Penalties and Sentences Act 19852 1985 Penalties and Sentences No. 10260 Definitions. 3. (1) In this...

Penalties and Sentences Act 1985 No. 10260

TABLE OF PROVISIONS

Section

PART 1—PRELIMINARY

1. Purposes. 2. Commencement. 3. Definitions.

PART 2—GENERAL SENTENCING PROVISIONS

4. Court may take guilty plea into account in passing sentence. 5. Sentencing alternatives on convictions. 6. Power to fine. 7. Term of imprisonment where no term prescribed. 8. Amount of fine where no amount prescribed. 9. Penalty in case of summary jurisdiction in indictable offences.

10. Disposal of other pending charges when sentence is being imposed.

PART 3—IMPRISONMENT Division 1—General

11. Restriction on imposing sentences of imprisonment. 12. Magistrates' Courts to state and record reasons for imposing sentences of

imprisonment. 13. Offences to which sections 11 and 12 do not apply. 14. Commencement of sentences. 15. Sentences to be concurrent unless otherwise directed. 16. Time held in custody before trial, &c. to be deducted from sentence. 17. Fixing minimum term to be served before parole granted. 18. Failure to fix minimum term.. 19. Eligibility for pre-release.

Division 2—Suspended Sentences

20. Definitions. 21. Power to pass suspended sentences. 22. Effect of suspended sentence order. 23. Consequences of committing offence while suspended sentence order in force. 24. Miscellaneous provisions with respect to suspended sentences.

PART 4—YOUTH TRAINING CENTRES

25. Detention in youth training centre. 26. Children's courts not affected.

PART 5—COMMUNITY-BASED ORDERS

27. Definitions. 28. Power to make community-based order. 29. Conditions of community-based order. 30. Community-based orders in respect of several offences. 31. Copies of order.

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32. Director-General may direct offender to report at another place. 33. Failure to comply with condition of order, etc. 34. Extension of order. 35. Cancellation or variation of order. 36. Provisions relevant on cancellation of order. 37. Warrant may issue where offender not appearing. 38. Suspension of order. 39. Conviction on which community-based order made may be disregarded for certain

purposes. 40. Appeal against sentence. 41. Community-based order not to prevent any order for costs, damages, &c. 42. Application of certain provisions of other Acts. 43. Regulations. 44. Transitional provision.

PART 6—YOUTH ATTENDANCE ORDERS

Division 1—Definitions

45. Definitions.

Division 2—Youth Attendance Orders

46. Object of youth attendance order. 47. Youth attendance order. 48. Restrictions on power to make order. 49. Requirements of youth attendance order. 50. Sentencing court to impose requirements. 51. Court to nominate a superintendent or responsible officer. 52. Concurrent orders. 53. Copy of order to be given.

Division 3—Attendance and Operation

54. Additional requirements of order. 55. Reporting by offender. 56. Suspension of youth attendance order. 57. Court may require superintendent or responsible officer to report.

Division 4—Youth Attendance Projects

58. Director-General may appoint youth attendance projects. 59. Objects of youth attendance project. 60. Offender subject to control, &c, of superintendent or responsible officer. 61. Activities during attendance.

Division 5—Breach of Order

62. Breach of order.

Division 6—Variation of Order

63. Application for variation of order.

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Division 7—Regulations

64. Regulations.

PART 7—FINES Division 1—Financial Circumstances of Offender to be Considered

65. Financial circumstances of offender to be considered in determining monetary penalty.

Division 2—Instalment Orders

66. Definitions and application. 67. Instalment orders. 68. Time to pay. 69. Application for time to pay, for instalment order or for variation of instalment order. 70. Default in payment of monetary penalty or instalments. 71. Maximum terms of imprisonment or hours of unpaid work. 72. Distress. 73. Costs. 74. Order to pay to operate subject to instalment order. 75. Notices. 76. Oaths. 77. Appeals. 78. Rules. 79. Provisions as to penalties imposed in proceedings in chambers, etc.

PART 8—BONDS

80. Bonds to keep the peace, etc. 81. Court need not convict though trifling charge proved. 82. Release on bond or parole in exercise of prerogative of mercy.

PART 9—ADJOURNMENT WITHOUT CONVICTION

83. Adjournment without conviction. 84. Dismissal where bond observed. 85. Persons called upon to appear. 86. Failure to appear. 87. Breach of bond. 88. Common law bonds.* 89. Application of this Part.

PART 10—PARTICULAR SENTENCING OPTIONS

90. Orders for restitution. 91. Recovery of penalties, &c. not otherwise provided for. 92. Court may order person convicted of offence, &c. to pay compensation for damage

arising out of offence. 93. Compensation for motor car theft. 94. Magistrates' Court may discharge offender making amends. 95. Cancellation of driver's licence upon conviction for certain offences.

PART 11—MISCELLANEOUS PROVISIONS

96. Meaning of "penalty units". 97. Method of imposing penalties. 98. Time and place of sentence. 99. Sentence by judge other than judge presiding at trial or receiving plea.

(iii)

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100. Correction of sentences by Supreme Court. 101. Discharge of persons under committal for indictable offence. 102. Court may order withdrawal of trifling or technical cases. 103. Conviction for treason or indictable offence to be a disqualification for offices, &c. 104. Effect where punishment suffered for indictable offence. 105. Application of penalties and fees. 106. Penalties for offences may be remitted. 107. Penalty payable to corporation. 108. Application of compensation and penalties. 109. Summary conviction discharge, &c. a bar to further proceedings. 110. Construction of references to previous convictions. 111. Forfeiture, &c. abolished. 112. Saving of royal prerogative of mercy. 113. Regulations. 114. Repeal and amendment of other Acts. 115. Amendment of the Children's Court Act 1973.

SCHEDULES Schedule 1

Forms for use where other offences taken into account in sentencing Schedule 2 Certificate Schedule 3

Warrant Schedule 4

Amendments and Repeals.

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Victoria

No. 10260

Penalties and Sentences Act 1985 [Assented to 10 December 1985]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

Purposes.

1. The purposes of this Act are— (a) to have within the one Act all general provisions dealing

with the powers of courts to pass sentences; and (b) to enable courts to make community-based orders; and (c) to enable courts to suspend wholly or partly sentences of

imprisonment passed by them; and (d) generally to reform the sentencing laws of the State.

Commencement.

2. This Act (including the items in Schedule 4) comes into operation on a day or days to be proclaimed.

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2 1985 Penalties and Sentences No. 10260

Definitions.

3. (1) In this Act— "Community-based order" means an order under Part 5. "Motor car" has the same meaning as in the Motor Car Act

1958. "Subordinate instrument" has the same meaning as in the

Interpretation of Legislation Act 1984.

(2) For the purposes of section 5 of the Crown Proceedings Act 1958 a bond entered into pursuant to Part 8 or 9 is to be taken to be a recognizance.

PART 2—GENERAL SENTENCING PROVISIONS

Court may take guilty plea into account in passing sentence.

4. (1) A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty.

(2) If under sub-section (1) a court reduces the sentence that it would otherwise have passed on a person the court must state that fact when passing sentence.

(3) The failure of a court to comply with sub-section (2) does not invalidate any sentence imposed by it.

Sentencing alternatives on convictions. No 6231 5. If a court convicts a person of an offence punishable by S.476N0.8184 • • ^ , ^ ss. 56(2), 71 imprisonment, the court may— and 72.

(a) sentence the person to a term of imprisonment;\or (b) subject to Part 4, if the person is, on the date of the

conviction, under the age of 21 years, direct that the person be detained in a youth training centre; or

(c) subject— (i) to Part II of the Penalties and Sentences Act 1981,

require the person to perform unpaid work pursuant to a community service order; or

(ii) to Part HI of the Penalties and Sentences Act 1981, permit the person to serve all of the sentence or all of it except for a part not exceeding three months by attendance at an attendance centre; or

(d) subject to Part 6, if the person is, on the date of the conviction, under the age of 21 years, instead of sentencing the person to a term of imprisonment or to detention in a youth training centre, make a youth attendance order in respect of the person.

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1985 Penalties and Sentences No. 10260 3

Power to fine.

6. (1) If a person is convicted of an offence the court may, subject NO. 6231 to any specific provision relating to that offence, fine the offender in NO^IM'

addition to or instead of any other punishment to which the offender S.56(1),<IA).

may be liable.

(2) If a Magistrates' Court imposes a fine pursuant to sub-section (1), the fine must not exceed 100 penalty units.

Term of imprisonment where no term prescribed.

7. If a person is convicted of an offence against any enactment NO. 6231 punishable by imprisonment but the maximum term of imprisonment s '47 <1)

is not prescribed anywhere, then the maximum term which may be ordered is two years.

Amount of fine where no amount prescribed.

8. If a person is convicted of an offence and the court has power to No 9554 s 9

impose a fine for the offence but the amount of the fine is not prescribed anywhere, then the maximum fine which may be imposed is—

(a) in the case of a Magistrates' Court—100 penalty units; and

(b) in the case of the Supreme Court or the County Court— 1000 penalty units.

Penalty in case of summary jurisdiction in indictable offences.

9. Where a person is convicted by a Magistrates' Court under NO.SIW sub-section (1) of section 69 of the Magistrates' Courts Act 1971 of an s <1)

offence referred to in that sub-section heard and determined by the court in a summary way, the court may sentence that person to be imprisoned for a term of not more than two years.

Disposal of other pending charges when sentence is being imposed.

10. (1) If a court convicts a person of an offence or offences, not No;,6,.2^1

being or including treason or murder, and the court is satisfied that—

(a) there has been filed in court a document in the form of Schedule 1 signed by a member of the police force, the Director of Public Prosecutions or a Prosecutor for the Queen and by the person convicted, showing on the back thereof in the form prescribed by Part C of Schedule 1 a list of other offences, whether indictable or summary, not being or including treason or murder, in respect of which the person convicted has been charged by a member of the police force or presented for trial; and

(b) a copy of that document has been furnished to the person so convicted; and

S.43SA.

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1985 Penalties and Sentences No. 10260

(c) in all the circumstances it is proper to do so— the court may, with the consent of the prosecution and before passing sentence on the person so convicted, ask that person whether that person admits having committed all or any of the offences specified in the list and wishes them to be taken into account by the court when passing sentence for the offence, or all the offences if more than one, of which that person has been so convicted.

(2) If the person so convicted admits, and wishes to have so taken into account, all or any of the listed offences, the court may, if it thinks fit, take them into account accordingly but the sentence imposed in respect of each of the offences of which the person has been so convicted shall not exceed the maximum sentence that might have been passed for it if no listed offence had been taken into account.

(3) Notwithstanding anything in sub-section (2), even though a court may take into account under that sub-section charges of summary offences, a court must not take into account any charge of an indictable offence which it would not have jurisdiction to try even with the consent of the person charged with it.

(4) The court must certify in the form prescribed by Part B of Schedule 1 on the document filed in court any listed offences that have been so taken into account and the convictions in respect of which this has been done and thereafter no proceedings shall be taken or continued in respect of any listed offence so certified unless each conviction in respect of which it has been taken into account has been quashed or set aside.

(5) An admission made under and for the purposes of this section of having committed an offence shall not be admissible in evidence in any proceedings taken or continued in respect of that offence.

(6) An offence taken into account under and in accordance with this section in the passing of sentence upon a person shall not by reason of that taking into account be regarded for any purpose as an offence of which that person has been convicted.

(7) Whenever, in or in relation to any criminal proceeding, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a person was convicted of an indictable offence, reference may likewise be made to, or evidence may likewise be given of, the taking into account under this section of any other offence or offences when sentence was imposed in respect of the conviction.

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(8) The fact that an offence was taken into account under this section may be proved in the same manner as the conviction or convictions in relation to which it was taken into account may be proved.

PART 3—IMPRISONMENT

Division 1—General

Restriction on imposing sentences of imprisonment.

11. Subject to section 13, a court must not pass a sentence of NO.9554S.I3B. imprisonment on a person unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

Magistrates' Courts to state and record reasons for imposing sentences of imprisonment.

12. (1) Where a Magistrates' Court passes a sentence of NO.9554S.I3C. imprisonment on a person, the Magistrates' Court—

(a) must state in writing the reasons for its decision; and (b) must cause those reasons to be entered in the records of the

court.

(2) The failure of a Magistrates' Court to comply with this section does not invalidate any sentence imposed by it but nothing in this sub-section prevents a court on an appeal against sentence from reviewing the appropriateness of a sentence imposed by a Magistrates' Court without complying with this section.

Offences to which sections 11 and 12 do not apply.

13. (1) Sections 11 and 12 do not apply in relation to an offence NO. 9554 s. 13D. that is punishable only by imprisonment.

(2) For the purposes of sub-section (1) an offence is to be regarded as punishable only by imprisonment if the court has power to pass a sentence of imprisonment for the offence but does not have power to impose a fine on a natural person for the offence or has power to impose a fine on a natural person for the offence only as a condition of an order discharging or releasing the person from imprisonment.

Commencement of sentences.

14. (1) Subject to this section and sections 15 and 16, sentences of imprisonment shall commence—

(a) if the offender is in custody at the time the sentence is imposed—the day the sentence is imposed; or

(b) if the offender is not in custody at the time the sentence is imposed—the day the offender is apprehended in pursuance

No. 8089 s. 122 (1)(2)(3)(4)(5) (6) and (7).

No. 6231 s. 478 (1).

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of a warrant of commitment issued in respect of that sentence.

(2) If an offender sentenced to a term of imprisonment is allowed to be or to go at large for any reason, the period intervening between the day on which the offender was allowed to go or be at large and the day when the offender is taken into custody to undergo the sentence does not count in calculating the term to be served by the offender under the sentence and the service of the sentence is during that period suspended.

(3) If an offender lawfully imprisoned under a sentence escapes from a prison or from custody, the period intervening between the day on which the offender escaped and the day when the offender surrenders or is apprehended does not count in calculating the term to be served by the offender under the sentence and the service of the sentence is during that period suspended.

(4) Notwithstanding anything in any Act or any rule of law or practice to the contrary, a sentence of imprisonment is to be calculated exclusive of the time during which the service of the sentence is suspended pursuant to sub-section (2) or (3).

(5) If an offender who is sentenced to a term of imprisonment and who is allowed to be or to go at large pending an appeal or the consideration of any question of law reserved or a case stated is imprisoned under process in respect of an offence or offences other than the offence to which the appeal, question of law reserved or case stated relates at the time when those proceedings are finally determined, the sentence in respect of the last-mentioned offence or the unexpired portion thereof shall, unless otherwise directed by the court or judge imposing the sentence or determining the appeal or question of law or case stated, take effect at the expiration of any sentence or sentences that person is then undergoing.

(6) If an offender to whom sub-section (3) applies is in the period during which the service of the sentence is suspended pursuant to that sub-section imprisoned under process in respect of an offence or offences other than the offence or offences for which the sentence, then suspended, was imposed, the unexpired portion of that sentence takes effect at the expiration of any sentence or sentences that person is then undergoing.

Sentences to be concurrent unless otherwise directed.

15. (1) Notwithstanding anything to the contrary in any Act, every sentence of imprisonment imposed on a person by a court or judge shall, unless otherwise directed by the court or judge at the time of pronouncing the sentence, be, as from the date of its commencement, served concurrently with any uncompleted sentence or sentences of imprisonment imposed on that person, whether previously to or at the time the relevant sentence was imposed.

