S. 3(1) def. of repealed by No. 19/1999 s. 16(1). * * * * * S. 3(1) def. of home detention order inserted by No. 53/2003 s. 3, substituted by No. 30/2010 s. 3(b). home detention order means an order made under section 26M; S. 3(1) def. of hospital security order inserted by No. 69/2005 s. 3(1)(a). hospital security order means— (a) an order made under section 93A; or (b) an order made under section 16A of the Mental Health Act 1986; S. 3(1) def. of indefinite sentence inserted by No. 41/1993 s. 4(c). indefinite sentence means a sentence of imprisonment for an indefinite term imposed under Subdivision (1A) of Division 2 of Part 3; S. 3(1) def. of inspector repealed by No. 43/2010 s. 48(1)(a). * * * * * instalment order means an order made under Division 4 of Part 3 that a fine be paid by two or more instalments and includes such an order as varied under that Division; intensive correction order means an order made under section 19(1) that a term of imprisonment be served by way of intensive correction in the community; s. 3 involuntary patient has the same meaning as in the Mental Health Act 1986;
S. 3(1) def. of nominal sentence inserted by No. 41/1993 s. 4(d). nominal sentence, in relation to an indefinite sentence, means the period fixed in accordance with section 18A(3); non-parole period, in relation to a sentence of imprisonment, means a period fixed in accordance with Subdivision (1) of Division 2 of Part 3 during which the offender is not eligible to be released on parole; S. 3(1) def. of operational period amended by No. 48/1997 s. 14(1)(a). operational period, in relation to a sentence of imprisonment suspended under section 27, means the period for which the whole or a part of the sentence is suspended under section 27(1); personal development condition in relation to a community-based order, means the condition referred to in section 38(1)(c); S. 3(1) def. of prescribed officer substituted as prescribed person by No. 48/1997 s. 14(1)(b). prescribed person means a person prescribed under the regulations; prisoner has the same meaning as in the Corrections Act 1986; prison offence has the same meaning as in Part 7 of the Corrections Act 1986; proper officer, in relation to a court, means the officer or officers of that court prescribed by rules of that court for the purpose of the provision in which the term is used; s. 3 proper venue, in relation to the Magistrates' Court, has the same meaning as in the Magistrates' Court Act 1989;
(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii); S. 5(2A)(b) amended by No. 108/1997 s. 156(b). (b) must not have regard to a forfeiture order made under that Act in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by any person as a result of the commission of the offence; s. 5 (c) may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence; (d) must not have regard to a pecuniary penalty order made under that Act to the extent to which relates to profits (as opposed to benefits) derived from the commission of the offence; S. 5(2A)(e) inserted by No. 108/1997 s. 156(c), amended by Nos 63/2003 s. 50(2), 87/2004 s. 24(a). (e) subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act. S. 5(2B) inserted by No. 90/1991 s. 34, amended by No. 108/1997 s. 156(d). (2B) Nothing in subsection (2A) prevents a court from having regard to a forfeiture order or civil forfeiture order made under, or automatic forfeiture occurring by operation of, the Confiscation Act 1997 as an indication of remorse or co-operation with the authorities on the part of the offender.
