Victorian Numbered Acts Victorian Numbered ActsAfter section 83A of the Sentencing Act 1991 insert —
(1) If an offender who is subject to a suspended sentence order is convicted or found guilty of an offence punishable by imprisonment, being an offence committed during the period of the order, the offender is guilty of an offence and liable to a penalty not exceeding 3 months imprisonment.
(2) In this section "suspended sentence order" means an order under section 27 suspending the whole or a part of a sentence to a term of imprisonment.
An offender who is subject to an order under section 72 or 75 for release on the adjournment of the proceeding must not contravene that order, unless the offender has a reasonable excuse.
Penalty: Level 10 fine.
(1) An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse.
Penalty: 3 months imprisonment.
(2) A proceeding is not able to be brought against a person for an offence under subsection (1) in relation to conduct of that person in respect of which that person has been acquitted, convicted or found guilty of an offence under section 83AE or 83AF.
(1) An offender who is subject to a community correction order and who is attending at a place under a direction given by the Secretary in compliance with section 45(1)(f) , must not leave that place unless—
(a) the offender has first obtained the permission of the Secretary; or
(b) the offender has a reasonable excuse.
Penalty: Level 11 fine.
(2) An offender who is subject to a community correction order and who is required to attend at a place under a direction given by the Secretary in compliance with section 45(1)(f), must, unless the offender has a reasonable excuse, notify the Secretary if he or she is unable to attend as required—
(a) at least 24 hours before the offender is due to attend the location if the offender has at least 24 hours notice of that inability; or
(b) immediately on becoming unable to attend if the offender did not have at least 24 hours notice of his or her inability to attend at the location.
Penalty: Level 11 fine.
(3) An offender who is subject to a community correction order and who is required to attend at a place under a direction given by the Secretary in compliance with section 45(1)(f), must attend at the place on the required day and time unless—
(a) the offender has obtained the permission of the Secretary not to attend; or
(b) the offender has a reasonable excuse.
Penalty: Level 11 fine.
(4) An offender who is subject to a community correction order and who is required to attend at a place under a direction given by the Secretary in compliance with section 45(1)(f) must produce a medical certificate, as soon as is practicable, if the offender has not attended because of illness.
Penalty: Level 11 fine.
(5) An offender who is subject to a community correction order who is required to attend at a community corrections centre under the order must not enter an unauthorised area of the community corrections centre without the permission of the Secretary.
Penalty: Level 11 fine.
(6) In this section—
"unauthorised area" means an area designated by the Secretary to be an unauthorised area.
(7) A proceeding is not able to be brought against a person for an offence under this section in relation to conduct of that person in respect of which that person has been acquitted, convicted or found guilty of an offence under section 83AD or 83AF.
(1) An offender who is subject to a community correction order must not contravene a written direction of the Secretary that is given under section 46 unless that person has a reasonable excuse.
Penalty: Level 11 fine.
(2) A proceeding is not able to be brought against a person for an offence under subsection (1) in relation to conduct of that person in respect of which that person has been acquitted, convicted or found guilty of an offence under section 83AD or 83AE.
(1) An offender may be proceeded against for an offence under section 83AB, 83AC or 83AD on a charge-sheet.
Note
Chapter 2 and Chapter 3 of the Criminal Procedure Act 2009 apply to a criminal proceeding against an offender for an offence under section 83AE or 83AF.
(2) A charge-sheet must be filed under subsection (1) in the sentencing court by—
(a) the Director of Public Prosecutions; or
(b) a prescribed person; or
(c) the informant or police prosecutor; or
(d) a member of a prescribed class of person; or
(e) the Secretary—
as the case requires.
(1) A proceeding for an offence under section 83AB, 83AC or 83AD must be commenced—
(a) if the contravention is constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 6 months after the person is convicted or found guilty of the later offence, subject to subsection (2); or
(b) if the contravention is not constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 1 year after the order ceasing to be in force.
(2) A proceeding for an offence under section 83AB, 83AC or 83AD to which subsection (1)(a) applies must not be commenced more than 2 years after the order ceases to be in force.
(1) If an offender has been convicted or found guilty of an offence (the first offence ) the fact that the offender has been so convicted or found guilty constitutes a contravention of an order under this Act, and the offender is present before a court for the prosecution of the first offence, if a charge-sheet for an offence under section 83AB, 83AC or 83AD has been filed, the court may do either of the following—
(a) proceed to hear the proceeding for that offence; or
(b) if it is not the sentencing court in relation to the order (in accordance with the regulations) transfer the proceeding for the offence under section 83AB, 83AC or 83AD to the sentencing court.