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(2) If a court or judge imposes a sentence of imprisonment on a person who has not completed another sentence of imprisonment, the court or judge may direct that the sentence being imposed be served in part concurrently with the other sentence or wholly cumulatively upon it.

(3) Every term of imprisonment or detention in a remand centre or youth training centre imposed on a person in default of payment of a fine or sum of money shall, notwithstanding anything to the contrary in any Act, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in default of payment of a fine or sum of money imposed on that person, whether previously to or at the time the relevant term was imposed.

(4) A Magistrates' Court must not impose on any person in respect NO.8184S. 59. of several offences committed at the same time cumulative sentences of imprisonment to take effect in succession for a term exceeding in the whole five years except where such a term is expressly provided by an Act.

Time held in custody before trial, &c. to be deducted from sentence.

16. (1) If a person is convicted of an offence and sentenced to a NO.8089 term of imprisonment or detention in respect of that offence, any period of time during which that person was held in custody in relation to proceedings for that offence or proceedings from which those proceedings arose shall, unless the court otherwise orders, be reckoned as a period of imprisonment or detention already served by that person under the sentence.

(2) The provisions of sub-section (1) do not apply— (a) where the person convicted was released on probation or

upon a bond to come up for sentence if and when called upon in respect of the offence for which convicted but has failed to observe the conditions of the probation or release; or

(b) in respect of any period referred to in sub-section (1) during which the person convicted was committed to prison, youth training centre, or reception centre for some cause not connected with the proceedings for the offence in respect of which that person is presently being sentenced; or

(c) in relation to a period of custody of less than one day; or (d) in relation to a sentence of imprisonment or detention for

less than one day.

(3) Where a person convicted for an offence was held in custody in circumstances to which the provisions of sub-section (1) apply the informant or person who arrested the person convicted must, if present before the court or judge, inform the court or judge on oath, whether from that person's own knowledge or from inquiries made by that person, the period of time which that person believes that the person

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convicted was actually so held in custody or if that person is not present before the court or judge the court or judge may take and receive other evidence (whether oral or written and whether on oath or otherwise) of the period of time which the person convicted was actually so held in custody.

(4) Where a court or judge sentencing a person for an offence is satisfied by information on oath, whether under sub-section (3) or otherwise, as to the period of time during which the person convicted was held in custody within the meaning of sub-section (1), the court or judge may declare that period to be the period of imprisonment or detention to be reckoned as already served under the sentence pursuant to the provisions of sub-section (1) and, if the court or judge makes such a declaration, the court or judge must note or cause to be noted in the record—

(a) the fact of making that declaration and the particulars thereof; and

(b) whether or not the period so declared was taken into account by the court or judge in fixing the term of the sentence passed or remains to be deducted from the sentence passed.

(5) The Prothonotary, Registrar, or clerk having the custody of the record referred to in sub-section (4) must indorse on the warrant of commitment or other authority for the imprisonment or detention of a person in respect of whom a declaration has been made under this section particulars of the matters referred to in paragraphs (a) and (b) of sub-section (4).

(6) Where the court or judge sentencing a person for an offence does not make a deduction under sub-section (4) the person sentenced shall, subject to this Act and to the provisions relating to remissions, be imprisoned or detained after the sentence is passed for the period reckoned by deducting from the term of the sentence passed a period corresponding with the period during which it appears to the Director-General of Community Services or the Director-General of Corrections or some duly authorized officer of the Department of Community Services or the Office of Corrections that the person sentenced was held in custody within the meaning of sub-section (1).

(7) Where a person is charged with a series of offences committed on different occasions and has been in custody within the meaning of sub-section (1) continuously since arrest, the period of time to be regarded for the purposes of sub-section (1) shall be reckoned from the time of that person's arrest notwithstanding that that person is not convicted for the offence upon which that person was first arrested or other offences in the series.

Fixing minimum term to be served before parole granted.

17. (1) Subject to sub-section (2), where any person is convicted by a court of any offence and sentenced to be imprisoned then, if the term imposed is not less than two years the court must, and if the term

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imposed is less than two years but not less than twelve months the court may, as part of the sentence, fix a lesser term (in this section called a "minimum term") that is at least six months less than the term of the sentence during which the offender shall not be eligible to be released on parole.

(2) A court shall not be required to fix a minimum term if the court considers that the nature of the offence and the antecedents of the offender render the fixing of a minimum term inappropriate.

(3) Where a person is before a court to be sentenced upon convictions for more than one offence the court, notwithstanding that it sentences the offender to be imprisoned in respect of each of the offences for which the offender is convicted and is then to be sentenced, must not fix a minimum term in respect of each of the offences for

.which the offender is sentenced to be imprisoned but must fix a minimum term in respect of the aggregate period of imprisonment the offender will be liable to serve under all the sentences then imposed.

(4) Where an offender is sentenced to a term of imprisonment in respect of which a minimum term is fixed and before the expiration of that minimum term is sentenced by any court for an offence to a further term of imprisonment in respect of which a minimum term is fixed, then the minimum term fixed in respect of the subsequent sentence shall be cumulative upon or concurrent with that fixed in respect of the prior sentence according as the term of imprisonment imposed is cumulative upon or concurrent with the term imposed by the prior sentence.

(5) Where an offender has been sentenced to several terms of imprisonment in respect of any of which a minimum term was fixed, the sentences shall be served in the following order:

(a) Firstly, any term or terms in respect of which no minimum term was fixed;

(b) Secondly, the minimum term or the aggregate of the several minimum terms in accordance with the provisions of sub-section (4) or any corresponding previous enactment (as the case requires);

(c) Thirdly, unless and until released on parole, the balance of any term or terms after the expiration of the minimum term or the aggregate of the minimum terms fixed in respect thereof—

and where during the service of a sentence a further sentence is imposed such service shall, if necessary, be suspended in order that the sentences may thereafter be served in the order referred to in this sub-section.

(6) Despite the generality of sub-section (5), where a court has made an order under section 19 in respect of an offender, any sentence

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imposed by the court when making that order shall be served ahead of any other sentence imposed on the offender.

Failure to fix minimum term.

18. (1) A term of imprisonment imposed by a court shall not be invalidated by reason only of the failure of the court to fix a minimum term as required by this Part or by the purported fixation by the court of a minimum term not in accordance with this Part.

(2) In the case of any such failure or purported fixation of a minimum term—

(a) the Full Court within the meaning of Part VI. of the Crimes Act 1958, in respect of a sentence by the Supreme Court or the County Court; or

(b) the County Court, in respect of a sentence by a Magistrates' Court— •

may, on the application of the Director-General of Corrections, fix a minimum term in accordance with this Part in any manner in which such term might have been fixed by the court which imposed the sentence.

Eligibility for pre-release. '

19. (1) A court, in sentencing a person to a term of imprisonment, may order that the person shall be ineligible for release on permit under section 198 A of the Community Welfare Services Act 1970.

(2) An order under this section remains in force until the expiration of all sentences imposed by the court when making the order, or, where a minimum term is fixed, the expiration of that minimum term.

(3) In section 198A of the Community Welfare Services Act 1970, for sub-section (3) substitute—

"(3) A pre-release permit may be granted only if—

(a) an order under section 19 of the Penalties and Sentences Act 1985 is not in force in relation to the prisoner; and

(b) the prisoner is undergoing a prison sentence of 3 years or more; and '

(c) in 6 months or a shorter time, the prisoner will become eligible to be released, on parole or to be released at the end of the prison sentence; and

(d) the period of the permit does not exceed one third of the prison sentence which the prisoner is undergoing.".

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Division 2—Suspended Sentences

Definitions.

20. (1) In this Division— "Operational period" means, in relation to a suspended sentence,

the period specified under section 21 (3). "Proper officer" means—

{a) in relation to the Supreme Court, the Prothonotary or Deputy Prothonotary of the Supreme Court; and

(b) in relation to the County Court, the registrar, deputy registrar or assistant registrar of the County Court; and

(c) in relation to a Magistrates' Court, the clerk or deputy clerk of the Magistrates' Court.

(2) For the purposes of this Division a suspended sentence passed on an offender on appeal shall be treated as having been passed by the court by which the offender was originally sentenced.

Power to pass suspended sentences.

21. (1) If for an offence a court passes a sentence of imprisonment for a term of not more than one year, the court may, if satisfied that in the circumstances it is desirable to do so, make an order suspending—

(a) the whole; or (b) not more than three quarters and not less than one quarter—

of the sentence of imprisonment passed by it.

(2) An offender must not be dealt with by means of a sentence of imprisonment suspended under this section unless the case appears to the court to be one in which a sentence of imprisonment for the term of the suspended sentence would have been appropriate.

(3) If under sub-section (1) a court makes an order suspending a sentence of imprisonment passed by it, the court must specify in the order a period (being not more than one year from the date of the order) during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 23 in respect of the suspended sentence.

Effect of suspended sentence order.

22. If under section 21 (1) a court makes an order suspending wholly or partly a sentence of imprisonment passed by it, the sentence or part sentence held in suspense shall not be served by the offender unless the offender commits, during the operational period of the suspended sentence, another offence punishable by imprisonment and, at any time after the commission of that offence, a court, under section 23, orders that the sentence or part sentence held in suspense be restored wholly or partly and served by the offender.

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Consequences of committing offence while suspended sentence order in force.

23. (1) Where an offender is convicted by a court of an offence for which a sentence of imprisonment may be imposed and the court is satisfied that the offence was committed during the operational period of a suspended sentence, the convicting court must—

(a) i f -(i) it is the court by which the suspended sentence was

passed; or (ii) it is a Magistrates' Court and the suspended sentence

was passed by another Magistrates' Court— deal with the offender in respect of the suspended sentence; or

(b) in any other case, commit the offender to custody or release the offender on bail (with or without sureties) to be brought or to appear before the court by which the suspended sentence was passed to be dealt with in respect of the suspended sentence.

(2) The court that has power under sub-section (1) to deal with an offender in respect of a suspended sentence must consider the offender's case and deal with the offender by one of the following methods:

(a) Restore the sentence or part sentence held in suspense and order the offender to serve it;

(Jb) Restore part of the sentence or part sentence held in suspense and order the offender to serve it;

(c) In the case of a wholly suspended sentence, extend the operational period to a date not later than one year from the date of the order;

(d) Make no order with respect to the suspended sentence.

(3) In dealing with an offender under sub-section (2) the court must make an order under paragraph (a) of that sub-section unless the court is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court must state its reasons.

(4) Where a court deals with an offender under this section in respect of a suspended sentence, the proper officer of the court must notify the proper officer of the court which passed the sentence of the method adopted.

(5) Where on consideration of the case of an offender under this section a court makes no order with respect to a suspended sentence, the proper officer of the court must record that fact.

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(6) Where under this section a court orders an offender to serve a term of imprisonment, the term shall, unless the court otherwise orders, be served—

(a) immediately; and (b) concurrently with any other term of imprisonment

previously passed on the offender by that or any other court.

(7) The failure of a court to state its reasons when required by sub-section (3) does not invalidate any sentence imposed by it.

(8) If it is not possible for the court that has power under sub-section (1) to deal with an offender in respect of a suspended sentence to so deal immediately with the offender, then for the purposes of granting bail the provisions of the Bail Act 1977 apply, with such adaptations as are necessary, 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.

Miscellaneous provisions with respect to suspended sentences.

24. (1) For the purposes of any enactment conferring rights of appeal in criminal cases an order made by a court under section 23 shall be treated as a sentence passed on the offender by that court for the offence for which the original sentence was passed.

(2) A wholly suspended sentence shall, notwithstanding that it is held in suspense, be treated as a sentence of imprisonment for the purposes of all enactments except any enactment which provides for remissions to be granted to persons sentenced to imprisonment or for disqualification for or loss of office, or forfeiture of pensions of persons sentenced to imprisonment and, where such a suspended sentence takes effect, the offender shall be treated for the purposes of those excepted enactments as having been convicted on the date on which the sentence takes effect.

(3) A partly suspended sentence shall be treated for all purposes as a sentence of imprisonment for the term stated by the court, notwithstanding that part of it is held in suspense.

PART 4—YOUTH TRAINING CENTRES

Detention in youth training centre.

25 (1) In determining whether to direct that a person be detained N°-9554s-51-in a youth training centre in respect of an offence a court must have JJ^^f8S'17

regard to— (a) the nature of the offence; and (b) the age, character and antecedents of the person.

1145


(2) A direction by a court that a person be detained in a youth training centre must specify the period of detention which shall be not more than—

(a) where the court is a Magistrates' Court—2 years; and (b) in the case of the County Court or the Supreme Court—3

years.

(3) If a person is convicted on the same day, or in the same proceedings, of more than one offence—

(a) the aggregate period of detention in a youth training centre which may be directed in respect of all of the offences must not exceed the maximum allowed under sub-section (2) in respect of one offence; and

(b) the court may order that the period of detention in respect of any of the offences be concurrent with the period in respect of any other of the offences.

(4) Notwithstanding anything to the contrary in any Act, every sentence of detention in a youth training centre imposed on a person by a court or judge shall, unless otherwise directed by the court or judge at the time of pronouncing the sentence, be, as from the date of its commencement, served concurrently with any uncompleted sentence or sentences of detention in a youth training centre imposed on that person, whether previously to or at the time the relevant sentence was imposed.

(5) If a court or judge imposes a sentence of detention in a youth training centre on a person who has not completed another sentence of detention in a youth training centre, the court or judge may direct that the sentence being imposed be served in part concurrently with the other sentence or wholly cumulatively upon it.

(6) If a sentence of detention in a youth training centre is imposed on a person already under sentence of detention in a youth training centre and the subsequent sentence is cumulative upon any uncompleted prior sentence and the aggregate of the periods of the unexpired portion of the prior sentence and the subsequent sentence exceeds three years, the subsequent sentence is to be taken to be a sentence that the person be further detained in a youth training centre after the expiration of the period of the prior sentence for the period determined by deducting from three years the period of the unexpired portion of the prior sentence at the date of the passing of the subsequent sentence.

(7) Subject to this section, sentences of detention in a youth training centre shall commence—

(a) if the offender is forthwith detained in custody pursuant to the sentence—the day the sentence is imposed; or

(b) if the offender is serving a sentence of imprisonment—the day the offender is transferred to a youth training centre; or

1146


(c) in any other case—the day the offender is apprehended in pursuance of a warrant of commitment issued in respect of that sentence.

(8) If a person sentenced to be detained in a youth training centre is allowed to be or to go at large for any reason, the period intervening between the day on which that person was allowed to go or be at large and the day when that person is taken into custody to undergo the sentence does not count in reckoning the period to be served by that person under that sentence and the service of the sentence is during that period suspended.

(9) If a person lawfully detained under sentence of detention in a remand centre or a youth training centre escapes from the centre or from custody or, being on leave from the centre, fails to surrender at the expiration of that leave, the period intervening between the day on which that person escaped or failed to surrender and the day when that person surrenders or is apprehended does not count in reckoning the period to be served by that person under that sentence and the service of the sentence is during that period suspended.