S. 5(2BD) inserted by No. 91/2009 s. 219(Sch. 3 item 2.2). (2BD) In sentencing an offender, a court— (a) must not have regard to the fact that the offender is subject to an order made under the Serious Sex Offenders (Detention and Supervision) Act 2009 but, if relevant to the conditions of any sentence imposed by it, may have regard to the conditions (if any) imposed on that order and the terms of any current directions or instructions given by the Adult Parole Board under section 119, 120(2) or 121 of that Act; (b) must not have regard to any possibility or likelihood of an application being made under that Act for an order in respect of the offender. S. 5(2BE) inserted by No. 91/2009 s. 219(Sch. 3 item 2.2). (2BE) For the purposes of subsection (2BD)(a), the court may request the Secretary to the Department of Justice to provide it with a report setting out— (a) the conditions of the supervision order or interim supervision order to which the offender is subject under that Act; and (b) the terms of any current directions or instructions given by the Adult Parole Board under section 119, 120(2) or 121 of that Act in relation to that order. S. 5(2C) inserted by No. 60/1993 s. 26, amended by Nos 35/1999 s. 37(1)(a)(b), 68/2009 s. 97(Sch. item 110.2). (2C) In sentencing an offender a court may have regard to the conduct of the offender on or in connection with the trial or hearing as an indication of remorse or lack of remorse on his or her part. s. 5
S. 6AE(c) amended by No. 18/2005 s. 18(Sch. 1 item 97.2). (c) any views stated by the Sentencing Advisory Council and any submissions made by the Director of Public Prosecutions or a lawyer under section 6AD. S. 6AF inserted by No. 13/2003 s. 4, amended by No. 68/2009 s. 97(Sch. item 110.5). 6AF Use of evidence in giving or reviewing guideline judgment s. 6AF Nothing in Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009 limits the evidence or other matters that the Court of Appeal may take into consideration in giving or reviewing a guideline judgment and the Court may inform itself as it sees fit. S. 6AG inserted by No. 13/2003 s. 4. 6AG Relationship between guideline judgments and other sentencing matters A guideline in a guideline judgment— (a) is additional to any other matter that is required to be taken into account under Part 2; and (b) does not limit or take away from any such requirement. _______________ Pt 2A (Heading and ss 6A–6F) inserted by No. 48/1997 s. 6. S. 6A inserted by No. 48/1997 s. 6. 6A Application of Part s. 6A This Part applies to a court in sentencing—
S. 11(2) amended by No. 48/1997 s. 28(1)(2). (2) If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole. (3) A non-parole period fixed under subsection (1) or (2) must be at least 6 months less than the term of the sentence. (4) If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under subsection (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed. 12 References to non-parole period A reference in this or any other Act to a period includes a reference to a minimum term fixed in accordance with Part 3 of the Penalties and Sentences Act 1985 or any corresponding previous enactment. 13 Fixing of non-parole period otherwise than by sentencing court s. 13 S. 13(1) amended by No. 45/1996 s. 18(Sch. 2 item 11.2). (1) The failure of the sentencing court to fix a period in accordance with section 11 does not invalidate the sentence but— S. 13(1)(a) amended by No. 19/1999 s. 16(3). (a) the Court of Appeal in respect of a sentence imposed by the Supreme Court or the County Court; or (b) the County Court in respect of a sentence imposed by the Magistrates' Court— may, on the application of the offender or of the Secretary to the Department of Justice fix a period in accordance with that section in parole parole
S. 18(3) amended by Nos 53/2003 s. 4(3), 30/2010 s. 7(b). (3) If an offender was held in custody in circumstances to which subsection (1) applies, then— (a) the informant or person who arrested the offender must, if present before the court, inform it, whether from his or her own knowledge or from inquiries made by him or her, of the length of the period of custody; or s. 18 (b) if that person is not present before the court, it may take and receive other evidence (whether oral or written and whether on oath or otherwise) of the length of the period of custody. S. 18(4) amended by No. 48/1997 s. 11(3). (4) If an offender was held in custody in circumstances to which subsection (1) applies, then the court must declare the period to be reckoned as already served under the sentence and cause to be noted in the records of the court the fact that the declaration was made and its details. S. 18(4A) inserted by No. 53/2003 s. 4(4), repealed by No. 30/2010 s. 7(a). * * * * * S. 18(5) amended by No. 69/1997 s. 6(3). (5) The person with custody of the record referred to in subsection (4) must indorse on the warrant or other authority for the imprisonment or detention of the offender particulars of the matters referred to in that subsection. S. 18(5A) inserted by No. 53/2003 s. 4(5), repealed by No. 30/2010 s. 7(a). * * * * * s. 18
