Sentencing (Amendment) Act 2002

i Sentencing (Amendment) Act 2002 Act No. 2/2002 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Principal Act 2 PART 2—SENTENCING ACT 1991 3 4. Drug treatment order as sentencing order 3 5. New Subdivision (1C) inserted in Division 2 of Part 3 4 Subdivision (1C)—Drug Treatment Orders 4 18X. Purposes of drug treatment order 4 18Y. Order only available at Drug Court 5 18Z. When drug treatment order can be made 5 18ZA. Order can cover multiple offences 7 18ZB. Effect of Drug Court declining to make an order 8 18ZC. The parts of a drug treatment order 8 18ZD. Sentence of imprisonment must be imposed 8 18ZE. Activation of custodial part of an order 9 18ZF. Core conditions 11 18ZG. Program conditions 13 18ZH. Variation on assessing offender's progress 14 18ZI. Case conferences 15 18ZJ. Rewards for complying with conditions 15 18ZK. Cancellation as a reward 16 18ZL. Failure to comply with conditions 17 18ZM. Service in a secure custody facility 19 18ZN. Commission of certain offences 21 18ZO. Drug Court may hear and determine certain offences 23 18ZP. Cancellation 24 18ZQ. Drug treatment order assessment reports 27 18ZR. Appeals 30 18ZS. Immunity from prosecution for certain offences 33 6. Statute law revision 33 -- 1 of 43 -- Section Page ii 7. New section 126 inserted 33 126. Transitional provisions—Sentencing (Amendment) Act 2002 34 8. Repeal of drug treatment order provisions 34 9. New section 126A inserted 34 126A. Transitional provision—repeal of amendments made by Sentencing (Amendment) Act 2002 35 PART 3—MAGISTRATES' COURT ACT 1989 36 10. New sections 4A and 4B inserted 36 4A. Establishment of Drug Court Division 36 4B. Intra-venue referrals 36 11. New section 4C inserted 37 4C. Inter-venue referrals 37 PART 4—CORRECTIONS ACT 1986 39 12. Definition of "correctional order" 39 13. Persons not regarded to be in the Secretary's legal custody 39 14. Repeals 40 ═══════════════ ENDNOTES 41 -- 2 of 43 -- 1 Sentencing (Amendment) Act 2002 † [Assented to 26 March 2002] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Sentencing Act 1991 to provide for a drug treatment order as a new sentencing order; and (b) to amend the Magistrates' Court Act 1989 to establish a Drug Court Division of the Magistrates' Court; and Victoria No. 2 of 2002 -- 3 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 2 (c) to amend the Corrections Act 1986 with respect to the custody of a person subject to a drug treatment order. 2. Commencement (1) This Part comes into operation on the day after the day on which this Act receives the Royal Assent. (2) Sections 8, 9 and 14 come into operation on the day that is the fourth anniversary of the day on which section 5 comes into operation. (3) Subject to sub-sections (4) and (5), 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) (other than section 11) does not come into operation before 1 December 2002, it comes into operation on that day. (5) If section 11 does not come into operation before 1 December 2003, it comes into operation on that day. 3. Principal Act In this Act, the Sentencing Act 1991 is called the Principal Act. __________________ s. 2 See: Act No. 49/1991. Reprint No. 6 as at 1 August 2001 and amending Act Nos 45/2001 and 00/2001. LawToday: www.dms. dpc.vic. gov.au -- 4 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 3 PART 2—SENTENCING ACT 1991 4. Drug treatment order as sentencing order (1) In section 3(1) of the Principal Act insert— ' "Drug Court" means the Drug Court Division of the Magistrates' Court; "Drug Court officer" means a person who— (a) is employed under Part 3 of the Public Sector Management and Employment Act 1998; and (b) exercises powers or performs functions in relation to the Drug Court; "drug treatment order" means an order under Subdivision (1C) of Division 2 of Part 3; "secure custody facility" means— (a) a prison as defined in section 3 of the Corrections Act 1986; or (b) a youth training centre; or (c) any other place the Minister specifies under sub-section (2);'. (2) In section 3(1) of the Principal Act, in the definition of "Regional Manager", after "in relation to" insert "a drug treatment order,". (3) In section 3 of the Principal Act, after sub-section (1) insert— '(2) The Minister may, by notice published in the Government Gazette, specify a place for the purposes of paragraph (c) of the definition of "secure custody facility" in sub-section (1). (3) Section 6(b) of the Corrections Act 1986 is taken to include an order under section 18ZL(1)(f) that a person serve a period in a s. 4 -- 5 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 4 place referred to in paragraph (c) of the definition of "secure custody facility" in sub-section (1).'. (4) In section 5(4A) of the Principal Act, for "an intensive correction order" substitute "a drug treatment order". (5) In section 5 of the Principal Act, after sub-section (4A) insert— "(4B) A court must not impose a drug treatment order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by an intensive correction order.". (6) In section 7(1) of the Principal Act, before paragraph (b) insert— "(ac) record a conviction and make a drug treatment order in respect of the offender; or". 5. New Subdivision (1C) inserted in Division 2 of Part 3 After Subdivision (1B) of Division 2 of Part 3 of the Principal Act insert— 'Subdivision (1C)—Drug Treatment Orders 18X. Purposes of drug treatment order (1) The particular purposes of a drug treatment order are— (a) to facilitate the rehabilitation of the offender by providing a judicially- supervised, therapeutically-oriented, integrated drug or alcohol treatment and supervision regime; (b) to take account of an offender's drug or alcohol dependency; s. 5 -- 6 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 5 (c) to reduce the level of criminal activity associated with drug or alcohol dependency; (d) to reduce the offender's health risks associated with drug or alcohol dependency. (2) Nothing in sub-section (1) affects the operation of section 5(1) but, if considering making a drug treatment order, the Drug Court must regard the rehabilitation of the offender and the protection of the community from the offender (achieved through the offender's rehabilitation) as having greater importance than the other purposes set out in section 5(1). 