(10) Notwithstanding anything in any Act or any rule of law or practice to the contrary, a sentence of detention in a remand centre or a youth training centre is to be reckoned exclusive of the time during which the service of the sentence is suspended pursuant to sub-section (8) or (9). . • •

(11) If a person who is sentenced to be detained in a youth training centre and who is allowed to be or to go at large pending an appeal or the consideration of a question of law reserved or a case stated is imprisoned in a prison or detained in ,a youth training centre under process m respect of any offence or offences other than the offence to which the appeal, question of law reserved or case stated relates at the time when those proceedings are fully determined, the sentence in respect of the last-mentioned offence or the unexpired portion thereof shall, subject to this Act and unless otherwise directed by the court or judge imposing the sentence or determining the appeal or question of law or case.stated, take effect—.

(a) if the person is imprisoned in a prison—on that person being taken into custody after release therefrom to serve the sentence or the unexpired portion thereof; or

(bj if the person is detained in a youth training centre—at the expiration of any sentence or sentences that person is then undergoing.-

(12) If a person to whom sub-section (9) applies is in the period during which the service of the sentence is suspended pursuant to that subjection imprisoned in a prison or detained in a youth training centre in respect of an offence or offences other than the offence or offences for which the sentence, then suspended, was imposed, the unexpired portion of that sentence takes effect—

' 1147

'• t


(a) if the person is imprisoned in a prison—on that person being taken into custody after release therefrom to serve the unexpired portion of the sentence; or

(b) if the person is detained in a youth training centre—at the expiration of any sentence or sentences that person is then undergoing.

Children's courts not affected.

26. This Part does not apply to children's courts.

PART 5—COMMUNITY-BASED ORDERS

Definitions. 27. In this Part—

"Community corrections centre" means an attendance centre appointed under section 42 (3) of the Penalties and Sentences Act 19H.

"Community corrections officer" means an officer of the Office of Corrections.

"Director-General" means the Director-General of Corrections.

"Regional Manager", in relation to a community-based order, means the person appointed under the Penalties and Sentences Act 1981 to be the manager of the region in which the community corrections centre specified in the order is located.

"Term", in relation to imprisonment, includes the aggregate of two or more terms, whether cumulative or concurrent.

"Week" means the period of seven days commencing on a Monday.

Power to make community-based order.

28. (1) Where a court convicts a person of an offence punishable by imprisonment, the court may, instead of sentencing the person to a term of imprisonment or in addition to sentencing the person to a term of imprisonment of not more than 3 months, make a community-based order in respect of the person. <r

(2) A court may make a community-based order in respect of an offender in any case where the court may direct or has directed that the offender be imprisoned in default of payment of a fine.

(3) A court may make a community-based order in respect of an offender who is serving or is about to serve a term of imprisonment in respect of another offence unless it is unlikely that the offender will be discharged from custody by due course of law within 3 months after the day on which the order is proposed to be made.

1148


(4) A community-based order— (a) commences on the day on which it is made or on such later

day as is specified by the court; and (b) remains in force for such period of not more than 2 years as

is specified by the court or, where exceptional circumstances exist, for such longer period as is specified by the court.

(5) A court must not make a community-based order in respect of an offender unless the offender consents and the court is satisfied by a report made to it by a community corrections officer that appropriate facilities will be available at the commencement of the order to enable the order to be implemented and that the offender is a suitable person for such an order.

(6) A community-based order must specify a community corrections centre as the centre having responsibility for the administration of the order.

(7) A community-based order must specify a Magistrates' Court in the region in which the community corrections centre specified in the order is located to be the supervising court in respect of the order, and the supervising court may by order when the circumstances render it desirable, substitute some other Magistrates' Court as the supervising court.

(8) If in relation to a community-based order made in respect of an offender serving or about to serve a term of imprisonment in respect of another offence at any time before the commencement of the order the Director-General or a person authorized by the Director-General in that behalf gives a notice in the prescribed form to either the supervising court, or if the order was made by a Magistrates' Court, that Magistrates' Court stating that the offender will not be discharged from custody by due course of law within 3 months after the day on which the order was made, the court may make an order in the form (with such modifications as are necessary) in Schedule Three to the Community Welfare Services Act 1970 ordering that the offender be brought before the court on the date specified therein.

(9) If it is proved to the satisfaction of the Magistrates' Court before which an offender is brought pursuant to sub-section (8) that the offender will not be discharged from custody by due course of law within 3 months after the day on which the community-based order was made, that court may—

(a) if the order was made by a Magistrates' Court, cancel the order and deal with the offender for the offence in respect of which the order was made in any manner in which the court could deal with the offender if it had just convicted the offender of the offence; or

(b) in any other case, make an order in the form (with such modifications as are necessary) in Schedule Three to the Community Welfare Services Act 1970 ordering that the

1149


offender be brought before the court by which the order was made.

(10) If under sub-section (9) (b) an offender is brought before the Supreme Court or the County Court and it is proved to the satisfaction of the judge that the offender will not be discharged from custody by due course of law within 3 months after the day on which the commmunity-based order was made, the court may cancel the order and deal with the offender for the offence in respect of which the order was made in any manner in which the court could deal with the offender if it had just convicted the offender of the offence.

(11) A notice in the prescribed form and purporting to be signed by the Director-General or a person authorized by the Director-General to sign such notices is, in any proceedings under sub-section (8), (9) or (10), evidence and, in the absence of evidence to the contrary, conclusive evidence of the facts and matters stated therein unless the offender gives notice in writing to the Director-General a reasonable time in the circumstances before the hearing that the offender requires the person giving the first-mentioned notice to be called as a witness.

(12) A certificate purporting to be signed by the Director-General that a person named therein is authorized by the Director-General to sign notices given for the purposes of sub-section (8), (9) or (10) is admissible in evidence of the authority of that person.

(13) Section 129 of the Community Welfare Services Act 1970 applies to an order made under sub-section (8) or (9) with respect to a prisoner in the same manner as it applies to an order made under that section.

(14) This Part does not apply to a person who is convicted of an offence punishable by imprisonment and who, on the date of conviction, is a child within the meaning of the Children's Court Act 1973.

Conditions of community-based order.

29. (1) A community-based order shall have the following core conditions attached to it:

(a) That the offender does not commit another offence during the period that the order is in force;

(b) That the offender reports to the specified community corrections centre within 2 clear working days of the order coming into force;

(c) That as directed by the order the offender reports to and receives visits from a community corrections officer;

(d) That the offender notifies an officer of the specified community corrections centre of any change of address or employment within 48 hours of the change;

1150


(e) That the offender does not leave the State without having first obtained the permission of an officer of the specified community corrections centre;

( / ) That the offender obeys all lawful instructions and directions of community corrections officers.

(2) A community-based order shall have attached to it such one or more of the following programme conditions as is specified by the court:

(a) That the offender attend for educational and other programmes as directed by the Regional Manager for a period of not less than one month or more than one year commencing on the date that the order comes into force but so that— (i) the number of attendances in any one week does not

exceed 2; (ii) the total period of attendance in any one week does not

exceed 8 hours; (iii) the aggregate period of attendance during the period

that the order is in force is not less than 20 hours and not more than 400 hours;

(b) That the offender perform unpaid community work as directed by the Regional Manager for not less than 10 or more than 500 hours but so that— (i) the work is performed within one year of the order

coming into force; (ii) the total number of hours worked in any one week is

not more than 20; (c) That the offender be under the supervision of a community

corrections officer; (d) That the offender undergo assessment and treatment for

alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the Regional Manager;

(e) That the offender submit to testing for alcohol or drug use, as directed by the Regional Manager;

( / ) That the offender reside in premises specified in the order; (g) That the offender does not associate with a person or persons

specified in the order; (h) Any other condition that the court considers necessary or

desirable.

Community-based orders in respect of several offences.

30. (1) Where a court makes community-based orders in respect of two or more offences, the court may direct that the conditions of any of those orders shall be concurrent with or additional to those of any

1151


other of those orders but so that any limits specified in section 29 (2) as to attendances or hours to be worked are not exceeded.

(2) Where a court makes a community-based order in respect of an offender and there already is or are in force in respect of that offender one or more such orders, the court must not make an order that would result in the offender, if the offender complied with all of the orders, exceeding any limits specified in section 29 (2) as to attendances or hours to be worked.

(3) Where a court is thinking of making a community-based order in respect of an offender and the offence with which the court is dealing was committed while a community-based order was in force in respect of that offender, the court must, if practicable, adjourn the further hearing of the matter without proceeding to pass sentence until the offender has been dealt with under section 33.

Copies of order.

31. The court by which a community-based order is made must forthwith cause copies of the order to be supplied to the offender and to the Director-General and the court must, except where it is itself the supervising court in respect of the order, send to the clerk of the supervising court a copy of the order, together with such documents and information relating to the case as it considers likely to be of assistance to that court in exercising its functions in relation to the order.

Director-General may direct offender to report at another place.

32. Where by reason of the change by an offender of the offender's place of residence or for any other reason it is not convenient that the offender should report at a place or to a person specified in a community-based order, the Director-General may direct the person to report at another place or to another person and the offender thereafter must report as so directed and shall be subject to the same obligations under this Part as if that place or person had been specified in the order.

Failure to comply with condition of order, etc.

33. (1) If at any time while a community-based order is in force the offender in respect of whom it is made—

(a) fails without reasonable excuse to comply with any condition of the order; or

(b) fails without reasonable excuse to comply with any requirement of the regulations made under this Part—

the offender is guilty of an offence for which the offender may be proceeded against in the supervising court on the information of the Director-General or of a community corrections officer.

1152


(2) If on the hearing of an information under sub-section (1) the supervising court is satisfied by evidence on oath or otherwise that the offender has committed an offence under sub-section (1) the court may—

(a) without prejudice to the continuance of the community-based order, impose on the offender a fine not exceeding 2 penalty units; or

(b) subject to this Part, amend the order; or (c) confirm the order as originally made; or (d) if the order was made by the supervising court or any other

Magistrates' Court, cancel the order (if it is still in force) and, whether or not the order is still in force, deal with the offender for the offence in respect of which the order was made in any manner in which the court could deal with the offender if it had just convicted the offender of the offence; or

(e) if the order was not made by the supervising court or any other Magistrates' Court, commit the offender to custody or release the offender on bail (with or without sureties) to be brought or to appear before the court by which the order was made.

(3) If under sub-section (2) (e) an offender is brought or appears before the Supreme Court or the County Court and the judge is satisfied by evidence on oath or otherwise that the offender has committed an offence under sub-section (1) the court may—

(a) deal with the offender in any manner ;n which the supervising court could have under paragraph (a), (b) or (c) of sub-section (2); or

(b) cancel the order (if it is still in force) and, whether or not the order is still in force, deal with the offender for the offence in respect of which the order was made in any manner in which the court could deal with the offender if it had just convicted the offender of the offence.

(4) A fine imposed under this section shall be taken for all purposes to be a fine payable upon a conviction of an offence.

(5) Where under this section a court cancels a community-based order and deals with the offender in another way the court must take into account the extent to and the manner in which the offender had complied with the order before its cancellation.

Extension of order.

34. Where a community-based order is in force in respect of an offender and, on the application of the offender or of the Director-General, it appears to the supervising court or to the court which made the order that it would be in the interests of justice to do so having regard to circumstances which have arisen since the order

1153


was made (including a conviction for an offence under section 33) the court may, subject to section 29 (2), extend the period during which the order is to remain in force.

Cancellation or variation of order.

35. (1) A community-based order may at any time on the application of the offender or of the Director-General be cancelled or varied by the court which made the order where the court is satisfied—

(a) that the circumstances of the offender— (i) have changed materially since the offender was

sentenced; or (ii) were wrongly stated or were not accurately presented

to the court or the Director-General before sentence; or

(b) that the offender is no longer willing to comply with the order.

(2) Where the court cancels a community-based order under sub-section (1) the court may deal with the offender for the offence in respect of which the order was made in any manner in which the court could have dealt with the offender if it had just convicted the offender of that offence.

Provisions relevant on cancellation of order.

36. Where a court cancels a community-based order under this Part the court must issue or cause to be issued a warrant for the apprehension of the offender if the offender is not then before the court for the offender to be brought before the court to be further dealt with.

Warrant may issue where offender not appearing.

37. Where a Magistrates' Court proposes to exercise its powers under section 34 or 35 otherwise than on the application of the offender it must summon the offender to appear before the court, and if the offender does not appear in answer to the summons may issue a warrant for the offender's arrest.

Suspension of order.

38. The Director-General may where the offender in respect of whom a community-based order is in force is ill or in other exceptional circumstances suspend the operation of the order or of any of the conditions of the order and any such period of suspension is to be disregarded in calculating whether the period for which the order was to have remained in force has expired.

1154


Conviction on which community-based order made may be disregarded for certain purposes.

39. (1) Except where the court by which a community-based order is made otherwise directs, a conviction for an offence in respect of which a community-based order is made is not to be taken to be a conviction for any purpose (including the purposes of any enactment imposing or authorizing or requiring the imposition of any disqualification or disability on convicted persons) except—

(a) in relation to the making of the order, or proceedings under this Part; and

(b) as provided in section 93 (3); and (c) subject to sub-section (2), for the purposes of cancellation

or suspension of, or disqualification of the offender from obtaining, a permit, endorsement, licence or other authority to drive a motor car; and

(d) in relation to proceedings against the offender for a subsequent offence.

(2) Notwithstanding sub-section (1) and anything to the contrary in the Motor Car Act 1958, where a community-based order is made on conviction for an offence under the Motor Car Act 1958 and that order includes a condition referred to in section 29 (2) (c) of this Act—

(a) the court is not required to cancel any driver's licence which the offender may hold, nor to disqualify the offender from obtaining any driver's licence;

(b) where the court does disqualify the offender from obtaining a driver's licence the period of that disqualification is in the discretion of the court;

(c) where the court does disqualify the offender from obtaining a driver's licence and the offence is an offence under section 80B, 80E, 80F (11) or 81A (1) of the Motor Car Act 1958, a driver's licence must not be issued to the offender at the end of the period of disqualification except on the order of a Magistrates' Court on application made in accordance with that Act.

(3) Where an offender is subsequently dealt with under this Part for the offence in respect of which the community-based order was made the provisions of sub-section (1) shall cease to apply to the conviction.

(4) Nothing in this section affects any right of an offender to appeal against a conviction or to rely on a conviction in bar of any subsequent proceedings for the same offence or the revesting or restoration of any property in consequence of the conviction.

(5) In this section "driver's licence" has the same meaning as in the Motor Car Act 1958.

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24 _1_985 Penalties and Sentences No. 10260

Appeal against sentence.

40. A person sentenced under section 33, 34 or 35 has a right of appeal against that sentence as if—

(a) the court had immediately before passing it convicted that person; and

(b) the sentence were a sentence passed upon that conviction.

Community-based order not to prevent any order for costs, damages, &c.

41. Nothing in this Part is to be construed as preventing a court which makes a community-based order in respect of an offender from making an order for costs or damages or compensation or disqualification or suspension of licence which under this or any other Act it is empowered to make, nor from imposing a fine upon the offender.

Application of certain provisions of other Acts .

42. (1) The provisions of Part II. of the Magistrates (Summary Proceedings) Act 1975, so far as applicable and with such modifications as are necessary, extend and apply to and with respect to all informations, summonses and warrants referred to in this Part, and for the purposes of that application every such information is to be regarded as an information for an offence and every such summons is to be regarded as a summons to answer to an information.

(2) The provisions of section 72 of the Magistrates (Summary Proceedings) Act 1975, so far as applicable and with such modifications as are necessary, extend and apply to and with respect to the admission of offenders to bail pursuant to this Part, and for the purposes of that application every such offender is to be regarded as a person charged with an indictable offence and directed to be tried therefor.

