Part 3CSentences—contravention of sentence

Part 3C—Sentences—contravention of sentence Division 1—Offences S. 83AB inserted by No. 65/2011 s. 43, repealed by No. 32/2013 s. 14. S. 83AC inserted by No. 65/2011 s. 43. 83AC Contravention of order for release on adjournment An offender who is subject to an order under section 72 or 75 for release on the adjournment of the proceeding must not contravene that order, unless the offender has a reasonable excuse. S. 83AD inserted by No. 65/2011 s. 43. 83AD Contravention of community correction order (1) An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse. (2) A proceeding is not able to be brought against a person for an offence under subsection (1) in relation to conduct of that person in respect of which that person has been acquitted, convicted or found guilty of an offence under section 83AE or 83AF. S. 83ADA inserted by No. 32/2013 s. 48. 83ADA Contravention of fine conversion order An offender who is subject to a fine conversion order must not contravene that order unless the offender has a reasonable excuse. S. 83ADB inserted by No. 32/2013 s. 48. 83ADB Contravention of fine default unpaid community work order An offender who is subject to a fine default unpaid community work order must not contravene that order unless the offender has a reasonable excuse. S. 83AE inserted by No. 65/2011 s. 43. 83AE Particular contraventions of directions of Secretary (1) An offender who is subject to a community correction order and who is attending at a place under a direction given by the Secretary in compliance with section 45(1)(f), must not leave that place unless— (a) the offender has first obtained the permission of the Secretary; or (b) the offender has a reasonable excuse. (2) An offender who is subject to a community correction order and who is required to attend at a place under a direction given by the Secretary in compliance with section 45(1)(f), must, unless the offender has a reasonable excuse, notify the Secretary if he or she is unable to attend as required— (a) at least 24 hours before the offender is due to attend the location if the offender has at least 24 hours notice of that inability; or (b) immediately on becoming unable to attend if the offender did not have at least 24 hours notice of his or her inability to attend at the location. (3) An offender who is subject to a community correction order and who is required to attend at a place under a direction given by the Secretary in compliance with section 45(1)(f), must attend at the place on the required day and time unless— (a) the offender has obtained the permission of the Secretary not to attend; or (b) the offender has a reasonable excuse. (4) An offender who is subject to a community correction order and who is required to attend at a place under a direction given by the Secretary in compliance with section 45(1)(f) must produce a medical certificate, as soon as is practicable, if the offender has not attended because of illness. (5) An offender who is subject to a community correction order who is required to attend at a community corrections centre under the order must not enter an unauthorised area of the community corrections centre without the permission of the Secretary. (6) In this section— ***unauthorised area*** means an area designated by the Secretary to be an unauthorised area. (7) A proceeding is not able to be brought against a person for an offence under this section in relation to conduct of that person in respect of which that person has been acquitted, convicted or found guilty of an offence under section 83AD or 83AF. S. 83AF inserted by No. 65/2011 s. 43. 83AF Offence to fail to obey a written direction of Secretary (1) An offender who is subject to a community correction order must not contravene a written direction of the Secretary that is given under section 46 unless that person has a reasonable excuse. (2) A proceeding is not able to be brought against a person for an offence under subsection (1) in relation to conduct of that person in respect of which that person has been acquitted, convicted or found guilty of an offence under section 83AD or 83AE. Pt 3C Div. 2 (Heading) substituted by No. 26/2012 s. 61. Division 2—Procedure for contravention offence S. 83AG inserted by No. 65/2011 s. 43, substituted by No. 26/2012 s. 62. 83AG Commencement of a proceeding S. 83AG(1) amended by No. 32/2013 ss 15, 49(1). (1) A proceeding for an offence under section 83AC, 83AD, 83ADA, 83ADB, 83AE or 83AF is commenced by filing a charge-sheet in the Magistrates' Court. (2) A charge-sheet must be filed under subsection (1) by— (b) a crown prosecutor within the meaning of the **Criminal Procedure Act 2009**; or S. 83AG(2)(c) amended by No. 32/2013 s. 34(1). (c) a member of staff of the Office of Public Prosecutions who is a lawyer; or S. 83AG(2)(d) amended by No. 37/2014 s. 10(Sch. item 151.3). (d) a police officer; or S. 83AG(2)(da) inserted by No. 32/2013 s. 34(2). (da) an informant in the proceeding for which the sentencing order was made that is the subject of the charge; or (e) a prescribed person; or (f) a member