18Y. Order only available at Drug Court Only the Drug Court may make a drug treatment order. 18Z. When drug treatment order can be made (1) The Drug Court may make a drug treatment order if— (a) an offender pleads guilty to an offence that is within the jurisdiction of the Magistrates' Court and punishable on conviction by imprisonment, other than— (i) a sexual offence as defined in section 6B(1); or (ii) subject to sub-section (5), an offence involving the infliction of actual bodily harm; and (b) the Drug Court convicts the offender of the offence; and s. 5 -- 7 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 6 (c) the Drug Court is satisfied on the balance of probabilities that— (i) the offender is dependent on drugs or alcohol; and (ii) the offender's dependency contributed to the commission of the offence; and (d) the Drug Court considers that— (i) a sentence of imprisonment would otherwise be appropriate; and (ii) it would not have ordered that the sentence be served by way of intensive correction in the community nor would it have suspended the sentence in whole or part; and (e) the Drug Court has received a drug treatment order assessment report on the offender under section 18ZQ. (2) However, a drug treatment order cannot be made in respect of an offender who is subject to— (a) a parole order; or (b) a combined custody and treatment order; or (c) a sentencing order of the County Court or Supreme Court. (3) The Drug Court must not make a drug treatment order unless— (a) it is satisfied in all the circumstances that it is appropriate to do so; and s. 5 -- 8 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 7 (b) the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order. Note: Section 18ZC sets out what the treatment and supervision part of the order is. (4) The Drug Court may make a drug treatment order in respect of an offender regardless of whether— (a) the offender's drug or alcohol dependency contributed on one or more previous occasions to the offender— (i) committing an offence of which the offender was convicted or found guilty; or (ii) failing to comply with the conditions of bail or of a sentencing order; or (b) the offender has been previously sentenced to one or more terms of imprisonment. (5) Despite sub-section (1)(a)(ii), the Drug Court may make a drug treatment order in respect of an offender where the offence involved the infliction of actual bodily harm if it is satisfied that the harm was of a minor nature. 18ZA. Order can cover multiple offences (1) A drug treatment order may be made in respect of one or more offences committed by an offender. (2) An offender can only be subject to one drug treatment order at any particular time. s. 5 -- 9 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 8 18ZB. Effect of Drug Court declining to make an order If an offender has pleaded guilty to an offence or offences in respect of which the Drug Court could make a drug treatment order but it does not consider it appropriate to do so, the Drug Court must— (a) sentence the offender in relation to the offence or offences if the offender consents to the Drug Court doing so; or (b) adjourn the matter for sentencing to the Magistrates' Court (other than the Drug Court) at that venue. 18ZC. The parts of a drug treatment order (1) A drug treatment order consists of 2 parts— (a) the treatment and supervision part; and (b) the custodial part. (2) The treatment and supervision part of a drug treatment order— (a) consists of the core conditions and program conditions attached to the order; and (b) operates for 2 years or until that part of the order is cancelled under section 18ZK, 18ZN or 18ZP. (3) The custodial part of a drug treatment order consists of the sentence of imprisonment that the Drug Court must impose on the offender under section 18ZD. 18ZD. Sentence of imprisonment must be imposed (1) When making a drug treatment order, the Drug Court must impose a sentence of s. 5 -- 10 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 9 imprisonment of no more than 2 years on the offender. (2) The Drug Court must impose the sentence of imprisonment that it would have imposed if it had not made the drug treatment order. (3) Despite anything to the contrary in section 11, the Drug Court must not fix a non-parole period in accordance with that section as part of the sentence imposed by it. Note: A non-parole period may be fixed as part of certain orders under this Subdivision activating the custodial part of a drug treatment order (see section 18ZE(3)). 18ZE. Activation of custodial part of an order (1) Despite anything to the contrary in this Act, an offender is not to serve the custodial part of a drug treatment order, and that part of the order does not commence, except in accordance with an order under this Subdivision activating that part of the order. Note: The Drug Court may make an order activating some or all of the custodial part under section 18ZL(1)(f) (which involves serving a period in a secure custody facility), or under section 18ZN or 18ZP. (2) In making an order under this Subdivision activating some or all of the custodial part of a drug treatment order, the Drug Court must first— (a) calculate the remaining length of the custodial part of the order by subtracting from the length of the sentence of imprisonment imposed under the order— (i) each period of custody declared under this Act as reckoned to be a s. 5 -- 11 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 10 period already served under the sentence; and (ii) each period of custody served in a secure custody facility under the custodial part of the order because of an order under section 18ZL(1)(f); and (b) if the total of— (i) the remaining length of the custodial part of the order; and (ii) the period during which the treatment and supervision part of the order has already operated— is more than 2 years, reduce the