Penalties and Sentences Act 1985

Transcription

1 Penalties and Sentences Act 1985 No TABLE OF PROVISIONS Section 1. Purposes. 2. Commencement. 3. Definitions. PART 1 PRELIMINARY 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 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. 25. Detention in youth training centre. 26. Children's courts not affected. PART 4 YOUTH TRAINING CENTRES 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. 1129

2 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. 45. Definitions. PART 6 YOUTH ATTENDANCE ORDERS Division 1 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. 62. Breach of order. 63. Application for variation of order. Division 5 Breach of Order Division 6 Variation of Order 1130

3 64. Regulations. Division 7 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) 1131

4 100. Correction of sentences by Supreme Court Discharge of persons under committal for indictable offence Court may order withdrawal of trifling or technical cases Conviction for treason or indictable offence to be a disqualification for offices, &c Effect where punishment suffered for indictable offence Application of penalties and fees Penalties for offences may be remitted Penalty payable to corporation Application of compensation and penalties Summary conviction discharge, &c. a bar to further proceedings Construction of references to previous convictions Forfeiture, &c. abolished Saving of royal prerogative of mercy Regulations Repeal and amendment of other Acts Amendment of the Children's Court Act 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. 1132

5 Victoria No Penalties and Sentences Act 1985 The Parliament of Victoria enacts as follows: [Assented to 10 December 1985] Purposes. PART 1 PRELIMINARY 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. 1133

6 Penalties and Sentences No No 6231 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 "Subordinate instrument" has the same meaning as in the Interpretation of Legislation Act (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 infixing 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. 5. If a court convicts a person of an offence punishable by S.476N ^, ^ 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. 1134

7 1985 Penalties and Sentences No Power to fine. 6. (1) If a person is convicted of an offence the court may, subject NO 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 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 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. No 9554 s 9 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 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 No ;, 6,. 2^1 S.43SA. 1135

8 1985 Penalties and Sentences No (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. 1136

9 1985 Penalties and Sentences No (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 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 s. 122 (1)(2)(3)(4)(5) (6) and (7). No s. 478 (1)

10 Penalties and Sentences No 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. 1138

11 1985 Penalties and Sentences No (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 1139

12 Penalties and Sentences No 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 1140

13 1985 Penalties and Sentences No 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 1141

14 1985 Penalties and Sentences No 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 (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.". 1142

15 1985 Penalties and Sentences No Definitions. Division 2 Suspended Sentences 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. 1143

16 Penalties and Sentences No 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) if- (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. 1144

17 1985 Penalties and Sentences No (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 s in a youth training centre in respect of an offence a court must have JJ^^f 8S ' 17 regard to (a) the nature of the offence; and (b) the age, character and antecedents of the person. 1145

18 1985 Penalties and Sentences No (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

19 1985 Penalties and Sentences No (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

20 1985 Penalties and Sentences No (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

21 1985 Penalties and Sentences No (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

22 Penalties and Sentences No 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 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

23 1985 Penalties and Sentences No (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