) In section 31(5A) of the Sentencing Act 1991, for "on the hearing of a charge the court finds the offender guilty of the offence it must, in addition to any fine it may impose under sub-section (5)," substitute "the court is satisfied as mentioned in that sub-section it must". (4) Section 31(9) of the Sentencing Act 1991 is repealed. 6. Young offenders may be ordered to serve restored sentence in a youth justice facility (1) After section 31(6) of the Sentencing Act 1991 insert— "(7) Despite anything to the contrary in this section, if the court restores, in the case of an offender who is at that time under the age of 21 years, the whole or part of the sentence or part sentence held in suspense, it may order the offender to serve it as detention in a s. 6 -- 12 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 12 youth training centre or youth residential centre. (7A) Section 32 applies to an order under sub- section (7) as if it were a youth training centre order or a youth residential centre order and as if the reference in sub- section (1) of that section to a pre-sentence report were a reference to a pre-sentence report that deals with the matter of the breach of the suspended sentence.". (2) In section 31(7) of the Sentencing Act 1991 for "youth training centre" substitute "youth justice centre". (3) In section 31(7A) of the Sentencing Act 1991 for "youth training centre order" substitute "youth justice centre order". 7. Consequential amendments (1) In the definition of "serious offence" in section 3(1) of the Sentencing Act 1991, after "(indefinite sentences)" insert "and Subdivision (3) of that Division (suspended sentences of imprisonment)". (2) In section 35(1) of the Sentencing Act 1991, for "youth training centre" substitute "youth justice centre". 8. New section 133 inserted After section 132 of the Sentencing Act 1991 insert— "133. Transitional provisions—Sentencing (Suspended Sentences) Act 2006 (1) The amendments of this Act made by section 3, 5 or 6(1) of the Sentencing (Suspended Sentences) Act 2006 apply to an order made under section 31 of this Act on or after the commencement of that section of that Act consequent on a finding of guilt s. 7 -- 13 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 13 of an offence made on or after that commencement, irrespective of when that offence was committed. (2) The amendments of this Act made by section 4(1) or 4(2) of the Sentencing (Suspended Sentences) Act 2006 apply to a sentence imposed on or after the commencement of that section of that Act in respect of an offence alleged to have been committed on or after that commencement. (3) For the purposes of sub-sections (1) and (2), if an offence is alleged to have been committed between two dates, one before and one after the commencement of a provision of the Sentencing (Suspended Sentences) Act 2006, the offence is alleged to have been committed before that commencement.". ═══════════════ s. 8 -- 14 of 15 -- Act No. 82/2006 Sentencing (Suspended Sentences) Act 2006 14 ENDNOTES † Minister's second reading speech— Legislative Assembly: 24 August 2006 Legislative Council: 3 October 2006 The long title for the Bill for this Act was "to amend the Sentencing Act 1991 with respect to suspended sentences of imprisonment and for other purposes." Endnotes -- 15 of 15 --