Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342

Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 - VSCA 2014 case summary — Zoe

[104]

The existing range of community-based sentences does not provide courts with sufficient flexibility to directly target the offender and the offence. The combined custody treatment order (CCTO), for example, is rarely used by the courts and intensive correction orders are generally considered an inflexible option.

The Sentencing Advisory Council, in the Suspended Sentences -- Final Report -- Part 2, noted that the overuse of suspended sentences in Victoria is at least partly due to the failings of intermediate sentencing orders.

The new CCO introduced in this bill will replace these orders with a single comprehensive and highly flexible order.

...

Specifically, the CCO will replace the combined custody treatment order, intensive correction order (ICO), the intensive correction management order (which has not come into effect) and the community-based order (CBO).

...

The CCO will also provide an alternative sentencing option for offenders who are at risk of being sent to jail. These offenders may not yet deserve a jail sentence but should be subject to significant restrictions and supervision if they are going to live with the rest of the community. The broad range of new powers under the CCO will allow courts wide flexibility to tailor their response to address the needs of offenders and set appropriate punishments.

Instead of using the legal fictions of imposing a term of imprisonment that is suspended or served at home, the courts will now openly sentence offenders to jail or, where appropriate, use the CCO to openly sentence the offender to a community-based sentence. Unlike the CCTO and ICO, which are technically sentences of imprisonment, the CCO is a community-based sentence. There is no legal fiction involved. The CCO can be combined with a jail sentence, but it will not pretend to be one. The CCO is a transparent sentence that can be understood by everyone in the community.

Structure of the CCO

Under the old regime, the longest a community-based sentence could last for was two years. In addition, offenders given the more serious community-based sentences, such as the CCTO and ICO, are only subject to obligations for a maximum of one year. These limited sentencing orders simply do not allow the courts sufficient flexibility.

A key feature of the new order is that it will allow the courts to tailor the length of an order rather than limiting the order to a fixed time period. A CCO can last for up to two years in the Magistrates Court. In the higher courts, the bill does not set a uniform maximum duration. Instead, the maximum duration will be determined by the maximum term of imprisonment for the relevant offence. Importantly, a CCO may be combined with a fine and/or jail for up to three months.

[189]

In general, but by no means always, persons convicted of serious crime are the maladjusted people of the community, and some will have developed serious behavioural problems. ... Unfortunately, gaol may well make their anti-social tendencies worse. This is not always the case; sometimes the experience of gaol effects a real improvement. Nevertheless, I think it is well accepted that it is so in most cases; at least where the sentences are at all long. The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals, some of whom are bound to be quite vicious, their sex life must be unnatural, scope for psychiatric treatment is very limited, if not non-existent, and employment is limited and stereotyped. To many this must seem one of the most absurd aspects of the whole matter. They may well ask why the system has to be so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation, and who are not so dangerous that they have to be kept in strict confinement, are given a real opportunity for self-improvement. The irony is that prison authorities are among the strongest advocates of reform.

...

When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.

[299]

Currently, pre-sentence reports prepared by the Secretary to the Department of Justice do not provide advice or recommendations concerning the length of order necessary to perform particular conditions.

The Department can inform courts about the period of order necessary to permit participation in particular programs, having regard to referral, assessment, waiting, preparation, and treatment/ participation periods. The Department can also inform courts of the time required to complete particular programs. For example, at present the sex offender program suggests that an 18 month order is required to ensure sufficient time to complete that program.

The Department does have some capacity to offer assessments about duration of order likely to support the rehabilitative purposes of sentencing, using a tool that indicates the general risk of re-offending.[104] The Department advises that individual assessments may be more feasible on reviews conducted for the purpose of judicial monitoring hearings, or on variation applications.

Clinical assessments (Forensicare)

Where offenders present with apparent or asserted psychological conditions or substance abuse issues, courts regularly obtain, or are presented with, expert clinical reports. These reports may certainly express opinions on current treatment needs and the durational requirements of particular treatment programs. If an opinion extends beyond those matters, judges need to be aware of the limits to clinical expertise and the barriers to reliable longer term risk assessment.