(3) The provisions of section 129 of the Community Welfare Services Act 1970 extend and apply to and with respect to the case of a prisoner who is detained as mentioned in that section and who is charged with the breach of a community-based order.

Regulations.

43. The Governor in Council may make regulations for or with respect to—

(a) the obligations of persons subject to community-based orders; and

1156


(b) generally prescribing any other matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part.

Transitional provision.

44. (1) A person in respect of whom a probation order, community service order or attendance centre order is in force immediately before the commencement of this section shall continue to be subject to the requirements of that order in all respects as if this Act had not been passed but that order may be cancelled, varied, extended or suspended and any failure to comply with it may be dealt with as if it were a community-based order made under this Part.

(2) On the commencement of this section this Act is amended as follows:

(a) In section 5, for paragraph (c) substitute— "(c) subject to Part 5, make a community-based order in

respect of the person;";

(b) In section 16 (2) (a)— (i) for "on probation" substitute "under a community-

based order that included a condition referred to in section 29 (2) (c)"; and

(ii) for "the probation" substitute "the order";

(c) In section 70 (c), for "require the person in default to perform unpaid work pursuant to a community service order" substitute "make, subject to the provisions of Part 5, a community-based order in respect of that person requiring that person to perform unpaid community work";

(d) In section 72 (4), for "II of the Penalties and Sentences Act 1981, require the person in default to perform unpaid work pursuant to a community service order" substitute "5, make a community-based order in respect of the person in default";

(e) In section 92 (1)— (i) in paragraph (c) for "probation order made against that

person" substitute "community-based order made in respect of that person under Part 5 that includes a condition referred to in section 29 (2) (c)"; and

(ii) for "placed on probation" substitute "made the subject of a community-based order";

(/) In section 92 (3) for "placed on probation" substitute "made the subject of a community-based order";

(g) In section 93 (5) for "released on probation" substitute "made subject to a community-based order that includes a condition referred to in section 29 (2) (c)".

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PART 6—YOUTH ATTENDANCE ORDERS

Division 1—Definitions

Definitions.

45. (1) In this Part— "Department" means the Department of Community Services. "Offender" means a person in respect of whom a youth

attendance order is in force. "Project" means employment or other activities or any

combination of employment or other activities considered suitable for a youth attendance project by the Director-General of Community Services.

"Relevant superintendent or responsible officer", in relation to an offender, means the superintendent or responsible officer specified by the sentencing court under section 51 as responsible for ensuring that the conditions of the offender's youth attendance order are complied with.

"Responsible officer" means an officer of the Department appointed by the Director-General of Community Services to be the officer responsible for a youth attendance project in a region of the State.

"Sentencing court", in relation to an offender, means the court which makes a youth attendance order in respect of the offender.

"Superintendent" means the person in charge of a place, establishment or institution appointed to be a youth welfare service under section 92 of the Community Welfare Services Act 1970.

"Week" means the period of seven days commencing on a Monday.

"Working day" does not include a Saturday, Sunday or public holiday.

"Youth attendance order" means an order made by a sentencing court under section 47. '

"Youth attendance project" means a project appointed as a youth attendance project under section 58(1).

(2) If a provision of this Part requires a notice to be served by the Director-General of Community Services, a superintendent or a responsible officer, it is sufficient compliance with the provision if the notice is served by a person acting under the authority of the Director-General, superintendent or responsible officer (as the case may be). '

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Division 2—Youth Attendance Orders

Object of youth attendance order.

46. The object of a youth attendance order is to provide a No-9554s-M-non-custodial correctional alternative for an offender who would otherwise be sentenced to detention in a youth training centre as a result of the gravity or habitual nature of the offender's unlawful behaviour.

Youth attendance order.

47. (1) If a court convicts a young person of an offence for which NO. 95545.55. the court considers that the person would otherwise be sentenced to detention in a youth training centre, it may make a youth attendance order in respect of the person.

(2) The power to make a youth attendance order is subject to the restrictions set out in section 48.

(3) In this section and section 48 "young person" means a person who on the day of conviction is younger than 21 years.

Restrictions on power to make order.

48. (1) A court does not have power to make a youth attendance NO. 9554 s. 56. order under section 47(1) unless—

(a) the offence is punishable by imprisonment; and (b) it has made inquiries of the superintendent or responsible

officer responsible for a youth attendance project, and is satisfied that— (i) the young person is a suitable person to participate in

the youth attendance project; and (ii) a place in the youth attendance project will be available

to the young person at the time when the young person is required to first report; and

(c) the young person has consented to the order being made.

(2) A court must not make a youth attendance order to apply in default of payment of a fine or sum of money.

(3) When a sentencing court makes a youth attendance order, it must not impose on the young person any other penalty for the offence.

Requirements of youth attendance order.

49. The requirements of a youth attendance order are— No 9554 8 57

(a) the requirements which the sentencing court imposes under section 50; and

(b) the requirements set out in section 54.

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28 _1985 Penalties and Sentences No. 10260

Sentencing court to impose requirements.

NO. 9554 s. 58. so. A sentencing court, when making a youth attendance order, must impose upon the offender the following requirements:

(a) That the offender does not commit another offence during the period that the order is in force;

(b) That the offender attend at a youth attendance project for the number of weeks specified by the sentencing court (not being more than 52 weeks);

(c) That, unless the offender is in custody at the time of the making of the order, the offender report to the relevant superintendent or responsible officer at the place, on the day and at the time specified by the sentencing court.

Court to nominate a superintendent or responsible officer.

NO. 9554 s. 59. 51. (1) A sentencing court, when making a youth attendance order, must specify a superintendent or responsible officer who shall be responsible for ensuring that the requirements of the order are complied with.

(2) A sentencing court may specify a superintendent or responsible officer either by name or by reference to an office and, where the specification is by reference to an office, the holder for the time being of the office is the superintendent or responsible officer.

Concurrent orders.

NO. 9554 s. 6o. 52. (l) if a person is convicted on the same day, or in the same proceedings, of more than one offence—

(a) the aggregate term of attendance at a youth attendance project which may be required in respect of all of the offences must not exceed 52 weeks; and

(b) the sentencing court may order that the period of attendance in respect of any of the offences be concurrent with the period of attendance in respect of any other of the offences; and

(c) if the sentencing court makes a youth attendance order in relation to an offence and directs that the offender be detained in a youth training centre in respect of another offence, the aggregate term of attendance and detention in respect of all of the offences must not exceed three years.

(2) Notwithstanding anything to the contrary in any Act, every term of attendance at a youth attendance project imposed on a person by a sentencing court shall, unless otherwise directed by the sentencing court at the time of making the youth attendance order, be, as from the date of its commencement, served concurrently with any uncompleted term or terms of attendance at a youth attendance project imposed on

1160


that person, whether previously to or at the time the relevant order was made.

(3) If a sentencing court imposes a term of attendance at a youth attendance project on a person who has not completed another term of attendance at a youth attendance project, the sentencing court may direct that the term being imposed be served in part concurrently with the other term or wholly cumulatively upon it.

Copy of order to be given.

53. (1) A youth attendance order must be in the prescribed form. No 9554 s. ei.

(2) A sentencing court, when it makes a youth attendance order, must provide a copy of the order to—

(a) the offender; and (b) the relevant superintendent or responsible officer.

Division 3—Attendance and Operation

Additional requirements of order.

54. In addition to the requirements imposed upon an offender by NO. 9554 s. 62. the sentencing court under section 50, an offender is required—

(a) to comply with the provisions of a notice under section 55 and with the requirements for attendance in paragraphs (a), (b) and (c) of section 55(1); and

(b) to attend at any alternative day and time fixed under section 55 (5) or to attend for such extension of the term of the youth attendance order as is fixed under section 55 (6); and

(c) to carry out the reasonable directions of the relevant superintendent or responsible officer or any person acting under the authority of either of those persons under sections 60 and 61(1).

Reporting by offender.

55. (1) Subject to sub-sections (5) and (6), an offender must in NO. 9554 s. 63. every week during the term of the youth attendance order—

(a) attend for a maximum of three attendances; and (b) attend under paragraph (a) for a maximum often hours.

(2) Subject to sub-section (1), the relevant superintendent or responsible officer must from time to time specify in a notice in the prescribed form sent by registered post to or served personally upon the offender—

(a) the periods of time; and (b) the starting and finishing times of each such period; and (c) the number of times; and

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(d) the total number of hours— in each week during which the offender is required to attend the youth attendance project.

(3) Subject to sub-section (1), the relevant superintendent or responsible officer may from time to time vary the details referred to in paragraph (a), (b), (c) or (d) of sub-section (2) by notice sent by registered post to or served personally upon the offender.

(4) In specifying the dates and times of attendance for an offender in a notice under this section the relevant superintendent or responsible officer must specify dates and times which, as far as practicable, avoid interference—

(a) with the attendance of the offender at the offender's place of employment, education, training or religious observance; or

{b) with the offender's religious beliefs.

(5) The relevant superintendent or responsible officer may excuse an offender from reporting at a youth attendance project on any occasion—

(a) on account of illness certified by a legally qualified medical practitioner; or

(b) on account of any other good cause— and if the relevant superintendent or responsible officer so excuses an offender, the relevant superintendent or responsible officer may fix an alternative day and time and must specify the day and time in a notice sent by registered post to or served personally upon the offender.

(6) Where it is not reasonably practicable for an offender to make up time for which the offender has been excused under sub-section (5) during the term of the youth attendance order, the relevant superintendent or responsible officer may extend the term of the youth attendance order so that the lost time can be made up and must inform the offender of the extension by a notice sent by registered post to or served personally upon the offender.

Suspension of youth attendance order.

56. (1) If— (a) at the time the sentencing court makes a youth attendance

order, the offender in respect of whom the order is made is in custody in a prison, remand centre or youth training centre; or

(b) after the making of a youth attendance order, the offender in respect of whom the order is made is taken into custody in a prison, remand centre or youth training centre—

the relevant superintendent or responsible officer may by a notice in writing in the prescribed form sent by registered post to or served

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personally upon the offender suspend the offender's service of the youth attendance order.

(2) The relevant superintendent or responsible officer referred to in sub-section (1) must, after consultation with the appropriate parole board, superintendent of a youth training centre or the Office of Corrections, determine a time at and date on which an offender shall commence or re-commence service of the youth attendance order and must by a notice in writing sent by registered post to or served personally upon the offender specify the time at and date on which the offender is first required to report to the relevant superintendent or responsible officer.

(3) With the consent of the appropriate parole board, the relevant superintendent or responsible officer may direct that the term of operation of a youth attendance order be served concurrently with a period of parole of the offender but the service of the youth attendance order by the offender must not be a condition of the parole.

Court may require superintendent or responsible officer to report.

57. (1) If at any time during an offender's service of a youth NO.9554S.65. attendance order a court—

(a) finds the offender guilty of an offence; and (b) is aware that a youth attendance order is in force in respect

of the offender— the court may require the relevant superintendent or responsible officer to provide the court with a report on the extent to and the manner in which the offender has complied with the youth attendance order.

(2) In dealing with the offence referred to in paragraph (a) of sub-section (1), the court—

(a) may take into account the report referred to in that sub-section; and

(b) must not impose upon the offender a penalty greater than the penalty which the court may impose for that offence.

Division 4—Youth Attendance Projects

Director-General may appoint youth attendance projects.

58. (1) For the purposes of this Part the Director-General of NO.95S4S.66. Community Services by notice published in the Government Gazette may appoint any project as a youth attendance project and may by like notice at any time revoke the appointment.

(2) A project appointed as a youth attendance project may be conducted—

(a) by a youth welfare service appointed under section 92 of the Community Welfare Services Act 1970; or

(b) by any other person or body.

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Objects of youth attendance project.

NO. 9554 s. 67. 59. The objects of a youth attendance project are to provide an offender with activities and requirements—

(a) which take into account the gravity of the offender's behaviour; and

(b) which penalize the offender by imposing restrictions on the offender's liberty; and

(c) which require the offender to make amends for the offence committed by the offender by performing community services; and

(d) which provide the offender with opportunities to receive such instruction, guidance, assistance and experiences as will assist the offender in developing an ability to abide by the law and complete the requirements of the youth attendance order.

Offender subject to control, &c, of superintendent or responsible officer.

NO. 9554 s. 68. 60. An offender is subject to the reasonable control, direction and supervision of the relevant superintendent or responsible officer or any person acting under the authority of the relevant superintendent or responsible officer during—

(a) each period of the offender's attendance at a youth attendance project; and

(b) the offender's absence from a youth attendance project when the offender is complying with a direction of that person; and

(c) the offender's time of travel between the youth attendance project and a place outside the youth attendance project at which the offender is directed to be by that person.

Activities during attendance.

NO. 9554 s. 69. 61. (1) An offender shall engage in employment or other activities as directed by the relevant superintendent or responsible officer.

(2) A direction given by the relevant superintendent or responsible officer—

(a) may require an offender to engage in employment— (i) at or in relation to a community service organization;

or (ii) at the home of any old, infirm or disabled person; or

(iii) upon any Crown land or land occupied by the Crown or owned, leased or occupied by any person or body under any Act for a public purpose; and

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(b) must not require an offender to engage in any employment so as to take the place of some other person who would usually be engaged in that employment for hire or reward if that other person is absent from that employment because of an industrial dispute involving that other person's employer or is otherwise available and willing to perform the work required in that employment.

(3) If a direction under sub-section (1) requires an offender to engage in employment—

(a) the offender is, for the purposes of the Accident Compensation Act 1985 or any other Act or law, to be taken to be a worker employed by the Crown; and

(b) for the purposes of the Accident Compensation Act 1985 the weekly earnings of the offender is to be taken to be an amount equivalent to the weekly earnings of the offender in any full-time employment in which the offender is engaged at that time or, if the offender is not then engaged in full-time employment, an amount which the Minister administering the Accident Compensation Act 1985 considers reasonable in the circumstances of the case; and

(c) the offender is not entitled to receive any remuneration in respect of any work performed in that employment.

Division 5—Breach of Order

Breach of order.

62. (1) An offender who— (a) commits an offence during the period that a youth

attendance order is in force; (b) does not report to the relevant superintendent or responsible

officer as specified under section 50 (c) or 56 (2) (as the case may be); or

(c) fails to attend the youth attendance project as specified in a notice under section 55 (2) or at an alternative time and on an alternative day fixed under section 55 (5) without being excused from attending; or

(d) fails to comply with an extension of the term of the youth attendance order under section 55 (6); or

(e) contravenes any provision of a regulation made under this Part; or

( / ) contravenes any reasonable direction of the relevant superintendent or responsible officer under section 60 or 61 (l);or

(g) refuses to work as directed during an attendance at a youth attendance project; or

(h) is absent from or leaves—

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(i) a youth attendance project; or (ii) any other place at which the offender has been directed

to be present under section 60 (b)— without reasonable excuse at a day and time when the offender is required to be present—

shall be taken to have breached the youth attendance order.

(2) Subject to sub-section (3), on application to the sentencing court by the Director-General of Community Services or an officer of the Department authorized by the Director-General for the purpose, the sentencing court may, if the sentencing court is satisfied that the offender has breached a youth attendance order, make an order—

(a) varying or revoking the youth attendance order; or

(b) directing the offender to comply with the youth attendance order; or

(c) making any order in respect of the offender which the sentencing court could originally have made if it had not made the youth attendance order.