of a prescribed class of person; or (g) the Secretary— as the case requires. (3) Subject to this Act, a proceeding commenced under this Division is to be in accordance with the provisions of and regulations and rules made under— (a) the **Criminal Procedure Act 2009**; (b) the **Bail Act 1977**; (c) the **Magistrates' Court Act 1989**— with any necessary modifications, and in particular with the modification that a reference to a person accused of an offence or an accused person, is taken to be a reference to the offender. (4) In particular, without limiting subsection (3), section 12 of the **Criminal Procedure Act 2009** applies to a proceeding commenced under this section with the modification that a reference to section 6 is taken to be a reference to section 83AG of this Act. S. 83AH inserted by No. 65/2011 s. 43, substituted by No. 26/2012 s. 62. 83AH Time for commencing a proceeding S. 83AH(1) amended by Nos 32/2013 s. 16(1), 77/2013 s. 46(1). (1) A proceeding for an offence under section 83AC, 83AD, 83ADA or 83ADB must be commenced— (a) if the contravention is constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 6 months after the person is convicted or found guilty of the later offence, subject to subsection (2); or (b) if the contravention is not constituted by the offender committing another offence punishable by imprisonment while the order is in force, within 1 year after the order ceases to be in force. S. 83AH(2) amended by Nos 32/2013 s. 16(2), 77/2013 s. 46(2). (2) A proceeding for an offence under section 83AC, 83AD, 83ADA or 83ADB to which subsection (1)(a) applies must not be commenced more than 2 years after the order ceases to be in force. The time limit for the commencement of a proceeding for a summary offence under section 7 of the **Criminal Procedure Act 2009** applies to an offence against section 83AE or 83AF. S. 83AI inserted by No. 65/2011 s. 43, substituted by No. 26/2012 s. 62. 83AI Issue of summons or warrant to arrest S. 83AI(1) amended by No. 32/2013 ss 17(1), 49(2). (1) A summons issued for the purposes of a proceeding commenced under section 83AG for an offence under section 83AC, 83AD, 83ADA or 83ADB must direct the offender to attend to answer to the charge— (a) at the proper venue of the Magistrates' Court, if the order that is the subject of the offence was made by the Magistrates' Court; or (b) at the Supreme Court or the County Court, if the order that is the subject of the offence was made by either court. S. 83AI(2) amended by No. 32/2013 ss 17(2), 49(2). (2) A warrant to arrest issued for the purposes of a proceeding commenced under section 83AG for an offence under section 83AC, 83AD, 83ADA or 83ADB must— (a) be issued in accordance with Part 4 of the **Magistrates' Court Act 1989**; and (b) authorise the person to whom it is directed to bring the offender when arrested before a bail justice or the sentencing court to be dealt with according to law. S. 83AJ inserted by No. 65/2011 s. 43, substituted by No. 26/2012 s. 62. 83AJ Transfer of a proceeding S. 83AJ(1) amended by No. 32/2013 ss 18, 49(2). (1) If a proceeding is commenced under section 83AG for an offence under section 83AC, 83AD, 83ADA or 83ADB, and the Magistrates' Court did not make the order that is the subject of the offence, the Magistrates' Court must order that the proceeding be transferred to the appropriate venue of the sentencing court. (2) An order made under subsection (1) that transfers a proceeding takes effect— (a) if a summons has been issued under section 83AI(1) on the filing of the evidence of service of the summons in the sentencing court; or (b) if a warrant to arrest has been issued under section 83AI(2) on the execution of the warrant against the offender. (3) The Magistrates' Court under subsection (1) may be constituted by a proper officer of the court. (4) If a proceeding is transferred to the Supreme Court or the County Court under subsection (1) it may be heard and determined without a jury and in accordance with Chapter 3 of the **Criminal Procedure Act 2009** subject to any modifications as set out in the rules of the court. S. 83AK inserted by No. 65/2011 s. 43, substituted by No. 26/2012 s. 62. 83AK Issue of warrant to arrest on failure to comply with bail or summons If a proceeding is transferred under section 83AJ and an offender does not attend before the sentencing court— (a) in accordance with his or her undertaking of bail; or (b) in answer to a summons which has been served— the sentencing court may issue a warrant to arrest the offender. S. 83AL inserted by No. 65/2011 s. 43, substituted by No. 26/2012 s. 62. 