Clinical assessments about desirable treatment programs do rely on accepted empirical evidence about 'what works', and indeed there is a well evidenced link between 'higher dosage' (longer duration or more intensive) treatment and improved rehabilitative outcomes for high risk offenders. However, this sense of 'longer duration' does not match the longer 'duration' now available for CCOs. Instead, it will be exceptional that treatment would be anticipated to last longer than two years.[105]

Clinical reports, like Departmental reports, are particularly limited by the difficulty of making reliable risk assessments. This is because the response of individual offenders to interventions or other life-changes is highly unpredictable, thereby undermining any attempt to define prior to sentence the duration of intervention needed to achieve any particular result. Finally, just as Departmental reports are limited by the author's lack of clinical expertise, clinicians may lack the necessary understanding of correctional processes to comment knowledgeably on the rehabilitative or protective capacity of supervision or restrictive orders.

[330]

In weighing up whether a NPP or a CCO is more suitable, the following matters are relevant:

Proximity to the date of sentencing - the closer the period of conditional freedom to the date of sentence, the better placed the court is to determine an offender's suitability for that order, and the more likely an offender's consent to an order can be said to be meaningful (see above, paragraphs 18-19). The less proximate the date of sentencing, the more likely the Adult Parole Board will be better placed to consider the offenders rehabilitative prospects and treatment needs, having regard to how the offender has fared in custody.

Given the contaminating effect of incarceration and the potential loss of protective factors (including family and social connections, employment and housing), an offender's rehabilitative prospects may change markedly in custody. Where an imprisonment term remaining to be served is lengthy, it may be particularly difficult for a court to predict an offender's treatment and rehabilitative needs on release. Conditions imposed by the court at sentence may no longer be relevant. For example, residence restrictions and curfews may no longer be appropriate where access to housing is lost while in custody. Drug and alcohol issues may no longer be an issue on release (given detoxification and access to treatment programs), or conversely, habits may have developed during incarceration.

The extent to which the intended purpose for imposing conditional freedom is capable of being achieved - the purpose of parole is to 'provide for mitigation of the punishment of the offender in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all of the circumstances of the offence.'[126] Parole is said to serve the offender, by assisting with rehabilitation and providing an incentive to behave well in prison, as well as serving the interests of the community.[127] While courts are prohibited from taking into account the likelihood of executive action reducing the length of time actually spent in custody,[128] recent reforms to the parole system[129] call into question whether the rehabilitative purposes of parole can be realised in respect of those receiving short terms of imprisonment.

Subsequent to the recent reforms of the parole system, fewer short-term prisoners appear to be paroled on their earliest release date, with some eligible offenders not being released on parole at all.[130] It has also been noted that 'meaningful parole' may not be able to be facilitated by the Board in respect of short terms of imprisonment, given that rehabilitative programs may take a longer period of time than is available, or may not commence on a suitable date and therefore be unavailable to an offender.[131]

Unlike NPPs, a back end CCO guarantees that the offender will step down from the highly controlled custodial environment, to a specified period of conditional freedom in the community;[132] and may be designed so as to enable sufficient time to complete required programs.

In what may be a reflection that parole boards are not ideally suited to determine the date for conditional release in respect of short terms of imprisonment, in other jurisdictions such as New South Wales and Queensland, courts alone are entitled to determine the date of parole where imprisonment is of short duration.[133]

The extent to which the possibility of release on parole operates as an incentive - the possibility of release on parole (as opposed to the guarantee of release on a CCO) may operate as a powerful incentive for offenders to display good behaviour and to take steps to further their rehabilitation while in prison. This incentive, however, will be less powerful in respect of short imprisonment terms, where the offender is aware that release on parole is unlikely (because there may not be time for the Parole Board to consider and determine their eligibility for parole), or where rehabilitative programs are unavailable given the lack of time.