(3) Except where the breach resulted from the commission by the offender of an offence, an application under sub-section (2) must be made within 14 working days after the alleged breach by the offender of the youth attendance order.

(4) The Director-General or officer referred to in sub-section (2) may by information and summons require the attendance of the offender at the hearing of the application in which case—

(a) sections 5 to 8 of the Magistrates (Summary Proceedings) Act 1975 shall apply with such modifications as are necessary to the information and summons; and

(b) every such information shall be regarded as an information for an offence and every such summons shall be regarded as a summons to answer an information.

(5) In dealing with an application under sub-section (2), the sentencing court must take into account—

{a) a report on the offender prepared by the relevant, superintendent or responsible officer; and

(b) the fact of the making of the youth attendance order; and (c) the extent to and the manner in which the offender has

complied with the youth attendance order.

(6) A relevant superintendent or responsible officer must, at the request of the Director-General of Community Services, provide the Director-General with—

{a) a certificate of attendance in the prescribed form; and

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(b) a report on the offender and on the extent to and the manner in which the offender has complied with the youth attendance order—

to enable the Director-General to determine whether an application under sub-section (2) should be made.

(7) Where an offender fails to appear before the sentencing court at the time fixed for the hearing of the application, a warrant may be issued by the sentencing court to apprehend the offender.

(8) The provisions of sections 12 to 16 of the Magistrates (Summary Proceedings) Act 1975 apply, with such adaptations as are necessary, to warrants under sub-section (7), subject to the modification that a reference to the bringing of a person before a Magistrates' Court is to be construed as a reference to bringing the person as soon as practicable before the sentencing court.

(9) Where it is not possible for the sentencing court to deal immediately with an application under sub-section (2) in respect of which the offender has been apprehended under sub-section (7), for the purposes of granting bail the provisions of the Bail Act 1977 apply, with such adaptations as are necessary, 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.

(10) Where an offender is being held in custody pending the determination of an application under sub-section (2), the offender is to be detained in a youth training centre instead of in a prison.

(11) An offender in respect of whom an order is made by a sentencing court under sub-section (2) may pursuant to Part IX. of the Magistrates' Courts Act 1971 or Part VI. of the County Court Act 1958 or the Supreme Court Act 1958 (as the case may be) appeal from the order.

Division 6—Variation of Order

Application for variation of order.

63. (1) Subject to sub-sections (2), (3) and (4) the Director-General of Community Services or an offender may make application to the sentencing court for the variation of a youth attendance order.

(2) An application under sub-section (1) may be made where— (a) the circumstances of the offender—

(i) have changed since the making of the youth attendance order; or

(ii) were not accurately presented to the sentencing court or the superintendent or responsible officer referred to in section 48 (1) (b) before the making of the youth attendance order; or

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(b) the offender is in custody or is otherwise unable to comply with the youth attendance order; or

(c) the offender is no longer willing to comply with the order.

(3) If the Director-General of Community Services is the applicant under sub-section (1), the Director-General must, as soon as practicable after the making of the application, send by registered post to or serve personally upon the offender a notice of the date set by the sentencing court for the hearing of the application.

(4) Where the offender is the applicant under sub-section (1), the Clerk of Courts of a children's court or Magistrates' Court, Registrar of the County Court or Prothonotary of the Supreme Court (as the case may be) must, as soon as practicable after the making of the application, send by registered post to or cause to be served personally upon the Director-General of Community Services a notice of the date set by the sentencing court for the hearing of the application.

(5) In dealing with an application under sub-section (1), the sentencing court must take into account—

{a) a report on the offender prepared by the relevant superintendent or responsible officer; and

{b) the fact of the making of the youth attendance order; and (c) the extent to and the manner in which the offender has

complied with the youth attendance order— and, subject to sub-section (6), may make an order—

(d) varying or revoking the youth attendance order; or (e) directing that the youth attendance order continue in force;

or if) making any order in respect of the offender which the

sentencing court could originally have made if it had not made the youth attendance order.

(6) If an offender in respect of whom an application for variation of a youth attendance order is made under sub-section (1) fails to appear before the sentencing court at the time fixed for the hearing of the application, a warrant may be issued by the sentencing court to apprehend the offender.

(7) The provisions of sections 12 to 16 of the Magistrates (Summary Proceedings) Act 1975 apply, with such adaptations as are necessary, to warrants under sub-section (6), subject to the modification that a reference to the bringing of a person before a Magistrates' Court is to be construed as a reference to bringing the person as soon as practicable before the sentencing court.

(8) Where it is not possible for the sentencing court to deal immediately with an application under sub-section (1) in respect of which the offender has been apprehended under sub-section (6), for the purposes of granting bail the provisions of the Bail Act 1977 apply,

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with such adaptations as are necessary, 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.

(9) Where an offender is being held in custody pending the determination of an application under sub-section (1), the offender is to be detained in a youth training centre instead of in a prison.

(10) If an offender changes his or her usual place of residence, the Director-General of Community Services may, on receipt of an application in writing by the offender, send by registered post to or serve personally upon the offender a written authority to attend at another youth attendance project specified in the authority at the time and place specified in the authority and the giving of the authority has effect as if it were a variation of a youth attendance order by a sentencing court under paragraph (d) of sub-section (5).

(11) An offender in respect of whom an order is made by a sentencing court under sub-section (5) (d), (e) or ( / ) may pursuant to Part IX. of the Magistrates' Courts Act 1971 or Part VI. of the County Court Act 1958 or the Supreme Court Act 1958 (as the case may be) appeal from the order.

Division 7—Regulations

Regulations.

64. The Governor in Council may make regulations for or with respect to—

(a) all matters necessary for the good order, discipline, safe custody and health of offenders; and

(b) the participation of offenders in youth attendance projects; and

(c) the maximum number of offenders who may attend any youth attendance project; and

'(d) the appointment, functions, powers and duties of superintendents and responsible officers; and

(e) the variation by the relevant superintendent or responsible officer under sections 55 and 56 of details relating to the dates and times of attendance at a youth attendance project; and

(f) the conduct, management and supervision of youth attendance projects; and

(g) prescribing forms or notices authorized or required to be prescribed for the purposes of this Part and any other forms or notices which are necessary for the purposes of this Part; and

(h) prescribing the nature of reasonable directions which may be given by a superintendent or responsible officer; and

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(/) generally prescribing any other, matter or thing by this Part required or permitted to be prescribed or necessary to be prescribed to give effect to this Part.

PART 7—FINES

Division 1—Financial Circumstances of Offender to be Considered

Financial circumstances of offender to be considered in determining monetary penalty.

NO. 9554 s. 13E. 65. (1) If a court determines to impose a monetary penalty on an offender in respect of an offence, the court, in determining the amount of the monetary penalty, must take into consideration among other things the financial circumstances of the offender.

(2) A court is not prevented from imposing a monetary penalty on an offender by reason only that the court has been unable to ascertain the financial circumstances of the offender.

Division 2—Instalment Orders

Definitions and application.

NO.9554S.I3A 66. (1) In this Division— (1) (2) (4) and (5). v '

"Court" means the Supreme Court, the County Court or a Magistrates' Court.

"Instalment order" means an order made under this Division that a monetary penalty be paid by two or more instalments and, where such an order has been varied under this Division, means the order as so varied.

"Monetary penalty", in relation to an offender, means the sum of money payable by that offender pursuant to an order of a court made upon the conviction of that offender of an offence and includes— (a) a fine; and (b) costs—

but does not include a sum of money payable by way of restitution or compensation.

"Prescribed" means prescribed by rules of the relevant court. "Proper officer of the court" means—

(a) in relation to the Supreme Court or the County Court and in relation to a particular provision of this Division, the officer or officers of the Supreme Court or the County Court (as the case requires) prescribed in relation to that provision; and

(b) in relation to a Magistrates' Court, the clerk or deputy clerk of the Magistrates' Court.

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"Summons", in relation to the Supreme Court, means writ of subpoena.

(2) This Division applies to and in relation to a person who— (a) is convicted of an offence on or after 1 June 1985; or (b) was convicted of an offence before 1 June 1985 but had not,

before that date, been sentenced for the offence.

(3) Notwithstanding sub-section (2), where— (a) a person was convicted of and sentenced for an offence

before 1 June 1985; and (b) the sentence required the payment of a monetary penalty—

that person may, whether or not the monetary penalty has been directed to be made by instalments, apply for an instalment order under this Division and for this purpose the provisions of this Division apply to and in relation to that person with such modifications as are necessary.

(4) Subject to sub-section (3), a monetary penalty imposed before 1 June 1985 may be recovered in all respects as if this Act had not been passed.

Instalment orders.

67. If a court determines to impose a monetary penalty on an N0.9554s.13F. offender the court—

(a) must, if the offender so requests, order that the monetary penalty be paid by instalments; or

(b) in any other case, if the court deems it appropriate to do so, may order that the monetary penalty be paid by instalments.

Time to pay.

68. If a court does not make an instalment order in respect of a NO.9554S.I3G. monetary penalty imposed by it, the court may, at the time of imposing that monetary penalty, order that the offender be allowed time for the payment of the monetary penalty.

Application for time to pay, for instalment order or for variation of instalment order.

69. An offender who has been ordered by a court to pay a monetary NO. 9554 s. 13H. penalty may apply at any time in the prescribed manner to the proper officer of that court for—

(a) an order that the offender be allowed time for the payment of the monetary penalty; or

(b) an order that the monetary penalty be paid by instalments; or

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(c) an order for the variation of an instalment order which has previously been made.

Default in payment of monetary penalty or instalments.

NO. 9554 s. 13L 70. if for a period of more than one. month an offender defaults in the payment of a monetary penalty or of any instalment under an instalment order, the court may—

(a) order that the monetary penalty then unpaid be levied by distress; or

(b) order that the person in default be imprisoned for a term fixed in accordance with section 71(1) unless the person in default satisfies the court that he or she did not have the capacity to pay the monetary penalty or the instalment; or

(c) require the person in default to perform unpaid work pursuant to a community service order for a number of hours fixed in accordance with section 71 (2); or

(d) if the default is in the payment of an instalment under an instalment order, order that the instalment order be varied as specified in the order of the court; or

(e) adjourn the hearing or further hearing of the matter for up to six months upon such terms as it thinks fit.

Maximum terms of imprisonment or hours of unpaid work.

NO.9554S.I3L 7 i . ( i) The term for which a person in default of payment of a monetary penalty or an instalment under an instalment order may be imprisoned is—

(a) if the amount of the monetary penalty then unpaid does not exceed an amount equal to four penalty units—a term of not more than one week;

(b) if the amount of the monetary penalty then unpaid exceeds an amount equal to four penalty units but does not exceed an amount equal to 20 penalty units—a term of not more than one month;

(c) if the amount of the monetary penalty then unpaid exceeds an amount equal to 20 penalty units but does not exceed an amount equal to 120 penalty units—a term of not more than six months;

(d) if the amount of the monetary penalty then unpaid exceeds an amount equal to 120 penalty units but does not exceed an amount equal to 180 penalty units—a term of not more than nine months;

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(e) if the amount of the monetary penalty then unpaid exceeds an amount equal to 180 penalty units—a term of not more than two years—

and, unless the court otherwise orders, such a term of imprisonment is to be served concurrently with any other term or terms of imprisonment being served by the person in default.

(2) The number of hours for which a person in default of payment of a monetary penalty or an instalment under an instalment order may be required to perform unpaid work is—

(a) if the amount of the monetary penalty then unpaid does not exceed an amount equal to four penalty units—not more than 10 hours;

(b) if the amount of the monetary penalty then unpaid exceeds an amount equal to four penalty units but does not exceed an amount equal to 20 penalty units—not more than 40 hours;

(c) if the amount of the monetary penalty then unpaid exceeds an amount equal to 20 penalty units but does not exceed an amount equal to 120 penalty units—not more than 250 hours;

(d) if the amount of the monetary penalty then unpaid exceeds an amount equal to 120 penalty units but does not exceed an amount equal to 180 penalty units—not more than 375 hours;

(e) if the amount of the monetary penalty then unpaid exceeds an amount equal to 180 penalty units—not more than 500 hours.

Distress.

72. (1) If the person executing a warrant of distress returns on oath that he or she cannot find sufficient goods and chattels belonging to the person in default on which he or she could levy the sum or sums mentioned in the warrant of distress together with the costs of levying the sum or sums, the court may cause to be issued a summons requiring the person in default to attend before the court on the date and at the place specified in the summons.

(2) If a person in default fails to attend as required by a summons issued under sub-section (1), the court may cause to be issued a warrant for the apprehension of the person in default.

(3) Upon a person in default of distress attending before it pursuant to this section the court may, if the person in default is a natural person, order that the person in default be, subject to sub-section (4), imprisoned for a term fixed in accordance with section 71(1) and for this purpose section 71 (1) applies to a person in default of distress in the same manner as it applies to a person in default of payment of a monetary penalty or an instalment under an instalment order but the costs of

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levying the sum Or sums mentioned in the warrant of distress must not be included in the amount of the monetary penalty.

(4) If the court fixes a term of imprisonment in default of distress the court may, if the court is satisfied that in all the circumstances of the case it is appropriate to do so, subject to the provisions of Part II. of the Penalties,and Sentences Act 1981, require the person in default to perform unpaid work pursuant to a community service order.

Costs.

NO.9554S.I3N. 73: ( i ) if a court makes an order under section 70 (b), the court may make such.order as to costs as it thinks fit.

(2) A court in fixing a term of imprisonment in default of payment of a monetary penalty or an instalment under an instalment order in accordance with section 71(1) may— ;

(a) include in the amount of the monetary penalty any costs ordered to be paid by the person in default by an order made by the court pursuant to sub-section (1); or

(b) order that those costs then unpaid be levied by distress.

(3) Section 72 applies to a warrant of distress issued in pursuance of an order made under sub-section (2) (b) in the same manner as it applies to a warrant of distress issued in pursuance of an order made under section 70 (a).

Order to pay to operate subject to instalment order.

NO.9554S.I3P. 74. While an instalment order is in force and is being complied with, the order requiring the monetary penalty to be paid operates subject to the instalment order.

Notices.

NO. 9554 s. i3Q. 75. An order under this Division against a person is not binding on that person if that person has not been given notice of the order in the manner required by or under this Division.

Oaths.

NO. 9554 s. 13R. 76. A court may administer or cause to be administered an oath for the purposes of proceedings under this Division.

Appeals.

NO. 9554 s. 13S. 77. If under section 70 (b) a court orders that a person in default be imprisoned, an appeal lies from that order in the same manner as if that order were a sentence imposed by that court oh convicting that person of an offence and a court hearing such an appeal may take and receive evidence (whether oral or written and whether on oath or otherwise) of the financial circumstances of the person in default,

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whether or not that evidence could have been but was not given to the court against the order of which the appeal is being brought.

Rules.