83AL Process where offender before higher court, orders of that court S. 83AL(1) amended by No. 32/2013 ss 19(1), 49(2). (1) If in a proceeding before the Supreme Court or the County Court (the ***relevant sentencing court***)— (a) an offender is before the relevant sentencing court and is convicted or found guilty of the offence that is the subject of the proceeding; and S. 83AL(1)(b) amended by No. 32/2013 ss 19(1), 49(2). (b) the conviction or finding of guilt constitutes a contravention of an order (the ***original order***) under this Act applying to the offender, in respect of which a charge-sheet may be filed for an offence under section 83AC, 83AD, 83ADA or 83ADB; and (c) the original order was made by the relevant sentencing court— despite anything to the contrary in this Division, the proceeding for the offence under section 83AC, 83AD, 83ADA or 83ADB may be commenced by filing a charge-sheet in the relevant sentencing court. (2) If a charge-sheet is filed in the relevant sentencing court under subsection (1) it must be filed by— (b) a crown prosecutor within the meaning of the **Criminal Procedure Act 2009**; or S. 83AL(2)(c) amended by No. 32/2013 s. 35(1). (c) a member of staff of the Office of Public Prosecutions who is a lawyer; or S. 83AL(2)(d) amended by No. 37/2014 s. 10(Sch. item 151.3). (d) a police officer; or S. 83AL(2)(da) inserted by No. 32/2013 s. 35(2). (da) an informant in the proceeding for which the original order was made that is the subject of the charge; or (e) a prescribed person; or (f) a member of a prescribed class of person; or (g) the Secretary— as the case requires. S. 83AL(3) amended by No. 32/2013 ss 19(2), 49(2). (3) The relevant sentencing court may hear and determine the charge for the offence under section 83AC, 83AD, 83ADA or 83ADB without a jury and in accordance with Chapter 3 of the **Criminal Procedure Act 2009**, subject to any modifications as set out in the rules of the relevant sentencing court. S. 83AM inserted by No. 65/2011 s. 43, substituted by No. 26/2012 s. 62. 83AM Process where offender before higher court, orders of Magistrates' Court S. 83AM(1) amended by No. 32/2013 ss 20(1), 49(2). (1) If in a proceeding before the Supreme Court or the County Court (the ***relevant sentencing court***)— (a) an offender is before the relevant sentencing court and is convicted or found guilty of the offence that is the subject of the proceeding; and S. 83AM(1)(b) amended by No. 32/2013 ss 20(1), 49(2). (b) the conviction or finding of guilt constitutes a contravention of an order (the ***original order***) under this Act applying to the offender, in respect of which a charge-sheet may be filed for an offence under section 83AC, 83AD, 83ADA or 83ADB; and (c) the original order was made by the Magistrates' Court— despite anything to the contrary in this Division, the relevant sentencing court may proceed to hear and determine the proceeding for the offence under section 83AC, 83AD, 83ADA or 83ADB as if it were an unrelated summary offence within the meaning of section 243 of the **Criminal Procedure Act 2009**. S. 83AM(2) amended by No. 32/2013 ss 20(2), 49(2). (2) Section 243 of the **Criminal Procedure Act 2009** applies to the proceeding for the offence under section 83AC, 83AD, 83ADA or 83ADB— (a) subject to any modifications as set out in the rules of the relevant sentencing court; and (b) with any other necessary modifications. S. 83AN–83AQ inserted by No. 65/2011 s. 43, repealed by No. 26/2012 s. 62. S. 83AR inserted by No. 65/2011 s. 43, amended by 26/2012 s. 63, repealed by No. 32/2013 s. 21. S. 83AS inserted by No. 65/2011 s. 43. 83AS Powers of the court on finding of guilt for contravention of community correction order S. 83AS(1) amended by No. 48/2018 s. 81(1). (1) Subject to subsection (1A), if a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must— S. 83AS(1)(a) amended by No. 32/2013 s. 36. (a) vary the order in any manner set out in section 48M(2)(d), (e), (f), (g) or (h); 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 with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or (d) cancel the order and make no further order with respect to the offence with respect to which the order was originally made. S. 83AS(1A) inserted by No. 48/2018 s. 81(2). (1A) If an offence under section 83AD is constituted by a contravention of a mandatory treatment and monitoring order— (a) subsection (1)(d) does not apply; and (b) if the court varies the mandatory treatment and monitoring order, the order as varied must be as onerous as, or more onerous than, the order previously made; and (c) if the court cancels the mandatory treatment and monitoring order, the court may impose only— (i) a sentence of imprisonment; or (ii) a mandatory treatment and monitoring order that is as onerous as, or more onerous than, the order previously made; or (iii) an order under subparagraph (ii) in addition to a term of imprisonment in accordance with section 44; or (iv) a residential treatment order; or (v) a Court Secure Treatment Order. (2) A court, in determining how to deal with an offender under subsection (1), must take into account the extent to which the offender has complied with the order. (3) 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 (2). S. 83AS(4) inserted by No. 65/2011 s. 59. (4) If the court finds a person guilty of an offence under section 83AD in respect of a community correction order and the person has paid a bond under a bond condition of the community correction order— (a) if the court makes an order under subsection (1)(a) or (b), the court may order that all or a part of the bond is forfeited to the Crown; or (b) if the court makes an order under subsection (1)(c), the court must order that all or part of the bond is forfeited to the Crown. S. 83ASA inserted by No. 32/2013 s. 50 (as amended by No. 77/2013 s. 49). 