Summary Offences and Sentencing Amendment Act 2014: Exclusion and Alcohol Exclusion Orders, Study notes of Financial Management

Download Summary Offences and Sentencing Amendment Act 2014: Exclusion and Alcohol Exclusion Orders and more Study notes Financial Management in PDF only on Docsity! i Summary Offences and Sentencing Amendment Act 2014 No. of 2014 TABLE OF PROVISIONS Clause Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENTS TO THE SUMMARY OFFENCES ACT 1966 3 3 Direction to move on 3 4 New sections 6A and 6B inserted 4 6A Arrest of person found in contravention of direction to move on 4 6B Requirement to give name and address 5 5 New Division 1B of Part I inserted 7 Division 1B—Exclusion orders 7 6C Definitions 7 6D Application for exclusion order 7 6E Determination of application 8 6F When exclusion order takes effect 10 6G Offence to contravene exclusion order 11 6H Variation of exclusion order 11 6I Revocation of exclusion order 12 6J Chief Commissioner to report on exclusion orders 14 6 Transitional provision 15 PART 3—AMENDMENTS TO THE SENTENCING ACT 1991 16 7 New Division 4 of Part 4 inserted 16 Division 4—Alcohol exclusion orders 16 89DC Definitions 16 89DD Alcohol exclusion order 19 89DE When an alcohol exclusion order must be made 20 89DF Offences for contravening alcohol exclusion order 23 Clause Page ii 89DG Variation of alcohol exclusion order 24 89DH Chief Commissioner to report on alcohol exclusion orders 25 8 New section 151 inserted 27 151 Transitional provision—Summary Offences and Sentencing Amendment Act 2014 27 PART 4—REPEAL OF AMENDING ACT 28 9 Repeal of amending Act 28 ═══════════════ ENDNOTES 29 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 3 PART 2—AMENDMENTS TO THE SUMMARY OFFENCES ACT 1966 3 Direction to move on (1) In section 6(1)(c) of the Summary Offences Act 1966, for "safety." substitute "safety; or". (2) After section 6(1)(c) of the Summary Offences Act 1966 insert— "(d) the person has or persons have committed, within the last 12 hours, an offence in the public place; or (e) the conduct of the person or persons is causing a reasonable apprehension of violence in another person; or (f) the person is or persons are causing, or likely to cause, an undue obstruction to another person or persons or traffic; or (g) the person is or persons are present for the purpose of unlawfully procuring or supplying, or intending to unlawfully procure or supply, a drug of dependence within the meaning of section 4 of the Drugs, Poisons and Controlled Substances Act 1981; or (h) the person is or persons are impeding or attempting to impede another person from lawfully entering or leaving premises or part of premises.". (3) After section 6(1) of the Summary Offences Act 1966 insert— "(1A) For the purpose of subsection (1)(f), in considering whether an obstruction is undue, a member of the police force, or a protective services officer on duty at a designated place, must have regard to— See: Act No. 7405. Reprint No. 11 as at 27 April 2012 and amending Act Nos 27/2011, 5/2012, 26/2012, 27/2012, 32/2013 and 70/2013. LawToday: www.legislati on.vic.gov.au s. 3 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 4 (a) the duration of the obstruction; and (b) the conduct that is causing the obstruction.". (4) In section 6(2) of the Summary Offences Act 1966, after "orally" insert "and may apply to an individual person or a group of persons". (5) In section 6(5) of the Summary Offences Act 1966, for "This section does" substitute "Subject to subsection (6), subsections (1)(a) and (f) do". (6) After section 6(5) of the Summary Offences Act 1966 insert— "(6) Subsection (5) does not prevent a member of the police force or a protective services officer giving a direction under subsection (1)(b), (c), (d), (e), (g) or (h).". 4 New sections 6A and 6B inserted After section 6 of the Summary Offences Act 1966 insert— "6A Arrest of person found in contravention of direction to move on (1) Without limiting section 458 of the Crimes Act 1958, a member of the police force, or a protective services officer on duty at a designated place, may arrest a person without warrant if the member or officer reasonably believes that the person is committing or has committed an offence against section 6(4). (2) If a protective services officer arrests a person under subsection (1), the officer must hand the person into the custody of a member of the police force as soon as practicable after the person is arrested. s. 4 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 5 (3) A member of the police force who arrests a person under subsection (1), or into whose custody a person is handed under subsection (2), must not detain the person in custody unless the member reasonably believes that the detention is necessary— (a) to ensure the attendance of the arrested person before a court of competent jurisdiction; or (b) to preserve public order; or (c) to prevent the continuation or repetition of the offence; or (d) for the safety or welfare of members of the public or of the arrested person. (4) If it appears to a member of the police force that it is no longer necessary to detain a person who has been arrested under this section for a reason set out in subsection (3), the member must release that person from custody without bail or cause the person to be so released, whether or not a summons to answer to a charge has been issued against the person or a notice to appear has been served on the person in relation to the offence alleged. 