78. The power to make rules under the Supreme Court Act 1958, N°-9554 s-13T-the County Court Act 1958 and the Magistrates Courts Act 1971 extends to and applies in relation to the making of rules for or with respect to the following:

(a) The matters to be specified in applications or orders made or notices given under this Part;

(b) The manner of making applications under section 69; (c) The procedure of the court and the proper officer of the

court under this Part; (d) Securing the attendance of an offender before the court and

the production by an offender of documents to the court where the offender defaults in the payment of a monetary penalty or of an instalment under an instalment order and empowering the issue of a summons or warrant of apprehension or the making of an order for that purpose;

(e) The issue and execution of summonses, warrants of apprehension, warrants of distress and warrants of commitment under this Part;

CO The functions of the proper officer of the court under this Part;

(g) The costs of proceedings where an order is made under section 70 (b);

(h) Prescribing forms for the purposes of this Part; (/') The manner of service or filing of any documents under this

Part; (/) Generally prescribing any other matter or thing required or

permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part.

Provisions as to penalties imposed in proceedings in chambers, etc.

79. (1) None of the preceding provisions of this Division apply to NO. 9554 s. ISA or in relation to proceedings in chambers by a stipendiary, magistrate under Part VII. of the Magistrates (Summary Proceedings) Act 1975 or proceedings under Part VIIA. of that Act by the Magistrates' Court appointed under that Part or the clerk of that Court or to a monetary penalty imposed in those proceedings.

(2) If in accordance with section 84 (6) of the Magistrates (Summary NO. 8731 s. MA. Proceedings) Act 1975 a stipendiary magistrate proceeding in chambers has convicted and imposed a penalty on a defendant in respect of an offence the following provisions have effect:

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(a) If by the conviction of the stipendiary magistrate a sum of money (including costs) is adjudged to be paid, that stipendiary magistrate or any stipendiary magistrate to whom the defendant applies at any time after the conviction may do all or any of the following, namely: (i) Allow time for the payment of the sum of money;

(ii) Direct payment of the sum of money to be made by instalments;

(iii) Direct payment of the sum of money or the instalments thereof to be made at such t ime or times and in such place or places and to such person or persons as are specified by the stipendiary magistrate;

(iv) Direct payment of the sum of money or the instalments thereof to be made in accordance with an agreement in writing to be filed in the Court;

(b) Where a sum of money is directed to be paid by instalments and default is made in the payment of any instalment for a period of fourteen days or such other period as is specified by the stipendiary magistrate, the direction ceases to have any effect and the same proceedings may be taken to enforce the order adjudging the sum of money to be paid as if default had been made in payment of all the instalments then remaining unpaid;

(c) If the defendant (being a natural person) is fined the stipendiary magistrate must order that in default of payment of the fine (including costs ordered to be paid by the defendant) the defendant shall be imprisoned for a term fixed in accordance with section 71(1) and for this purpose that section is to be construed as if any reference in it to a monetary penalty were a reference to a fine (including costs ordered to be paid by a defendant).

PART 8—BONDS

Bonds to keep the peace, etc.

NO8™ 80. (1) A Magistrates' Court or a justice has power to require a person to give an undertaking to keep the peace or to be of good behaviour.

NO. 8731 s. 150. (2) The power of a Magistrates' Court to adjudge a person to enter into a bond and find sureties to keep the peace or to be of good behaviour towards any person must, except where otherwise enacted, be exercised by an order upon complaint made in writing and upon oath and in no other way, and the complainant and defendant and witnesses may be called and examined and cross-examined, and the complainant and defendant shall be subject to costs as in the case of any other complaint.

NO. 873is. 151. (3) A Magistrates' Court may order a defendant, in default of compliance with an order made under sub-section (2), to be imprisoned

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until the defendant complies with the order but a defendant must not be imprisoned under this section for a longer period than twelve months.

Court need not convict though trifling charge proved.

81. Except where otherwise expressly enacted, if upon the hearing NO.8184S.58. of a charge for an offence punishable on summary conviction (whether the case is or is not one in which apart from this section there is jurisdiction to award damages to the informant) the Magistrates' Court thinks that though the charge is proved the offence was in the particular case of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment—

(a) the court without proceeding to conviction may dismiss the information and if it thinks fit may order the person charged to pay such damages not exceeding $10 and such costs of the proceedings or either of them as it thinks reasonable; or

(b) the court upon convicting the person charged may discharge that person conditionally on that person entering into a bond with or without sureties to the satisfaction of the court or of any person specified by the court to appear for sentence when called upon or to be of good behaviour and either without payment of damages and costs or subject to the payment of damages and costs or either of them as it thinks reasonable and a notice of the bond signed by the person by whom the bond is taken must at the same time be given to every person bound thereby.

Release on bond or parole in exercise of prerogative of mercy.

82. (1) The Governor in all cases in which the Governor is NO. 6231 s. soo. authorized on behalf of Her Majesty to extend mercy to any person under sentence of imprisonment may do so by directing that the prisoner be released (notwithstanding that the prisoner's minimum term has not expired)—

(a) on condition of the prisoner entering into a bond (complying with sub-section (2)) before a justice; or

(b) on parole pursuant and subject to the provisions of the Community Welfare Services Act 1970.

(2) A bond under sub-section (1) (a)— No 6231 s M1

(a) shall be in such amount and without sureties or with one or more sureties as the Governor may direct; and

(b) shall be conditioned that the offender be of good behaviour for a period to be fixed by the Governor not being less than the term of the sentence then unexpired; and

(c) may, in addition, if the Governor thinks fit, contain the following: (i) Conditions with respect to the supervision of the

offender by a community corrections officer during the

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period specified in the bond and such other conditions for securing such supervision as may be specified therein;

(ii) Such other conditions as the Governor considers to be in the interests of the offender or the community.

NO.6231 (3) An offender who enters into a bond under this section must be s. 501 (2). released from custody but is liable to be committed to prison to undergo

the sentence or the residue thereof under the circumstances mentioned in section 83.

NO. 6231 s. 502. (4) if jt appears to a justice by information on oath that a person released under this section has failed to observe any of the conditions of the bond, the justice may issue a summons requiring that person to attend before a Magistrates' Court to be dealt with according to law or may issue a warrant to apprehend and bring the offender before a Magistrates' Court to be dealt with according to law.

(5) The provisions of section 10 of the Magistrates (Summary Proceedings) Act 1975 apply to a summons issued under sub-section (4).

(6) The Magistrates' Court before which a person is summoned or brought under sub-section (4) may upon being satisfied by evidence that the person has failed to observe any of the conditions of the bond adjudge that person to be guilty of misbehaviour for which the bond shall be forfeited and may direct that the person be committed to prison for the unexpired portion of the original term of imprisonment.

(7) The stipendiary magistrate sitting in the court may sign any warrant that may be necessary for the purpose of sub-section (6) and the period of imprisonment after committal begins on the day on which the person was committed to prison, if the person is then before the court, and if not, then on the date of the person's subsequent arrest.

(8) A person who has not during the period limited by the bond been adjudged guilty of misbehaviour in respect of any failure during that period to observe any of the conditions of the bond shall by virtue of that fact be discharged from the original sentence.

(9) If a Magistrates' Court recommits any person to prison pursuant to this section the provisions of the Community Welfare Services Act 1970 shall apply as if the offender had just been convicted by that court and been sentenced to be imprisoned for a term equal to the unexpired portion of the term for which the offender is so committed to prison.

PART 9—ADJOURNMENT WITHOUT CONVICTION

Adjournment without conviction. No.9554 s. 44. 83 . ( l ) I f —

(a) a court has commenced to hear an indictment, presentment or information; and

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(b) the court is satisfied that the person charged is guilty of the offence—

the court, instead of convicting the person, may grant an adjournment if it appears to be expedient to do so, having regard to all the circumstances of the case including—

(c) the nature of the offence; and

(d) the character and antecedents of the person; and

(e) whether or not the person pleaded guilty.

(2) The period of an adjournment under this section shall be specified by the court, and must not exceed—

(a) in the case of a Magistrates' Court—1 year; and

(b) in the case of the County Court or the Supreme Court— 5 years.

(3) An adjournment under this section must not be granted unless the person enters into a bond for a reasonable amount, with or without surety or sureties at the discretion of the court.

(4) The conditions of a bond entered into under this section are—

(a) if the court specifies that the person is required to appear at the time to which the further hearing is adjourned—that the person appears at that time;

(b) whether or not the court specifies that the person is required to appear at the time to which the further hearing is adjourned—that the person appears before the court if called upon to do so during the period of the adjournment;

(c) that the person is of good behaviour during the period of the adjournment;

(d) that the person observes any special conditions imposed by the court.

(5) Subject to this section, a court may grant an adjournment under this section to a person who is serving or is about to serve a term of imprisonment in respect of another offence and in such a case the period of the adjournment shall commence upon the discharge of the person from custody by due course of law.

(6) Subject to sub-section (5), after a bond is entered into under this section the person must be allowed to go at large. ,

(7) Except—

(a) as provided under this or any other Act; or

(b) for the purposes of an appeal; or

(c) for the purposes of revesting or restitution of property; or

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(d) for the purposes of any subsequent proceedings commenced against the person for the same offence—

a finding of guilt consequent upon which a court grants an adjournment under this section is not to be taken to be a conviction.

Dismissal where bond observed.

NO. 9554 s. 45. 84. If at the time and place to which a further hearing is adjourned under section 83, the court is satisfied that the person has observed the conditions of the bond, it must dismiss the person without proceeding further with the hearing of the indictment, presentment or information.

Persons called upon to appear.

NO.9554s.46. 85. ( i ) A person to whom an adjournment under section 83 has been granted may be called upon to appear before the court—

(a) by order of the court; or (b) by notice issued by the Prothonotary of the Supreme Court,

the Registrar of the County Court or a clerk of the Magistrates' Court (as the case may be); or

(c) in the case of an adjournment by a Magistrates' Court, by summons issued by a justice where it is made to appear by information on oath that the person has failed to observe any of the conditions of the bond.

(2) A notice, order or summons under this section requiring a person to appear must be served not less than 4 days before the time specified therein for the appearance.

Failure to appear.

No. 9554 s. 47. 86. (1) If—

(a) a court in granting an adjournment under section 83 specifies that the person is required to appear at the time to which the further hearing is adjourned and the person fails to do so; or

(b) a person fails to appear as required by notice, order or summons in accordance with section 85; or

(c) reasonable efforts have been made to serve a notice, order or summons in accordance with section 85, but have been unsuccessful—

a warrant of apprehension may be issued— (d) in the case of the Supreme Court—by a judge of the Supreme

Court, directing that the person be apprehended and as soon as possible thereafter brought before a judge of the

^^JJupreme Court; or (e) in the case of the County Court—by a judge of the County

Court, directing that the person be apprehended and as

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soon as possible thereafter brought before a judge of the County Court; or

(J) in the case of a Magistrates' Court—by a stipendiary magistrate, directing that the person be apprehended and as soon as possible thereafter brought before a Magistrates' Court.

(2) If, pursuant to sub-section (.1), a person is brought before a Magistrates' Court or a judge, the court or judge may remand the person in custody or on bail with or without sureties to be brought or to appear before the Supreme Court, the County Court or a Magistrates' Court (as the case may be) at a specified time and place.

(3) If a person who is remanded on bail under sub-section (2) fails to appear in accordance with the conditions of bail, the judge or justice before which the person was bound to appear may issue a further warrant of apprehension with the same directions, and to which sub-section (2) shall apply in the same way as a warrant of apprehension under sub-section (1).

Breach of bond.

87. (1) If— (a) in accordance with the terms of an adjournment under

section 83, or of a notice, order or summons under section 85, a person appears before a court; or

(b) pursuant to section 86 a person is brought before a court— and the court is satisfied that the person has failed to observe any condition of the bond—

(c) the court must declare the bond to be forfeited; and (d) the court may proceed with the further hearing and

determination of the indictment, presentment or information and deal with the person in any manner in which the person could have been dealt with before the adjournment was granted.

(2) If a person fails to appear before a Magistrates' Court in accordance with the terms of an adjournment under section 83 or of a notice, order or summons under section 85, the court may continue the hearing as if the hearing had been adjourned under section 79 (1) (b) of the Magistrates (Summary Proceedings) Act 1975.

Common law bonds..

88. (1) Nothing in this Part limits thejurisdiction of the Supreme Court or the County Court to release a convicted offender on a bond to be of good behaviour.

(2) Sections 85, 86 and 87 (1) apply, with any necessary adaptations, in respect of a convicted offender released by the Supreme Court or County Court on a bond to be of good behaviour.

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Application of this Part.

89. This Part does not apply to children's courts.

PART 10—PARTICULAR SENTENCING OPTIONS

Orders for restitution. 90. (1) If goods have been stolen, and a person is convicted of an

offence with reference to the theft (whether or not the stealing is the gist of the offence), the convicting court may exercise any of the following powers:

(a) Order anyone having possession or control of the goods to restore them to any person entitled to them;

(b) On the application of a person entitled to recover from the person convicted any other goods directly or indirectly representing the first-mentioned goods (as being the proceeds of any disposal or realization of the whole or part of them or of goods so representing them), order those other goods to be delivered or transferred to the applicant;

(c) On the application of a person who, if the first-mentioned goods were in the possession of the person convicted would be entitled to recover them from that person, order that a sum not exceeding the value of those goods shall be paid to the applicant out of any money of the person convicted which was taken out of that person's possession on that person's apprehension.

(2) If under sub-section (1) the court has power-on a person's conviction to make an order both under paragraph (b) and paragraph (c) with reference to the stealing of the same goods, the court may make orders under both paragraphs if the applicant for the orders does not thereby recover more than the value of those goods.

(3) If under sub-section (1) the court on a person's conviction makes an order under paragraph (a) for the restoration of any goods, and it appears to the court that the person convicted has sold the goods to a person acting in good faith, or has borrowed money on the security of them from a person so acting then, on the application of the purchaser or lender, the court may order that there be paid to the applicant, out of any money of the person convicted which was taken out of that person's possession on that person's apprehension, a sum not exceeding the amount paid for the purchase by the applicant, or as the case may be, the amount owed to the applicant in respect of the loan.

(4) The court must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the trial or the available documents, together with admissions made by or on behalf of any person in connexion with any proposed exercise of the powers and for this purpose "the available documents" means any written statements or admissions which were

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1985 Penalties and Sentences No . 10260 51

made for use, and would have been admissible, as evidence at the trial, the deposi t ions taken at any commit ta l proceedings and any written s ta tements or admiss ions used as evidence in those proceedings.

(5) References in this section to stealing are to be construed in accordance with sub-sections (1) and (4) of section 90 of the Crimes Act 1958.

(6) References in this section to a person who is convicted of an offence include references t o a person who, without being convicted of an offence, is found guilty of or has pleaded guilty to the offence and the reference to the convicting court is to be construed accordingly.

Recovery of penalties, &c. not otherwise provided for.

91 . (1) In every case of a s u m m a r y convict ion under Divis ion 2 or NO.623IS.484.

3 of Part I. of the Crimes Act 1958 if the sum which is forfeited for the value of the property stolen or taken or for the a m o u n t of the injury done is not paid either immediate ly or within such period as the court appoints the convicting court (unless where otherwise specially directed) may commi t the offender to be imprisoned for a term fixed in accordance with section 71 (1) as if the sum forfeited were a monetary penalty.

(2) Notwi ths tanding anything to the contrary in sub-section (1), if the court is of the opinion that the just ice of the case will be better met by a fine than by impr i sonment the court may impose a fine on the offender instead of a term of impr i sonment and the l imitat ions as to the m a x i m u m fines set ou t in section 8 apply.

Court may order person convicted of offence, &c. to pay compensation for damage arising out of offence.

92. (1) If in any proceedings for an offence, a person— NO. 6231 s. 546.