remaining length of the custodial part so that the total is 2 years. (3) If the Drug Court makes an order under section 18ZN(1)(b)(i) or 18ZP(2)(a) activating the custodial part of a drug treatment order for a period of one year or more, the Drug Court may, as part of the order under that section, fix in respect of the custodial part a non-parole period in accordance with section 11, as if the Drug Court had just sentenced the offender to that term of imprisonment. Example The Drug Court decides to make an order activating the custodial part of a drug treatment order 18 months after the drug treatment order was made. When it made the drug treatment order, it imposed a sentence of imprisonment of 8 months. The Drug Court— (a) calculates that the remaining length of the custodial part of the drug treatment order is 7 months because the length of the sentence of imprisonment imposed under the order was s. 5 -- 12 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 11 8 months from which the Drug Court subtracts— (i) 14 days that the offender spent in custody before sentencing; and (ii) 16 days that the offender served in a secure custody facility because of an earlier order under section 18ZL(1)(f); and (b) calculates that the total of— (i) the remaining length of the custodial part (7 months); and (ii) the period during which the treatment and supervision part of the drug treatment order has already operated (18 months)— is 25 months, which is 1 month over 2 years; and (c) so that the total is 2 years, reduces the remaining length of the custodial part by 1 month to 6 months. This means that the Drug Court may make an order activating the custodial part for no more than 6 months. 18ZF. Core conditions (1) The core conditions attached to a drug treatment order are that, while the treatment and supervision part of the order operates, the offender— (a) must not commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment; and (b) must attend the Drug Court when required by the Drug Court to do so; and (c) must report to a specified community corrections centre or other specified s. 5 -- 13 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 12 place within 2 clear working days after the order is made; and (d) must undergo treatment for drug or alcohol dependency as specified in the order or from time to time by— (i) the Drug Court; or (ii) a specified community corrections officer; or (iii) a specified Drug Court officer; and (e) must report to, and accept visits from, a specified community corrections officer or specified Drug Court officer; and (f) must give notice of any change of address within 2 clear working days before the change, unless there are special circumstances, to— (i) the Drug Court; or (ii) a specified community corrections officer; or (iii) a specified Drug Court officer; and (g) must not leave Victoria except with the permission, granted either generally or in a particular case, of one of the following— (i) the Drug Court; (ii) a specified community corrections officer; (iii) a specified Drug Court officer; and s. 5 -- 14 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 13 (h) must obey all lawful instructions and directions of the Drug Court, community corrections officers or specified Drug Court officers. (2) A drug treatment order must have all the core conditions attached to it and the offender must comply with all of those conditions. 18ZG. Program conditions (1) The program conditions that may be attached to a drug treatment order are that, while the treatment and supervision part of the order operates, the offender— (a) must submit to drug or alcohol testing as specified in the order; and (b) must submit to detoxification or other treatment specified in the order (whether or not residential in nature); and (c) must attend vocational, educational, employment or other programs as specified in the order; and (d) must submit to medical, psychiatric or psychological treatment as specified in the order; and (e) must not associate with specified persons; and (f) must reside at a specified place for a specified period; and (g) must do or not do anything else that the Drug Court considers necessary or appropriate concerning— (i) the offender's drug or alcohol dependency; or s. 5 -- 15 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 14 (ii) the personal factors that the Drug Court considers contributed to the offender's criminal behaviour. (2) The Drug Court must attach to a drug treatment order at least one program condition but must not attach any more program conditions than it considers necessary to achieve the purposes for which the order is made. (3) An offender must comply with all of the program conditions attached to the drug treatment order. 18ZH. Variation on assessing offender's progress (1) The Drug Court may vary the treatment and supervision part of a drug treatment order from time to time if the Drug Court considers it appropriate to do so based on its assessment of the offender's progress. Note: The Drug Court may also vary the treatment and supervision part of a drug treatment order under section 18ZJ, 18ZL or 18ZN. (2) The Drug Court may do so on its own initiative or on the application of— (a) the offender; or (b) the informant or police prosecutor; or (c) a prescribed person or a person in a prescribed class of persons. (3) The treatment and supervision part of the order may be varied by— (a) adding or removing program conditions; or (b) varying one or more core conditions, other than the condition referred to in s. 5 -- 16 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 15 section 18ZF(1)(a), or program conditions, for example to vary— (i) the frequency of treatment; or (ii) the degree of supervision; or (iii) the frequency of drug or alcohol testing; or (iv) the type or frequency of vocational, educational, employment or other programs that the offender must attend. 