(o) that the offender must accept any reasonable direction of the Secretary to the Department of Justice in relation to the maintenance of or obtaining of employment; (p) that the offender must inform any employer of the home detention order and, if directed by the Secretary to the Department of Justice, of the nature of the offence that occasioned it; s. 26U (q) that the offender must authorise and make reasonable attempts to facilitate contact between any employer of the offender and the Secretary to the Department of Justice; (r) that the offender must engage in personal development activities or in counselling or treatment programs, as directed by the Secretary to the Department of Justice; (s) that the offender must undertake unpaid community work (not exceeding 20 hours per week) as directed by the Secretary to the Department of Justice when not otherwise employed; (t) that the offender must not possess or have in his or her control— (i) any firearm; or (ii) any prohibited weapon within the meaning of the Control of Weapons Act 1990; or (iii) any controlled weapon or dangerous article within the meaning of the Control of Weapons Act 1990 in contravention of that Act; (u) that the offender must comply with any order made under section 84 or 86(1) (whether
(5) A warrant endorsed or issued by the sheriff in accordance with subsection (4) directs and authorises the person to whom it is directed to do all things that he or she would have been directed and authorised to do by the original warrant if it had been directed to him or her. (6) A warrant to arrest directed to a named bailiff or member of the police force may be executed by any bailiff or member of the police force, as the case requires. S. 62(7) amended by No. 41/1993 s. 15(1). (7) A warrant under this section must not be executed unless the fine or instalment or any part of the fine or instalment together with all warrant costs remain unpaid for 7 days after a demand is made on the person in default by a person authorised to execute the warrant and the person in default has not within that period— (a) obtained an instalment order or time to pay order; or S. 62(7)(b) amended by Nos 69/1997 s. 8(3), 10/2004 s. 15(Sch. 1 item 27.4). (b) if the amount of the fine or instalment remaining unpaid is not more than an amount equivalent to the value of 100 penalty units, consented to the making by the court of a community-based order requiring him or her to perform unpaid community work as directed by the Regional Manager for a number of hours fixed in accordance with section 63(2). S. 62(7A) inserted by No. 41/1993 s. 15(2). s. 62 (7A) In making an order in accordance with subsection (7)(a) or (b), the court or the proper officer may include any warrant costs in the amount of the fine.
(e) adjourn the hearing or further hearing of the matter for up to 6 months on any terms that it thinks fit. S. 62(10AA) inserted by No. 69/1997 s. 8(5), amended by No. 10/2004 s. 15(Sch. 1 item 27.5). s. 62 (10AA) A court cannot make an order under this Division in respect of a fine that would result in an offender performing unpaid community work in respect of more than an amount equivalent to the value of 100 penalty units of the amount of the fine. S. 62(10A) inserted by No. 41/1993 s. 13(c). (10A) If a person who was arrested on a warrant under this section and released on bail (either in accordance with the endorsement on the warrant or under section 10 of the Bail Act 1977) fails to attend before the court in accordance with his or her bail, the court may proceed to hear and determine the matter under subsection (10) in the offender's absence and make any order under that subsection without prejudice to any right of action arising out of the breach of the bail undertaking. S. 62(10B) inserted by No. 41/1993 s. 13(c). (10B) If a warrant to arrest issued under this section against an offender has not been executed within a reasonable period after it was issued or no warrant to arrest was issued against an offender under this section, the court may proceed to hear and determine the matter under subsection (10) in the offender's absence and make any order under that subsection if it is satisfied that the warrant has not been executed or was not issued only because the offender is not in Victoria. S. 62(11) amended by No. 41/1993 s. 13(d). (11) A court must not make an order under paragraph (b) of subsection (10) if the offender satisfies the court that he or she did not have the capacity to pay the fine or the instalment or had another reasonable excuse for the non-payment.