The matters above reaffirm the importance of a guideline judgment. In exercising the discretion between imposing a NPP and/or a CCO, the comments of Riley CJ in Whitehurst v the Queen (albeit in the context of suspended sentences and parole) are apt:[134]

In choosing [between options]... the sentencing Judge must consider many things including any relevant legislative provisions, the nature of the offending, the minimum period of imprisonment which must actually be served to reflect the seriousness of the offending, and the personal circumstances of the offender including any prospects for rehabilitation. Consideration of the personal circumstances of the offender and his prospects for rehabilitation are likely to involve determining how any prospects for rehabilitation may be addressed and enhanced; whether there is a need for supervision, and, if so, the nature of that supervision; the existence of, and the nature of, any support mechanisms available to the offender outside the custodial setting; the identification of impediments and risks to rehabilitation and so on.

[562]

6AA Definition

In this Part -

guideline judgment means a judgment that is expressed to contain guidelines to be taken into account by courts in sentencing offenders, being guidelines that apply -

(a) generally; or

(b) to a particular court or class of court; or

(c) to a particular offence or class of offence; or

(d) to a particular penalty or class of penalty; or

(e) to a particular class of offender.

6AB Power of Court of Appeal to give or review guideline judgments

(1) On hearing and considering an appeal against sentence, the Court of Appeal may (on its own initiative or on an application made by a party to the appeal) consider whether -

(a) to give a guideline judgment; or

(b) to review a guideline judgment given by it in a previous proceeding.

(2) On a review of a guideline judgment, the Court of Appeal may -

(a) confirm the guideline judgment; or

(b) vary the guideline judgment; or

(c) revoke the guideline judgment; or

(d) substitute the guideline judgment with a new guideline judgment.

(3) The Court of Appeal may give or review a guideline judgment even if it is not necessary for the purpose of determining any appeal in which the judgment is given or reviewed.

(4) A decision of the Court of Appeal to give or review a guideline judgment must be a unanimous decision of the Judges constituting the Court.

(5) A guideline judgment may be given separately to, or included in, the Court of Appeal's judgment in an appeal.

(6) Nothing in this Part requires the Court of Appeal to give or review a guideline judgment if it considers it inappropriate to do so.

6AC Content of guideline judgment

A guideline judgment may set out -

(a) criteria to be applied in selecting among various sentencing alternatives;

(b) the weight to be given to the various purposes specified in section 5(1) for which a sentence may be imposed;

(c) the criteria by which a sentencing court is to determine the gravity of an offence;

(d) the criteria which a sentencing court may use to reduce the sentence for an offence;

(e) the weighting to be given to relevant criteria;

(ea) guidelines for sentencing offenders for baseline offences;

(f) any other matter consistent with the principles contained in this Act.

6AD Procedural requirements

If the Court of Appeal decides to give or review a guideline judgment it must -

(a) cause the Sentencing Advisory Council to be notified and consider any views stated in writing, within the period specified in the notification, by that Council; and

(b) give -

(i) the Director of Public Prosecutions or a lawyer representing the Director; and

(ii) a lawyer representing Victoria Legal Aid, whether or not employed by Victoria Legal Aid, or a lawyer arranged by Victoria Legal Aid -

an opportunity to appear before the Court and make a submission on the matter.

6AE Matters to which Court of Appeal must have regard

In considering the giving of, or in reviewing, a guideline judgment the Court of Appeal must have regard to -

(a) the need to promote consistency of approach in sentencing offenders; and

(b) the need to promote public confidence in the criminal justice system; and

(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.

6AF Use of evidence in giving or reviewing guideline judgment

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.

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.

[586]

48B Definitions

In this Division -

child protection order means -

(a) a custody to third party order;

(b) an interim accommodation order;

(c) an interim protection order;

(d) a supervised custody order;

(e) a supervision order -

within the meaning of the Children, Youth and Families Act 2005;

family violence has the same meaning as in the Family Violence Protection Act 2008;

safety means safety from family violence, physical or mental harm.

48C Unpaid community work condition

(1) A court which is making a community correction order may attach a condition requiring an offender to perform unpaid community work.

(2) The purpose for attaching an unpaid community work condition is to adequately punish the offender in the community.

(3) Subject to section 48CA, the offender must perform the number of hours of unpaid community work specified by the court under an unpaid community work condition.

(3A) If the Secretary gives a direction under section 83AU the offender must perform the number of hours of unpaid community work specified by the Secretary.