18ZI. Case conferences (1) For the purpose of being informed from time to time about the progress being made by an offender subject to a drug treatment order, the magistrate constituting the Drug Court may convene a case conference. (2) A case conference may be attended by a legal practitioner, a prosecutor, a health service provider, a community corrections officer or anyone else whom the magistrate thinks should attend. (3) For the purposes of section 91 of the Corrections Act 1986, an officer referred to in that section who discloses at a case conference information about an offender subject to a drug treatment order is taken to be performing his or her official duties. (4) No objection can be taken to a magistrate subsequently constituting the Drug Court in a proceeding on the ground that he or she had previously convened a case conference in relation to the proceeding. 18ZJ. Rewards for complying with conditions s. 5 -- 17 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 16 (1) The Drug Court may, on its own initiative, confer a reward from time to time on an offender who is or has been fully or substantially complying with the conditions attached to a drug treatment order by doing one or more of the following— (a) varying the treatment and supervision part of the order under sub-section (2); (b) varying or cancelling an order under section 18ZL(1)(c), (d) or (e); (c) making an order that some or all of a period for which the custodial part of the drug treatment order is activated under section 18ZL(1)(f), but which the offender is yet to serve in a secure custody facility, is no longer activated; (d) conferring on the offender any other reward that the Drug Court considers appropriate. (2) The treatment and supervision part of the order may be varied by— (a) adding or removing program conditions; or (b) varying one or more core conditions, other than the condition referred to in section 18ZF(1)(a), or program conditions, for example to reduce— (i) the frequency of treatment; or (ii) the degree of supervision; or (iii) the frequency of drug or alcohol testing. 18ZK. Cancellation as a reward (1) The Drug Court may, on its own initiative, as a reward cancel the treatment and s. 5 -- 18 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 17 supervision part and custodial part of a drug treatment order if it considers that— (a) the offender has to date fully or substantially complied with the conditions attached to the order; and (b) the continuation of the order is no longer necessary to meet the purposes for which it was made. (2) To avoid doubt, if the Drug Court cancels the treatment and supervision part and custodial part of a drug treatment order under this section any earlier orders activating the custodial part of the order cease to have effect. 18ZL. Failure to comply with conditions (1) If the Drug Court is satisfied on the balance of probabilities that an offender has, without reasonable excuse, failed to comply with a condition attached to a drug treatment order (other than by committing an offence punishable on conviction by imprisonment for more than 12 months) the Drug Court must take one of the following actions— (a) confirm the treatment and supervision part of the order; (b) vary that part of the order under sub-section (3); (c) order that a curfew, requiring the offender to remain at a specified place between specified hours, applies to the offender for a specified period; (d) order that the offender perform up to 20 hours of unpaid community work as directed by the Regional Manager of the region in which the community -- 19 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 18 corrections centre specified in the order is located; (e) order that the offender remain at a specified place, other than a secure custody facility, for a specified period of up to 14 days; (f) subject to section 18ZM, order that the custodial part of the drug treatment order is activated for a specified period of between one and 7 days to be served in a secure custody facility. Note 1: If the offender commits an offence punishable on conviction by imprisonment for more than 12 months, see section 18ZN. Note 2: Section 18ZE sets out how much of the custodial part of a drug treatment order can be activated. Note 3: For "secure custody facility" see section 3(1). (2) In deciding which action to take under sub-section (1), the Drug Court must consider each of the actions in the order in which they appear and must only take the first action that the Court considers to be appropriate in the circumstances. (3) The treatment and supervision part of the order may be varied by— (a) adding or removing program conditions; or (b) varying one or more core conditions, other than the condition referred to in section 18ZF(1)(a), or program conditions, for example to increase— (i) the frequency of treatment; or (ii) the degree of supervision; or s. 5 -- 20 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 19 (iii) the frequency of drug or alcohol testing. (4) If the Drug Court is satisfied on the balance of probabilities that an offender who is subject to an order under sub-section (1)(c), (d) or (e) has failed to comply with the order, the Drug Court must take one of the following actions— (a) confirm or vary that order; (b) cancel that order and take any action under sub-section (1), including making another order of the same kind, as though the offender had failed to comply with a condition attached to the drug treatment order. Note: In addition, the Drug Court may cancel the treatment and supervision part of the drug treatment order and may also cancel the custodial part of that order (see section 18ZP). (5) The Drug Court may take an action under sub-section (1) or (4) on its own initiative or on an application by— (a) the informant or police prosecutor; or (b) a prescribed person or a person in a prescribed class of persons. 