6B Requirement to give name and address (1) A member of the police force who intends to give a person a direction to move on may request the person to state the person's name and address. (2) A member of the police force who makes a request under subsection (1) must inform the person of the member's intention to give the person a direction to move on. s. 4 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 8 (c) contain a description of the public place, or part of the public place, in respect of which the exclusion order is sought; and (d) state the grounds on which the exclusion order is sought; and (e) be accompanied by at least one affidavit that verifies the facts on which the application is based. (3) An application made under this section must be served on the respondent as soon as is practicable after the application is filed with the Court. 6E Determination of application (1) On an application under section 6D, the Court may make an exclusion order in respect of a person if the Court is satisfied on the balance of probabilities that in respect of the same public place, or part of the public place— (a) the person has been given a direction to move on— (i) 3 or more times within a period of 6 months; or (ii) 5 or more times within a period of 12 months; and (b) an exclusion order has not previously been made in respect of the person in relation to the conduct that formed the basis of the directions to move on referred to in paragraph (a); and s. 5 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 9 (c) an exclusion order may be a reasonable means of preventing the person from engaging in further conduct in the public place, or part of the public place, that could form the basis for another direction to move on. (2) In determining whether an exclusion order may be reasonable under subsection (1)(c), the Court may take into account the following— (a) the nature and gravity of the person's conduct that formed the basis for any of the previous directions to move on; (b) whether the person has previously been the subject of an exclusion order under this Division; (c) the likely impact of the exclusion order on— (i) the person; and (ii) any other person affected by the conduct that formed the basis of any of the previous directions to move on; and (iii) public safety and order; (d) any other matter that the Court considers relevant. (3) An exclusion order must state— (a) the name of the person to whom the order applies; and (b) the ground on which the order has been made; and (c) a description of the public place, or part of the public place, which the person must not enter; and s. 5 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 10 (d) when the exclusion order takes effect in accordance with section 6F; and (e) a period not exceeding 12 months during which the person must not enter the public place or part of the public place; and (f) the conditions, if any, imposed under subsection (5). (4) Subject to subsection (5), an exclusion order prohibits a person from entering or remaining in a public place, or part of a public place, at all times during the period of the order. (5) An exclusion order may allow the person to enter a public place, or part of a public place, for a specified purpose during the period of the order if— (a) the Court considers that there is a good reason why the person should be allowed to enter the place; and (b) the Court considers that it is appropriate in all the circumstances. 6F When exclusion order takes effect An exclusion order takes effect— (a) if the person to whom the order applies is present at court when the order is made—from the time at which the order is made; or (b) if the person to whom the order applies is not present at court when the order is made—7 days after the day on which a copy of the order is served on the person. s. 5 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 13 (a) new facts or circumstances have arisen since the making or last variation of the order; and (b) the exclusion order is no longer a reasonable means of preventing the person to whom the order applies from engaging in conduct in the public place, or part of the public place, that could form the basis for a direction to move on. (3) In determining whether an exclusion order is no longer reasonable under subsection (2)(b), the Court may take into