(4) The total number of hours for which an offender may be required to perform unpaid community work under an unpaid community work condition must be determined by the court and must not exceed 600 hours.

(5) The total number of hours of unpaid community work that the offender must perform in any 7 day period must not exceed 20.

(6) An offender may perform unpaid community work for up to 40 hours in a period of 7 days if he or she requests to do so and signs a written consent to performing the extra number of hours.

(7) If a court attaches an unpaid community work condition as the sole condition under this Division of a community correction order for up to a maximum of 300 hours, the order expires on the satisfactory completion of those hours of work.

(8) If an offender is or will be subject to more than one community correction order the court must not make a direction under this Act that causes the time limits that apply under all unpaid community work conditions under the orders to exceed the maximum time limits for the orders under section 38.

(9) When attaching an unpaid community work condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.

48CA Order with conditions under sections 48C and 48D

(1) This section applies if a court when making a community correction order attaches both an unpaid community work condition and a treatment and rehabilitation condition to the order.

(2) The court may determine that some or all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

(3) If a court makes a determination under subsection (2) but does not specify the number of hours undertaken for treatment and rehabilitation that are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition then all of the hours satisfactorily undertaken for treatment and rehabilitation are to be so counted as hours of unpaid community work.

48D Treatment and rehabilitation condition

(1) A court which is making a community correction order may attach a condition to the order that requires the offender to undergo treatment and rehabilitation specified by the court and directed by the Secretary unless otherwise directed by the court.

(2) When attaching a treatment and rehabilitation condition the court must -

(a) have regard to the need to address the underlying causes of the offending;

(b) have regard to the recommendations, information and matters identified in the presentence report in relation to the treatment and rehabilitation of the offender.

(3) The treatment and rehabilitation that must be specified by the court in a treatment and rehabilitation condition must be any one or more of the following -

(a) any assessment and treatment (including testing) for drug abuse or dependency;

(b) any assessment and treatment (including testing) for alcohol abuse or dependency;

(c) any assessment and treatment (including testing) at a residential facility for -

(i) withdrawal from or rehabilitation for alcohol abuse or dependency; or

(ii) withdrawal from or rehabilitation for drug abuse or dependency;

(d) any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility;

(e) any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;

(f) any program that addresses factors related to his or her offending behaviour;

(g) any other treatment and rehabilitation that the court considers necessary and that is specified in the order that may include employment, educational, cultural and personal development programs that are consistent with the purpose of the treatment and rehabilitation condition.

(4) For the purposes of subsection (1) the Secretary may give a direction to the offender -

(a) to undergo the treatment and rehabilitation or kind of treatment and rehabilitation specified by the Secretary in the direction; and

(b) in relation to any aspect of the treatment and rehabilitation that the Secretary has specified, a direction -

(i) requiring the attendance of the offender at a specified location; and

(ii) requiring the participation of the offender in particular kinds of treatment or rehabilitation.

48E Supervision condition

(1) A court which is making a community correction order may attach a condition to the order that the offender be supervised, monitored and managed as directed by the Secretary.

(2) The court may attach a supervision condition for the purpose of addressing the need to ensure the compliance of the offender with the order.

(3) When attaching a supervision condition the court must have regard to the information, matters and recommendations made in the pre-sentence report.

(4) When attaching a supervision condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.

48F Non-association condition

(1) A court which is making a community correction order may attach a condition to the order directing that -

(a) the offender must not contact or associate with a person specified in the order; or

Example

An example of a direction that may be made under a condition attached under paragraph (a) is that the offender must not contact or associate with a cooffender or co-offenders.

(b) the offender must not contact or associate with a class of person specified in the order.

Example

An example of a direction that may be made under a condition attached under paragraph (b) is that the offender must not contact or associate with a member of a specified club or association.

(2) When attaching a non-association condition the court may have regard to any effect the attaching of the condition may have on any employment of the offender.

(3) When attaching a non-association condition the court may specify that the condition applies for the period of the order or for any lesser period specified in the order.

[592]

(1) A court which is making a community correction order may attach a condition requiring an offender to pay an amount of money as a bond, the whole or part of which is subject to forfeiture if the offender fails to comply with the order.