18ZM. Service in a secure custody facility (1) The Drug Court may only make an order under section 18ZL(1)(f) if it is satisfied beyond reasonable doubt that the offender has failed to comply with the condition attached to the drug treatment order. (2) If the Drug Court makes an order under that section, it— s. 5 s. 5 -- 21 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 20 (a) must specify in the order the kind of secure custody facility in which the period is to be served; and (b) must only specify a youth training centre if the offender is a young offender and the Drug Court considers it appropriate to do so. (3) An offender can only be required to serve a period in a secure custody facility in accordance with an order under section 18ZL(1)(f) when— (a) the period under the order under section 18ZL(1)(f); or (b) the total of the periods for which the custodial part is activated under 2 or more such orders and which the offender has not yet served— is at least 7 days, not including so much of the period or periods as is no longer activated because of an order under section 18ZJ(1)(c). Note: An order may be made under section 18ZJ(1)(c) as a reward for complying with the conditions attached to a drug treatment order. (4) Before the Drug Court makes an order under section 18ZL(1)(f), notice of the hearing concerning the making of the order must be given to— (a) the offender; and (b) the informant or police prosecutor; and (c) the prescribed person or the person in the prescribed class of persons— -- 22 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 21 and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing. (5) If the Drug Court makes an order under section 18ZL(1)(f) the Drug Court may, for the purposes of giving effect to that order, issue a warrant to imprison the offender under section 68 of the Magistrates' Court Act 1989. 18ZN. Commission of certain offences (1) If the Drug Court is satisfied beyond reasonable doubt that an offender has failed to comply with a condition attached to a drug treatment order, by committing an offence punishable on conviction by imprisonment for more than 12 months, the Drug Court must— (a) take any of the actions under section 18ZL(1) as though the offender had failed to comply with any other condition attached to the order; (b) cancel the treatment and supervision part of the order and, after taking into account the extent to which the offender complied with that part of the order— (i) make an order activating some or all of the custodial part of the drug treatment order; or (ii) cancel the custodial part of the drug treatment order and deal with the offender for each offence in respect of which the drug treatment order was made in any way in which the Drug Court s. 5 -- 23 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 22 could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a). Note 1: Section 18ZE sets out how much of the custodial part of a drug treatment order can be activated. Note 2: The Drug Court may be required to take an action under paragraph (b) because of section 18ZO(3). (2) The Drug Court may take an action under sub-section (1) on its own initiative or on an application by— (a) the informant or police prosecutor; or (b) a prescribed person or a person in a prescribed class of persons. (3) Before the Drug Court cancels the treatment and supervision part of a drug treatment order under sub-section (1) (whether or not it also cancels the custodial part), notice of the hearing concerning the cancellation must be given to— (a) the offender; and (b) the informant or police prosecutor; and (c) the prescribed person or the person in the prescribed class of persons— and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing. (4) To avoid doubt, if the Drug Court cancels the treatment and supervision part or custodial part of a drug treatment order under this section, any earlier orders activating the s. 5 -- 24 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 23 custodial part of the order cease to have effect. 18ZO. Drug Court may hear and determine certain offences (1) If an offender who is subject to a drug treatment order is charged with an offence, whether committed before or after the order was made, that is within the jurisdiction of the Magistrates' Court— (a) the Drug Court may hear and determine the offence; and (b) for the purposes of the Magistrates' Court Act 1989, the Drug Court is taken to be the proper venue in relation to the proceeding for that offence. (2) If— (a) the Drug Court convicts the offender of the offence and imposes a sentence of imprisonment on the offender in respect of the offence; and (b) the Drug Court does neither of the following— (i) orders that the sentence be served by way of intensive correction in the community; (ii) suspends the sentence in whole or part; and (c) the length of the sentence imposed is not more than the remaining length of the custodial part of the drug treatment order (as calculated in accordance with section 18ZE(2)(a)); and (d) the offence is a kind of offence in respect of which the Drug Court could s. 5 s. 5 -- 25 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 24 make a drug treatment order if the offender were not already subject to one— in imposing the sentence, the Drug Court may order that the sentence is subsumed within the custodial part of the drug treatment order. (3) If— (a) the Drug Court convicts the offender of the offence and imposes a sentence of imprisonment on the offender in respect of the offence; and (b) the Drug Court does neither of the following— (i) orders that the sentence be served by way of intensive correction in the community; (ii) suspends the sentence in whole or part; and (c) the Drug Court does not order under sub-section (2) that the sentence is subsumed within the custodial part of the drug treatment order— the Drug Court must cancel the treatment and supervision part of the drug treatment order under section 18ZN(1)(b) and take an action under sub-paragraph (i) or (ii) of that section. 