Victorian Numbered Acts Victorian Numbered ActsFor section 47 of the Sentencing Act 1991 substitute —
(1) If a person who is the subject of a community-based order (the offender ), without reasonable excuse, contravenes any condition of the order while the order is in force, a proceeding may be brought against the person, in accordance with this Subdivision, to answer to the contravention.
(2) A proceeding for the contravention of an order under subsection (1) must be commenced—
(a) if the contravention is constituted by the offender committing another offence punishable by imprisonment during the period of the order, within whichever is the later of—
(i) 6 months of the offence being found proven; or
(ii) within 2 years of the order ceasing to be in force; or
(b) in any other case, within one year of the order ceasing to be in force.
(1) If a court finds an offender guilty of an offence punishable by imprisonment committed while a community-based order is in force it may—
(a) on the application, in the prescribed form, of an authorised person; and
(b) if the offender is then present before the court—
do either of the following—
(c) if it is the court that imposed the community-based order, proceed to exercise any power conferred on it by section 47J; or
(d) if it is not the court that imposed the community-based order transfer the proceeding to the court that imposed the order.
(2) If a community-based order was made in the Magistrates' Court; the Supreme Court or County Court may deal with the contravention proceeding as if it were an unrelated summary offence under section 243 of the Criminal Procedure Act 2009 .
(3) For the purpose of transferring a proceeding under subsection (1)(d) the court may, if the offender is not being held in custody in relation to the other offence or for any other reason, grant bail to the offender conditioned for, or remand the offender in custody pending his or her attendance at the court that imposed the community-based order.
(1) If an offender contravenes a community-based order an authorised person may, if an application has not been made under section 47A in respect of the contravention apply to the Magistrates' Court for the issue of—
(a) a contravention summons; or
(b) a warrant to arrest—
in order to compel the attendance of the offender at the court that imposed the community-based order.
(2) An authorised person may make an application under subsection (1) to a registrar of the Magistrates' Court in person or by post at any venue of the court.
(3) If an offender is required to attend at the Magistrates' Court under a summons or warrant issued under section 47C(1)(a), attendance must be at the proper venue of the court.
(1) On an application under section 47B(1), the registrar must, if satisfied that there are reasonable grounds to believe the offender has committed a contravention of a community-based order issue—
(a) a summons to answer to the contravention of the community-based order; or
(b) a warrant to arrest.
(2) A registrar must not issue in the first
instance a warrant to arrest unless satisfied by evidence on oath or by
affidavit that—
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(a) it is probable that the offender will not answer a contravention summons; or
(b) the offender has absconded, is likely to abscond or is avoiding service of a contravention summons that has been issued; or
(c) a warrant to arrest is required or authorised for other good cause.
Section 50 of the Magistrates' Court Act 1989 applies to a contravention summons or warrant to arrest issued under this section as if the reference in that section—
(a) to a summons or warrant were a reference to a breach summons or warrant to arrest issued under this section; and
(b) to the court were a reference to the court by which the community-based order was imposed.
A contravention summons—
(a) must direct the offender to attend at the proper venue of the Magistrates' Court or, if the community-based order was imposed by the Supreme Court or the County Court, at that court, on a specified date on a specified time to answer the proceeding against them; and
(b) may be served in any manner in which a summons to answer a charge may be served under sections 16 and 17 of the Criminal Procedure Act 2009 .
On the application of the person who applied for the issue of the contravention summons at any time before it is served, the date specified in the contravention summons for the offender to attend court (the return date ) may be extended without cause—
(a) before the return date; or
(b) within 28 days after the return date—
by a registrar at the venue of the Court at which the contravention summons was issued on one occasion and thereafter may be extended—
(c) before the current return date; or
(d) within 28 days after the current return date—
by such a registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the contravention summons.
Service of a contravention summons may be proved in any manner in which service of a summons to answer to a charge may be proved under section 399 of the Criminal Procedure Act 2009 .
(1) When an offender does not attend before a court in answer to a contravention summons which has been served in accordance with section 47G, the court may issue a warrant to arrest the offender.
(2) A warrant to arrest authorised to be issued under this section is to be in accordance with Part 4 of the Magistrates' Court Act 1989 and that Part applies to such a warrant to arrest with any necessary modifications.
(1) If the offender is unrepresented on his or her first appearance before the court in answer to bail granted under section 47A, or a contravention summons or warrant issued under section 47C, the court must—
(a) ask the offender whether he or she has sought legal advice; and
(b) if satisfied that the offender has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the offender.
(2) If the court before which an offender appears in answer to bail granted under section 47A, or a contravention summons or warrant issued under section 47C is satisfied that the offender does not have a knowledge of the English language that is sufficient to enable the offender to understand, or participate in, the proceeding, it must not hear and determine the proceeding without a competent interpreter interpreting it.
(1) If on the hearing of the proceeding under section 47(1) the court finds the offender has contravened the community-based order it must—
(a) vary the community-based order; or
(b) confirm the order originally made; or
(c) cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence or offences with respect to which the order was made in any manner in which the court could deal with the offender if it had just found him or her guilty of that offence or those offences.
(2) In determining how to deal with an offender following the cancellation by it of a community-based order, a court must take into account the extent to which the offender had complied with the order before its cancellation.
(1) The practice and procedure applicable to the hearing and determination of summary offences in the Magistrates' Court applies, so far as is appropriate, to the hearing and determination of a proceeding under section 47(1), whether or not the court hearing the proceeding is the Supreme Court, the County Court or the Magistrates' Court.
(2) Subsection (1) is subject to any rules of court.
This section applies also to a community-based order made under Division 4 in default of payment of a fine or an instalment under an instalment order but if the court considers that the orders that it may make under this section in respect of such a community-based order are not adequate in the light of—
(a) the nature of the offence that led to the community-based order; and
(b) the characteristics of the offender; and
(c) the offender's wilful refusal to pay the fine or instalment and to perform unpaid community work—
the court may impose a sentence of imprisonment of 1 day for each penalty unit or part of a penalty unit then remaining unpaid up to a maximum of 24 months.".