83ASA Powers of court on finding of guilt for contravention of fines work order (1) Subject to this section, if a court finds a person guilty of an offence under section 83ADA or 83ADB in relation to a fines work order, (in addition to sentencing the offender for the offence) the court must— (a) if the circumstances set out in subsection (2) apply, make one or more of the orders set out in subsection (3); or (b) confirm the order or a part of the order; or (c) vary the order; or (d) cancel the order and 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; or (e) cancel the order and make no further order with respect to the offence or offences with respect to which the order was originally made. (2) Subsection (3) applies if the court is satisfied that— (a) the circumstances of the offender have materially altered since the fines work order was made and as a result the offender is unable to comply with the order; or (b) the circumstances of the offender were wrongly stated or were not accurately presented to the court before the fines work order was made. (3) The court may make one or more of the following orders— (a) discharge the outstanding fine or fines in full; or (b) discharge up to two thirds of the outstanding fine or fines; or (c) discharge up to two thirds of the outstanding fine or fines and order that the offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the remaining undischarged amount of the outstanding fine or fines is an equivalent amount; or (d) adjourn the further hearing of the matter for a period of up to 6 months. (4) If the court has made an order under subsection (3)(b) or (c), the court may make an order that the outstanding fines be paid by instalments or an order that the offender be allowed time to pay the outstanding fines. (5) Part 3B applies to an order under subsection (4) as if it were an instalment order or a time to pay order (as the case requires) made under that Part. (6) The court, in determining how to deal with an offender under subsection (1) or (2), must take into account the extent to which the offender has complied with the order. (7) If the court considers that the orders that it may make under subsection (1) or (3) are not adequate because— (a) of the nature of the offence; and (b) of the characteristics of the offender; and (c) the offender has intentionally refused 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. S. 83AT inserted by No. 65/2011 s. 43. 83AT Powers of the court on finding of guilt for contravention of order for release on adjournment (1) If in a proceeding for an offence under section 83AC, the court finds the person guilty of the offence the court must (in addition to sentencing the offender for the offence)— (a) deal with the order under section 78, as if an application had been made under that section; 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, deal with the offender for the offence 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 (d) make no further order with respect to the offence in respect of which the original order was made. (2) A court, in determining how to deal with an offender under subsection (1), must take into account the extent to which the offender has complied with the order. Pt 3C Div. 3 (Heading and ss 83AU–83AZ) inserted by No. 65/2011 s. 60. Division 3—Direction of certain conditions on failure to comply S. 83AU inserted by No. 65/2011 s. 60. 83AU Direction of unpaid community work condition on failure to comply (1) If an offender fails to comply, without reasonable excuse, with a community correction order that has an unpaid community work condition attached, the Secretary may direct the offender to perform up to a maximum of 16 hours of unpaid community work in a 12 month period in addition to that imposed by the court that made the order. (2) The Secretary must not give a direction under subsection (1) unless the Secretary is satisfied that— (a) the failure to comply with the order is sufficiently serious to give the direction; and (b) the failure to comply with the order is not sufficiently serious to file a charge for the offence under section 83AD; and (c) the unpaid community work condition has not been completed; and (d) the number of hours of unpaid community work that the offender is directed to perform by the Secretary together with the number of hours of unpaid community work that the offender has been ordered to perform by the court attaching the condition will not exceed the maximum number of hours permitted under section 48C(4). S. 83AV inserted by No. 65/2011 s. 60. 