18ZP. Cancellation (1) The Drug Court may cancel the treatment and supervision part of a drug treatment order if it is satisfied on the balance of probabilities that— s. 5 -- 26 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 25 (a) before the order was made, the offender's circumstances were not accurately presented to either the Drug Court or the author of the drug treatment order assessment report on the offender; or (b) the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or (c) the offender is no longer willing to comply with one or more conditions attached to the order; or (d) the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or (e) the offender has breached an order under sub-section 18ZL(1)(c), (d) or (e). Note: The Drug Court may also cancel the treatment and supervision part of the order under section 18ZK or 18ZN. (2) When cancelling the treatment and supervision part of the order under sub-section (1), the Drug Court must, after taking into account the extent to which the offender complied with that part of the order, take one of the following actions— (a) make an order activating some or all of the custodial part of the drug treatment order; (b) cancel the custodial part of the drug treatment order and deal with the s. 5 -- 27 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 26 offender for each offence in respect of which the drug treatment order was made in any way in which the Drug Court could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a). Note: Section 18ZE sets out how much of the custodial part of a drug treatment order can be activated. (3) The Drug Court may take an action under sub-section (1) or (2) on its own initiative or on the application of— (a) the offender; or (b) the informant or police prosecutor; or (c) a prescribed person or a person in a prescribed class of persons. (4) Before the Drug Court cancels the treatment and supervision part of a drug treatment order (whether or not it also cancels the custodial part), notice of the hearing concerning the cancellation must be given to— (a) the offender; and (b) the informant or police prosecutor; and (c) the prescribed person or the person in the prescribed class of persons— and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing. (5) To avoid doubt, if the Drug Court cancels the treatment and supervision part or custodial part of a drug treatment order under this section, any earlier orders activating the s. 5 -- 28 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 27 custodial part of the order cease to have effect. 18ZQ. Drug treatment order assessment reports (1) If the Drug Court is considering making a drug treatment order at any stage after a defendant has indicated an intention to plead guilty to an offence, or has pleaded guilty to an offence, it must— (a) order a drug treatment order assessment report on the defendant; and (b) adjourn the proceeding to enable the report to be prepared by a specified Drug Court officer. (2) The purpose of a drug treatment order assessment report is— (a) to establish whether the defendant is a suitable person to be subject to a drug treatment order; and (b) if so— (i) to prepare a case management plan for the defendant; and (ii) to establish whether the facilities necessary to implement that plan exist and, if so, to identify those facilities; and (iii) to make recommendations to the Drug Court on the program conditions that should be attached to a drug treatment order in respect of the defendant. (3) If the Drug Court grants a defendant bail on an adjournment under sub-section (1) it must, for the purpose of facilitating the s. 5 -- 29 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 28 preparation of the report, impose a condition of bail requiring the defendant to— (a) report to the specified Drug Court officer, or other specified person or body, within a specified period; and (b) comply with any further reporting requirements imposed by that officer, person or body. (4) A drug treatment order assessment report may set out all or any of the following matters which, on investigation, appear to the specified Drug Court officer to be relevant to the assessment of the defendant and are readily ascertainable by the officer— (a) the defendant's age; (b) the defendant's social history and background; (c) the defendant's medical and psychiatric history, including details of any treatment the defendant has undergone for drug or alcohol dependency; (d) the defendant's educational background; (e) the defendant's employment history; (f) the circumstances of any other offences of which the defendant has been found guilty; (g) the extent to which the defendant— (i) has complied with any sentence that is no longer in force in respect of him or her; and (ii) is complying with any sentence currently in force in respect of him or her; s. 5 -- 30 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 29 (h) the defendant's financial circumstances; (i) the defendant's housing history and needs; (j) any special needs of the defendant; (k) any course, program, treatment, therapy or other assistance that could be available to the offender and from which he or she may benefit. (5) The specified Drug Court officer must include in the report any other matter relevant to the defendant which the Drug Court has directed to be set out in the report. (6) The report must be filed with the Drug Court no later than the time directed by the Court. (7) Within a reasonable time after the report is filed and before a drug treatment order is made, the specified Drug Court officer must provide a copy of the report to— (a) the prosecutor; and (b) the defendant's legal practitioner; and (c) if the Drug Court directs the officer to do so, the defendant. (8) The prosecution or defence may file with the Drug Court a notice of intention to dispute all or any part of a drug treatment order assessment report. (9) If a notice is filed before a drug treatment order is made, the Drug Court must not take the disputed report or disputed part of the report into consideration when making the order unless the party that filed the notice has been given the opportunity— (a) to lead evidence on the disputed matters; and s. 5 -- 31 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 30 (b) to cross-examine the specified Drug Court officer on its contents. (10) For the purposes of section 91 of the Corrections Act 1986, an officer referred to in that section who discloses to the specified Drug Court officer information about the defendant for the purposes of the preparation of a drug treatment order assessment report is taken to be performing his or her official duties. 