(a) is convicted of an offence; or

(b) without being convicted of an offence is ordered to be released upon entering into a recognizance conditioned for that person's appearance at a later time and for that person's good behaviour in the meantime; or

(c) has a probation order made against that person—

the court or judge may, immediately after the conviction or order and on the application of any person suffering loss or destruction of or damage to property through or by means of the offence, order the person so convicted or released or placed on probation to pay such compensation for the loss, destruction or damage (not exceeding the value of the property lost, destroyed or damaged) as the court or judge thinks fit.

(2) In making an order under sub-section (1) the court or judge may direct that any money ordered to be paid may be paid by

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instalments and that in default of payment of any one instalment the whole of the amount remaining unpaid shall become due and payable.

(3) An order under sub-section (1) is to be taken to be a judgment debt due to the applicant by the person so convicted or released or placed on probation and payment of the amount of the order or of any amount remaining unpaid under the order may be enforced in any manner in which a judgment or order for a civil debt may be enforced in the court in which the proceedings are brought.

(4) Nothing in sub-section (1) is to be construed as abrogating or affecting any right of action which any person has to recover damages for or to be indemnified against any loss, destruction or damage so far as it is not satisfied by payment or recovery of compensation under this section.

Compensation for motor car theft.

93. (1) If proceedings are brought against a person for stealing or . attempting to steal a motor car and that person is dealt with in any manner referred to in paragraph (a), (b) or (c) of section 92 (1), the judge or court, if satisfied that the motor car or any property therein or thereon has been damaged or destroyed as a result of the offence, may, in addition to making any other order, order that person to pay to the owner of the damaged or destroyed motor car or property such sum as the judge or court fixes as compensation in whole or in part for the damage or destruction.

(2) In making an order under sub-section (1) the judge or court may direct that the sum ordered to be paid may be paid by instalments and that in default of payment of any one instalment the whole of the sum remaining unpaid shall become due and payable.

(3) An order under sub-section (1) is to be taken to be a judgment debt due to the owner of the damaged or destroyed motor car or property by the person against whom the proceedings are brought and payment of the amount of the order or of any amount remaining unpaid under the order may be enforced in any manner in which a judgment or order for a civil debt may be enforced in the court in which the proceedings are brought.

(4) Nothing in sub-section (1) is to be construed as abrogating or affecting any right of action which any person may have to recover damages for or to be indemnified against damage or destruction so far as the right of action is not satisfied by payment or recovery of compensation under that sub-section.

(5) If a person is convicted of stealing or attempting to steal a motor car, the judge or court, whether or not that person is released on probation, must—

(a) if the offender holds a licence under the Motor Car Act 1958 either—

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(i) cancel that licence and, if the judge or court thinks fit, also disqualify the offender from obtaining any such licence for such further time after the expiration of the licence cancelled as the judge or court thinks fit; or

(ii) suspend that licence for such time as the judge or court thinks fit; or

(b) if the offender does not hold any such licence, declare the offender disqualified from obtaining any such licence for such time as the judge or court thinks fit.

(6) Subject to this Act, the provisions of section 26 of the Motor Car Act 1958 extend and apply to and in respect of convictions for stealing or attempting to steal a motor car with all necessary modifications and, in particular, with the modifications that references therein to a Magistrates' Court and to the clerk of a Magistrates' Court are to be taken to include references to the Supreme Court and the County Court and to the Prothonotary and the registrar of the County Court and references to appeal to the County Court are to be taken to include references to appeal to the Full Court.

Magistrates' Court may discharge offender making amends.

94. Where a person is summarily convicted of an offence against any of the provisions of Division 2 or 3 of Part I. of the Crimes Act 1958 and it is a first conviction, the convicting Magistrates' Court may discharge the offender from conviction upon the offender making such satisfaction to the party aggrieved for damages and costs or either of them as is ascertained by the court.

Cancellation of driver's licence upon conviction for certain offences.

95. (1) Upon any conviction for manslaughter arising out of the driving of a motor car by the convicted person, for the indictable offence referred to in section 26 of the Crimes Act 1958 in respect of bodily injury arising out of the driving of a motor car by the convicted person or for the indictable offence referred to in section 318 of that Act the court must, if the offender holds a licence to drive a motor car under the Motor Car Act 1958, cancel that licence and must, whether or not the offender holds any such licence, disqualify the offender from obtaining any such licence for such time, not being less than 2 years, as the court thinks fit.

(2) At the end of any period of disqualification referred to in sub-section (1) a licence to drive a motor car must not be issued to the offender except upon the order of a Magistrates' Court and no application for such an order shall be made to the court unless at least

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28 days notice of intention so to apply has been given in writing to the Chief Commissioner of Police and to the clerk of the court.

PART 11—MISCELLANEOUS PROVISIONS

Meaning of "penalty units".

96. If in any Act or subordinate instrument there is a statement of a number (whether whole or fractional) of what are called "penalty units" that statement is, unless the context otherwise requires, to be construed as stating a number of dollars equal to the product obtained by multiplying $ 100 by that number of penalty units.

Method of imposing penalties.

97. (1) If a pecuniary or other penalty is set out— {a) at the foot of a section of an Act; or {b) at the foot of a sub-section of a section of an Act but not at

the foot of the section; or (c) at the foot of a section of an Act or a sub-section of a section

of an Act and expressed to apply to part only of the section or sub-section (as the case requires)—

the penalty so set out is to be construed as indicating that a contravention (whether by act or omission) of the section, sub-section or part, respectively, is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so set out.

(2) If a pecuniary or other penalty is set out— (a) at the foot of a regulation, rule or by-law; (b) at the foot of—

(i) a sub-regulation of a regulation but not at the foot of the regulation; or

(ii) a sub-rule of a rule but not at the foot of the rule; or (iii) a clause of a by-law but not at the foot of the by-law; or

(c) at the foot of— (i) a regulation, rule or by-law; or

(ii) a sub-regulation of a regulation, sub-rule of a rule or clause of a by-law—

and expressed to apply to part only of the regulation, rule, by-law, sub-regulation, sub-rule or clause (as the case requires)—

the penalty so set out is to be construed as indicating that a contravention (whether by act or omission) of the regulation, rule, by-law, sub-regulation, sub-rule, clause or part, respectively, is an offence against the instrument containing the regulation, rule or by-law, punishable on conviction by a penalty not exceeding the penalty so set out.

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Time and place of sentence.

98. (1) Whenever a sentence may be lawfully imposed for an No 6231 s 479

indictable offence it may be imposed in open court at any time and at any place in Victoria at which sittings of the Supreme Court or the County Court (as the case may be) are held and the judge presiding at the trial or receiving any plea of guilty or any other judge empowered to impose sentence may, when the judge thinks it desirable in the interest of justice so to do and from time to time if necessary, fix or indicate by reference to some fact or event the time and fix the place at which the sentence is to be imposed.

(2) The judge who is to impose sentence for an indictable offence may—

(a) release the person to be sentenced on recognizances conditioned for that person's appearance at the proper time and place; or

(b) make an order or orders for the removal in custody of the person to be sentenced from one place in Victoria to another.

(3) A person to be sentenced for an indictable offence is, while in custody pending the imposition of the sentence, to be taken to be in the lawful custody of the gaoler or other officer having the custody of that person.

(4) This section is not to be construed as being in derogation of the powers possessed by a judge under this or any other Act or at common law.

Sentence by judge other than judge presiding at trial or receiving plea.

99. (1) When upon the trial of an indictable offence a verdict of NO. 6231 guilty has been found or a plea of guilty has been received but no andoi. judgment or sentence has been given or passed thereon and the judge presiding at the trial ceases for any reason to be such a judge or it appears to be probable that by reason of incapacitating illness or other serious cause the judge will be unable within a reasonable time to give judgment or pass sentence, any other judge of the Supreme Court or the County Court (as the case may be) may in open court take (if necessary) all steps preliminary to the giving of judgment or the passing of sentence and may give judgment or pass sentence which for all purposes has the same effects and consequences as if it had been given or passed by the judge presiding at the trial.

(2) In all cases where it is possible so to do the judge presiding at the trial shall be consulted before judgment is given or sentence is passed under sub-section (1) but non-compliance with this provision does not affect the validity of the judgment or sentence.

(3) The question whether it appears probable that the judge presiding at the trial will be unable for the causes mentioned in sub-section (1) within a reasonable time to give judgment or pass

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sentence shall be decided by The Chief Justice of the Supreme Court or the Chief judge of the County Court (as the case requires) after such inquiry or upon such information as he or she thinks fit and his or her decision shall not be challenged on any ground whatsoever.

(4) When upon the trial of an indictable offence a verdict of guilty has been found or a plea of guilty has been received and all preliminary steps necessary for the giving of judgment or the passing of sentence have been taken but no judgment or sentence has been given or passed, any other judge of the Supreme Court or the County Court (as the case may be) may give any judgment or pass any sentence determined by the judge presiding at the trial and that judgment or sentence for all purposes has the same effects and consequences as if it had been given or passed by the judge presiding at the trial.

(5) If upon arraignment for or at any time before the commencement of the trial of an indictable offence the accused person pleads guilty any judge of the Supreme Court or the County Court (as the case may be) other than the judge receiving that plea may take (if necessary) all steps preliminary to the giving of judgment or passing of sentence and may give judgment or pass sentence upon the person so pleading guilty and that judgment or sentence for all purposes has the same effects and consequences as if it had been given or passed by the judge who received the plea.

(6) This section is not to be construed as being in derogation of the powers possessed by a judge under this or any other Act or at common law.

Correction of sentences by Supreme Court.

100. (1) If a person has been sentenced by a court (whether at first instance or on appeal) for an offence and application is made to the Supreme Court for an order of certiorari to remove the proceedings into the Supreme Court, and the Supreme Court determines that the court had no power to impose the sentence imposed, the Supreme Court may, instead of quashing the conviction, amend the conviction by substituting for the sentence imposed a sentence which the court had power to impose.

(2) A sentence of imprisonment imposed by the Supreme Court under sub-section (1), unless the Supreme Court otherwise directs, commences on the day the sentence upon the conviction removed into the Supreme Court took effect or would have taken effect had the proceedings not been so removed but in calculating the term to be served under the sentence any time during which the offender was at large on bail or otherwise is to be disregarded.

(3) Sub-sections (1) and (2) extend and apply, with such modifications as are necessary, with respect to any order which is made on but does not form part of the conviction of an offender in all respects

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as if any reference in those provisions to a conviction or sentence included a reference to such an order.

Discharge of persons under committal for indictable offence.

101. (1) The Attorney-General or the Director of Public N0.e23is.357. Prosecutions may, in respect of any person imprisoned under committal for trial for an indictable offence, grant at any time a certificate in the form of Schedule 2 addressed to the judges of the Supreme Court or any one of them, who shall thereupon by warrant in the form of Schedule 3 order and direct the sheriff or officer in charge of the prison in whose custody the prisoner is, to discharge the prisoner from imprisonment in respect of the offence mentioned in the warrant, immediately and without fee or reward.

(2) A sheriff or officer in charge of a prison who refuses or fails to comply with a warrant issued under sub-section (1) must forfeit and pay to the use of Her Majesty a penalty of 5 penalty units, to be recovered by action in the name of the Attorney-General or the Director of Public Prosecutions.

Court may order withdrawal of trifling or technical cases.

102. (1) If on the trial of a person for an offence under the No.623is.i83. subdivision bearing the heading "Secret Commissions Prohibition" in Division 2 of Part I. of the Crimes Act 1958 it appears to the court that the offence charged is in the particular case of a trifling or merely technical nature or that in the particular circumstances it is inexpedient to proceed to a conviction, the court may, for reasons stated on the application of the accused, withdraw the case from the jury and this has the same force and effect as if the jury had returned a verdict of not guilty except that the court may, if it thinks fit, order the accused to pay to such person and in such manner as the court directs the amount or value according to the estimation of the court of any valuable consideration received or given by the accused or any part thereof.

(2) An order under sub-section (1) is enforceable as a judgment of the court.

Conviction for treason or indictable offence to be a disqualification for offices, &c.

103. (1) If a person is convicted of treason or a serious indictable NO. 6231 s.544. offence and sentenced to imprisonment for life or a period of twelve months or more and at the time of the conviction that person holds any office under the Crown or other public employment or is entitled to any pension or superannuation allowance payable by the public or out of any public fund, the office or employment shall forthwith become vacant and the pension or superannuation allowance shall forthwith determine and cease to be payable unless the person receives a free pardon within two months after the conviction or before the office or employment is filled up.

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(2) A person who is convicted of treason or a serious indictable offence and sentenced to imprisonment for life or a period of twelve months or more is, until that person has suffered the punishment to which that person has been sentenced or such other punishment as may be substituted by a competent authority or received a free pardon, incapable of holding any office under the Crown or other public employment.

(3) In this section "serious indictable offence" means an indictable offence which, by virtue of any enactment, is punishable on first conviction by imprisonment for life or for a term of 5 years or more.

Effect where punishment suffered for indictable offence.

NO. 6231 104. Without limiting the operation of any enactment expressly disqualifying a person who has been convicted of an indictable offence from holding any office or place, if a person who has been convicted of an indictable offence has suffered the punishment awarded, the punishment so suffered has the like effect and consequence as a pardon under the great seal as to that indictable offence.

Application of penalties and fees.

NO.9554s. 6. io5. ( l ) All fines, penalties and sums of money which under and by virtue of any Act are authorized or directed to be imposed on any person shall, where no other mode of appropriating or applying them is prescribed by law, form part of and be paid into the Consolidated Fund.

(2) Where a mode of appropriating or applying a part of such a fine, penalty or sum of money as is referred to in sub-section (1) is prescribed by law and no mode of appropriating or applying the residue thereof is so prescribed, the residue shall be paid into the Consolidated Fund.

Penalties for offences may be remitted.

NO. 9554 s. 7. 106. The Governor may remit in whole or in part any sum of money which is imposed under any Act as a penalty or forfeiture, although such money may be in whole or in part payable to some party other than the Crown, and may order the discharge from prison of any person who is imprisoned for non-payment of any sum of money so imposed, although' such sum is in whole or in part payable to some party other than the Crown.

Penalty payable to corporation.

NO. 9554 s. e. 107. If under an Act relating to an offence (whether punishable as an indictable offence or on summary conviction) any forfeiture or penalty is payable to a party aggrieved/it is payable to a body corporate in every case where a body corporate is the party aggrieved.

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Application of compensation and penalties.

108. (1) Every sum of money which under Division 2 or 3 of Part N° 6231 s. 482. I. of the Crimes Act 1958 is forfeited on any summary conviction for the value of any property stolen or taken or for the amount of any injury done shall, subject to the Crimes Act 1958, be paid to the party aggrieved, except where that party is unknown, and in that case that sum shall be paid and applied to the Consolidated Fund.

(2) Where several persons join in the commission of the same NO. 6231 s. 483. offence and upon conviction thereof each is adjudged to forfeit a sum equivalent to the value of the property or to the amount of the injury, no further sum shall be paid to the party aggrieved pursuant to sub-section (1) than such value or amount and the remaining sum or sums forfeited shall be paid and applied to the Consolidated Fund.

Summary conviction discharge, &c. a bar to further proceedings.