account— (a) the nature and gravity of the conduct that resulted in the directions to move on that formed the basis of the exclusion order; and (b) whether the person to whom the exclusion order applies has previously been the subject of an exclusion order under this Division; and (c) the likely impact of the revocation of the exclusion order on— (i) the person to whom the exclusion order applies; and (ii) any other person affected by the conduct that resulted in the directions to move on that formed the basis of the exclusion order; and (iii) public safety and order; and (d) any other matter that the Court considers relevant. s. 5 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 14 6J Chief Commissioner to report on exclusion orders The Chief Commissioner of Police must provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a report containing— (a) the number of applications made for exclusion orders during that financial year; and (b) the number of applications for exclusion orders that were withdrawn during that year; and (c) the number of applications for exclusion orders that were dismissed during that year; and (d) the number of exclusion orders made during that year; and (e) the number of persons charged with an offence against section 6G during that year; and (f) the number of persons found guilty of an offence against section 6G in that year; and (g) the number of contraventions of an exclusion order that were recorded by members of the police force during that year in respect of which no charge- sheet was filed.". s. 5 Part 2—Amendments to the Summary Offences Act 1966 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 15 6 Transitional provision After section 62(8) of the Summary Offences Act 1966 insert— "(9) This Act, as amended by section 5 of the Summary Offences and Sentencing Amendment Act 2014, applies in respect of a direction given under section 6 on or after the commencement of that Act.". __________________ s. 6 Part 3—Amendments to the Sentencing Act 1991 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 18 (xiv) section 31A(1) (Use of firearms in the commission of offences); (xv) section 38(1) (Rape); (xvi) section 38A(1) (Compelling sexual penetration); (xvii) section 39(1) (Indecent assault); (xviii) section 40(1) (Assault with intent to rape); (xix) section 45(1) (Sexual penetration of a child under age of 16); (xx) section 47(1) (Indecent act with child under age of 16); (xxi) section 48(1) (Sexual penetration of 16 or 17 year old child); (xxii) section 49(1) (Indecent act with 16 or 17 year old child); (xxiii) section 53(1) (Administration of drugs etc. with intention to perform act of sexual penetration); (xxiv) section 53(2) (Administration of drugs etc. with intention to perform indecent act); (xxv) section 57(1) (Procuring sexual penetration by threats); (xxvi) section 57(2) (Procuring sexual penetration by fraud); s. 7 Part 3—Amendments to the Sentencing Act 1991 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 19 (xxvii) section 58(1) (Procuring child to take part in an act of sexual penetration); (xxviii) section 58(2) (Procuring person to take part in an act of sexual penetration of a child); (xxix) section 58(3) (Procuring person who is 16 or 17 and under their care to take part in an act of sexual penetration); (xxx) section 60A(1) (Sexual offence while armed with an offensive weapon); (xxxi) section 63A (Kidnapping); (xxxii) section 68(1) (Production of child pornography); (xxxiii) section 70AC (Sexual performance involving a minor). 89DD Alcohol exclusion order (1) If a person has been charged with a relevant offence, the Director of Public Prosecutions or a member of the police force may make an application for an alcohol exclusion order. (2) An application for an alcohol exclusion order under this section must be filed and served on the accused who is the subject of the application— (a) in the case of a proceeding listed for a summary hearing in the Magistrates' Court, before the first mention hearing, or later with the leave of the court; or s. 7 Part 3—Amendments to the Sentencing Act 1991 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 20 (b) in the case of a committal proceeding, before the committal mention hearing, or later with the leave of the court; or (c) in any other case, before the first directions hearing, or later with the leave of the court. (3) An application for an alcohol exclusion order may be withdrawn by the Director of Public Prosecutions or a member of the police force at any time before it is determined. (4) A court may also make an alcohol exclusion order in respect of an offender on the court's own motion if it is satisfied that the circumstances set out in section 89DE(1) apply to the offender. 