10Custodial sentence must be imposed for causing serious injury in circumstances of gross violence

10 Custodial sentence must be imposed for causing serious injury in circumstances of gross violence (1) In sentencing an offender for an offence against section 15A or 15B of the **Crimes Act 1958** (whether on appeal or otherwise), a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 4 years unless the court finds under section 10A that a special reason exists. (2) Subsection (1) does not apply to— S. 10(2)(aa) inserted by No. 69/2014 s. 3. (aa) an offender to the sentencing of whom section 10AA(1) applies; or S. 10(2)(a) substituted by No. 63/2014 s. 7(18). (a) a person who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the **Crimes Act 1958**; or Note to s. 10(2)(a) repealed by No. 63/2014 s. 7(19). (b) a person who is under the age of 18 years at the time of the commission of the offence. S. 10AA (Heading) amended by No. 28/2016 s. 3(1), substituted by Nos 43/2017 s. 46(5), 48/2018 s. 78(1). S. 10AA inserted by No. 69/2014 s. 4 (as amended by No. 79/2014 s. 67). 10AA Custodial sentence for certain offences against emergency workers, custodial officers and youth justice custodial workers on duty S. 10AA(1) amended by Nos 28/2016 s. 3(2), 43/2017 s. 46(1). (1) Subject to subsection (2), in sentencing an offender (whether on appeal or otherwise) for an offence against a section of the **Crimes Act 1958** specified in column 1 of Table 1 committed against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than the period specified in column 2 of that Table in relation to that offence unless the court finds under section 10A that a special reason exists. **TABLE 1** | *Column 1*<br>*Offence* | *Column 2*<br>*Minimum non-parole period* | | Section 15A | 5 years | | Section 15B | 5 years | | Section 16 | 3 years | | Section 17 | 2 years | S. 10AA(2) amended by Nos 28/2016 s. 3(2), 43/2017 s. 46(1), 48/2018 s. 78(2)(a)(b). (2) In the circumstances described in subsection (3), in sentencing a young offender for an offence against a section of the **Crimes Act 1958** specified in column 1 of Table 2 committed against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, a court is not required to impose a term of imprisonment and fix a non‑parole period in accordance with subsection (1) or impose a term of imprisonment in accordance with subsection (4) but, if it decides not to do so, it must make a youth justice centre order for a term not less than the term specified in column 2 of that Table in relation to that offence. S. 10AA(2) (Table 2) amended by No. 48/2018 s. 78(2)(c). **TABLE 2** | *Column 1*<br>*Offence* | *Column 2*<br>*Minimum youth justice centre term* | | Section 16 | 3 years | | Section 17 | 2 years | | Section 18 | 6 months | (3) The circumstances are that the court— (a) has not made a finding under section 10A that a special reason exists; and (b) has received a pre-sentence report and believes— (i) that there are reasonable prospects for the rehabilitation of the young offender; or (ii) that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. S. 10AA(4) amended by Nos 28/2016 s. 3(2), 43/2017 s. 46(1). (4) In sentencing an offender (whether on appeal or otherwise) for an offence against section 18 of the **Crimes Act 1958** committed against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, a court must impose a term of imprisonment of not less than 6 months unless the court finds under section 10A that a special reason exists. (5) Subsections (1), (2) and (4) apply to a court in sentencing an offender for the offence only if it is satisfied beyond reasonable doubt that— S. 10AA(5)(a) amended by Nos 28/2016 s. 3(3)(a), 43/2017 s. 46(1). (a) a victim of the offence was an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty (as the case may be); and S. 10AA(5)(b) amended by Nos 28/2016 s. 3(3)(b), 43/2017 s. 46(2). (b) at the time of carrying out the conduct the offender knew or was reckless as to whether the victim was an emergency worker or a custodial officer or a youth justice custodial worker (as the case may be). (6) Subsections (1), (2) and (4) do not apply to an offender— S. 10AA(6)(a) substituted by No. 79/2014 s. 63(1), amended by No. 23/2020 s. 4(1). (a) who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the **Crimes Act 1958** and proves on the balance of probabilities that the offender's involvement was minor; or Note to s. 10AA(6)(a) repealed by No. 79/2014 s. 63(2). (b) who is under the age of 18 years at the time of the commission of the offence. (7) Subdivision (4) (except section 32(1), (2), (2A) and (2B)) applies in relation to a youth justice centre order made under subsection (2). (8) In this section— S. 10AA(8) def. of *custodial officer* inserted