109. A person convicted of an offence punishable upon summary NO.623IS.4BI. conviction by virtue of any of the provisions of Division 2 or 3 of Part I. of the Crimes Act 1958 who has paid the sum adjudged to be paid together with costs under the conviction, or has received a remission thereof from the Crown, or has suffered the imprisonment awarded for non-payment thereof or the imprisonment adjudged in the first instance, or has been discharged from conviction under section 94, must be released from all further or other proceedings for the same cause.

Construction of references to previous convictions.

110. (1) If an Act or a provision of an Act (whether the Act was NO. 9554 s. 4. passed before or after the commencement of this section) is repealed and substantially re-enacted (whether in the same language or not) then, unless the contrary intention appears, any reference in an Act or subordinate instrument to—

(a) a previous conviction or offence under the re-enacted Act or provision; or

(b) a second, third or subsequent conviction or offence under the re-enacted Act or provision—

is to be construed as extending and having regard to any conviction or offence under the repealed Act or provision or any corresponding previous Act or provision.

(2) If a subordinate instrument or a provision of a subordinate instrument (whether the subordinate instrument was made before or after the commencement of this section) is revoked and substantially re-made (whether in the same language or not) then, unless the contrary intention appears, any reference in a subordinate instrument of Act to—

(a) a previous conviction or offence under the re-made subordinate instrument or provision; or

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(b) a second, third or subsequent conviction or offence under the re-made subordinate instrument or provision—

is to be construed as extending and having regard to any conviction or offence under the revoked subordinate instrument or provision or any corresponding previous subordinate instrument or provision.

(3) For the purposes of sub-sections (1) and (2)— (a) a conviction of or offence by a person under the repealed

Act or provision or any corresponding previous Act or provision; or

(b) a conviction of or offence by a person under the revoked subordinate instrument or provision or any corresponding previous subordinate instrument or provision— .

may, in any proceedings, be proved or received in evidence and taken into account in relation to that person in the same manner and to the same extent as it might be if it were a conviction or offence under the re-enacted Act or provision or the re-made subordinate instrument or provision (as the case requires) and has the same force and effect as such a conviction or offence.

(4) This section applies in relation to a conviction or offence under a repealed Act or provision or a corresponding previous Act or provision and to a conviction or offence under a revoked subordinate instrument or provision or a corresponding previous subordinate instrument or provision notwithstanding any variation made with respect to the offence in a re-enactment or re-making thereof being a variation—

(a) of the penalty that may be imposed in respect of the offence; or

(b) of the procedure in or in relation to the prosecution, hearing or trial of the offence; or

(c) of the classification of the offence as a felony, misdemeanour, indictable or summary offence; or

(d) of the name of the offence— if the acts, omissions, matters, circumstances or things constituting the offence under the repealed Act or provision or corresponding previous Act or provision or under the revoked subordinate instrument or provision or corresponding previous subordinate instrument or provision (as the case requires) constitute the offence under the re-enacted Act or provision or the re-made subordinate instrument or provision (as the case requires).

(5) In this section "made", in relation to a subordinate instrument, includes issued or granted.

Forfeiture, &c. abolished.

111. (1) A confession, verdict, inquest, conviction or judgment of or for any treason or any indictable offence does not cause any attainder or corruption of blood or any forfeiture or escheat.

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(2) There shall be no forfeiture of any chattel which may have moved to or caused the death of any human being for or in respect of that death.

Saving of royal prerogative of mercy.

112. Nothing in this Act in any manner affects Her Majesty's royal prerogative of mercy.

Regulations.

113. The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

Repeal and amendment of other Acts.

114. On the coming into operation of an item in Schedule 4, the Act referred to in that item is repealed or amended as set out in that item.

Amendment of the Children's Court Act 1973.

115. The Children's Court Act 1973 is amended as follows:

(a) \In section 26 (2) (a)— 1 (i) for "concurrently" substitute "cumulatively"; (ii) for "cumulatively" (where first occurring) substitute

"concurrently"; (b) In section 44 (2) (a) for "cumulative upon" (where twice

occurring) substitute "served concurrently with"; (c) Section 44 (2) (b) is repealed; (d) In section 55—

(i) for "55. Where" substitute "55. (1) Where"; (ii) at the end of the section insert—

"(2) Without affecting the generality of sub-section (1), a court (other than a children's court) in dealing with a child may release the child on probation in the same manner in which such a child might be released on probation by a children's court and where a court so deals with the child the provisions of this Act apply as if the child had been released on probation under this Act.".

No. 6231 s. 505. No. 9554 s. 12.

No. 8477. Reprinted to No. 9544. Subsequently amended by Nos. 9879,9902, 9992,10080 and 10084.

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SCHEDULE 1 Section 10

FORMS FOR USE WHERE OTHER OFFENCES TAKEN INTO ACCOUNT IN SENTENCING

PART A

To .'

Charged with (1) .•

(2)

(3)

(4)

Before the Court at

MEMORANDUM FOR THE ACCUSED'S INFORMATION

(1) The list on the back of this form gives particulars of. other alleged offences with which you are charged.

(2) If you are convicted on the charge(s) set out above you may, before sentence is passed, ask to be allowed to admit all or any of the other offences listed on the back of this form and to have them taken into account by the court in passing sentence upon you.

(3) If at your request any of the other offences listed on the back are taken into account by the court, then—

(a) this does not amount to a conviction in respect of the other offences taken into account;

(b) the sentence that may be imposed on you by the court for each offence of which you have in fact been convicted cannot exceed the maximum that might have been imposed for it if there had been no taking into account of other offences listed on the back.

(4) No further proceedings may be taken against you in respect of any other offences taken into account at your request unless your conviction for the offence(s) above is quashed or set aside.

(5) If any proceedings are taken against you in respect of any offence that you have asked to have taken into account your admission of that offence cannot be used as evidence against you in those proceedings.

Signature of (member of police force) or (Prosecutor for the Queen) or (Director of Public Prosecutions)

Date .:

Signature of accused acknowledging receipt of a copy of this document

Date

PARTB CERTIFICATE

In sentencing for the offence(s) of

1 '.

2

3

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1985 Penalties and Sentences • No. 10260 63

SCHEDULE {—continued

this day the court has taken into account the following offences alleged against and admitted by the accused, that is to say the offences numbered on the back hereof.

Dated (Judge)

or (Stipendiary Magistrate)

PARTC

Place where offence Description of offence Number committed Date of offence (with particulars)

1 2 3 4

etc.

SCHEDULE 2 Section 101 (1) CERTIFICATE

To the Judges of the Supreme Court of Victoria or any one of them.

This is to certify that I decline to file any presentment against E.F. detained in the custody of the sheriff or the officer in charge of the prison at under upon a charge of

Given under my hand this day of

J.H.K. Attorney-General [or Director of Public Prosecutions]

SCHEDULE 3 Section 101(1)

WARRANT

To the Sheriffor Officer in charge of the Prison at inVictoria.

Whereas E.F. is detained in your custody under upon a charge of and whereas it has been certified to me by J.H.K. Her Majesty's Attorney-General [or Director of Public Prosecutions] that he or she declines to file any presentment against the said E.F. for the said offence you are therefore hereby authorized and required forthwith to discharge the said E.F. from your custody upon the said warrant.

Given under our [or my] hand this day of

> Judges [or Judge] of the Supreme Court. M.N. J

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SCHEDULE4

AMENDMENTS AND REPEALS

Section 114

Item No. Act Extent of Amendment or Repeal

Community Welfare Services Act 1970

2. Community Welfare Services Act 1970

3. Community Welfare Services Act 1970

4. Crimes Act 1958

Section 99— Repeal sub-sections (1) and (3).

Section 122— Repeal sub-sections (1), (2), (3), (4), (5), (6) and (7).


Section 173— Repeal the section.






Section 202A— Repeal the section.

Section 122— Repeal sub-sections (1 A) and (1 B).

Section 1 9 8 E -(1) Omit "an attendance centre

appointed under section 42 of the Penalties and Sentences Act 1981", substitute "a community corrections centre within the meaning of Part 5 of the Penalties and Sentences Act 1985";

(2) In paragraph (a) omit "an attendance centre order", substitute "a community-based'order";

(3) Paragraph (b) is repealed.

Section 94— Repeal the secton.






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SCHEDULE 4—continued


Section 472— Repeal sub-section (1).

















5. Crimes Act 1958 Section 376 (4) (&)— Omit "upon probation", substitute "on a community-based order that includes a condition referred to in section 29 (2) (c) of the Penalties and Sentences Act 1985".

Section 507— In sub-sections (1) and (2) for "this Act" substitute "Part 5 of the Penalties and Sentences Act 1985".

Section 507 (4)— Repeal the sub-section.


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Section 51 5A— Repeal the section.







Section 567A (1A)— Omit "probation order made under Division 1 of Part VI., an adjournment under section 44 of the Penalties and Sentences Act 1981", substitute "community-based order that includes a condition referred to in section 29 (2) (c) of the Penalties and Sentences Act 1985, an adjournment under Part 9 of that Act".

Section 568 (4)— Omit "and including an order for probation".

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Item No. Act Extent ojAmendment or Repeal

6. Crimes Act 1958 Part IV.— Repeal the Part.

7. Firearms Act 1958 Section 31 (2)— (1) For paragraph (b), substitute—

"(b) is at large pursuant to a community-based order that includes a condition referred to in section 29 (2) (c) of the Penalties and Sentences Act 1985;".

(2) Omit "the probation period", substitute "period of the community-based order".

(3) Omit "his discharge from probation", substitute "the ending of the community-based order".

Section 37(1)— Omit "had a probation order made against him under section five hundred and eight of the Crimes Act 1958", substitute "been made subject to a community-based order that includes a condition referred to in section 29 (2) (c) of the Penalties and Sentences Act 1985".

8. Interpretation of Legislation Act 1984 Section 38 (definition of "penalty unit")— Omit "section 5 of the Penalties and Sentences Act 1981", substitute "section 96 of the Penalties and Sentences Act 1985".

9. Juries Act 1967 Schedule 2— In paragraph 4 omit "probation order", substitute "community-based order that includes a condition referred to in section 29 (2) (c) of the Penalties and Sentences Act 1985".

10. Magistrates'Courts Act 191 \ Section 56— Repeal the section.



Section 69(1)— Omit "and may sentence him to be imprisoned for a term of not more than two years,".

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11. Magistrates' Courts Act 1971

12. Magistrates (Summary Proceedings) Act 1975

Section 71(1)— Repeal the sub-section.

Section 71(2)— (1) Omit "under sub-section (1)",

substitute "under section 5 (b) of the Penalties and Sentences Act 1985";

(2) Omit "under this section". Section 72—

Repeal the section. Section 74 (2)—

Omit "probation order made under Division 1 of Part IV. of the Crimes Act 1958", substitute "community-based order that includes a condition referred to in section 29 (2) (c) of the Penalties and Sentences Act 1985".

Section 77 (7)— Omit "and including an order for probation".

Section 80 Repeal the section.


Section 106(l)(c)— Omit "section 84A (a) of this Act or section 1 3G (1) of the Penalties and Sentences Act 1981", substitute "section 79 (2) (a) or 68 of the Penalties and Sentences Act 1985".

Section 106 (1) (rf)— Omit " 1 3K (1) of the Penalties and Sentences Act 1981", substitute "the Penalties and Sentences Act 1985".

Section 106(1 )(/)(ii)— Omit "84A (a)", substitute "79 (2) (a) of the Penalties and Sentences Act 1985".

Section 106(1) (/))— (1) Omit "84A (C)", substitute "79

(2) (c) of the Penalties and Sentences Act 1985".

(2) Omit" 1 3L (10) of the Penalties and Sentences Act 1981 as applied by section 84A (C) of this Act", substitute "71 (1) of the Penalties and Sentences Act 1985 as applied by section 79 (2) (c) of that Act".

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13. Magistrates (Summary Proceedings) Act 1975

14. Motor Car Act 1958

15. Penalties and Sentences Act 1981


Section 106 (1) (/)— Omit "84A (C)", substitute "79 (2) (c) of the Penalties and Sentences Act 1985".




Section 106 (1)(/)— Omit "1981 a community service order be made", substitute "1985 a community-based order be made".

Section 89 (A)— Omit "section 80 of the Magistrates (Summary Proceedings) Act 1975", substitute "Part 9 of the Penalties and Sentences Act 1985".



Part I.— Repeal the Part.

Part I A -Repeal the Part.

Part IV.— Repeal the Part.

Part V.— Repeal the Part.

Part VI.— Repeal the Part.

Part VII.— Repeal the Part.

Section 15(1)— After "way" insert "or in addition to sentencing the offender to a term of imprisonment of not more than 3 months".

Section 15— After sub-section (3) insert—

"(4) A community service order commences on the day on which it is made or on such later day as is specified by the court.

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(5) A court must not specify a commencement date for a community service order that is more than 3 months after the day on which the order is made.".

Section 17 (a)— After "exist" insert "or will exist at the commencement of the order".


Section 26 (5)— For "date" substitute "commencement date".

Section 31 (2)— Repeal paragraph (c).




Section 36(1)— For "section 476 of the Crimes Act 19S8 and section 56 of the Magistrates' Courts Act 1971" substitute "section 5 (c) (ii) of the Penalties and Sentences Act 1985".

Section 36(1) (b).(i)— After "available" insert "or will reasonably be available at the commencement of the order".

Section 36— After sub-section (4) insert—

"(5) An attendance centre order commences on the day on which it is made or on such later day as is specified by the court.

(6) A court must not specify a commencement date for an attendance centre order that is more than 3 months after the day on which the order is made.".

Section 40(1)— Repeal paragraph (b).

17. Penalties and Sentences Act 1981 Section 15— Repeal the section.

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Item No. Act . Extent of Amendment or Repeal








Section 24— For "this Part" substitute "Part 5 of the Penalties and Sentences Act 1985".



For section 27 substitute— Legal custody "27. (1) A person in respect of whom a community-based order under section 28 of the Penalties and Sentences Act 1985 is in force is to be taken to be in the legal custody of the Director-General or of an officer authorized by the Director-General in such circumstances as are prescribed.

(2) A person who by virtue of sub-section (1) is in the legal custody of the Director-General or an officer authorized by the Director-General is subject to the direction and control of the Director-General or that officer, as the case requires.".






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19. Supreme Court Act \ 958









Section 42— In sub-sections (1), (3), (4) and (5) for "this Part" (wherever occurring) substitute "Part 5 of the Penalties and Sentences Act 1985".

Section 42 (3)— Omit "in respect of whom attendance centre orders are made".

Section 42 (5)— Omit the expression commencing "and shall be the" and ending at the end of the sub-section.


Section 1(1)— Repeal the sub-section.








Section 1 78A— Repeal the section.

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20. Victorian Prison Industries Commission Section 2 (definition of "prisoner")— >lc/ 1983 (1) Repeal paragraph (a).

(2) Omit "or (&)". 21. Prisoners (Interstate Transfer) Act 1983 Section 4 (definition of "sentence of

imprisonment")— Omit "or by attendance at an

attendance centre within the meaning of the Penalties and Sentences Act 1981".

NOTES

1. Minister's second reading speech—

Legislative Council: 23 October 1985 Legislative Assembly: 21 November 1985

2. The long title for the Bill for this Act was "A Bill to revise and restate the sentencing powers of courts, to enable courts to make community-based orders and to suspend sentences of imprisonment, to repeal the Penalties and Sentences Act 1981, to make consequential amendments to various Acts and for other purposes.".

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