(2) The court may attach a bond condition for the purpose of ensuring the compliance of the offender with the order.

(3) When attaching a bond condition the court must -

(a) have regard to adequacy of the financial circumstances of the offender as contained in the pre-sentence report to support the payment of the bond; and

(b) fix a time period for the payment of the bond by the offender.

(4) Any money paid by an offender under subsection (1) -

(a) must be paid to the court making the order; and

(b) despite any provision to the contrary in the Supreme Court Act 1986, the County Court Act 1958 or the Magistrates' Court Act 1989, must be held on trust by the Crown in a trust account established by the Minister under section 23 of the Financial Management Act 1994 until the money is required to be repaid or forfeited under this Act.

(5) If any interest is received from the investment of any money paid by an offender under subsection (1) the interest must be credited to the Consolidated Fund, whether or not any of the money is repaid to the offender under this section.

(6) If money paid under subsection (1) is to be repaid to an offender as a result of the making of an order to cancel or vary or otherwise deal with a community correction order or bond condition under section 48M(2) or 83AS(1), the Crown must repay the money to the offender within 7 days after the order is made, unless the court orders a longer period.

(7) The Crown must repay to the offender any money paid under subsection (1), that is not liable for forfeiture under section 83AS(4) and that subsection (6) does not apply to -

(a) 3 months after the expiry of the order; or

(b) if no later than 3 months after the expiry of the order, the offender is charged with an offence punishable by imprisonment that was committed during the period of the order, 7 days after the proceeding is finalised -

whichever is the later.

(8) For the purposes of this section a proceeding is finalised -

(a) after the final determination of the charge by a court; or

(b) when the charge is withdrawn; or

(c) when the prosecution of the charge is discontinued.

(9) All money forfeited to the Crown under section 83AS(4) must be paid into the Consolidated Fund.

[599]

(1) A court, other than the Magistrates' Court, which attaches a monitored condition to a community correction order may attach to that condition a requirement that the offender is to be electronically monitored.

(2) The purpose of attaching an electronic monitoring requirement is to monitor the compliance of the offender with the monitored condition.

(3) When deciding whether to attach an electronic monitoring requirement, the court must have regard to the recommendations, information and matters identified in the pre-sentence report in relation to the electronic monitoring of the offender.

(4) A court may only attach an electronic monitoring requirement to a monitored condition if -

(a) the pre-sentence report in respect of the offender includes a positive statement that -

(i) having had regard to the circumstances of the offender's residence, the offender is a suitable person to be electronically monitored; and

(ii) appropriate resources or facilities are available to enable the offender to be electronically monitored; and

(b) the court is satisfied that -

(i) the offender is a suitable person to be electronically monitored; and

(ii) it is appropriate in all of the circumstances that the offender be electronically monitored; and

(iii) appropriate resources or facilities are available to enable the offender to be electronically monitored.

(5) A court, in attaching an electronic monitoring requirement to a monitored condition, must specify the period that the offender is to be electronically monitored that is the same or a lesser period than the period that has been specified in respect of the monitored condition.

Example

An example of a specification that may be made under subsection (5) is that the offender is to be electronically monitored for 4 months in respect of a place and area exclusion condition that the court specified applies to the order for a period of 6 months.

(6) If a court does not specify a period under subsection (5) the period of an electronic monitoring requirement is taken to be the same as the period specified in respect of the monitored condition.

(7) If the Secretary gives a direction under section 83AV and the offender is subject to an electronic monitoring requirement that is attached to a curfew condition, the offender must be monitored for the increased period in addition to any period specified under subsection (5) or period that applies under subsection (6), that does not exceed the requirements under section 48I(3).

(8) If an electronic monitoring requirement is attached to a monitored condition the following terms are attached to the community correction order -

(a) the offender must comply with any direction given by the Secretary, that is necessary for the Secretary to give, to ensure that the offender is electronically monitored in accordance with the requirement; and

(b) the offender must for 24 hours of each day be electronically monitored and wear an electronic monitoring device fitted to him or her at the direction of the Secretary for the specified period of the requirement; and

(c) the offender must not, without reasonable excuse, tamper with, damage or disable any electronic monitoring device or equipment used for the electronic monitoring; and

(d) the offender must accept any visit by the Secretary to the place where the offender resides, at any time that it is reasonably necessary, for any purpose including to install, repair, fit or remove any electronic monitoring device or equipment used for the electronic monitoring; and

(e) the offender must comply with any direction given by the Secretary under section 83AV(3) in respect of the electronic monitoring requirement of a curfew condition.