by No. 28/2016 s. 3(4). ***custodial officer*** means— (a) a Governor, prison officer or escort officer within the meaning of the **Corrections Act 1986**; or (b) a police custody officer within the meaning of the **Victoria Police Act 2013**; or (c) a person authorised under section 9A(1) of the **Corrections Act 1986** to exercise a function or power of a Governor, a prison officer or an escort officer under that Act; or (d) a person authorised under section 9A(1A) or (1B) of the **Corrections Act 1986** to exercise a function or power referred to in that subsection; ***emergency treatment*** means unplanned or unexpected treatment of a patient that may be necessary, as a matter of urgency— (a) to save the patient's life; or (b) to prevent damage to the patient's health; or (c) to prevent the patient from suffering or continuing to suffer pain or distress; S. 10AA(8) def. of *emergency worker* amended by Nos 48/2018 s. 78(3), 20/2019 s. 187, 49/2019 s. 186(Sch. 4 item 37.1), 23/2020 s. 4(2), 25/2025 s. 106(Sch. 1 item 41.1). ***emergency worker*** means— (a) a police officer or protective services officer within the meaning of the **Victoria Police Act 2013**; or (b) an operational staff member within the meaning of the **Ambulance Services Act 1986**; or (c) a person employed or engaged to provide, or support the provision of, emergency treatment to patients in a hospital; or (d) a person employed by Fire Rescue Victoria established under the **Fire Rescue Victoria Act 1958** or a member of a fire or emergency service unit established under that Act; or (e) an officer or employee of the Country Fire Authority under the **Country Fire Authority Act 1958**; or (f) an officer or member of a brigade under the **Country Fire Authority Act 1958**, whether a part-time officer or member, a permanent officer or member or a volunteer officer or member within the meaning of that Act; or (g) a casual fire-fighter within the meaning of Part V of the **Country Fire Authority Act 1958**; or (h) a volunteer auxiliary worker appointed under section 17A of the **Country Fire Authority Act 1958**; or (i) a person with emergency response duties employed in the Department of Energy, Environment and Climate Action or the Department of Transport and Planning or the Department of Jobs, Skills, Industry and Regions; or (j) a registered member or probationary member within the meaning of the **Victoria State Emergency Service Act 2005** or an employee in the Victoria State Emergency Service; or (k) a volunteer emergency worker within the meaning of the **Emergency Management Act 1986**; or (l) any other person or body— (i) required or permitted under the terms of their employment by, or contract for services with, the Crown or a government agency to respond (within the meaning of the **Emergency Management Act 2013**) to an emergency (within the meaning of that Act); or (ii) engaged by the Crown or a government agency to provide services or perform work in relation to a particular emergency; or (m) any other person or body who— (i) is employed or engaged in another State or a Territory or by the Commonwealth to perform functions of a similar kind to those referred to in any other paragraph of this definition; and (ii) is on duty in Victoria; S. 10AA(8) def. of *hospital* amended by No. 43/2017 s. 46(3)(a). ***hospital*** means a public hospital, private hospital, denominational hospital or day procedure centre within the meaning of the **Health Services Act 1988**; S. 10AA(8) def. of *youth justice custodial worker* inserted by No. 43/2017 s. 46(3)(b), amended by No. 45/2019 s. 50(2). ***youth justice custodial worker*** means a person— (a) who is employed or engaged by the Secretary in a remand centre, a youth residential centre or a youth justice centre; and (b) whose duties include duties in relation to detainees in the custody of the Secretary. (9) For the purposes of this section an emergency worker is on duty if— (a) in the case of a police officer or protective services officer within the meaning of the **Victoria Police Act 2013**, the officer is performing any duty or exercising any power as such an officer; or (b) in the case of an operational staff member within the meaning of the **Ambulance Services Act 1986**, the staff member is providing, or attempting to provide, care or treatment to a patient; or (c) in the case of a person employed or engaged to provide, or support the provision of, emergency treatment to patients in a hospital, the person is providing, or supporting the provision of, or attempting to provide or support the provision of, such treatment; or S. 10AA(9)(c) inserted by No. 23/2020 s. 4(3). (ca) in the case of a person employed or engaged in another State or a Territory or by the Commonwealth to