89DE When an alcohol exclusion order must be made (1) A court must make an alcohol exclusion order in respect of an offender if— (a) the court records a conviction against the offender for a relevant offence; and (b) the court is satisfied on the balance of probabilities that— (i) at the time of the relevant offence the offender was intoxicated; and (ii) the offender's intoxication significantly contributed to the commission of the relevant offence; and (c) the offender is not, or has not been, the subject of a previous alcohol exclusion order in relation to the circumstances that gave rise to the relevant offence. s. 7 Part 3—Amendments to the Sentencing Act 1991 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 23 89DF Offences for contravening alcohol exclusion order (1) A person in respect of whom an alcohol exclusion order is in effect must not, in contravention of the order, enter, remain or attempt to enter or remain in any place that the person knows or is reckless as to whether the place is— (a) a licensed premises characterised as a nightclub, bar, restaurant, cafe, reception centre or function centre; or (b) the location of a major event; or (c) a bar area of any licensed premises to which paragraph (a) or (b) does not apply— knowing that the order is in effect, or being reckless as to whether the order is in effect. Penalty: Level 7 imprisonment. (2) A person in respect of whom an alcohol exclusion order is in effect must not, in contravention of the order, consume or attempt to consume liquor in any place that the person knows or is reckless as to whether the place is a licensed premises, knowing that the order is in effect, or being reckless as to whether the order is in effect. Penalty: Level 7 imprisonment. (3) It is not a contravention of subsection (1) if the conduct contravening the order was caused by circumstances beyond the control of the accused and the accused had taken reasonable precautions to avoid committing an offence against subsection (1). s. 7 Part 3—Amendments to the Sentencing Act 1991 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 24 (4) In proceedings for an offence against subsection (1) or (2), proof of the person the subject of the alcohol exclusion order being present in court when the order is made, or proof of service of the alcohol exclusion order on the person is admissible in evidence for the purpose of establishing that the person knows that an alcohol exclusion order is in effect and, in the absence of evidence to the contrary, is proof of that fact. 89DG Variation of alcohol exclusion order (1) Any of the following may apply for variation of an alcohol exclusion order— (a) the person to whom the order applies; (b) a member of the police force. (2) An application under subsection (1) must be made to the same court that made the alcohol exclusion order. (3) On an application under subsection (1), the court may vary an alcohol exclusion order, if the court— (a) is satisfied that new facts or circumstances have arisen since the making or last variation of the order that make it appropriate for the order to be varied; and (b) is satisfied that there is a good reason why the person to whom the order applies should, or should not, be allowed to enter specified licensed premises; and (c) considers that it is appropriate in all the circumstances to do so. s. 7 Part 3—Amendments to the Sentencing Act 1991 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 25 (4) If the court varies an exclusion order under this section, it may only make any of the following variations— (a) imposing a new exemption on an alcohol exclusion order; (b) varying or removing an existing exemption on an alcohol exclusion order. (5) The court must specify the date on which the alcohol exclusion order as varied takes effect. 89DH Chief Commissioner to report on alcohol exclusion orders (1) The Chief Commissioner of Police must provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a report containing— (a) the number of applications made for alcohol exclusion orders during that financial year; and (b) the number of applications for alcohol exclusion orders that were withdrawn during that year; and (c) the number of applications for alcohol exclusion orders that were dismissed during that year; and (d) the number of alcohol exclusion orders made during that year; and s. 7 Part 4—Repeal of Amending Act Summary Offences and Sentencing Amendment Act 2014 No. of 2014 28 PART 4—REPEAL OF AMENDING ACT 9 Repeal of amending Act This Act is repealed on the first anniversary of the day after the day on which all of its provisions have come into operation. Note The repeal of this amending Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 9 Summary Offences and Sentencing Amendment Act 2014 No. of 2014 29 ENDNOTES † Minister's second reading speech— Legislative Assembly: Legislative Council: The long title for the Bill for this Act was "A Bill for an Act to amend the Summary Offences Act 1966 and the Sentencing Act 1991 and for other purposes." By Authority. Government Printer for the State of Victoria. Endnotes