S. 70(2) inserted by No. 48/1997 s. 20(2). (2) For the purpose of any proceedings under Subdivision (4), an order made under this Division on appeal by the Court of Appeal must be taken to have been made by the court from whose decision the appeal was brought. 71 Abolition of common law bonds s. 71 A court does not have jurisdiction to release a convicted offender on a recognisance or bond to be of good behaviour and to appear for sentence when called on. Subdivision (2)—Release on conviction 72 Release on adjournment following conviction S. 72(1) amended by No. 48/1997 s. 28(3). (1) A court, on convicting a person of an offence, may adjourn the proceeding for a period of up to 5 years and release the offender on the offender giving an undertaking with conditions attached. (2) An undertaking under subsection (1) must have as conditions— S. 72(2)(a) amended by No. 68/2009 s. 97(Sch. item 110.49). (a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and (b) that the offender is of good behaviour during the period of the adjournment; and (c) that the offender observes any special conditions imposed by the court. S. 72(3) amended by No. 48/1997 s. 28(1). (3) Subject to Division 6 of Part 3, a court may impose a special condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.
Division 6—Special conditions for intellectually disabled offenders 80 Special condition of justice plans s. 80 (1) If a court finds a person guilty of an offence and is considering— S. 80(1)(a) repealed by No. 48/1997 s. 14(8). * * * * * (b) making a community-based order in respect of the person; or S. 80(1)(ba) inserted by No. 23/2006 s. 227(1). (ba) making a residential treatment order; or (c) under Subdivision (2) or (3) of Division 5 releasing the offender on an adjournment, with or without recording a conviction— it may request— S. 80(1)(d) substituted by No. 23/2006 s. 227(2). (d) a statement from the Secretary to the Department of Human Services that the person has an intellectual disability within the meaning of the Disability Act 2006; and S. 80(1)(e) substituted by No. 23/2006 s. 227(2). (e) a plan of available services; and (f) a pre-sentence report prepared in accordance with Division 2 of Part 6. S. 80(2) amended by No. 48/1997 s. 28(1), substituted by No. 23/2006 s. 227(3). (2) If the court receives the statement, plan and report referred to in subsection (1) and, after having considered them, the court decides to— (a) impose a sentence referred to in subsection (1)(b) or (1)(c), the court may impose a special condition that the offender participate
S. 87 amended by Nos 108/1997 s. 156(g), 19/1999 s. 12(3). 87 Enforcement of compensation order s. 87 Subject to section 30 of the Confiscation Act 1997, an order under section 86(1), including costs ordered to be paid by the offender on the proceeding for that order, must be taken to be a judgment debt due by the offender to the person in whose favour the order is made and payment of any amount remaining unpaid under the order may be enforced in the court by which it was made. Pt 4 Div. 2A (Heading and ss 87A, 87B) inserted by No. 81/1996 s. 75. Division 2A—Recovery of assistance paid under Victims of Crime Assistance Act 1996 S. 87A inserted by No. 81/1996 s. 75. 87A Recovery of assistance paid under Victims of Crime Assistance Act 1996 s. 87A (1) If— (a) a court finds a person guilty of, or convicts a person of, a relevant offence within the meaning of the Victims of Crime Assistance Act 1996; and S. 87A(1)(b) amended by No. 54/2000 s. 23(1)(a)(b). (b) an award of assistance was made or varied under that Act in respect of an injury (including a significant adverse effect within the meaning of that Act that in accordance with that Act is required to be regarded as an injury) or death that directly resulted from that offence—
like effect and consequence as a pardon under the great seal. (2) Subsection (1) does not limit the operation of any enactment that expressly disqualifies a person who has been convicted of an indictable offence from holding any office. 89 Cancellation or suspension of driver licence S. 89(1) amended by Nos 57/1998 s. 26(1), 59/2004 s. 9(1)(c). (1) If a person is found guilty of— (a) manslaughter arising out of the driving of a motor vehicle by the offender; or (b) an offence under section 24 of the Crimes Act 1958 in respect of serious injury arising out of the driving of a motor vehicle by the offender; or S. 89(1)(c) amended by Nos 59/2004 s. 9(1)(a), 93/2009 s. 49(1). (c) an offence under section 318 of the Crimes Act 1958 arising out of the driving of a motor vehicle (other than the operating of a vessel) by the offender; or S. 89(1)(d) inserted by No. 59/2004 s. 9(1)(b), amended by No. 93/2009 s. 49(1). (d) an offence under section 319 of the Crimes Act 1958 arising out of the driving of a motor vehicle (other than the operating of a vessel) by the offender— the court must, if the offender holds a driver licence, cancel that licence and, whether or not the offender holds a driver licence, disqualify him or her from obtaining one for such time (not being less than 18 months, in the case of an offence under section 319 of the Crimes Act 1958, or 24 months in any other case) as the court thinks fit and may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug which contributed to the offence.