perform functions of a similar kind to an emergency worker, the person is on duty at any time when the person is performing a function or exercising a power as an emergency worker; or (d) in any other case, the person is performing any duty or exercising any power in response to an emergency within the meaning of the **Emergency Management Act 2013**. S. 10AA(10) inserted by No. 28/2016 s. 3(5). (10) For the purposes of this section a custodial officer is on duty if— (a) in the case of a Governor, prison officer or escort officer within the meaning of the **Corrections Act 1986**, the Governor or officer is exercising a function or power as a Governor, prison officer or escort officer (as the case may be); or (b) in the case of a police custody officer within the meaning of the **Victoria Police Act 2013**, the officer is exercising a function or power as a police custody officer; or (c) in the case of a person authorised under section 9A(1) of the **Corrections Act 1986** to exercise a function or power of a Governor, a prison officer or an escort officer under that Act, the person is exercising a function or power specified in the instrument of authorisation; or (d) in the case of a person authorised under section 9A(1A) or (1B) of the **Corrections Act 1986**, the person is exercising a function or power specified in the instrument of authorisation. S. 10AA(11) inserted by No. 43/2017 s. 46(4). (11) For the purposes of this section, a youth justice custodial worker is on duty at any time when he or she is performing a function or exercising a power as a youth justice custodial worker. S. 10AB (Heading) substituted by No. 27/2018 s. 364(3). S. 10AB inserted by No. 32/2016 s. 40. 10AB Custodial sentence for offence of contravening supervision order or interim supervision order under Serious Offenders Act 2018 S. 10AB(1) amended by No. 27/2018 s. 364(4). (1) Subject to subsection (2), in sentencing an offender for an offence against section 169 of the **Serious Offenders Act 2018** (whether on appeal or otherwise), a court must impose a term of imprisonment of not less than 12 months unless the court finds under section 10A that a special reason exists. 1 Section 11(1) requires the court to fix a non‑parole period in the case of a sentence of 2 years imprisonment or more. 2 Section 11(2) enables the court to fix a non‑parole period in the case of a sentence of imprisonment of 1 year or more but less than 2 years. 3 Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence. S. 10AB(2) amended by No. 27/2018 s. 364(5). (2) Subsection (1) applies only if the court is satisfied beyond reasonable doubt that the offender intentionally or recklessly contravened a restrictive condition of the supervision order or interim supervision order. S. 10AB(3) substituted by No. 27/2018 s. 364(6). (3) In this section, ***interim supervision order***, ***restrictive condition*** and ***supervision order*** have the same meaning as in the **Serious Offenders Act 2018**. S. 10AC inserted by No. 50/2016 s. 5. 10AC Custodial sentence must be imposed for offence of aggravated home invasion (1) In sentencing an offender (whether on appeal or otherwise) for an offence against section 77B of the **Crimes Act 1958**, a court must impose a term of imprisonment and fix under section 11 a non‑parole period of not less than 3 years unless the court finds under section 10A that a special reason exists. (2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the offence. S. 10AD inserted by No. 50/2016 s. 5. 10AD Custodial sentence must be imposed for offence of aggravated carjacking (1) In sentencing an offender (whether on appeal or otherwise) for an offence against section 79A of the **Crimes Act 1958**, a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 3 years unless the court finds under section 10A that a special reason exists. (2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the offence. S. 10AE inserted by No. 65/2017 s. 16, amended by No. 65/2017 s. 19. 10AE Custodial sentence must be imposed for offences against sections 317AC and 317AD in certain circumstances S. 10AE(1) amended by No. 3/2019 s. 84. (1) Subject to subsection (2), in sentencing an offender (whether on appeal or otherwise) for an offence against section 317AC or 317AD of the **Crimes Act 1958**, a court must impose a term of imprisonment and fix under section 11 a non‑parole period of not less than 2 years if, in the commission of the offence, an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty is injured. (a) to an offender who is under the age of 18 years at the time of the offence; or (b) if the court finds under section 10A that a special reason exists. S. 10A (Heading) substituted by No. 72/2014 s. 8(1). S. 10A inserted by No. 6/2013 s. 9.