NOTE: It is an offence under section 83AD for an offender to contravene a community correction order.

[600]

(1) A person must not use or disclose any personal or confidential information obtained as a result of the electronic monitoring of an offender carried out under an electronic monitoring requirement attached to a monitored condition subject to a community correction order, unless that use or disclosure is authorised under this section.

Penalty: 120 penalty units.

(2) A person may use or disclose personal or confidential information obtained as a result of the electronic monitoring of an offender carried out under an electronic monitoring requirement attached to a monitored condition subject to a community correction order, in the following circumstances -

(a) if the use or disclosure is reasonably necessary for the person to perform his or her duties, functions or powers in relation to a community correction order;

(b) if the use or disclosure is reasonably necessary for the preparation for, conduct of or participation in, proceedings in any court in relation to a community correction order;

(c) if the use or disclosure is for the purpose of the administration or enforcement of an order of a court under this Act;

(d) with the authorisation, or at the request, of the person to whom the information relates;

(e) if the use or disclosure is authorised by the Minister or the Minister administering the Corrections Act 1986;

(f) if the disclosure is to the Secretary;

(g) if the disclosure is to an Ombudsman officer within the meaning of the Ombudsman Act 1973;

(h) if the use or disclosure is to a lawyer for the purpose of obtaining legal advice or representation in relation to the administration or operation of this Act;

(i) if the information is already in the public domain;

(j) to the extent reasonably necessary for any other law enforcement purposes including the detection, investigation or prosecution or prevention of contraventions of the law;

(k) if the use or disclosure is specifically authorised or required by or under this or any other Act.

(3) In this section, personal or confidential information includes the following -

(a) information relating to the personal affairs of a person who has been or is an offender;

(b) information -

(i) that identifies any person or discloses his or her address or location or a journey made by the person; or

(ii) from which any person's identity, address or location can reasonably be determined;

(c) information contained in a report given to a court that is not disclosed in a decision of the court or in any reasons given by the court for a decision of the court;

(d) information concerning the investigation of a contravention or possible contravention of the law by the offender.

[602]

(1) On an application under section 48N, the court which made a community correction order may decide to deal with the order under subsection (2), if the court is satisfied that -

(a) the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or

(b) the circumstances of the offender were wrongly stated or were not accurately presented to the court or to the author of a pre-sentence report or drug and alcohol report before the order was made; or

(c) the offender no longer consents to the order; or

(d) the rehabilitation and reintegration of the offender would be advanced by the making of the decision to deal with the order; or

(e) the continuation of the sentence is no longer necessary in the interests of the community or the offender.

(2) If satisfied of a matter set out in subsection (1), the court may decide to deal with the order in one or more of the following ways -

(a) by confirming the order or a part of the order; or

(b) by cancelling the order and dealing 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; or

(c) by cancelling the order and making no further order in respect of the offence or offences with respect to which the order was originally made; or

(d) by varying the order; or

(e) in relation to a condition of the order, by cancelling, suspending, varying or reducing the condition; or

Example

An example of a variation of a condition of the order that may be made under paragraph (e) is a reduction of the number of hours specified under an unpaid community work condition.

(f) by attaching a new condition on the order; or

(g) in relation to a program that must be undertaken under the order, by cancelling, suspending, varying or reducing the program; or

(h) by imposing a new program that must be undertaken under the order.

(3) The court must make a decision under subsection (2) on the basis of its assessment of the extent to which the offender has complied with the order.

(4) The Secretary must disclose any direction he or she has given under Division 3 of Part 3C to a court making an assessment under subsection (3).

At a glance

Court

Decision date

Before

Source

Judgment (719 paragraphs)

Legislation Cited (16)

Cases Cited (19)