S. 95B(1) amended by No. 15/2005 s. 4. (1) A victim impact statement contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence. S. 95B(1A) inserted by No. 18/2010 s. 7. (1A) A victim impact statement may include photographs, drawings or poems and other material that relates to the impact of the offence on the victim or to any injury, loss or damage suffered by the victim as a direct result of the offence. S. 95B(2) amended by No. 19/1999 s. 14(1). (2) The court may rule as inadmissible the whole or any part of a victim impact statement, including the whole or any part of a medical report attached to it. S. 95BA inserted by No. 19/1999 s. 13. 95BA Medical reports (1) A medical report may be attached to a victim impact statement. (2) In this section—
what are called penalty units, that statement must, unless the context otherwise requires, be construed as stating a number of dollars equal to the product obtained by multiplying the number of penalty units by the amount fixed from time to time by the Treasurer under section 5(3) of the Monetary Units Act 2004. (2) If in a local law made under Part 5 of the Local Government Act 1989 there is a statement of a number (whether whole, decimal or fractional) of what are called penalty units, that statement must, unless the context otherwise requires, be construed as stating a number of dollars equal to the product obtained by multiplying $100 by that number of penalty units. S. 111 amended by No. 48/1997 s. 30. 111 Location and effect of penalty provisions s. 111 A penalty set out at the foot of a provision of an Act, subordinate instrument or local law must, unless the context otherwise requires, be construed as indicating that a contravention (whether by act or omission) of the provision is an offence against the Act, subordinate instrument or local law punishable on a finding of guilt (with or without recording a conviction as required by section 7) by a penalty not exceeding that set out. 112 Classification of offences as indictable or summary S. 112(1) substituted by No. 48/1997 s. 28(6), amended by No. 69/1997 s. 16. (1) An offence that is described in a provision of an Act (other than the Crimes Act 1958 or the Wrongs Act 1958), subordinate instrument or local law as being level 1, 2, 3, 4, 5 or 6 or as being punishable by level 1, 2, 3, 4, 5 or 6 imprisonment or fine or both is, unless the contrary intention appears, an indictable offence.
S. 123 inserted by No. 54/2000 s. 24, renumbered as s. 124 by No. 2/2002 s. 6. 124 Transitional provisions—Victims of Crime Assistance (Amendment) Act 2000 (1) The amendment of this Act made by a provision of section 21 or 22 of the Victims of Crime Assistance (Amendment) Act 2000 applies to an application under section 86 of this Act for compensation for pain and suffering made before the commencement of that provision but heard or determined after that commencement, irrespective of when the offence was committed or the finding of guilt made or conviction recorded. (2) An application to which subsection (1) applies must be heard and determined as if it were an application made under Subdivision (1) of Division 2 of Part 4. (3) Subject to Subdivision (1) of Division 2 of Part 4, an application may be made under that Subdivision after the commencement of section 21 of the Victims of Crime Assistance (Amendment) Act 2000, irrespective of whether the offence was committed or the finding was made or the conviction was recorded before or after that commencement. (4) The amendment of this Act made by a provision of section 23 of the Victims of Crime Assistance (Amendment) Act 2000 applies only to an application under section 87A(1) of this Act made after the commencement of that provision. S. 125 inserted by No. 80/2001 s. 5. 125 Transitional provisions—Sentencing (Emergency Service Costs) Act 2001 s. 125 (1) The amendment of this Act made by section 4 of the Sentencing (Emergency Service Costs) Act 2001 applies only to offences alleged to have been committed on or after the commencement of that Act.