18ZR. Appeals (1) On the hearing of an appeal under section 83 or 84 of the Magistrates' Court Act 1989 against a sentencing order made by the Magistrates' Court (including the Drug Court), the County Court cannot itself make a drug treatment order, despite anything to the contrary in section 86(1) of that Act. (2) Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989, and Schedule 6 to that Act, apply with respect to appeals to the County Court against any sentencing order made by the Drug Court with the following modifications— (a) an appeal does not lie against— (i) a refusal of the Drug Court to make a drug treatment order; or (ii) a finding that an offender has failed to comply with a condition attached to a drug treatment order; or (iii) the variation of the treatment and supervision part of a drug treatment order; or s. 5 -- 32 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 31 (iv) the cancellation of the treatment and supervision part, or the custodial part, of a drug treatment order; (b) if the appeal is against the custodial part of the drug treatment order and not against the treatment and supervision part of the order, the appeal does not operate as a stay of the drug treatment order, unless the County Court so orders. (3) For the purposes of Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989, and Schedule 6 to that Act, an order under this Subdivision activating some or all of the custodial part of a drug treatment order is taken to be a sentencing order made by the Drug Court. (4) Despite sub-section (1), on the hearing of an appeal under section 83 or 84 of the Magistrates' Court Act 1989 against a drug treatment order made by the Drug Court, the County Court may— (a) re-instate the drug treatment order set aside by it under section 86(1)(a) of that Act; or (b) if the appeal is against the custodial part of the drug treatment order, re- instate that part set aside by it under section 86(1)(a) of that Act or vary the drug treatment order by increasing or reducing the length of the sentence of imprisonment. (5) On the hearing of an appeal under section 83 or 84 of the Magistrates' Court Act 1989 against a sentencing order made by the s. 5 -- 33 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 32 Magistrates' Court (other than the Drug Court) at a particular venue of that Court, if the County Court considers that the making of a drug treatment order may be appropriate, it may refer the matter to the Drug Court at that or another venue for consideration of the making of such an order, with or without any direction in law. (6) However, if the offender has a usual place of residence, the County Court may only refer a matter under sub-section (5) to the Drug Court at a venue if the offender's usual place of residence is within a postcode area specified, in relation to that venue, by the Minister by notice published in the Government Gazette. (7) Despite anything to the contrary in the Magistrates' Court Act 1989, a venue of the Magistrates' Court to which a matter is referred under sub-section (5) is the proper venue of that Court in relation to that matter for the purposes of that Act. (8) If a matter is referred to the Drug Court under sub-section (5) but the Drug Court determines not to make a drug treatment order, the Drug Court must remit the matter to the County Court for the making of any order under section 86(1) of the Magistrates' Court Act 1989 which the County Court can make. (9) If a matter is referred to the Drug Court under sub-section (5) and the Drug Court makes a drug treatment order, the order has effect for the purposes of Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989 as if it were a sentencing order made by the County Court on the s. 5 -- 34 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 33 hearing of the appeal but for all other purposes has effect as an order of the Drug Court. 18ZS. Immunity from prosecution for certain offences (1) A person is not liable to prosecution for any offence comprising the unlawful possession or use of drugs of addiction— (a) as a result of any admission made in connection with any assessment of the eligibility of the person for the making of a drug treatment order; or (b) as a result of any admission made in connection with the assessment by the Drug Court, or at a case conference convened under section 18ZI(1) by the magistrate constituting the Drug Court, of the person's progress under a drug treatment order. (2) Sub-section (1) does not prevent a prosecution for any offence comprising the unlawful possession or use of drugs of addiction if there is evidence, other than the admission or evidence obtained as a result of the admission, to support a charge. (3) The admission, and any evidence obtained as a result of the admission, is not admissible against the person in a prosecution referred to in sub-section (2).'. 6. Statute law revision In section 123 (second occurring) of the Principal Act, for "123." substitute "124.". 7. New section 126 inserted After section 125 of the Principal Act insert— s. 6 -- 35 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 34 "126. Transitional provisions—Sentencing (Amendment) Act 2002 Subdivision (1C) of Division 2 of Part 3 applies to the sentencing of a person for an offence, irrespective of when the offence was committed.". 8. Repeal of drug treatment order provisions (1) In section 3(1) of the Principal Act— (a) the definition of "Drug Court" is repealed; (b) the definition of "Drug Court officer" is repealed; (c) the definition of "drug treatment order" is repealed; (d) the definition of "secure custody facility" is repealed; (e) in the definition of "Regional Manager", omit "a drug treatment order,". (2) In section 3 of the Principal Act, sub-sections (2) and (3) are repealed. (3) In section 5(4A) of the Principal Act, for "a drug treatment order" substitute "an intensive correction order". (4) In section 5 of the Principal Act, sub-section (4B) is repealed. (5) In section 7(1) of the Principal Act, paragraph (ac) is repealed. (6) In Division 2 of Part 3 of the Principal Act, Subdivision (1C) is repealed. 