(2) For the purpose of transferring a proceeding under subsection (1)(b) 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 sentencing court.
(1) If an offender has been convicted or found guilty of an offence (the first offence ) the fact that the offender has been so convicted or found guilty constitutes a contravention of an order under this Act, and the offender has not been dealt with under section 83AI, a person who is entitled to file the charge-sheet in relation to that offence may apply to a registrar of the Magistrates' Court at any venue of that 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 sentencing court.
(2) An application under subsection (1) may be made by the applicant in person or by post and at any venue of the Magistrates' Court.
(1) On an application under section 83AJ, the registrar must, if satisfied that there are reasonable grounds to believe that the offender has committed an offence under section 83AB, 83AC or 83AD issue—
(a) a summons to answer to the commission of the offence; 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 is required or authorised for other good cause.
Section 50 of the Magistrates' Court Act 1989 applies to a contravention summons or warrant to arrest issued under section 83AK as if the reference in that section—
(a) to a warrant were a reference to a contravention summons or warrant issued under section 83AK; and
(b) to the court were a reference to the court which imposed the order which is the subject of the offence.
A contravention summons—
(a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the 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 to the commission of the offence; and
(b) may be served in any manner in which a summons to answer to a charge may be served under section 16 of the Criminal Procedure Act 2009 .
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 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.
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 .
(1) If an offender does not attend before a court—
(a) in accordance with his or her undertaking of bail granted under section 83AI(2); or
(b) in answer to a contravention summons which has been served in accordance with this section—
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 issued in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant with any necessary modifications.
(1) If the offender is unrepresented on his or her first attendance before the court in answer to bail granted or a contravention summons or warrant issued, under this Part, 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 attends in answer to bail granted, or a contravention summons or warrant issued, under this Part 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.
(1) If the court finds a person guilty of an offence under section 83AB in respect of a suspended sentence order the court must (in addition to sentencing the offender for the offence) —
(a) restore the sentence or part sentence held in suspense and order the offender to serve it; or
(b) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or
(c) in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this subsection; or
(d) make no order with respect to
the suspended sentence.
s. 43
(2) Despite anything to the contrary in subsection (1), if the court finds the offender guilty as mentioned in that subsection it must exercise the power referred to in subsection (1)(a) unless it is of the opinion that it would be unjust to do so because exceptional circumstances have arisen since the order suspending the sentence was made.
(3) If a court orders an offender to serve a term of imprisonment that had been held in suspense, 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.
(4) Despite anything to the contrary in this section, if, in the case of an offender who is under 21 years of age at the time the finding is made under subsection (1), the court restores 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 youth justice centre or youth residential centre.
(5) Section 32 applies to an order under subsection (4) as if it were a youth justice centre order or a youth residential centre order and as if the reference in section 32(1) to a pre-sentence report were a reference to a pre-sentence report that deals with the matter of the contravention of the suspended sentence.
(6) If a court makes no order with respect to a suspended sentence, the proper officer of the court must record that fact in the records of the court.
(7) If it is not possible for the court to deal with the offender immediately, then the Bail Act 1977 applies for the purposes of granting bail with any necessary adaptations and in particular with the modification that a reference to a person accused of an offence or an accused person is to be construed as a reference to the offender.
(1) If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must—
(a) vary the order in any manner set out in section 48M(2)(c), (d), (e), (f), (g) or (h); 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 with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or
(d) cancel the order and make no further order with respect to the offence with respect to which the order was originally made.
(2) A court, in determining how to deal with an offender under subsection (1), must take into account the extent to which the offender has complied with the order.
(3) The Secretary must disclose any direction he or she has given under Division 3 of Part 3C to a court making an assessment under subsection (2).
(1) If in a proceeding for an offence under section 83AC, the court finds the person guilty of the offence the court must (in addition to sentencing the offender for the offence)—
(a) deal with the order under section 78, as if an application had been made under that section; 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, deal with the offender for the offence 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
(d) make no further order with respect to the offence in respect of which the original order was made.
(2) A court, in determining how to deal with an offender under subsection (1), must take into account the extent to which the offender has complied with the order.
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