83AV Direction of curfew condition on failure to comply (1) If an offender fails to comply, without reasonable excuse, with a community correction order that has a curfew condition attached, the Secretary may direct that the specified hours of each day that the offender must remain at the place under the condition be increased by up to 2 hours or that the period that the condition applies to the order be increased by up to 14 days in addition to that imposed by the court that made the order. (2) The Secretary must not give a direction under subsection (1) unless the Secretary is satisfied that— (a) the failure to comply with the order is sufficiently serious to give the direction; and (b) the failure to comply with the order is not sufficiently serious to file a charge for the offence under section 83AD; and (c) the curfew condition has not expired; and (d) the number of hours of each day that the offender must remain at the place as directed by the Secretary together with the number of hours that the offender has been ordered to remain at the place by the court attaching the condition will not exceed the maximum number of hours permitted under section 48I(3); and S. 83AV(2)(e) amended by No. 77/2013 s. 50. (e) the period that the offender must remain at the place under the curfew condition as directed by the Secretary under subsection (1) will not exceed the maximum period under section 48I(3). S. 83AV(3) inserted by No. 32/2013 s. 26. (3) If the Secretary gives a direction under subsection (1) and the offender is subject to an electronic monitoring requirement attached to a curfew condition under section 48LA the Secretary must, if satisfied of the matters under subsection (4), direct that the period that applies to the requirement under section 48LA(5) or (6) is increased by the same period specified in the direction given under subsection (1). S. 83AV(4) inserted by No. 32/2013 s. 26. (4) The Secretary must not give a direction under subsection (3) unless the Secretary is satisfied that— (a) the electronic monitoring requirement that the offender is subject to under section 48LA has not expired; and (b) appropriate resources or facilities are available to enable the offender to be electronically monitored for the increased period; and (c) the offender is a suitable person to be electronically monitored for the increased period; and (d) the increased period that the offender is to be electronically monitored in respect of a curfew condition does not exceed the requirements of section 48I(3) for that condition. S. 83AW inserted by No. 65/2011 s. 60. 83AW Reasonable excuse for a failure to comply For the purposes of section 83AU or 83AV it is a reasonable excuse for an offender to fail to comply with a community correction order if— (a) there exists an application to vary the order under section 48N relating to or resulting from the failure to comply; or (b) the court varied the order under section 48M in relation to or as a result of the failure to comply. S. 83AX inserted by No. 65/2011 s. 60. 83AX Notice of direction to be given in writing S. 83AX(1) amended by No. 32/2013 s. 37(1). (1) The Secretary must serve on an offender, by ordinary service or personal service, notice in writing of a decision under section 83AU or 83AV. (2) In a notice under subsection (1) the Secretary must include his or her reasons for making the decision and the right of an offender to make an application for review on the merits of the Secretary's decision under section 83AY. (3) A decision of the Secretary under section 83AU or 83AV does not take effect until the notice is served under subsection (1) or any later date specified in the notice. S. 83AX(4) inserted by No. 32/2013 s. 37(2). ***ordinary service*** has the same meaning as in the **Criminal Procedure Act 2009**; ***personal service*** has the same meaning as in the **Criminal Procedure Act 2009**. S. 83AY inserted by No. 65/2011 s. 60. 83AY Review by the sentencing court (1) The court may review the decision of the Secretary on application by the offender. (2) If the Secretary has given a direction in terms of an unpaid community work condition or a curfew condition under section 83AU or 83AV, the offender may apply to the court that imposed the condition for a review on the merits of the Secretary's decision. (3) An application under subsection (2) must be made within 28 days after the day on which the decision was made. (4) The court may, on application of an offender, extend the period within which an application must be made under subsection (3). (5) A review under this section is a hearing de novo. S. 83AZ inserted by No. 65/2011 s. 60. 83AZ Powers of a sentencing court on review (1) In a review under section 83AY the court has the same powers and duties that the Secretary has to make the decision under this Division. (2) The Secretary must produce to the court the notice served on the offender in accordance with section 83AX. (3) In a review under section 83AY the court may, by order— (a) confirm the decision under review; or (b) vary the decision under review; or (c) revoke the decision under review. (4) A decision of a court on a review is taken to have effect from the time at which the court makes the decision, unless the court orders otherwise. Pt 3A (Heading) renumbered as Pt 3D (Heading) by No. 65/2011 s. 44. Pt 3A (Heading and ss 83B–83K) inserted by No. 65/2004 s. 3.