9. New section 126A inserted After section 126 of the Principal Act insert— s. 9 -- 36 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 35 "126A. Transitional provision—repeal of amendments made by Sentencing (Amendment) Act 2002 Despite the amendments to this Act made by section 8 of the Sentencing (Amendment) Act 2002, this Act as amended by sections 4 and 5 of that Act continues to apply to a drug treatment order in force immediately before the commencement of section 8 of that Act.". __________________ -- 37 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 36 PART 3—MAGISTRATES' COURT ACT 1989 10. New sections 4A and 4B inserted After section 4 of the Magistrates' Court Act 1989 insert— "4A. Establishment of Drug Court Division (1) The Court has a Drug Court Division. (2) The Drug Court Division has such of the powers of the Court as are necessary to enable it to exercise its jurisdiction. (3) Despite section 4(3), the Drug Court Division shall only be constituted by a magistrate who has been assigned to that Division by the Chief Magistrate by notice published in the Government Gazette. (4) Despite anything to the contrary in this Act, the Drug Court Division may only sit and act at a venue of the Court specified by the Chief Magistrate by notice published in the Government Gazette. (5) The Drug Court Division must exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of this Act and the Sentencing Act 1991 and the proper consideration of the matters before the Court permit. 4B. Intra-venue referrals (1) If— (a) a criminal proceeding is commenced at a venue of the Court at which the Drug Court Division may sit and act; and s. 10 See: Act No. 51/1989. Reprint No. 7 as at 1 June 2001 and amending Act Nos 53/2000, 92/2000, 98/2000, 99/2000 (as amended by No. 12/2001), 2/2001, 14/2001, 32/2001, 44/2001, 45/2001, 61/2001 and 69/2001. LawToday: www.dms. dpc.vic. gov.au -- 38 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 37 (b) the Court is constituted by a magistrate who has not been assigned to the Drug Court Division under section 4A(3); and (c) it appears to the Court at any time before taking a formal plea from the defendant that the defendant might be eligible for a drug treatment order if convicted of the offence by the Drug Court Division— the Court may adjourn the proceeding to the Drug Court Division at that venue if the defendant consents to the Court doing so. (2) However, if the defendant has a usual place of residence, the Court may only adjourn the proceeding to the Drug Court Division at that venue if the defendant's usual place of residence is within a postcode area specified, in relation to that venue, by the Minister by notice published in the Government Gazette.". 11. New section 4C inserted Before section 5 of the Magistrates' Court Act 1989 insert— "4C. Inter-venue referrals (1) If— (a) a criminal proceeding is commenced at a venue of the Court at which the Drug Court Division may not sit and act; and (b) it appears to the Court at any time before taking a formal plea from the defendant that the defendant might be eligible for a drug treatment order if s. 11 -- 39 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 38 convicted of the offence by the Drug Court Division— the Court may adjourn the proceeding to the Drug Court Division at a venue at which that Division may sit and act if the defendant consents to the Court doing so. (2) However, if the defendant has a usual place of residence, the Court may only adjourn the proceeding to the Drug Court Division at a venue if the defendant's usual place of residence is within a postcode area specified, in relation to that venue, by the Minister by notice published in the Government Gazette. (3) Despite anything to the contrary in this Act, a venue of the Court to which a proceeding is adjourned under sub-section (1) is the proper venue of the Court for the purposes of this Act.". __________________ s. 11 -- 40 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 39 PART 4—CORRECTIONS ACT 1986 12. Definition of "correctional order" In section 3 of the Corrections Act 1986, after paragraph (g) of the definition of "correctional order", insert— "(h) a drug treatment order (as defined in section 3(1) of the Sentencing Act 1991);". 13. Persons not regarded to be in the Secretary's legal custody (1) In section 6C(1) of the Corrections Act 1986, after paragraph (b) insert— "(ba) a person who is subject to a drug treatment order and who is in the community under that order;". (2) In section 6C of the Corrections Act 1986, after sub-section (2) insert— "(3) A person is in the community under a drug treatment order even if he or she is— (a) submitting to residential detoxification or other treatment in accordance with a program condition attached to the order; or (b) at a place in accordance with an order under section 18ZL(1)(c) or (e) of the Sentencing Act 1991.". s. 12 See: Act No. 117/1986. Reprint No. 4 as at 26 August 1999 and amending Act Nos 38/1988, 11/1993 (as amended by Nos 23/1994, 45/1996), 86/2000, 45/2001 and 72/2001. LawToday: www.dms. dpc.vic. gov.au -- 41 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 40 14. Repeals In the Corrections Act 1986— (a) in section 3, in the definition of "correctional order", paragraph (h) is repealed; and (b) in section 6C(1), paragraph (ba) is repealed; and (c) in section 6C, sub-section (3) is repealed. ═══════════════ s. 14 -- 42 of 43 -- Act No. 2/2002 Sentencing (Amendment) Act 2002 41 ENDNOTES † Minister's second reading speech— Legislative Assembly: 29 November 2001 Legislative Council: 19 March 2002 The long title for the Bill for this Act was "to amend the Sentencing Act 1991 to provide for a drug treatment order as a new sentencing order, to amend the Magistrates' Court Act 1989 to establish a Drug Court Division of the Magistrates' Court, to amend the Corrections Act 1986 with respect to the custody of a person subject to a drug treatment order and for other purposes." Endnotes -- 43 of 43 --