Sch. 1 4 Drug offences This clause applies to the following offences— (a) an offence against any of the following sections of the Drugs, Poisons and Controlled Substances Act 1981: Sch. 1 cl. 4(a)(i) substituted by No. 61/2001 s. 14(1). (i) section 71 (trafficking in a quantity of a drug or drugs of dependence that is not less than the large commercial quantity applicable to that drug or those drugs); Sch. 1 cl. 4(a)(ii) substituted by No. 61/2001 s. 14(1). (ii) section 71AA (trafficking in a quantity of a drug or drugs of dependence that is not less than the commercial quantity applicable to that drug or those drugs); Sch. 1 Sch. 1 cl. 4(a)(iii) substituted by No. 61/2001 s. 14(1). (iii) section 72 (cultivation of a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the large commercial quantity applicable to that narcotic plant); Sch. 1 cl. 4(a)(iv) substituted by No. 61/2001 s. 14(1). (iv) section 72A (cultivation of a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant); Sch. 1 cl. 4(a)(v) substituted by No. 61/2001 s. 14(1). (v) section 79(1) or 80(3)(a) (conspiracy) where the conspiracy is to commit an offence against section 71, 71AA, 72 or 72A of that Act or an offence under a law in force in a place outside Victoria that is a corresponding law in relation to section 71, 71AA, 72 or 72A of that Act;
Crimes Amendment (Identity Crime) Act 2009, No. 22/2009 Assent Date: 17.6.09 Commencement Date: Ss 5–7 on 1.10.09: s. 2(2) : This information relates only to the provision/s amending the Sentencing Act 1991 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009 Assent Date: 24.11.09 Commencement Date: S. 97(Sch. item 110) on 1.1.10: Government Gazette 10.12.09 p. 3215 : This information relates only to the provision/s amending the Sentencing Act 1991 Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009 Assent Date: 24.11.09 Commencement Date: S. 54(Sch. Pt 1 item 51) on 1.1.10: s. 2(2) : This information relates only to the provision/s amending the Sentencing Act 1991 Sentencing Amendment Act 2009, No. 77/2009 Assent Date: 1.12.09 Commencement Date: 2.12.09: s. 2 : All of Act in operation Justice Legislation Miscellaneous Amendments Act 2009, No. 87/2009 Assent Date: 15.12.09 Commencement Date: S. 58 on 17.12.09: Government Gazette 17.12.09 p. 3338 : This information relates only to the provision/s amending the Sentencing Act 1991 Serious Sex Offenders (Detention and Supervision) Act 2009, No. 91/2009 Assent Date: 15.12.09 Commencement Date: S. 219(Sch. 3 item 2) on 1.1.10: Government Gazette 24.12.09 p. 3397 : This information relates only to the provision/s amending the Sentencing Act 1991 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009, No. 93/2009 Endnotes Assent Date: 15.12.09 Commencement Date: S. 49(1) on 17.12.09: Government Gazette 17.12.09 p. 3339 : This information relates only to the provision/s amending the Sentencing Act 1991 Crimes Legislation Amendment Act 2010, No. 7/2010 Endnotes Assent Date: 16.3.10 Commencement Date: S. 14 on 17.3.10: s. 2 : This information relates only to the provision/s amending the Sentencing Act 1991